Patrick Move v Provincial Police Station Commander

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 31 August 2016
• Citation: (2016) N6396
• Court: National Court
• Year: 2016
• Judgement Number: N6396

Full : HRC No 13 of 2015; Patrick Move v Provincial Police Station Commander, Police Personnel and Officers and the Independent State of Papua New Guinea (2016) N6396

National Court: Anis AJ

Judgment Delivered: 31 August 2016

N6396

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRC No. 13 OF 2015

PATRICK MOVE

Applicant

- V-

PROVINCIAL POLICE STATION COMMANDER,

POLICE PERSONNEL AND OFFICERS

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Kokopo: Anis AJ

2016: 21 June & 31 August

HUMAN RIGHTS – questions of law - whether an applicant commencing a human right proceeding or an enforcement proceeding under section 57 and 58 of the Constitution is required to give a section 5 notice under the Claims By and Against the State Act 1996 - whether it is also necessary to name the tortfeasor - section 5 notice is a requirement - it is not necessary to put down the name of the tortfeasor or the name of the policeman who allegedly committed the breach - distinction between proceedings commenced under the Wrongs (Miscellaneous Provisions) Act and proceedings commenced to enforce constitutional rights discussed

Cases Cited:

Aquila Kunzie v. NCD Police Mobile Squad, Commissioner of Police and the Independent State of Papua New Guinea (2014) N5584

James G Koimo v. The State [1995] PNGLR 535

Jonathan Paru v. The State (2012) N4572

Linda Kewakali v The State (2011) SC1091

Michael Wafi v. Edward Christian (2015) N6056

Mision Asiki Manasupe Zurenoc (2005) SC 797

Premdas v. The State [1979] PNGLR 329

The State v. Bafe Quati and Ors [1990] PNGLR 57

Counsel:

Mr J Gesling, for the Applicant

Ms E Takaboi, for the Respondents

RULING

31 August, 2016

1. ANIS AJ: On 21 June 2016, at the directions hearing of this matter, which was heard together with other human rights proceedings listed, a common legal question came to the Court's attention. The primary question was this: Whether a section 5 notice under the Claims By and Against the State Act 1996 (CBASA) was required for proceedings commenced before the Human Rights Court to enforce constitutional rights under the Constitution of Papua New Guinea. The secondary question that followed was this: Whether the applicant or similar applicants who commenced enforcement proceedings were required to put down the name of the tortfeasor(s) or the name of the policeman who allegedly committed the breach.

2. Both counsels were unable to fully assist the Court at that time and it became apparent to the Court that the issues were important and required attention. I directed parties to prepare submissions on the two issues and present them to the Court. For various reasons, the applicant's counsel was unavailable on various occasions and the matter was adjourned several times. Finally, on 1 July 2016, the Court heard submissions from the defendants. The applicant's counsel was not available that morning. The Court reserved its ruling and adjourned only to find out later that the matter was originally fixed for hearing at 1:30pm for that day. The Court recalled the matter back at 1:30pm on the same day on 1 July 2016. The applicant's counsel appeared. The defendants' counsel on the other hand did not appear.

3. The Court set aside its earlier order reserving its decision and re-opened the case to allow or receive submissions from the applicant. The applicant's counsel however informed the Court that he was still not ready to present his client's written submission on the legal issues.

4. The Court then issued the following directions:

(1) The applicant to file his written submission before or by close of business on 8 July 2016.

(2) The Court reserves its ruling thereafter to a date to be advised.

(3) Time is abridged.

5. The applicant filed its written submission on 8 July 2016.

6. This is my ruling.

APPLICANT'S PROCEEDING

7. The applicant filed a Human Rights Complaint (HRC) pursuant to Order 23 Rule 7(4) of the National Court Rules.

8. The applicant filled in a Form 125 which is provided for under Order 23 of the National Court Rules, to commence proceedings in the National Court. The HRC was filed on 22 May 2014.

ALLEGATION

9. The applicant is a citizen. He comes from Ralalar village in Kokopo, East New Britain Province. He alleged that during the time when he was asked to attend the Kokopo Police Station to discuss a matter on 13 May 2014, he was locked-up in the police cell there without any reason or without being arrested. He said he was locked up from 13 May 2014 which was on a Wednesday till Saturday 16 May 2014. He said he was released later that day without being charged or without being granted bail by the police. He said in total, he was locked-up in the police cell for 72 hours.

SOURCE

10. Order 23 Rule 7(4) of the National Court Rules states and I read:

(4) A complaint under Section 42(5) of the Constitution that a person is unlawfully or unreasonably detained may be made by filing a Complaint of Unlawful or Unreasonably Detention, in Form 125...

11. Section 42(5) of the Constitution states and I read:

Rights of All Persons.

42. Liberty of the person.

...

(5) 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.

SECTION 2 & 5 - CBASA

12. For this purpose, I think section 2 of the CBASA is also relevant. I will read both sections, that is, section 2 and 5 herein:

2. Suits against the State.

(1) A person making a claim against the State in contract or in tort may bring a suit against the State, in respect of the claim, in any court in which such a suit may be brought as between other persons.

(2) The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution and for damages for infringement of a right or freedom under Section 58 (Compensation) of the Constitution.

...

5. Notice of claims against the State.

(1) No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant to—

(a) the Departmental Head of the Department responsible for justice matters; or

(b) the Solicitor-General.

(2) A notice under this Section shall be given—

(a) within a period of six months after the occurrence out of which the claim arose; or

(b) where the claim is for breach of a contract, within a period of six months after the claimant became aware of the alleged breach; or

(c) within such further period as—

(i) the Principal Legal Adviser; or

(ii) the court before which the action is instituted,

on sufficient cause being shown, allows.

(3) A notice under Subsection (1) shall be given by—

(a) personal service on an officer referred to in Subsection (1); or

(b) leaving the document at the office of the officer with the person apparently occupying the position of personal secretary to that officer between the hours of 7.45 a.m. and 12 noon, or 1.00 p.m. and 4.06 p.m., or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321).

(Underlining is mine)

TYPE OF PROCEEDING

13. The applicant's proceeding constitutes enforcement of his constitutional right under section 42(5) of the Constitution, that is, "Liberty of the person". The section begins with these words "No person shall be deprived of his personal liberty except.." and it sets out the various exceptions or qualifications therein. Justice Cannings in the case of Jonathan Paru v. The State (2012) N4572 held and I read at paragraph 15 of his judgment, 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).

14. In the present case, the applicant is asking the Court to enforce his basic rights under section 57 of the Constitution, that is, against being unlawfully or unreasonably detained in custody by the police. In doing so, he has filed a complaint under section 42(5) of the Constitution or more precisely under Order 23 Rule 7(4) of the National Court Rules.

15. Let me remind myself of the purpose for creating the Human Rights Court or should I say for creating Order 23 of the National Court Rules. The purpose is expressly stated therein under sub-rule 2....