In the matter of an Application for Enforcement of Human Rights; Simon Liliura v Commissioner of the Correctional Service and The Independent State of Papua New Guinea (2019) N7917

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 05 July 2019
• Court: National Court
• Citation: (2019) N7917
• Docket Number: HRA No 233 Of 2018
• Year: 2019
• Judgement Number: N7917

Full Title: HRA No 233 Of 2018; In the matter of an Application for Enforcement of Human Rights; Simon Liliura v Commissioner of the Correctional Service and The Independent State of Papua New Guinea (2019) N7917

National Court: Cannings J

Judgment Delivered: 5 July 2019

-N7917

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 233 OF 2018

IN THE MATTER OF AN APPLICATION FOR

ENFORCEMENT OF HUMAN RIGHTS

SIMON LILIURA

Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE

First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Kimbe: 18, 19 March, 26 June 2019

Waigani: 5 July 2019

Cannings J

HUMAN RIGHTS – application by prisoner for early release from custody on human rights grounds – whether Court has jurisdiction to order early release – whether human rights breached – appropriate remedies.

The applicant, a prisoner, applied for early release from custody on the ground that his human rights were breached by the Jail Commander’s continuing failure to comply with court orders that he be placed on a special diet due to his medical condition, thereby putting his life at risk. The respondents opposed the application, arguing that the National Court had no power to grant early release, and that there was no breach of human rights as the Jail Commander had substantially complied with previous orders and that even if the Court had jurisdiction and a breach of human rights were proven, the Court should still decline to grant early release.

Held:

(1) The National Court has jurisdiction under ss 57(1) and (3) of the Constitution to order early release of a prisoner as an enforcement of human rights if a breach of human rights is proven and the Court considers that it is necessary or appropriate to so order.

(2) The Jail Commander failed over a period of more than three years to comply with court orders requiring that the applicant be placed on a special diet. However, there was no evidence that this put the applicant in a life-threatening position. The failure to comply with the Court’s orders meant that the applicant was denied the full protection of the law, amounting to a breach of human rights under s 37(1) of the Constitution, but there was no evidence of inhuman treatment (for the purposes of Constitution, s 36(1)) or denial of the right to be treated with humanity (for the purposes of Constitution, s 37(17)).

(3) In exercising the Court’s discretion whether to order early release, relevant considerations include: the nature and extent of the prisoner’s medical condition, the length of time the prisoner has spent in custody, the proportion of the sentence served, whether the prisoner is eligible for parole, the nature and circumstances of the offence, whether the prisoner’s release poses any threat to public safety, the attitude of the victim public perception.

(4) Application for early release refused.

Cases Cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817

Application by Jerry Kui (2014) N5734

Application by Kathrine Mal (2017) N6710

Application by Reuben Micah (2013) N5427

Applications For Early Release from Custody by John Carl Endekra and 14 other Prisoners of Lakiemata Correctional Institution (2009) N3838

Bobby Selan v The State (2012) N4938

Daniel Ronald Walus v The State (2007) SC882

Dr Theo Yasause v Kiddy Keko (2017) N6853

Francis Kawai Kauke v Commanding Officer, Beon Correctional Institution (2014) N5651

Heni Elly v Commissioner of the Correctional Service (2018) N7629

Re Release of Prisoners on Licence (2008) N3421

The State v Simon Liliura (2014) N5785

APPLICATION

This was an application by a prisoner for early release from custody, prosecuted as an application for enforcement of human rights.

S Liliura, the applicant, in person

G Akia, for the Respondents

5th July, 2019

1. CANNINGS J: The applicant, Simon Liliura, is a prisoner at Lakiemata Jail, West New Britain, serving a 15-year sentence for armed robbery and unlawful deprivation of liberty. He applies for early release from custody on the ground that his human rights have been breached by the Jail Commander’s continuing failure to comply with court orders that he be placed on a special diet due to his medical condition, thereby putting his life at risk. The respondents oppose the application, arguing that the National Court has no power to grant early release, and that there was no breach of human rights as the Jail Commander had substantially complied with the orders, and that even if the Court had jurisdiction and a breach of human rights were proven, the Court should still decline to grant early release.

2. The application is made under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution for enforcement of human rights, in particular:

· the right to freedom from inhuman treatment under Constitution, Section 36(1),

· the right to the full protection of the law under Constitution, Section 37(1), and

· the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17).

3. Section 36(1) (freedom from inhuman treatment) states:

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

4. Section 37(1) (protection of the law) states:

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 or charged with offences.

5. Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

6. The following issues arise:

1. Does the National Court have power to order early release?

2. Has a breach of human rights been proven?

3. What orders should the Court make?

1 DOES THE NATIONAL COURT HAVE POWER TO ORDER EARLY RELEASE?

7. Mr Akia, for the respondents, submitted that the Court has no jurisdiction because once it has sentenced a prisoner it has no further power to exercise. He submitted that the National Court is constrained by existing laws that confer on specialist bodies, in particular the Parole Board, the power to grant early release to prisoners. He relies on the decision of the Supreme Court in Daniel Ronald Walus v The State (2007) SC882 that the National Court, having sentenced an offender, is functus officio (its duties are discharged). Mr Akia submitted that I am bound by the Supreme Court’s edict in Walus. He points out that I acknowledged being so bound in Applications For Early Release from Custody by John Carl Endekra and 14 other Prisoners of Lakiemata Correctional Institution (2009) N3838, where I stated (repeating similar remarks in Re Release of Prisoners on Licence (2008) N3421):

The critical point that all prisoners must understand is that the National Court has no general power to order early release of any prisoner. The Court can only order early release if the order under which the prisoner was sentenced expressly allows for it.

8. I dealt with the same submission that Mr Akia makes in this case, in Heni Elly v Commissioner of the Correctional Service (2018) N7629. I acknowledged that the National Court has the power under Section 58(2) of the Constitution to award damages to a prisoner who succeeds in establishing a breach of human rights (such as in Bobby Selan v The State (2012) N4938 and Application by Reuben Micah (2013) N5427). However, the availability of the remedy of damages does not mean that the Court cannot order early release. Nothing said by the Supreme Court in Walus had anything to do with human rights. Walus was all about the criminal jurisdiction of the National Court: the power of the sentencing judge to revisit a sentence and decide whether part of a prisoner’s sentence should be suspended after serving a minimum period in custody. The Supreme Court said the sentencing Judge does not have that power, as that would amount to usurping the powers of the Parole Board. Walus did not address the power of the National Court under its human rights jurisdiction conferred by Section 57(3) of the Constitution to “make all such orders and declarations as are necessary or appropriate” in the case of a prisoner whose rights or freedoms have been infringed.

9. Nothing in Mr Akia’s submission in the present case is new. I have considered the submission before, and rejected it. I reject it again.

10. The National Court has power in an appropriate case, if it is established that a breach of human rights has occurred, to order early release of a prisoner. I exercised that power in Application by Jerry Kui (2014) N5737 and Application by Kathrine Mal (2017) N6710. I note that the State has appealed against my decision in Mal, which was to grant early release to a prisoner who was seriously ill and could not obtain proper medical treatment in custody. However, the...