In the matter of a Human Rights Application pursuant to Sections 57 and 37 of the Constitution; Danny Pirino v The State (2006) N3111

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 17 November 2006
• Citation: (2006) N3111
• Docket Number: MP 588 of 2006
• Court: National Court
• Year: 2006
• Judgement Number: N3111

Full Title: MP 588 of 2006; In the matter of a Human Rights Application pursuant to Sections 57 and 37 of the Constitution; Danny Pirino v The State (2006) N3111

National Court: Lay J

Judgment Delivered: 17 November 2006

N3111

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP 588 of 2006

In the matter of a Human Rights Application pursuant to Sections 57 and 37 of the Constitution

BETWEEN

DANNY PIRINO

Applicant

AND

THE STATE

Respondent

Kokopo: Lay J

2006: 17 November

Facts

The applicant was held in solitary confinement for a period of 90 days on a single order of the gaol commander. He was given 30 minutes a day for exercise.

Held

1. Solitary confinement of more than 28 days on a single order is unlawful. A gaol commander may make an initial order for separate confinement not exceeding 28 days. He may make a subsequent order not exceeding the same period. No further order can be made unless endorsed by a visiting magistrate. The applicant was unlawfully confined separately for 62 days.

2. It is unlawful to issue an order for separate confinement in terms of “until further order.”

3. All prisoners are entitled under CIS Regulations to 1 hour per day to be out in the fresh air. Confining that period to half an hour is a breach of the applicant’s rights to protection of the law.

4. The applicant should be compensated for the breach of his right to protection of the law. In lieu of monetary compensation on allowance will be made on sentence for the charge of escape.

Cases Cited:

Tom Amaiu v Commissioner for Correctional Institutions and the State [1983] PNGLR 87;

Bialla Police Lock Up N3022;

The State v Bafo Quati (1990) PNGLR 57.

Counsel:

P. Kaluwin, for the Applicant

L. Rangan, for the Respondent

17 November, 2006

1. LAY J.: The applicant has made an application under Section 57 of the Constitution for enforcement of his rights on the basis that he was unlawfully detained in solitary confinement and that as a consequence he was illegally detained, subject to inhuman treatment and subject to acts that were harsh and not reasonably justifiable.

2. The complaint was initially made orally to myself during arraignment of the applicant on a charge of escaping. I directed the Public Solicitor’s office to assist the applicant to bring his application formally before the Court.

3. An affidavit was filed by the applicant and sworn evidence was given by John Poname, the Lance Corporal in charge of records at Kerevat and Commander Matthew Bine, the OIC of Kerevat Correctional Institution.

4. The applicant was in lawful detention at Kerevat Correctional Facility serving sentences for escape and armed robbery, when he escaped on the 20 February 2003. He was recaptured on 21 September 2005 and on 29 September 2005, he was taken to Kerevat Correctional Facility and placed in the Main Detention Cell where he remained until 29 December 2005, a period of 90 days. On that day he was moved to a separate self-contained cell in the Maximum Security Unit. He was kept there until his release into the open dormitory cells on 13 March 2006. There was no examination or report by a medical officer in relation to either period of detention.

5. The Main Detention Cells at Kerevat are what is commonly known as "solitary confinement". There are two cells. Each cell houses one detainee. There is a solid steel door, the walls of concrete, there is an air vent in the ceiling and a window high up in the wall measuring approximately 30 cm x 20 cm which is both barred and covered by a heavy mesh grille on the inside. It would not be possible for a detainee to see through this window. The applicant estimates the size of the cell as 3 m x 2 m. There is nothing in the room, no bed, no toilet. A detainee is given a bucket to use as a toilet. When I inspected these cells they were vacant and clean.

6. The Maximum Security Unit at Kerevat is a concrete block building with a series of self-contained detention Cells with full length steel bar doors facing on to a corridor. There is a common area where detainees take their meals. Unlike the Main Detention Cells, detainees are not completely isolated from each other because they have sight, light and sound through the full-length steel bar doors to each cell in addition to the common sharing of mealtimes where they gather in a common area. Each cell is fitted with a bed and on the floor below the wall opposite the foot of the bed is a stainless steel Asian squat toilet. The applicant estimates the toilet to be 1 m from the bed. According to evidence from Mr. Poname this is a flush toilet which works. On subsequent inspection by myself the running water to the toilets had ceased to function, which has apparently been the case for some time. Prisoners were being provided with a bucket of water to each cell to flush the toilet. There was only one cell occupied at the time of my inspection. The cells were clean and well ventilated.

7. The initial order by which the applicant was detained in the Main Detention Cell was in the following standard printed form:

"ORDER FOR SEPARATE CONFINEMENT

Order No.: 21/05

I, Matthew Bine Gaol Commander of Kerevat Correctional Institution by virtue of the powers conferred on Section 108 (-Section 1-9) of the Correctional Services Act 1995, and All Other Powers Enabling Me

HEREBY DIRECT:

Detainee Danny Pirino Reg. No. 28951 of Kerevat Correctional Institution Being a Detainee Held under Warrant be separated by this separation order.

· for the good of the detainees.

· for the good of other detainees at the correctional gaol, and there to remain until otherwise ordered.

Dated at Kerevat This 29th Day of September 2005."

8. Two other documents produced to the court were two copies of a form the first of which reads:

Correctional Services Act 1995

ORDER FOR RELEASE FROM SEPARATE CONFINEMENT (Review)

No......

I, Matthew Bine Gaol Command of Kerevat Correctional Institution, by virtue of the powers conferred by-Section (7) of Correctional Services Act No. 108 of 1995 and all other powers me enabling,

HEREBY DIRECT

the duty officer

at the

Correctional Institution, that detainee Danny Pirino

being a detainee held under Warrant, and who

by Order No. 21/05

dated 29th day of September 2005

was confined to Detention Cell at Kerevat Correctional Institution be released from detention cell.

? Prisoner (s) has completed his (3) months detention period.

? Prisoner (s) term of detention be extended for another (3) months period on the 29th of December 2005.

? Prisoner (s) will remain in the Compound for further assessment before released to the field duties.

Dated at Kerevat Correctional Institution this 29th of December 2005."

9. It was by that document that the applicant was moved, after 3 months, from the Main Detention Cells to the Maximum Security Unit. And the second similar order, which affected the applicant’s release back into the general population of the prison, was in the following terms:

ORDER FOR RELEASE FROM SEPARATE CONFINEMENT

I, Matthew Bine, Gaol Commander of Kerevat Correctional Institution, by virtue of the powers conferred by Sub -Section (7) of Correctional Services Act. No. 108 of 1995 and all other powers me enabling,

HEREBY DIRECT

the Duty Officer

at the

Correctional Institution, that detainee Danny Pirino

being a detainee held under warrant, and who

by Order No. 21/05

dated 29th day of September 2005

was confined to Detention Cell at Kerevat Correctional Institution be released from detention cell.

? Prisoner (s) has completed his (3) months detention period.

? Prisoner (s) term of detention be extended for another (3) ) months period.

? Prisoner (s) will remain in the Compound for further assessment before released to the field duties.

Dated at Kerevat Correctional Institution this 13th day of March 2006."

10. All of these forms are the internal administrative documents for the Correctional Service and are not issued pursuant to the Correctional Services Act or Regulations.

11. Mr. Bine, the Commanding Officer of Kerevat CIS gave evidence that the applicant was given 30 minutes exercise per day. He said that he was entitled under his own authority to make two orders for confinement, the third has to be signed by a Visiting Magistrate. He exercises delegated power from the Commissioner pursuant to Section 66(2). No reports are forwarded to the Commissioner, the records are kept on file. He explained that in terms of the Correctional Services Act the Main Detention Cell is "separate confinement" and the Maximum Security Unit is "confinement in a separate section".

THE LAW

12. The Constitution s.57 provides that the rights conferred by Division 3 of the Constitution may be enforced by action in the Supreme or National Court.

13. Section 37(1) (protection of the law) of Division 3 provides:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody charged with offences.

14. The Correctional Services Act makes the following provisions relating to solitary confinement and separate confinement of detainees:

108. Separation of one detainee from other detainees.

(1) In addition to Section 107(2) and subject to Subsection (2), the Commissioner or...