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Papua New Guinea Law Reports |
[1971-72] PNGLR 155
PAPUA NEW GUINEA
[SUPREME COURT OF
JUSTICE]
MOSES AIKABA AND OTHERS
V.
TAMI
Goroka & Port Moresby
Raine J
13-14 May 1971
31 May 1971
CRIMINAL LAW - Practice and procedure - Allocutus - Right to address on sentence after conviction - Effect of failure to give opportunity to address after conviction.
After a defendant has been convicted, failure to give the defendant or counsel for the defendant an opportunity to address the court on the question of sentence is a denial of natural justice and renders any sentence pronounced a nullity.
Ex parte Kelly; Re Teece (1966) 85 W.N. (N.S.W.) 151, and Ex parte Kent; Re Callaghan (1969) 90 W.N. (Pt. 1) (N.S.W.) 40 followed.
The following cases are referred to in the reported portion of the judgment:
R. v. Ferenc Gombos (1964), 49 Cr. App. R. 59; R. v. Rear (1964), 49 Cr. App. R. 192; Ex parte Kelly; Re Teece (1966), 85 W.N. (Pt. 1) (N.S.W.) 151; Ex parte Kent; Re Callaghan (1969) 90 W.N. (Pt. 1) (N.S.W.) 40; Davies v. Griffiths, [1937] 2 All E.R. 671.
Appeal.
The following statement of facts is taken from the judgment of Raine J.
The abovenamed appellants pleaded guilty, with the exception of the last-named, Forapi, to charges of behaving in a riotous manner at Lufa last year. Forapi pleaded not guilty, but was convicted. Barakome and Kusurai were sentenced to three months and the other three appellants to four months in hard labour.
There were three grounds of appeal in the notice of appeal filed, namely:
1. &##160; ـ The; The plea of guilty was wrongly enten respect of the appellants: Moses Aikaba; aba; Barakome Inagi; Napanehah Apiee; and Kusurai Wauire.
The convictions were wrong in law in that:
2. ¦t The acts done by each of the appellants, Moses Aikaba; BaraInagianehaee; Kusurai urai Wauire; and Forapi Mapi Manureinurei did not constitute an offence under s. 30(e) of the Police Offences Ordinance of the Territory of New Guinea.
3. ¦t The sentences were manifestly excessive.
Ath grwas also argued that noat no R “al20;allocutus” was administered by the learned magistrate, and so that there can be no misapprehension I have amended the notice of appeal in manuscript by adding:
4. &##160; ـ All; Allocutus not administered to the appellants.
The chargose o t of what might be describscribed, to use a neutral phrase, as a “violent commotion” involving a large number of excited people. Twenty people were similarly charged, twelve in one information and eight in another. Eighteen in all are said to have pleaded guilty, and they include the abovenamed appellants excluding Forapi. Forapi and another man pleaded not guilty. As I have said, Forapi was convicted, but the other man was acquitted. Their cases were decided after separate hearings.
Counsel:
Neill, for the appellants.
Bradshaw, for the
respondent.
Cur. adv. vult.
31 May 1971
RAINE J: [His Hononr considered the first two grounds of appeal, and determined they failed. He continued:]
I wilI will deal with these two grounds together, and I think it would be useful to deal with the allocutus point first.
In England it has been held that the only purpose of the allocutus, the calling up of a man convicted or pleading guilty to a felony, is to give him an opportunity of moving in arrest of judgment on a point of law. See R. v. Ferenc Gombos[clxxxvii]1 and R. v. Rear[clxxxviii]2. In both these appeals, and in an unted appeal peal referred to in Rear’s case[clxxxix]3 counsel had made pleas in mitigation, and despite what the three courts had to say about the tole of the allocutus, I am I am left with the feeling that in the exercise of their discretion Their Lordships might well have taken some other course had the appellants been unrepresented on sentence or had counsel not addressed in mitigation. Needless to say, as a matter of commonsense, there should be an opportunity given to a prisoner, and/or his counsel, to be heard on sentence. As far as I know it is the invariable practice of this Court to put the allocutus and then to call upon counsel to address. Speaking for myself I think the practice is highly desirable.
However, the allocutus, “strictu senso”, is only put in a trial, in other words, not in courts of summary jurisdiction.
But in the district court, and for that matter, in the local court, it is imperative that counsel or, where there is no representation, the defendant, should always be invited to address on the question of sentence.
The Court of Appeal in New South Wales has held in two cases that the failure
to give counsel for the defendant an opportunity to
be heard on the question of
sentence is a denial of natural justice and renders the sentence pronounced a
nullity. Ex parte Kelly; Re
Teece[cxc]4 and Ete arte Kent; re
Callaghan[cxci]. With respect, I entirely
agree with this this statement of the law by the Court of Appeal, and with the
reasons advanced in
support thereof. In Ex parte Kelly; Re
Teece[cxcii]6 the Coaid: “We are also of the view that the learned magistrate fell into errorailing to g to give counsel for the defendant an opportunity
to be heard upon
sentence. We consider that thereby there was at that stage a denial of natural
justice to the defendant. It is true
that there is no section of the Justices
Act which specifically gives to a defendant the opportunity to be heard upon
sentence, but we are led to the firm conclusion that such
an opportunity should
be given and that if it is not so given then there is a denial of natural
justice. It is fundamental to the
system of criminal trial that it proceed in
two stages, the first up to the stage of determination of guilt and the second
after
that determination and up to sentence. It is not practicable to have an
account of matters going to sentence, and it is therefore
impracticable to
address on sentence, until the first stage has been concluded. Section 80 of the
Justices Act provides: ‘After hearing what each party has to say and the witnesses and the
evidence adduced, the said Justice or Justices shall consider
and determine the
whole matter, and convict or make an order upon the defendant or dismiss the
information or complaint, as the case
may require.’ This section is important in laying down the procedure before justices but it
must be read in the light of the fundamental requirement
of our criminal law
that the two stages of the criminal trial be dealt with separately. It follows
that the procedures of s. 80 must
be gone through twice where the court is
dealing first with conviction and then with sentence. The proper procedure for
justices
is stated in Davies v.
Griffiths[cxciii]7, to be that they
should announce the decision to convict before inquiring of the previous
convictions and, that being so, the defendant
or his counsel should have the
further opportunity of addressing.” It will be seen that s. 80 of the Justices Act (N.S.W.) is in similar
terms to s. 135(2) of the District Courts Ordinance. Mr. Bradshaw, who appears for the respondent, has rather suggested to me that
I should take a very broad view of what occurs in hearings
before the District
Courts and Local Courts in the Territory. As I understand him, he suggests that
with native defendants the situation
often arises where a defendant, on being
charged, and on being asked how he pleads, launches into a rather garbled
statement and
mentions matters that often go to sentence rather than to the
question of how he pleads to the charge. I can imagine that this sort
of
situation often arises and I have seen it arise in my own Court. If Mr. Bradshaw
suggests that the plea of guilty or not guilty,
the hearing prior to conviction
and address in mitigation, should be allowed to be rolled up, let me say
categorically that such
a procedure is not permissible. As the Court of Appeal
said above, the trial must proceed in two stages and each stage is separate
from
the other. I can well appreciate that when being asked what plea he makes, a
confused and anxious native defendant might well
start talking about mitigating
circumstances. I see no difficulty in the magistrate immediately pulling him up
and telling him that
at that stage in the trial the Bench is only interested in
whether or not he committed the offence that has been explained to him.
Even if
the defendant insists on putting in the mitigating aspects ab initio the
magistrate should, on conviction, still invite the
defendant, or his counsel, to
address on the question of sentence. Failure to do this will make the sentence a
nullity. In the present appeals quite careful depositions were taken. At first glance,
and bearing in mind the evidence of Inspector McGrath,
I thought that the
appellants were given an opportunity to address the magistrate on the question
of sentence. However, having read
and re-read the evidence of Inspector McGrath
and carefully examined the two sets of depositions it appears to me that the
sequence
in each case was as follows: (I) &; The defes ants were asked what language
they sand aropriate interpreter was providedvided. In . In fact an interpreter
was only needed in Information No. 52/70 and in the case of Information No.
50/70 the proceedings were conducted in the pidgin language. (II) &; The; The charge was read over and explained. (III) The defes were asked to d to plead. (IV) & Mar; in t in the of oformaand Ford Forapi iapi in then the
other each pleaded not guilty and thainine defendantndants pleaded
guilty. (V) The trials of Mark and Forapi proceeded
separately, but in resen the dantshad pleaded gded guiltyuilty, whi, which
gach
gave
the latter some idea of what was going on. (VI) & Mar; Mark’s trial concluded and he was acquitted. (VII);e prosecutor then then read out the statemeatement of facts
referring to the defendants by number, and I note that no. 10,
Barakome, was
omitted. (It will be noted that Inspector McGrath recollected that the statement
of facts preceded the actual pleas
of guilty. However, this does not appear to
be the fact, for the depositions are apparently in the correct order.) (VIII) However, the magistrate apparently regarded it as necessary to
have the statement of facts read to the accused before he accepted
their pleas,
because after the statement of facts this appears: “Finding . . . the
Court finds each and every one of the defendants
guilty as charged.” (IX) ـ The; The record then proceeds “Decision . . . the
defen are each and severally found guilty as chas charged. Defendants
are
sentenced as follows:” (X) In the case of Information No. 52/70 the same
procedure wasowed the wherlike Mark, Fok, Forapi rapi was cwas conviconvicted.
The deposition then proceeds as follows: “Each defendant is asked whether or not he has anything to say to the
Court. “Butu elects to state: ‘I heard Ferapi calling out that the boy
had been hurt so I came down in answer to his call. I
went down and joined in
the fight. Then I went back to the house. That’s all.’ “Each other defendant, numbers 2 to 7, state that they have nothing to
add to what defendant Butu has said.” Then follows the Statement of Facts and at the end of the Statement of Facts
the following appears in the deposition: “The Statement
of Facts was read
over and interpreted to the defendants who each and severally admitted to have
taken part in the fight.”
This leads me to believe, and I am supported in
this by the evidence of Inspector McGrath that although earlier Forapi had been
convicted
and although the depositions indicated “he is therefore equally
guilty of the offence”, the magistrate still had not
accepted a plea of
guilty from those other than Forapi and in view of his procedure in hearing the
other information I do not think
that when he asked the defendants whether they
had anything to say to the Court that he was directing his mind to the question
of
sentence. Indeed, Butu, the only one to make a statement, whilst admittedly
saying things that might be taken into account on the
question of sentence,
really raised an exculpatory matter that went to the question of conviction. The final step was that the depositions stated “Decision . . .
defendants having been each and severally convicted as charged
are sentenced as
follows:” I appreciate that the use of the words “having been . . .
convicted” rather conflicts with the conclusions I have already
drawn, but
it may well be that the depositions did not truly reflect the actual words
used. I therefore believe that the evidence of Inspector McGrath together with what
I can spell out of the Court records indicates that
the appellants were only
invited to address the magistrate on the question of conviction and were not
given an opportunity to address
him on the question of sentence. CONCLUSION In these circumstances the sentences were nullities although the convictions
were valid and it appears to me quite senseless to send
the matter back to the
District Court as I have power to do under s. 236(1) (d) of the District
Courts Ordinance. The reason I say this is that the appellants who were
sentenced to three months imprisonment were released on bail only a few days
before their sentences expired and those who were sentenced to four months
imprisonment were also released on bail and only have
a month and a few days to
serve. It seems clear to me that I have power under s. 236(1) (c) to “make
a(n) . . . order . . . which ought . . . to have been made
by (the) District
Court” or that I can “exercise a power which have exercised”
under sub-s. (1)(e) of the same
section. the Court which made the conviction,
order or adjudication might Under these circumstances, being satisfied within the meaning of s. 236(2)
that a substantial miscarriage of justice has occurred
I allow the appeals and
in the case of Barakome and Kusurai I sentence the appellants to eight weeks
imprisonment with hard labour
and in the case of Moses, Napanehah and Forapi, I
sentence the appellants to ten weeks imprisonment with hard labour. Appeals allowed. Sentences accordingly. Solicitor for the appellants: W. A. Lalor, Public
Solicitor. [clxxxvii] (1964) 49 Cr. App. R.
59.
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Solicitor for the respondent: P. J. Clay, Crown
Solicitor.
[clxxxviii] (1964) 49 Cr. App. R.
192.
[clxxxix](1964) 49 Cr. App. R., at pp. 196,
197.
[cxc](1966) 85 W.N. (Pt. 1) (N.S.W.)
151.
[cxci](1969) 90 W.N. (Pt. 1) (N.S.W.)
40.
[cxcii](1966) 85 W.N. (Pt.1) (N.S.W.), at
pp. 156, 157.
[cxciii] [1937] 2 All ER. 671, at
p. 673.
URL: http://www.paclii.org/pg/cases/PNGLR/1971/155.html