N4572
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 1 OF 2012 & HRC NO 2 OF 2012

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT
OF HUMAN RIGHTS AND A COMPLAINT OF UNLAWFUL AND UNREASONABLE DETENTION BY JONATHAN PARU
Complainant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Madang: Cannings J
2012: 9, 10 February

CONSTITUTIONAL LAW – Basic Rights – enforcement of basic rights – Constitution, Section 57: enforcement of guaranteed rights and freedoms – power of National Court to enforce human rights

HUMAN RIGHTS – right to liberty of the person – Constitution, Section 42 complaint of unlawful and unreasonable detention in police lock-up – duty of National Court to inquire into complaint

A man complained to the National Court that he had been unlawfully detained by the police without charge and without being taken before a court for seven weeks and four days; and also that his human rights had been breached as he had been shot and wounded by the police and denied proper medical treatment. He sought immediate release from custody and a declaration that his human rights had been breached.

Held:

(1)	The complainant's human rights were breached in that he was: submitted to treatment that was cruel and inhuman, contrary to Constitution, s 36(1), denied the full protection of the law, contrary to Constitution, s 37(1), denied the rights of a person detained in custody under Constitution, ss 42(2) and 42(3).

(2)	The detention of the complainant was unlawful and unreasonable, having regard to its length and the failure of the police to lay a proper charge and the failure to take the complainant before a court without delay and the circumstances of detention.

(3)	Declarations of human rights breaches were made under Section 57(3) of the Constitution; and an order was made under Section 42(5) of the Constitution for immediate release of the complainant subject to conditions.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022
SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556
The State v Linus Rebo Dakoa (2009) N3586
The State v Paro Wampa [1987] PNGLR 120

APPLICATION AND COMPLAINT

These were proceedings that combined an application for enforcement of human rights and a complaint of unlawful and unreasonable detention.

Counsel

E Thomas, for the Complainant
J W Tamate, for the Respondent

10 February, 2012 

1. CANNINGS J: Jonathan Paru, 20 years old, was arrested by police in Madang on Saturday 17 December 2011. In the course of arrest he was shot in the foot. He was taken to Modilon General Hospital straight after he was shot, and the wound was treated. Then he was taken the same day to the Jomba Police Lock-up and detained in custody. He remained there until 8 February 2012 (a period of seven weeks and three days) when he came before the National Court with an application for enforcement of human rights under Section 57 of the Constitution and a complaint under Section 42(5) of the Constitution of unlawful and unreasonable detention. He complains that he has been held without charge and without being taken before a court. He says he has been treated inhumanely as he had been kept in poor conditions without proper medical treatment and, until very recently, denied the right to see a lawyer and get assistance from members of his family.

2. His situation came to the attention of the National Court on Wednesday of this week, 8 February 2012, when his application and complaint, together with six similar complaints of detainees at the Jomba Police Lock-up, were filed by the Public Solicitor. He and the six others were brought before the Court for mention and I issued warrants of commitment on remand to Beon Jail. Then yesterday an inquiry was conducted into Jonathan Paru's complaint. Inquiries into the six other complaints will be conducted next week. The complainant gave oral evidence and was cross-examined. The court also heard evidence from three members of the Royal Papua New Guinea Constabulary: a cell guard at Jomba, 1st Const Jegis Fulalek, the officer who first apprehended and shot the complainant, Sgt Bola Rimur, and the member who assisted Sgt Bola in the apprehension, Reserve 1st Const Michael Wanbun.

3. The essential facts are not in dispute:

•	the complainant was apprehended on 17 December 2011 as he was observed to have allegedly harassed a young woman on the street near the InterOil Service Station, Modilon Road;

•	in the course of apprehending him it was discovered that he had a homemade pistol in his possession;

•	Sgt Bola shot him in the right foot;

•	Sgt Bola and 1st Const Wanbun took him to the hospital for treatment;

•	later that day he was locked in the police cell;

•	on 10 January 2012 he was taken with other detainees from the police cell to Madang District Court but there was confusion about his name and he was not brought before the presiding Magistrate;

•	he remained in the cell and did not appear before the District Court or the National Court or any other court and was given no further medical treatment until 8 February 2012.

4. There is conflicting evidence about whether he resisted arrest, whether he was told of the reason for his arrest and detention and why there was confusion over his name. These matters will be addressed in the course of resolving the three main issues that have to be decided, which are:

1	Have the complainant's human rights been breached?

2	Has the complainant been unlawfully and/or unreasonably detained?

3	What declarations and orders should the court make?

1	HAVE THE COMPLAINANT'S HUMAN RIGHTS BEEN BREACHED?

5. Five constitutional provisions are particularly relevant:

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.

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.

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.

Section 42(2) (liberty of the person) states:

A person who is arrested or detained—

(a)	shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b)	shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c)	shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

6. Those requirements are complemented by Section 18(1) (duties of officer-in-charge of station) of the Arrest Act, which relevantly provides:

(1)	Where a person has been arrested and taken to a police station, the officer-in-charge of the police station shall—

(a)	immediately release the person if he considers that—

(i)	the person arrested did not commit the offence for which he was arrested or any other offence and there is no other reason to justify his detention under this Act or any other law; or\

(ii)	there are good reasons why the arrested person should not be proceeded against for an offence; or

(iii)	proceedings can be effectively taken by way of summons against the arrested person; and

(b)	if he does not release the person under Paragraph (a)—take the person into custody and enter in a permanent register of arrests the name of the person and if it appears that the person arrested—

(i)	has committed an offence—the nature of that offence; or
(ii)	has been arrested for some other reason—that reason; and

(c)	promptly inform the person arrested or cause him to be informed in language he understands of—

(i)	the reason for his arrest; and
(ii)	details of the charges against him; and
(iii)	his right, immediately and in private—

(A)	to communicate with a member of his family or a personal friend; and

(B)	to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid. …

(2)	The officer-in-charge of a police station shall at all times permit persons arrested or detained at the police station—

(a)	whenever practicable, without delay and in private to communicate with—

(i)	a member of his family or a personal friend; and
(ii)	a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid; and

(b)	to give instructions to a lawyer of his choice, including the Public Solicitor if he is entitled to legal aid.

7. So, whenever a person is arrested or detained, he acquires five distinct rights. He shall be:

•	informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

•	permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend; and

•	permitted whenever practicable to communicate without delay and in private with a lawyer of his choice; and

•	given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained; and

•	informed immediately on his arrest or detention of his rights under Section 42(2).

(See The State v Linus Rebo Dakoa (2009) N3586.)

8. A person is "arrested" when deprived totally of his personal liberty, or when his person is touched in such a way that he is made aware that he is under compulsion in relation to a criminal matter (SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556). As soon as a person is arrested, he or she must be informed of and afforded their Section 42(2) rights. The timing is critical, as explained by Kapi DCJ in The State v Paro Wampa [1987] PNGLR 120:

The need to inform a person of his rights under this provision arises at the time he loses his liberty. … This effectively means that before any questions are asked about a person's participation in a crime, he is to be informed of his rights. … The need to inform the person of his rights arises at the time of the arrest and detention and not at the time of the record of interview.

9. Section 42(3) (liberty of the person) of the Constitution states:

A person who is arrested or detained—

(a)	for the purpose of being brought before a court in the execution of an order of a court; or

(b)	upon reasonable suspicion of his having committed, or being about to commit, an offence,

shall, unless he is released, be brought without delay before a court or a judicial officer and, in a case referred to in paragraph (b), shall not be further held in custody in connexion with the offence except by order of a court or judicial officer.

10. Section 42(3) confers two rights on a person who is arrested and detained. First, he must be brought before a court "without delay", ie immediately. Secondly he is not to be detained in custody any longer except by a court order (Re Conditions of Detention at Bialla Police Lock-Up, West New Britain Province (2006) N3022).

11. Mr Tamate, for the State, submits that the above rights were not breached and if they were, this was because of inadvertence on the part of the police. The complainant has himself to blame for being in the predicament in which he has found himself, in that:

•	he was harassing a young woman on the street;
•	he resisted arrest;
•	he was in unlawful possession of a firearm (which he admits);
•	he gave a false name "Paru James" to the police when he was detained;
•	he did not cooperate with the police when detainees were brought to the District Court on 10 January 2012;
•	he was deliberately avoiding being taken to court.

12. I reject the bulk of those submissions. I do not consider that there was any attempt by the complainant to mislead the police by giving a false name or to avoid being taken to court. I do not, on the other hand, believe all of the complainant's evidence. I do not necessarily accept his version of how he was apprehended and shot. He might have been resisting arrest and it seems, because he had possession of a pistol, there was good reason to arrest and detain him.

13. However, I consider that the evidence is clear that once he was detained, his human rights were breached, in that he was:

•	treated inhumanely by being detained, wounded, for more than seven weeks without medical treatment;

•	denied the full protection of the law;

•	denied his right of access to a lawyer and assistance of a family member or friend;

•	not taken before a court without delay: he should have been taken to court on Monday 19 December 2011.

2	HAS THE COMPLAINANT BEEN UNLAWFULLY AND/OR UNREASONABLY DETAINED?

14. 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.]

15. 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). 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: order that the person be brought before the Judge or the National Court can 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 Application by Benetius Gehasa (2005) N2817.)

16. I am satisfied that the detention of the complainant from 19 December 2011 onwards was unlawful and unreasonable, having regarded to:

•	its length;
•	the failure of the police to lay a proper charge;
•	the failure to take the complainant before a court without delay; and
•	the conditions of detention.

3	WHAT DECLARATIONS AND ORDERS SHOULD THE COURT MAKE?

17. I will make the declarations sought by the complainant as to breach of human rights. I am also going to order that he be immediately released from custody. The State may be able to pursue criminal charges against him regarding the incidents of 17 December 2011, but will require the leave of the National Court to do so.

DECLARATIONS AND ORDERS

(1)	It is declared under Section 57(3) of the Constitution that the complainant's human rights were breached in that he was: submitted to treatment that was cruel and inhuman, contrary to Constitution, s 36(1), denied the full protection of the law, contrary to Constitution, s 37(1), denied the rights of a person detained in custody under Constitution, ss 42(2) and 42(3).

(2)	It is declared that the detention of the complainant was unlawful and unreasonable, having regard to its length and the failure of the police to lay a proper charge and the failure to take the complainant before a court without delay and the circumstances of detention.

(3)	The complainant shall be released from custody forthwith, subject to the condition that he shall not be further arrested, charged or detained in custody or in any other manner dealt with by the Police in respect of the matters that led to his arrest on 17 December 2011 except with the leave of the National Court.

(4)	These matters shall be called for mention on 9 March 2012 at 9.00 am in the National Court at which time the parties shall appear and notify the Court if any further steps are proposed to be taken in relation to these proceedings and if applicable seek directions for the further conduct of the matters.

(5)	The parties will bear their own costs.

Orders accordingly.
____________________________

Public Solicitor: Lawyers for the Complainant
Public Prosecutor: Lawyers for the Respondent