Cr No 26 of 2002, Cr No 1064 of 2004, Cr No 1071 of 2004 and Cr No 1077 of 2004 In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 March 2005
• Citation: (2005) N2819
• Court: National Court
• Year: 2005
• Judgement Number: N2819

Full Title: Cr No 26 of 2002, Cr No 1064 of 2004, Cr No 1071 of 2004 and Cr No 1077 of 2004 In The Matter of Applications by John Ritsi Kutetoa, George Taunde, Titus Soumi and Andrew Amid (2005) N2819

National Court: Cannings J

Judgment Delivered: 23 March 2005

N2819

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 26 0F 2002, CR NO 1064 OF 2004,

CR NO 1071 OF 2004 AND CR NO 1077 OF 2004

IN THE MATTER OF APPLICATIONS

BY JOHN RITSI KUTETOA, GEORGE TAUNDE,

TITUS SOUMI AND ANDREW AMID

BUKA : CANNINGS J

21, 23 MARCH 2005

RULING ON APPLICATION

Constitutional law – basic rights – application for enforcement of basic rights – applicants convicted in separate proceedings of various offences under Division IV.2A of the Criminal Code (sexual offences against children) – detained in Buka police lock-up, Bougainville – proposal that each prisoner be transferred to Kerevat correctional institution, East New Britain – applicants request to remain in Buka, close to relatives – Police Force and Correctional Service oppose request and intend to transfer prisoners to Kerevat as soon as practicable – Constitution, Section 57, enforcement of guaranteed rights and freedoms – Constitution, Section 37(1), right to the full protection of the law – Constitution, Section 37(20), right of offender not to be transferred to an area away from that in which his relatives reside except for reasons of security or other good cause – whether reasonable probability of infringement of constitutional rights – onus of proof – elements of the right – court entitled to determine whether elements present – meaning of “reasons of security” warranting transfer of offenders – meaning of “other good cause” – orders made under Constitution, Sections 57(1) and 57(3) – applicants not to be transferred for at least six months – comments on conditions at Buka police lock-up – recommendation made re need for proper correctional facility for Bougainville, as a matter of urgency – orders.

Cases cited

Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212

Application by Benetius Gehasa (2005) N2817

Constitutional Reference No 1 of 1977, Re Section 42 of the Constitution [1977] PNGLR 362

John Alex v Martin Golu [1983] PNGLR 117

Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532

The State v Andrew Amid CR 1077/2004, 23.02.05, unreported

The State v Bafe Quati and Others [1990] PNGLR 57

The State v George Taunde (2005) N2807

The State v John Ritsi Kutetoa (2005) N2814

The State v Titus Soumi (2005) N2809

Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87

L Siminji for the applicants

L Rangan for the State

CANNINGS J:

INTRODUCTION

This is a ruling on applications for enforcement of constitutional rights by four convicted prisoners who are seeking orders that they not be transferred away from the area in which their relatives reside. They are presently detained at the Buka police lock-up. The Police Force and the Correctional Service are making plans for their transfer to the Kerevat Gaol, East New Britain, and oppose these applications. The applicants argue that they have a right to be imprisoned close to where their relatives reside and that their forced transfer to Kerevat will breach that right.

The term ‘constitutional rights’ refers to the rights conferred on all citizens, and in some cases non-citizens, by Division III.3 (basic rights) of the Constitution of the Independent State of Papua New Guinea, which is referred to in this judgment as ‘the Constitution’ or ‘the National Constitution’, to distinguish it from the Constitution of the Autonomous Region of Bougainville or ‘the Bougainville Constitution’.

BACKGROUND

These matters came to light during an inspection I made of the police lock-up during the National Court circuit in Buka earlier this month. I inspected it using my powers as a Judge under Sections 144, 145 and 148 of the Correctional Service Act. The conditions under which about 50 detainees are being kept appears to breach many constitutional rights. The place is overcrowded and unhygienic. Despite the poor conditions, I was informed that the general consensus amongst the detainees, most of whom are Bougainvilleans, is that they do not want to be transferred to Kerevat or anywhere else. They want to stay close to their relatives. I told them that they should consult their lawyer, who could consider the possibility of making an application to the National Court to address this issue.

It is in that context that the present applications are made.

FACTS

The applicants are presently detained in the Buka police lock-up as there is no correctional institution operating on Bougainville, the previous one being destroyed during the Bougainville conflict.

The first applicant, John Ritsi Kutetoa, is a 42-year old married man, convicted in March 2005 by the National Court (Cannings J) of one count of engaging in an act of sexual penetration with a child under the age of 16 years, at a time when there was an existing relationship of trust, contrary to Section 229A(1) of the Criminal Code. The offence was committed at Hanahan, Buka Island, Bougainville, in April 2002. He was sentenced to 17 years imprisonment. (See The State v John Ritsi Kutetoa (2005) N2814.)

The second applicant, George Taunde, is a 34-year old married man, convicted in March 2005 by the National Court (Cannings J) of one count of engaging in an act of sexual penetration with a child under the age of 16 years, at a time when there was an existing relationship of trust, contrary to Section 229A(1) of the Criminal Code. The offence was committed at Hahon, West Coast, Bougainville, in March 2004. He was sentenced to 10 years imprisonment. (See The State v George Taunde (2005) N2807.)

The third applicant, Titus Soumi, is a 31-year old married man, convicted in March 2005 by the National Court (Cannings J) of two counts of engaging in an act of sexual penetration with a child under the age of 16 years, at a time when there was an existing relationship of trust, contrary to Section 229A(1) of the Criminal Code. The offences were committed at Barikua, Bougainville, in December 2003 and March 2004. He was sentenced to two years imprisonment. (See The State v Titus Soumi (2005) N2809.)

The fourth applicant, Andrew Amid, is a 38-year old married man, convicted in February 2005 by the National Court (Lay J) of two counts of sexual touching of a child between the ages of 16 and 18 years, with whom he had an existing relationship of trust, contrary to Section 229E(1) of the Criminal Code. The offences were committed at Malasang, Buka Island, Bougainville, in December 2003 and May 2004. He was sentenced to three years imprisonment. (See The State v Andrew Amid CR 1077/2004, 23.02.05, unreported.)

The first three applicants are ethnically Bougainvillean. The fourth applicant is ethnically Sepik. He is from the Lumi District of West Sepik Province. He is married to a Bougainvillean woman and has lived on Bougainville for 15 years.

It is useful to have regard to the definition of “Bougainvillean” in the Bougainville Constitution. Section 7(1) states:

A person –

(a) who is a member (whether by birth or by adoption according to custom by the clan lineage) of a Bougainvillean clan lineage (matrilineal or patrilineal) owing customary land in Bougainville; or

(b) who is married (whether by law or custom) to a person to whom Paragraph (a) applies; or

(c) who is a child one of whose parents is a Bougainvillean by virtue of Paragraph (a);

is a Bougainvillean.

The first, second and third applicants will be regarded as Bougainvilleans under Section 7(1)(a). The fourth applicant will be a Bougainvillean under Section 7(1)(b). These are observations to help set out the facts of this case, the most important of which is that many relatives of each of the applicants reside on Bougainville. That much was conceded by the State, which opposed the applications.

EVIDENCE CONSIDERED BY THE COURT

Mr Rangan, for the State, presented two witnesses. Carolyn Ipo is the Officer in Charge of the Criminal Investigations Division of the Police Force for Bougainville. She confirmed that Bougainville does not have a proper correctional institution. Nor does it have a functional rural lock-up. There was one operating at Hutjena but it was condemned by the health authorities two years ago. All remandees and prisoners are being housed in the police cells at Buka. New cells were built a year ago to house juvenile and female detainees. But they have since been occupied by the remandees and prisoners. Juveniles and females are being detained elsewhere. Females are kept at the female quarters at Hutjena police barracks. Juveniles are looked after by the Provincial Welfare Officer. There is an overcrowding problem at the police lock-up, which is not the right place to hold remandees or prisoners. There are no facilities for rehabilitation.

Victor Tousala is an officer of the Correctional Service based in Buka. He stated that the Correctional Service is aware of the desire of the prisoners to serve their sentences in Buka. But the best thing is that they be repatriated to Kerevat. There are no proper correctional facilities on Bougainville. The Buka police lock-up is overcrowded and this is creating a health problem. Once a...