[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.       The plea of guilty was wrongly entered in respect of the appellants: Moses Aikaba; Barakome Inagi; Napanehah Apiee; and Kusurai Wauire.

The convictions were wrong in law in that:

2.       The acts done by each of the appellants, Moses Aikaba; Barakome Inagi; Napanehah Apiee; Kusurai Wauire; and Forapi Manurei did not constitute an offence under s. 30(e) of the Police Offences Ordinance of the Territory of New Guinea.

3.       The sentences were manifestly excessive.

A fourth ground was also argued that no “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.       Allocutus not administered to the appellants.

The charges arose out of what might be described, 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 Honour considered the first two grounds of appeal, and determined that they failed. He continued:]

I 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 unreported appeal 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 true role of the allocutus, 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 Ex parte Kent; re Callaghan[cxci]5. With respect, I entirely agree with 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 Court said:

“We are also of the view that the learned magistrate fell into error in failing 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 defendants were asked what language they spoke and an appropriate interpreter was provided. 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 charge was read over and explained.

(III)    The defendants were asked to plead.

(IV)    Mark in the case of one Information and Forapi in the other each pleaded not guilty and the remaining defendants pleaded guilty.

(V)     The trials of Mark and Forapi proceeded separately, but in the presence of the defendants who had pleaded guilty, which gave the latter some idea of what was going on.

(VI)    Mark’s trial concluded and he was acquitted.

(VII)   The prosecutor then read out the statement 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)    The record then proceeds “Decision . . . the defendants are each and severally found guilty as charged. Defendants are sentenced as follows:”

(X)     In the case of Information No. 52/70 the same procedure was followed up to the point where, unlike Mark, Forapi was convicted. 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.
Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[clxxxvii](1964) 49 Cr. App. R. 59.
[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.