Herman Joseph Leahy v Pondros Kaluwin

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 07 November 2014
• Citation: (2014) N5813
• Court: National Court
• Year: 2014
• Judgement Number: N5813

Full : OS (HR) NO 103 0F 2014; Herman Joseph Leahy v Pondros Kaluwin, in his capacity as Public Prosecutor, Office of The Public Prosecutor and The Independent State of Papua New Guinea (2014) N5813

National Court: Cannings J

Judgment Delivered: 7 November 2014

N5813

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 103 0F 2014

HERMAN JOSEPH LEAHY

Plaintiff

V

PONDROS KALUWIN, IN HIS CAPACITY AS PUBLIC PROSECUTOR,

OFFICE OF THE PUBLIC PROSECUTOR

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

Waigani: Cannings J

2014: 20, 21 October, 7 November

HUMAN RIGHTS – right to a fair hearing within a reasonable time by an independent and impartial court – Constitution, Section 37(3) – remedies for breach – Constitution, Section 57.

CONSTITUTIONAL LAW – constitutional office-holders – role and functions of Public Prosecutor – independence – not immune from direction and control by a court – Constitution, Sections 176, 177 – obligation of Public Prosecutor to comply with Constitution, Section 37(3) – duty to afford accused persons the full protection of the law.

In 2003 the Police charged the plaintiff with conspiracy and misappropriation offences, allegedly committed in 1998 to 2000. In 2004 the District Court refused to commit him for trial but in 2005 the Public Prosecutor presented an ex officio indictment against him. By 2014 he had not been brought to trial on that indictment. He applied for enforcement of his rights under Section 37(3) of the Constitution to be afforded a fair hearing within a reasonable time by an independent and impartial court. He claimed that the Public Prosecutor’s inordinate delay in prosecuting the case amounted to a breach of his rights to be tried within a reasonable time and to be given a fair hearing (which he claimed is now impossible given that the alleged offences were committed 15 years ago and in the interim period many witnesses had died or left the country). He sought orders permanently staying the ex officio indictment and/or discharging him from the indictment, and damages. The defendants opposed all relief sought, arguing that the Public Prosecutor had not breached the plaintiff’s human rights as the delay in bringing him to trial was caused by the plaintiff himself who has on three separate occasions applied unsuccessfully to the Supreme Court for review of decisions of the National Court concerning his prosecution, thereby portraying his litigious propensity and engaging in conduct tantamount to an abuse of process; further that a fair trial is not impossible. If, however, the Court finds that a breach of rights has occurred, it should exercise its discretion against granting a permanent stay of prosecution as to do so would amount to an unwarranted interference in the independence of the Public Prosecutor and be contrary to the principle that the Court should only interrupt the work of investigatory, especially constitutional, institutions in exceptional circumstances such as where criminal charges are incontestably bad or utterly misconceived; and no such circumstances existed here.

Held:

(1) In determining any application for enforcement of human rights, it is useful to apply a two-step decision-making process. First, has any right of the plaintiff actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If no, the court should not intervene. If yes, the court needs to consider whether it should grant the remedy sought or make some other order for enforcement of the right.

(2) All persons in Papua New Guinea are entitled under Section 37(1) of the Constitution to the full protection of the law and that right must be fully available, especially to persons charged with offences.

(3) Under Section 37(3) of the Constitution a person charged with an offence must be afforded:

· a fair hearing;

· within a reasonable time;

· by an independent and impartial court (Application by Benetius Gehasa (2005) N2817, Application by John Ritsi Kutetoa (2005) N2819).

(4) The “reasonable time” requirement imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution’s case must be completed within a reasonable time (Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033).

(5) What is a “reasonable time” will vary from case to case. If there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the prosecutor to explain the delay and provide good reasons for it.

(6) Here there was an apparently inordinate delay of nine years, five months from the presentation of the ex officio indictment (May 2005) to this trial (October 2014) during which period the prosecution had not commenced. The defendants adequately explained the delay to July 2010 (the date of the order of the National Court allowing the joint trial of the plaintiff and an alleged co-conspirator). However, the delay of more than four years after that was unexplained. The plaintiff’s third Supreme Court review of National Court decisions was dismissed in December 2012 and the inactivity of the Public Prosecutor in the 22 months since then was inexplicable and indefensible. The plaintiff has been denied the right to have the prosecution commenced within a reasonable time.

(7) He has also been denied the right to a fair trial given that the events underlying the charges occurred 14 to 16 years ago and in that period 14 persons who were possible witnesses have either died or permanently left the jurisdiction.

(8) The plaintiff therefore succeeded in proving that the Public Prosecutor infringed his rights under Section 37(3) of the Constitution.

(9) As to what orders should be made, the Court took into account the absence of any proper explanation by the Public Prosecutor for the delay in prosecuting the plaintiff and any indication as to when he would be ready, if he were not prevented by the Court, to commence the prosecution, and the traditional reluctance of the Court to intervene in the prosecution process and the need to preserve the constitutional independence of the Public Prosecutor. However, this was an exceptional case involving such an extensive and blatant breach of human rights, that the Public Prosecutor should be denied the right to prosecute.

(10) The Court ordered, pursuant to Section 57(3) of the Constitution, a permanent stay of the prosecution and that the plaintiff be discharged from the indictment and discharged from his bail obligations and declared, pursuant to Section 58(2) of the Constitution, that he is entitled to damages, to be assessed, if not agreed.

Cases cited

The following cases are cited in the judgment:

Anton Kadiko v The State (2005) N2843

Application by Benetius Gehasa (2005) N2817

Application by Herman Joseph Leahy (2006) SC855

Application by Herman Joseph Leahy (2006) SC981

Application by Herman Joseph Leahy (2009) SC994

Application by Herman Joseph Leahy (2010) SC1018

Application by John Ritsi Kutetoa (2005) N2819

Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033

Bank of Papua New Guinea v Marshall Cooke QC (2003) N2369

Bernard Hagoria v Ombudsman Commission (2003) N2400

Dan Kakaraya v Ombudsman Commission (2003) N2478

Eremas Wartoto v The State (2013) N5320

Eremas Wartoto v The State (2013) SC1298

Ex parte Smedley [1978] PNGLR 156

Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) SC1118

Herbert Bell v Director of Public Prosecutions of Jamaica [1985] AC 937

Pius Nui v Mas Tanda (2004) N2765

Re Conditions of Detention at Buka Police Lock-Up, Autonomous Region of Bougainville (2006) N4478

Re Release of Prisoners on Licence (2008) N3421

Rimbink Pato v Anthony Manjin (1999) SC622

Royale Thompson v Sylvester Kalaut (2011) N4265

SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011

SC Ref No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362

SC Ref No 1 of 1993; Re Section 365 of the Income Tax Act (1995) SC482

SC Ref No 2 of 1982; Re Organic Law on National Elections (Amendment) Act [1982] PNGLR 214

SC Rev No 1 of 1989; The State v Patrick Saul [1988-89] PNGLR 337

SC Rev No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi [1991] PNGLR 239

Simon Ketan v Lawyers Statutory Committee (2001) N2290

Sir Salamo Injia v Thomas Eluh (2012) N4617

Tasman Australia Airlines Pty Ltd v Andrew Ogil (2004) N2711

The State v Alphonse Wohuinangu (1991) N966

The State v Jack Gola and Mopana Aure [1990] PNGLR 206

The State v Jeffrey Balakau (1996) N1528

The State v Jimmy Mostata Maladina (2004) N2530

The State v John Koma (2002) N2176

The State v Linus Rebo Dakoa (2009) N3586

The State v Luke Kokon (2007) N3353

The State v Michael Nama (1999) N1884

The State v NTN Pty Ltd [1992] PNGLR 1

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