Roger Bai Nimbituo v The State

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 December 2015
• Citation: (2015) N6156
• Court: National Court
• Year: 2015
• Judgement Number: N6156

Full : HRA No 182 of 2015; In the matter of an Application for Enforcement of Human Rights under Section 57 of the Constitution, Roger Bai Nimbituo and Jeffery Wosi and Ronald Wafia and Jacob Wapai and Gilbert Guarind v The Independent State of Papua New Guinea (2015)

National Court: Cannings J

Judgment Delivered: 18 December 2015

N6156

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 182 OF 2015

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTION 57 OF THE CONSTITUTION

ROGER BAI NIMBITUO

First Applicant

JEFFERY WOSI

Second Applicant

RONALD WAFIA

Third Applicant

JACOB WAPAI

Fourth Applicant

GILBERT GUARI

Fifth Applicant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani: Cannings J

2015: 1 October, 17, 25 November, 14, 18, December

HUMAN RIGHTS – delay in prosecution of persons charged with criminal offences – delay in conduct of trial – delay in delivery of verdict.

HUMAN RIGHT – freedom from inhuman treatment: Constitution, Section 36 – right to full protection of the law, right to a fair hearing within a reasonable time: Constitution, Section 37 – protection against harsh or oppressive or other proscribed acts: Constitution, Section 41 – right to personal liberty, right not to be unlawfully or unreasonably detained, right to complain to National Court about detention: Constitution, Section 42.

HUMAN RIGHTS – enforcement – remedies for infringement of human rights – Constitution, Sections 57, 58, 42(5).

In the period from May 2009 to March 2010 the five applicants were arrested, charged and detained in custody in connection with an incident in which a number of people were allegedly kidnapped for ransom and unlawfully detained and in the case of one person, raped. Their trial in the National Court commenced on 14 August 2012. Evidence was called over a two-month period to 17 October 2012. The Court then adjourned for one month for submissions. In fact, the adjournment extended for more than two years. On 19 November 2014 submissions on verdict were made, and the trial Judge indicated that verdicts would be delivered by the end of 2014. That did not eventuate. On 4 August 2015 the applicants made a joint application under Section 57 of the Constitution for enforcement of their human rights, which they claimed had been infringed by the State. They claimed, in particular, that the following rights have been infringed by the State: right to protection from inhuman treatment under Section 36 of the Constitution; right to full protection of the law under Section 37(1) of the Constitution, in particular the right to a fair hearing within a reasonable time under Section 37(3); right to protection against harsh, oppressive and other proscribed acts under Section 41 of the Constitution; and their right not to be unreasonably detained, under Section 42 of the Constitution. They sought relief in the form of bail, a permanent stay of their criminal proceedings, damages, a direction that the verdicts be handed down forthwith and/or a retrial. The State opposed all relief sought.

Held:

(1) There was insufficient evidence that any person had deliberately subjected the applicants to torture or that the effect of delays in determining their case had resulted in them being tortured or submitted to any other form of inhuman treatment. No infringement of their rights under Section 36 of the Constitution was proven.

(2) As to the alleged infringement of their rights under Section 37 of the Constitution: there were inordinate delays in prosecution of the applicants (in that each was remanded in custody for long periods prior to commencement of their trial) and in completion of their trials (in that submissions on verdict were not made until more than two years after completion of the evidence) and 13 months have passed since completion of submissions on verdict. The State failed to explain or justify those delays. The applicants have been denied their right to the full protection of the law under Section 37(1), in particular right to a hearing within a reasonable time under Section 37(3) of the Constitution.

(3) The extensive, significant, unexplained and unacceptable delays in prosecution of the applicants and in completion of their trial and in delivery of verdict mean that the rights of the applicants, not to be subject to harsh or oppressive acts or other acts not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Section 41 of the Constitution, have been infringed.

(4) As to the alleged infringement of their rights under Section 42 of the Constitution: the applicants are being detained unreasonably in that they have been remanded in custody, being charged with criminal offences, for periods of five years, 9 months to six years, seven months without the criminal charges against them being determined.

(5) The Court ordered and declared, pursuant to Sections 57(3), 58 and 42(5) of the Constitution that: (a) there was insufficient evidence that the applicants had been submitted to torture or other inhuman treatment; (b) the rights of the applicants to the full protection of the law under Section 37(1) of the Constitution, have been infringed; (c) the rights of the applicants to a hearing within a reasonable time under Section 37(3) of the Constitution, have been infringed; (d) the rights of the applicants, not to be subject to harsh or oppressive acts or other acts not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Section 41 of the Constitution, have been infringed; (e) the rights of the applicants, not to be deprived of their personal liberty by being unreasonably detained in custody under Section 42(5) of the Constitution, have been infringed; (f) this matter will be reported formally to the Chief Justice so that his Honour might consider what appropriate action to take in relation to the trial Judge’s failure to deliver verdicts; (g) the applicants shall be released from custody, on conditions, subject to a further hearing regarding the conditions on which they will be released; (h) the applicants are entitled, subject to a further hearing on assessment, to reasonable damages, and are eligible, subject to further argument and assessment, to exemplary damages, for infringement of their human rights.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817

Application by John Ritsi Kutetoa (2005) N2819

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

Baisom Konori v Jant Ltd (2015) N5868

Bomai Wati v David Gavera (2013) N5363

Herman Joseph Leahy v Pondros Kaluwin (2014) N5813

In The Matter of a Complaint by Paul Niko (2014) N5719

Joe Kape Meta v Constable Paul Kumono (2012) N4598

Kelly Koi v Constable Mathew Anseni (2014) N5580

Kofowei v Siviri [1983] PNGLR 449

McFarlane v Director of Public Prosecutions [2008] ISEC 7

Morobe Provincial Government v John Kameku (2012) SC1164

Re Conditions of Detention at Beon Correctional Institution (2006) N2969

Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022

Re Conditions of Detention at Buka Police Lock-Up (2006) N4478

Re Conditions of Detention at Buka Police Lock-Up (2006) N4976

Re Release of Prisoners on Licence (2008) N3421

Re Ricky Yanepa [1988-89] PNGLR 166

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

The State v Linus Rebo Dakoa (2009) N3586

The State v Peter Kakam Borarae [1984] PNGLR 99

The State v Peter Painke [1976] PNGLR 210

Tom Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87

APPLICATION

This was an application for enforcement of human rights.

Counsel

V Amoko, for the applicants

G Akia, for the respondent

18th April, 2015

1. CANNINGS J: This is a ruling on an application for enforcement of human rights by five persons who are remanded in custody in connection with serious criminal charges. They have been in custody for periods ranging from five years, nine months to six years, six months. They have been jointly tried in the National Court. Their trial did not commence until after they had spent several years in custody. The trial extended over a period of two years, four months. Their trial was completed 13 months ago. No verdict has yet been delivered. They remain in custody at Bomana Correctional Institution.

2. The applicants claim that a number of their human rights have been infringed by the State:

· the right to protection from inhuman treatment under Section 36 of the Constitution;

· the right to the full protection of the law under Section 37(1) of the Constitution, in particular the right to a fair hearing within a reasonable time under Section 37(3) of the Constitution;

· the right to protection against harsh, oppressive and other proscribed acts under Section 41 of the Constitution; and

· the right not to be deprived of their personal liberty, by being unreasonably detained in custody, under Section 42 of the Constitution.

3. They seek relief in the form of bail, a...