Reference under s18(2) of the Constitution; The State v Songke Mai and Gai Avi [1988] PNGLR 56

• Jurisdiction: Papua New Guinea
• Judge: Los J:
• Judgment Date: 03 June 1988
• Citation: [1988] PNGLR 56
• Docket Number: Supreme Court Reference No 5 of 1987
• Court: Supreme Court
• Year: 1988
• Judgement Number: SC348

Full Title: Supreme Court Reference No 5 of 1987; Reference under s18(2) of the Constitution; The State v Songke Mai and Gai Avi [1988] PNGLR 56

Supreme Court: Kidu CJ, Kapi DCJ, Amet J, Los J, Cory J

Judgment Delivered: 3 June 1988

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 5 OF 1987 IN THE MATTER OF THE STATE

V

SONGKE MAI AND GAI AVI REFERENCE UNDER S 18 (2) OF THE CONSTITUTION

Waigani

Kidu CJ Kapi DCJ Amet Los Cory JJ

24 November 1987

3 June 1988

CRIMINAL LAW — Practice and procedure — "Arrest" — "Detain" — Constitutional rights of person arrested or detained — Person "arrested" to be informed of all rights under s 42 (2) — Person "detained" to be informed of rights under s 42 (2) (a) only — Person arrested to be allowed to exercise rights genuinely and without hindrance — Constitution, s 42. Infra at 58, 78.1

CONSTITUTIONAL LAW — Constitutional rights — Right to personal liberty — Application of rights to person "arrested" or "detained" — Person "arrested" to be permitted to exercise rights genuinely and without hindrance — Constitution, s 42. Infra at 58, 78.2

Held

For the purposes of interpreting and applying s 42 (2) Infra at 58, 78.3 of the Constitution:

(1) Both "arrest" and "detain" involve deprivation of a person's personal liberty as distinguished from a restriction on his freedom of movement.

(2) (By Kidu CJ, Kapi Dep CJ and Cory J) A person is "arrested" when he is deprived of his personal liberty pursuant to s 14 of the Arrest Act (Ch No 339).

(Per Amet J) A de facto arrest — by the seizure and touching of his person or by words in circumstances calculated to bring and which did bring to that person notice that he is under compulsion in respect of some criminal matter — may, in a particular case, amount to the requisite deprivation of personal liberty.

(3) A person is "detained" (in respect of non-criminal matters and in respect of criminal matters without being "arrested") when he is deprived of his personal liberty by an act of Parliament and that deprivation of his personal liberty is sanctioned by s 42 (1) (a) to (h).

(Per Los J) A person may be "detained" before a formal arrest or after as a consequence of the arrest: for the purpose of criminal justice administration detention must be affected in accordance with s 42 (1) (d) and subject to s 42 (3), (4) and (5).

(4) A police officer is obliged to inform a person who is "arrested" of all his rights guaranteed by s 42 (2).

(5) (By Kidu CJ, Kapi Dep CJ and Cory J) Semble a legislative provision which permitted police to "detain" a person short of "arresting him" would require a police officer to inform a person so "detained" of his rights under s 42 (2) (a) only.

(Per Amet J) As s 42 (1) permits police to detain a person short of arrest a police officer in such cases is obliged to inform a person so "detained" of his rights under s 42 (2) (a) only.

(Per Los J) Whether a person is arrested or detained he must be informed of all his rights under s 42 (2).

(6) When an accused person is asked in a record of interview whether or not he wishes to see a lawyer and the accused says "yes" the interviewing officer must then suspend the record of interview until genuine and practicable steps have been taken to comply with s 42 (1).

Cases Cited

Blake v Pope [1986] 1 WLR 1152; [1986] 3 All ER 185.

Brown, Michael Edward (1976) 64 Cr App R 231.

Clowser v Chaplin [1981] 1 WLR 837; [1981] 2 All ER 267.

Constitutional Reference No 1 of 1977 [1977] PNGLR 362.

Dallison v Caffery [1965] 1 QB 348.

Fox v Chief of Constable of Gwent [1985] 1 WLR 1126; [1985] 3 All ER 392.

Ireeuw, Application of [1985] PNGLR 430.

Maneka Gandhi v Union of India [1978] 2 SCR 621.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

Public Curator of Papua New Guinea v Public Trustee of New Zealand [1976] PNGLR 427.

State, The v Paro Wampa [1987] PNGLR 120.

State, The v Silih Sawi [1983] PNGLR 234.

SCR No 1 of 1986, Re Vagrancy Act [1988] PNGLR 1.

Williams v The Queen (1986) 161 CLR 278; 66 ALR 385.

Wiltshire v Barret [1966] 1 QB 312; [1965] 2 WLR 1195; [1965] 2 All ER 271.

Constitutional Reference

This was a reference by the National Court pursuant to s 18 (2) of the Constitution of questions relating to the interpretation and application of s 42 of the Constitution. The questions referred are set out at the beginning of the reasons for judgment of Kidu CJ hereunder.

Counsel

E Kariko, for the affirmative case.

C Russell, for the negative case.

Cur adv vult

3 June 1988

KIDU CJ: The National Court pursuant to s 18 (2) of the Constitution, referred the following questions to this Court for consideration:

1. Does a police officer have any obligation to inform a person detained, but not actually arrested, of his rights pursuant to s 42 (2) of the Constitution?

2. When is a person "arrested" and when is a person "detained"?

3. When an accused person is asked in a record of interview whether or not he wishes to see a lawyer and the accused says "yes" should the interviewing officer then suspend the record of interview or is he permitted to ask another question as follows, "Do you wish to see the lawyer now or after the record of interview"?

There is no doubt that these three questions involve the interpretation and application of s 42 (2) of the Constitution and are properly referred to this Court. They arose during a criminal trial before a Judge of the National Court. In the course of the trial the State sought to tender records of interview between the two accused and the police investigator (two separate records of interview). The basis of the objection was that the police investigator failed to inform the two accused (separately) of all the rights contained in s 42 (2) of the Constitution. This provision is as follows:

" (2) A person who is arrested or detained:

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest of his rights under this subsection." [My emphasis.]

The questions this Court has been requested to answer are in the context of a criminal trial although s 42 (2) by its very wording is not confined to criminal matters.

Section 42 guarantees every person in Papua New Guinea the right to personal liberty. Subsection (1) thereof is as follows:

"42. Liberty of the person

(1) No person shall be deprived of his personal liberty except:

(a) in consequence of his unfitness to plead to a criminal charge; or

(b) in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c) by reason of his failure to comply with the order of a court made to secure the fulfillment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d) upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e) for the purpose of bringing him before a court in execution of the order of a court; or

(f) for the purpose of preventing the introduction or spread of the disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g) for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h) in the case of a person who is, or is reasonably suspected of being of unsound mind:

(i) or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community, under an order of a court; or

(ii) for the purpose of taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i)."

[Semble, "or addicted to drugs or alcohol" was intended to form part of the introductory words to par (b).]

It is highly essential to emphasise the constitutional dictate contained in s 42 (1) — that a person's personal liberty is guaranteed and may not be taken away unless one of the exceptions therein allows it.

I also emphasise from the outset that the exceptions enumerated under s 42 (1) all relate to total deprivation of a person's personal liberty as distinct from temporary restriction of a person's freedom of movement. The word "deprive" is defined in the Shorter Oxford Dictionary as meaning "to divest, bereave,...