In The Matter of an Application by Benetius Gehasa Buka (2005) N2817

• Jurisdiction: Papua New Guinea
• Citation: (2005) N2817
• Date: 23 March 2005
• Docket Number: CR No 1236 of 2001
• Court: National Court
• Year: 2005

Full Title: CR No 1236 of 2001; In The Matter of an Application by Benetius Gehasa Buka (2005) N2817

National Court: Cannings J

Judgment Delivered: 23 March 2005

1 Constitutional law—basic rights—application for enforcement of basic rights—man detained on criminal charge of wilful murder for 47 months without trial—trial not commenced within 43 months after date on which he was committed for trial—file lost—allegation that he is suffering from psychiatric problem—State requested more time to reconstruct file and prepare case for prosecution—Constitution, s57—enforcement of guaranteed rights and freedoms—Constitution, s37(1)—right to the full protection of the law—Constitution, s37(3)—right to be afforded a fair hearing within a reasonable time by an independent and impartial court—Constitution, s37(4)(b)—right to be informed promptly in a language he understands and in detail of the nature of the offence with which he is charged—Constitution, s42—right not to be deprived of personal liberty except as permitted by law—whether constitutional rights breached—finding that a number of rights had been breached—detention for an unreasonable length of time—orders made under Constitution, s42(5), s57(1) and s57(3)—applicant to be released from custody, subject to conditions.

2 Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212, Constitutional Reference No 1 of 1977 [1977] PNGLR 362, John Alex v Martin Golu [1983] PNGLR 117, Pius Nui v Senior Sergeant Mas Tanda & Others (2004) N2765, Re Complaint of Jacob Hendrich Prai and Otto Ondowame [1979] PNGLR 42, Re Kaka Ruk [1991] PNGLR 105, Re Kopa Kaipia (1989) N709(M), Re Moki Nikints [1988–89] PNGLR 164, Re Ricky Yanepa [1988–89] PNGLR 166, Re Theresa Maip [1991] PNGLR 80, Re Wagi Non [1991] PNGLR 84, Re Yamson Vamble (1989) N743, Rimbink Pato v Anthony Manjin [1999] PNGLR 6, Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532, Supreme Court Reference No 5 of 1987; The State v Songke Mai and Gai Avi [1988] PNGLR 56, The State v Bafe Quati and Others [1990] PNGLR 57, The State v Jeffery Balakau (1996) N1528, The State v Peter Kakam Borarae and Others [1984] PNGLR 99, The State v Peter Painke [1976] PNGLR 210, Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87

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Ruling on Application

Cannings J:

Introduction

This is a ruling on an application for enforcement of constitutional rights by a man who has been detained for almost four years without trial. He is seeking an order that he be released from custody.

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

This matter came to light during the National Court circuit in Buka earlier this month. I was informed when a callover of criminal cases was conducted on 8 March 2005 that there was a problem with the case of Benetius Gehasa as his file had been lost. He had been in custody for four years. He is suffering from a psychiatric problem. He was charged with murder. More time was needed to request a psychiatric report.

I informed the lawyers concerned, the applicant's counsel, Mr Simingi, and the Senior State Prosecutor, Mr Rangan, that I needed more information on the case. I asked both of them to make further enquiries. Perhaps Mr Siminji could consider a bail application. Mr Rangan could find out whether there was serious objection to the applicant going back to his village. Further efforts needed to be made to find the file.

The matter was called for mention later in the circuit and on this occasion the applicant was present in court. I asked him some questions aimed at finding out a bit more about the background of his case. I also wanted to know whether he wished to be released from custody. He answered the questions lucidly. He said he might have a psychiatric problem that needed sorting out. But, yes, he would like to be released from custody. I asked the lawyers to again consider their positions.

A case like this should not be left in limbo. There is a danger that if it just adjourned to the next circuit, nothing will be done in the meantime. A different judge will probably arrive, with different lawyers perhaps, and the court will go through the same process again. It was important that some progress be made, I said.

It is in that context that the present application is made.

Facts

When the application was heard on 21 March 2005 the applicant's file had still not been located. The Public Prosecutor's office has no file. The Police have no file. The Public Solicitor's office has no file. Not even the National Court has a file. Despite that, or perhaps because of this unsatisfactory state of affairs, I was prepared to deal with the application in the absence of the documentation normally required.

I have determined the application based on a number of presumed or agreed facts. These are:

• on 1 April 2001 there was an incident in a village on Bougainville in which a person was killed;

• shortly afterwards, in April 2001, the applicant was arrested and charged with wilful murder and remanded in custody in Buka;

• on 9 August 2001 he was committed by the District Court for trial in the National Court;

• at some time after that the Buka courthouse was burned down and for that and various other reasons the National Court did not sit at Buka or anywhere else on Bougainville until December 2004;

• in 2003 he was transferred to the Kerevat correctional institution, East New Britain Province;

• at the end of 2004 he was returned to custody in Buka, where he has been detained in the police lock–up with about 50 other detainees;

• his matter was mentioned in the callover of criminal cases for Buka conducted by Sevua J in December 2004 and in the callover conducted by Lay J in February 2005, and on both occasions the matter was stood down to the next callover;

• he has been in custody for a continuous period of almost four years;

• there is no correctional institution operating on Bougainville at the moment, the previous one having been destroyed during the Bougainville conflict.

Submissions for the Applicant

Mr Siminji submitted that the applicant's constitutional rights had been breached in two respects:

• first, he had been denied a fair hearing within a reasonable time, as required by s37(3) of the Constitution;

• secondly, he has not been informed promptly and in detail of the nature of the offence with which he has been charged contrary to s37(4) of the Constitution.

Therefore the court has power to make orders under s57 of the Constitution for the enforcement of those rights. Mr Siminji referred to the decision of Batari AJ, as he then was, in The State v Jeffery Balakau (1996) N1528. In that case the accused applied to be discharged after being charged with various offences, on the ground that there had been an inordinate delay by the prosecution in getting the case ready for trial. It was argued that his right to a fair hearing within a reasonable time were breached. His Honour decided that there was an explanation for the delay and refused the application. However, he indicated that in an appropriate case such an application could be successful.

Mr Siminji emphasised that the applicant was not asserting that he has a right to be discharged. It is a matter for the exercise of discretion by the court. Here the facts of the case warrant the exercise of discretion in favour of the applicant. As to the allegation that he is of unsound mind, this could only properly be tested if there were a file. But there is no file. It is a mere allegation, not even put on paper. So it is unfair to hold that against the applicant. There are compelling reasons to enforce his rights.

Submissions for the State

Mr Rangan submitted that there were two explanations for the delay in bringing the matter to trial:

• first, the applicant's lawyers had indicated at the previous two callovers that they would arrange a psychiatric...