Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 166
N734
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
RE YANEPA AND SECTION 42(5) OF THE CONSTITUTION
Goroka
Brunton AJ
18-19 May 1989
CRIMINAL LAW - Practice and procedure - Unlawful and unreasonable detention - What constitutes - Committed person held 17 months - No committal papers - No records held - Detention unlawful - Order for release from custody - Prohibition on further proceedings - Constitution, ss 37, 41, 42(5).
CONSTITUTIONAL LAW - Rights of all persons - Liberty of person - Unlawful and unreasonable detention - What constitutes - Committed person held 17 months - Committal papers lost - No records held - Detention unlawful - Order for release from custody - Prohibition on further proceedings - Constitution, ss 37, 41, 42(5).
Under s 42(5) of the Constitution, on complaint that a person is unlawfully or unreasonably detained, unless the 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 judge shall order release of the person either unconditionally or subject to conditions.
An accused was arrested in January 1988 on a charge of robbery and committed for trial in February 1988, since which time he had been detained in custody. Committal papers had been lost and no records relating to his detention were in existence.
On an inquiry under s 42(5) of the Constitution into the lawfulness, and/or reasonableness of the detention,
Held
(1)      The detention of the accused person was unlawful and unreasonable:
(a)      the provisions of s 37 of the Constitution, requiring a fair trial within a reasonable time and a report to the Minister by the Chief Justice in respect of all trials not commenced within four months of committal, rendered the 17 months detention unreasonable;
(b)      the continued detention of the accused person rendered his detention harsh, oppressive, not warranted by and disproportionate to the requirements of the particular case and the consequent effects on his constitutional rights to liberty of the person and to the presumption of innocence rendered the detention not reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind, and therefore made the detention an unlawful act under s 41(1) of the Constitution.
(2)      The accused person should be released from custody unconditionally and further proceedings on the charge of robbery should be prohibited.
Inquiry into Complaint
This was an inquiry, pursuant to s 42(5) of the Constitution, by a judge into a complaint made to him that an accused person had been detained in custody following committal, for some 17 months without any further proceedings being taken.
Counsel
C Ashton-Lewis, for the State.
K Kot, for the person held in custody.
Cur adv vult
19 May 1989
BRUNTON AJ: On 18 May 1989, the State Prosecutor, Mrs Ashton-Lewis, at Goroka, informed me that a young man, Ricky Yanepa, was held in Bihute gaol on a committal warrant for an offence of robbery. She informed me that there were no committal papers in the possession of either the State Prosecutor’s Office, or in the office of the Public Solicitor. There was no National Court file for the young man. Mr Kot, of the Public Solicitor’s Office, told me that he had interviewed Ricky Yanepa three days before, and the young man had told him that he had been in gaol for about 18 months. In view of what appeared to be the unreasonable length of detention in this matter, I ordered that Yanepa be brought before me.
The following day, when Yanepa appeared in court, Mrs Ashton-Lewis told me that she had approached the Clerk of the District Court, Goroka, in order to find out what had happened to Yanepa’s committal papers. The Clerk has informed the State Prosecutor that since July 1988 when she (the Clerk) started with the court, proper records were kept. The State Prosecutor had asked the Clerk to search thoroughly for Yanepa’s records. The Clerk had located Yanepa’s name in the Commitment Register, and noting that the entry was in the handwriting of Mr Gosling, a magistrate, searched his office. There she found all three copies of the file, although there were no minutes of proceedings. Mr Gosling had told the Clerk that the case had originally been commenced before another magistrate, Mr Seneka. Mr Seneka had been transferred out of Goroka, and Mr Gosling had taken over for the last part of the committal.
Mrs Ashton-Lewis told me that Yanepa had been committed for trial on a charge of robbery on 2 February 1988, and had been in Bihute gaol since that time, although he was arrested in January 1988. Mrs Ashton-Lewis told me that Yanepa earlier had been convicted of a summary offence, possession of an illegal firearm and was fined K50. He paid his fine on 2 December 1987.
Mr Kot, counsel for Yanepa, submitted that the detention of his client was of such a length as to be an unreasonable detention within the meaning of s 42(5)(b) of the Constitution. He submitted that although when the warrant of commitment had been issued the detention had been lawful, the length of the detention was unreasonable and that the detention had become unlawful. Mrs Ashton-Lewis, for the State, conceded that the detention was of an unreasonable length and that its ]awfulness was in question.
The Constitution, s 37(3), says:
“A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”
Some indication of what the Constitution means by the phrase “reasonable time” in this provision may be had from s 37(14) of the Constitution, which says that:
“In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.” (My emphasis.)
In my view, it is clear from this provision that the Constitution itself regards a delay of four months between committal and trial as very serious, so serious as to require a detailed report by the Chief Justice to the Minister for Justice.
There is another way of looking at the unlawfulness of this detention. Although the remand of Yanepa in custody in February 1988 was an act done under a valid law, in the particular circumstances, as his detention progressed, he became lost in the system and he was denied his right to a fair trial within a reasonable time, so his detention came to be harsh, oppressive, not warranted by, and disproportionate to the requirements of the particular case. Further, because his other rights came to be abused, his right to liberty of the person under s 42(1) and his right to be presumed innocent until proved guilty under s 37(4)(a), his detention was not reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind. In short, the detention became an unlawful act within the meaning of s 41 of the Constitution.
Section 42(5) of the Constitution reads:
“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.”
Ricky Yanepa was charged with a serious indictable offence. But his detention on remand pending his trial was unreasonable having regard to its length. He became lost within the system for about 17 months. His name was unknown to the Public Prosecutor, to the Public Solicitor, and to the National Court. The court papers became lost because of the inefficiency of the magistrates involved in the case. His name did not appear on the list of those remanded in custody prepared by the Corrective Institutions Service at Bihute and sent to the Public Prosecutor and Public Solicitor at Goroka. Accordingly, by virtue of s 42(5)(b) of the Constitution, I order that Ricky Yanepa be released from custody unconditionally. The State Prosecutor has indicated to me that the State does not intend to proceed further with the robbery charge. But in case there should be any doubt as to my intentions on that, I indicate that I would make an order using my powers under s 57 in conjunction with s 37(3) and s 41 of the Constitution to prohibit further proceedings on that charge. Yanepa has been denied his right to a fair trial within a reasonable time. The negligence of the State has turned an otherwise lawful act into a harsh, oppressive, disproportionate act; and the lengthy detention was not reasonably justifiable in a democratic society. To allow the State to re-arrest Yanepa, re-commit him, or attempt to use an ex officio indictment, in the circumstances would be unjust, and negate his constitutional rights.
I have not considered the question of damages or compensation in this case. Counsel have liberty to apply.
Order for unconditional release
Lawyer for the State: State Prosecutor.
Lawyer for the person held in custody: Public Solicitor.