In The Matter of a Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 July 2006
• Citation: (2006) N4153
• Docket Number: MP NO 659 0F 2006
• Court: National Court
• Year: 2006
• Judgement Number: N4153

Full Title: MP NO 659 0F 2006; In The Matter of a Complaint of Unlawful and Unreasonable Detention by Rosa Jack (2006) N4153

National Court: Cannings J

Judgment Delivered: 21 July 2006

N4153

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MP NO 659 0F 2006

IN THE MATTER OF A COMPLAINT

OF UNLAWFUL AND UNREASONABLE DETENTION BY

ROSA JACK

Kimbe: Cannings J

2006: 21 July

REASONS FOR DECISION

HUMAN RIGHTS – right to liberty of the person – Constitution, Section 42 complaint of unlawful and unreasonable detention in correctional institution – duty of National Court to inquire into complaint – duty to order release in prescribed circumstances.

LOWER COURTS – Village Courts – whether a Village Court has power to order imprisonment of person who fails to comply with order for compensation – Village Courts Act 1989, Division V.9 (enforcement).

A Judge conducted an official visit of a jail and heard a complaint from a young woman with a one-month-old baby who had recently been imprisoned by a Village Court for five months for failure to pay K200.00 compensation. The complainant was brought before the National Court the next day and represented by a lawyer who argued that the Village Court had no power to order imprisonment in such circumstances.

Held:

(1) There is considerable confusion about whether the Village Court has power to imprison a person for failure to comply with its orders to pay compensation.

(2) The National Parliament made a law in 2000 to remove the power of imprisonment from the Village Court. However, for some reason that law was not certified by the Speaker and has not commenced operation.

(3) In the present case the Village Court did not act contrary to the Village Courts Act in sentencing the complainant to five months in prison; though the constitutionality of Section 74 of the Village Courts Act, under which the Village Court made the order for imprisonment, is open to doubt.

(4) However, in the circumstances there was sufficient material before the National Court to draw the conclusion that there had been a denial of natural justice.

(5) In addition, the imprisonment for five months of a young woman carrying a one month old baby, for failure to comply with an order to pay K200.00 compensation over a relatively trivial dispute, was harsh and oppressive; not warranted by and disproportionate to the requirements of the case; and was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. The order for imprisonment and the way in which it was given effect were proscribed acts under Section 41 of the Constitution.

(6) The complainant’s detention was therefore unlawful and orders were made under Section 42(5) of the Constitution for her immediate release from custody.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817

Brian Curran v The State [1997] PNGLR 230

In the matter of complaints of unlawful and unreasonable detention by Michael Walge and Others; Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022

Nowra No 8 Pty Ltd v Kaka Swokin [1993] PNGLR 498

Raz v Matane [1986] PNGLR 38

Re Kabia Maris [1994] PNGLR 314

Re Kaka Ruk [1991] PNGLR 105

Re Kopa Kaipia (1989) N709 (M)

Re Lina Mark [1995] PNGLR 234

Re Moki Nikints [1988-89] PNGLR 164

Re Ricky Yanepa [1988-89] PNGLR 166

Re Thesia Maip [1991] PNGLR 80

Re Wagi No [1991] PNGLR 84

Re William Rumbia [1999] PNGLR 145

Re Yongo Mondo (1989) N707(M)

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314

SCR No 2 of 1989; Section 19 Reference by the Principal Legal Adviser re the Village Courts Act (Chapter No 44) [1988-89] PNGLR 491

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329

Tom Longman Yaul v The State (2005) SC803

INQUIRY INTO COMPLAINT

This is an inquiry into a complaint of unlawful and unreasonable detention by a person imprisoned by an order of a Village Court.

Counsel

G Linge, for the complainant

21 July, 2006

1. CANNINGS J: This judgment gives my reasons for ordering the immediate release from jail of a young woman, carrying a one-month-old baby, who had been sentenced to five months imprisonment by the Village Court for failing to pay K200.00 compensation.

2. On Thursday 20 July 2006 I conducted a Visiting Justice visit of Lakiemata Jail, near Kimbe. One of the five detainees in the female compound was Rosa Jack, a young woman carrying a small baby. I was told that she had been imprisoned the previous day, acting on a warrant of commitment issued by the Kimbe Urban Area Village Court. She was sentenced to five months imprisonment with hard labour.

3. I asked to see her Correctional Service file. The warrant of commitment stated that she had failed without reasonable excuse to obey a Village Court order to pay K200.00 compensation to another woman, Marilyn David.

4. Rosa Jack was carrying a small baby. She had given birth less than a month ago. She and the baby had been arrested by the police the previous day when they were at the Kimbe market. They were detained in the police lock-up then transported to Lakiemata Jail (which is a half-hour drive from Kimbe). She did not have a chance to tell her husband and she did not know if he knew where she was.

5. I asked that Rosa Jack be brought to the National Court the next day and indicated that I would deal with the matter as a complaint of unlawful and unreasonable detention under Section 42(5) of the Constitution.

COMPLAINTS OF UNLAWFUL OR UNREASONABLE DETENTION

6. Section 42(5) (liberty of the person) of the Constitution states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit. [Emphasis added.]

7. Section 42(5) is an enforcement provision that bolsters the constitutional right to personal liberty, the nature and extent of which is prescribed by Sections 42(1), (2) and (3).

8. Section 42(5) works in this way:

· Every person has the right to complain to a Judge that he or she is detained unlawfully or unreasonably (by anybody, particularly the Police or Correctional Service).

· If such a complaint is made, the Judge is obliged to do two things: (i) order that the person be brought before the Judge or the National Court and (ii) inquire into the complaint.

· The purpose of the Judge’s inquiry is to ascertain whether the detention of the person (who can be labelled the detainee or the complainant) is lawful and, in the case of someone detained on remand pending trial, not an unreasonable detention.

· In forming an opinion on whether a detention is unreasonable the Judge is required to have regard in particular to the length of the detention. Other considerations can also be taken into account, eg the physical conditions of the place of detention, whether access to a lawyer, friends and relatives has been permitted.

· If the Judge is not satisfied that the person’s detention is lawful or, in the case of someone detained on remand pending trial, does not constitute an unreasonable detention, the Judge must order the person to be released.

· Release can be either unconditional or subject to such conditions as the Judge thinks fit.

(See generally Application by Benetius Gehasa (2005) N2817, National Court, Cannings J; In the matter of complaints of unlawful and unreasonable detention by Michael Walge and Others; Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022, National Court, Cannings J.)

NATIONAL COURT HEARING

9. The complainant, Rosa Jack, was brought before me in the National Court at Kimbe on Friday 21 July 2006. I asked for a lawyer to represent her and Mr G Linge of Linge & Associates, of Kimbe, offered his services pro bono (for the public good, free of charge).

10. Mr Linge said that the complainant had been taken to the Village Court by another woman, Marilyn David, who alleged that the complainant had not repaid a debt. The complainant maintains that the debt was K1.50, which she had borrowed at the market to buy a piece of chicken. The complainant says that she had the money to pay but that an argument broke out with Marilyn. She was summoned to appear before the Village...