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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
HRA NO 44 OF 2025
APATO TAPAS
Applicant
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent
WAIGANI : CANNINGS J
12 DECEMBER 2025; 7 JANUARY 2026
HUMAN RIGHTS – right of prisoners to full protection of the law, Constitution, s 37(1) – whether prisoner serving 13-year sentence for an offence under the Controlled Substance Act 2021 afforded full protection of the law before conviction and sentence.
The applicant is serving a sentence of 13 years imprisonment imposed by a District Court for an offence under the Controlled Substance Act. He filed a human rights application, complaining initially that he was being denied the right to appeal against the sentence due to the failure of the sentencing magistrate to provide his District Court depositions to the National Court. The National Court then ordered the Clerk of the District Court to provide the documents, and they were given to the applicant. He then, within the same human rights application, sought a review of his conviction and sentence on the ground that his human rights had been violated. He claimed that he had not been afforded the full protection of the law as he was charged under a wrong law, the District Court does not have jurisdiction to impose a 13-year sentence, and he had been denied the right to appeal due judicial inaction (on the part of the District Court) and the failure to provide him with legal representation. The State opposed any review of conviction and sentence on the ground that to allow a review in the course of hearing a human rights application would be an abuse of process.
Held:
(1) It would not be appropriate in the circumstances of this case to allow a review of the conviction or sentence, given that the applicant still has the right to approach the National Court by conventional means to apply for leave to review his conviction and sentence.
(2) However, legitimate concerns were noted about whether the applicant was afforded the full protection of the law under s 37 of the Constitution, in particular whether the District Court had jurisdiction to conduct a trial summarily for an indictable offence and whether the applicant had been given adequate time and facilities for preparation of his defence and had a meaningful opportunity to obtain legal representation.
(3) The application for review of conviction and sentence was refused, however in view of the legitimate concerns raised as to possible breaches of human rights, and taking judicial notice of similar cases of prisoners tried summarily for offences under the Controlled Substance Act and serving lengthy sentences imposed by the District Court, the trial judge announced his intention to ventilate such issues by commencement of a separate human rights own initiative proceeding under s 57 of the Constitution aimed at determining whether the current practice of prosecuting offences under the Controlled Substance Act in the District Court is in accordance with the Constitution and the District Courts Act and other laws.
Cases cited
Bank of Paua New Guinea v Mai [2007] 1 PNGLR 272
Commander of Beon Correctional Institution v Mal (2022) SC2186
Kamit v Aus-PNG Research & Resources Impex Ltd [2007] 1 PNGLR 222
Counsel
A Tapas, the applicant, in person
N Sasagombi for the respondent
1. CANNINGS J: The applicant, Apato Tapas, is a prisoner at Bomana Correctional Institution, serving a sentence of 13 years imprisonment imposed on 30 April 2024 by Kerema District Court for the offence of conveying a controlled substance under s 68(1)(b) of the Controlled Substance Act.
2. On 4 June 2025 he filed a human rights application, complaining initially that he was being denied the right to appeal against the sentence due to the failure of the sentencing magistrate, his Worship Mr F Fingu, to provide his District Court depositions to the National Court.
3. In response I ordered the Clerk of the Kerema District Court to provide the documents. The order was complied with and the documents were given to the applicant.
4. He then, within the same human rights application, sought a review of his conviction and sentence on the ground that his human rights had been violated.
5. He claims that he was not afforded the full protection of the law as he was charged under a wrong law, the District Court does not have jurisdiction to impose a 13-year sentence, and he had been denied the right to appeal due judicial inaction (on the part of the District Court) and the failure to provide him with legal representation.
TRIAL OF HUMAN RIGHTS APPLICATION
6. A trial of the application has been conducted. The State opposed any review of conviction or sentence.
7. Counsel for the State, Ms Sasagombi, submitted that to allow a review in the course of hearing a human rights application would be an abuse of process. It would be contrary to the principle laid down by the Supreme Court in Commander of Beon Correctional Institution v Mal (2022) SC2186 that the National Court has no power in exercising its human rights jurisdiction under s 57 of the Constitution to override existing procedures in the criminal justice system for appealing or reviewing its own decisions or the decisions of other courts in the exercise of criminal jurisdiction.
8. Having regard to that submission, I have decided that in the circumstances of this case, where the applicant has represented himself and I have received limited assistance in testing the proposition that I have no jurisdiction, it would not be appropriate to allow a review of the conviction or sentence.
9. The applicant still has the right to approach the National Court by conventional means to apply for leave to review his conviction and sentence. So, his application will be refused.
CONCERNS ABOUT LAWFULNESS OF CONVICTION AND SENTENCE
10. Though his human rights application will be refused, the applicant has raised legitimate concerns about the lawfulness of his conviction and sentence, and indeed the way in which he was processed by the criminal justice system.
11. It seems that what happened – and I make these findings tentatively, based on the District Court depositions that were admitted in evidence – was this:
CONSTITUTIONAL RIGHTS OF PERSONS DETAINED AND CHARGED WITH OFFENCES
12. At this point I pause to cite several provisions of the Constitution that confer rights, called human rights or basic rights, on persons who are arrested or detained or charged with offences.
13. Sections 37(1), (3) and (4) state:
(1) 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. ...
(3) 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.
(4) A person charged with an offence—
(a) shall be presumed innocent until proved guilty according to law, but a law may place upon a person charged with an offence the burden of proving particular facts which are, or would be, peculiarly within his knowledge; and
(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged; and
(c) shall be given adequate time and facilities for the preparation of his defence; and
(d) shall be permitted to have without payment the assistance of an interpreter if he cannot understand or speak the language used at the trial of the charge; and
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law; and
(f) shall be afforded facilities to examine in person or by his legal representative the witnesses called before the court by the prosecution, and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf, on the same conditions as those applying to witnesses called by the prosecution.
14. Sections 42(2) and (3) state:
(2) 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.
(3) 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.
QUESTIONS ARISING FROM THE APPLICANT’S CASE
15. Some questions that immediately arise from this case, where a man was, within the period of 11 days from 19 to 30 April 2024, arrested, detained, charged, convicted and sentenced to 13 years imprisonment are:
(1) Is the offence under s 68(1)(b) of the Controlled Substance Act an indictable offence?
(2) If yes, can it, and other offences created by the Controlled Substance Act, be tried summarily?
(3) When the applicant was arrested, was he informed immediately of his s 42(2) rights and permitted to communicate without delay and in private with a member of his family or a personal friend and with a lawyer of his choice and given adequate opportunity to give instructions to a lawyer of his choice at Kerema police lock-up?
(4) Was the right, under s 42(3) of the Constitution, to be taken, after his arrest, “without delay” before a Court, afforded to the applicant, given that he was detained (apparently without charge) for six days from 19 to 25 April 2024 before making his first appearance in Kerema District Court?
(5) Was the applicant given adequate time and facilities for preparation of his defence as required by s 37(4)(c) of the Constitution?
(6) Was the applicant given a reasonable opportunity to obtain legal representation as required by s 37(4)(e) of the Constitution?
(7) Was the applicant afforded facilities to examine the witnesses called by the prosecution and to obtain the attendance and carry out the examination of witnesses and to testify before the court on his own behalf on the same conditions as those applying to witnesses called by the prosecution as required by s 37(4)(f) of the Constitution?
(8) Was the applicant afforded a fair hearing, as required by s 37(3) of the Constitution?
(9) Was the applicant’s right to the full protection of the law – a fundamental human right under s 37(1) of the Constitution, which should have been “fully available” to him as he was a person charged with offences – actually made available to him, by the Police? By the District Court? By the criminal justice system?
ANSWERS
16. I won’t attempt to answer most of those questions and I do not purport to make formal findings, but I think it is worthwhile stating that the impression that I have gained is that the answer to each of questions (3) to (9) is no.
17. As to questions (1) and (2): they need further inquiry, as they raise the issue, quite apart from whether care is taken to afford human rights to persons charged with offences under the Controlled Substance Act, whether the District Court has any jurisdiction to hear and determine such offences summarily.
18. The offence under s 68(1)(b) of the Controlled Substance Act and many of the other offences under that Act would appear to be indictable offences.
19. An indictable offence is, per force of s 21 of the Interpretation Act, an offence “punishable by imprisonment for a term exceeding 12 months”.
20. The significance of that categorisation is stark when it is considered that the District Court is a court of limited statutory jurisdiction and has no general jurisdiction to try indictable offences summarily.
21. The District Court’s criminal jurisdiction is primarily granted under s 20(1) of the District Courts Act, which states:
Where, by law–
(a) an offence is punishable on summary conviction or a person is made liable to a penalty or punishment or to pay a sum of money for an offence, act or omission and the offence, act or omission is not an indictable offence; or
(b) subject to Subsection (1A), an indictable offence is punishable on summary conviction, being an offence specified in Schedule 2 to the Criminal Code 1974,
the matter may be heard and determined by a District Court in a summary manner under this Act.
22. A summary prosecution occurs when the case is initiated in the same court in which the trial takes place. The matter is dealt with summarily. There are no committal proceedings. The classic example is offences under the Summary Offences Act. They are prosecuted summarily in the District Court.
23. Some indictable offences can be tried summarily before a Grade V Magistrate in the District Court, but only because special provision is made under Section 420 and Schedule 2 of the Criminal Code. Summary offences are by their nature less serious offences – the maximum penalties are less severe – than indictable offences.
24. Subject to the exceptions specifically created by the Criminal Code, prosecution of an indictable offence must, because of the nature of the offence, be preceded by committal proceedings in the District Court.
25. It is the nature and categorisation of the offence that determines whether it must be tried summarily or by indictment (ie subject to committal proceedings) or whether there is a discretion. In most cases the Public Prosecutor has no discretion. The Public Prosecutor cannot, for example, decide to summarily prosecute a person for murder. It is an indictable offence. The law does not allow it to be tried summarily in any court. The prosecution must be by indictment. There must be a committal proceeding in the District Court. If the District Court refuses to commit, the Public Prosecutor can indict under s 526 of the Criminal Code. The requirement for a committal proceeding cannot be avoided (Bank of Paua New Guinea v Mai [2007] 1 PNGLR 272, Kamit v Aus-PNG Research & Resources Impex Ltd [2007] 1 PNGLR 222).
26. I have considered whether s 3 (application of the Act) of the Controlled Substance Act has a bearing on the District Court’s jurisdiction. It states:
(1) Unless to the contrary, provisions of the Criminal Code Act (Chapter 262) relating to:
- (a) criminal practice and procedures; and
- (b) jurisdiction, including Sections 12, 13 and 14; and
(c)punishment, including Sections 18 and 19
apply to this Act.
(2) The provisions of this Act are in addition to the Criminal Code Act (Chapter 262) or any other law relating to criminal matters, and where there are any inconsistencies between the provisions of this Act and the Criminal Code Act (Chapter 262) or any other law relating to criminal matters, this Act shall apply.
(3) The provisions of this Act are in addition to the Customs Act (Chapter 101) and shall apply to any controlled substance that is within a customs controlled area.
27. I do not think that s 3 confers jurisdiction on the District Court to try indictable offences under the Controlled Substance Act summarily.
28. The tentative view I have formed, and I emphasise that I am not making a formal finding as I have not received the benefit of legal argument, is that the offence under s 68(1)(b) of the Controlled Substance Act is an indictable offence, and cannot be tried summarily. The trial for this offence can only be by indictment in the National Court and any trial must be preceded by committal proceedings in the District Court.
29. If that is the correct view, it might mean that the applicant – and many others serving sentences after conviction in
the District Court for offences under the Controlled Substance Act – have been convicted and sentenced and are being detained unlawfully.
.
NEED FOR FURTHER PROCEEDINGS
30. I take judicial notice of the fact that there are many other persons detained at Bomana Correctional Institution and many others in other correctional institutions serving long sentences passed by the District Court after summary prosecution for offences under the Controlled Substance Act, who have been processed and sentenced in a similar way to the applicant.
31. Some of them have filed human rights applications and I have alerted the Public Solicitor to these issues. Some of them are serving lengthier sentences than the applicant.
32. I have tried to persuade the Public Solicitor to pay special attention to this matter and to take decisive action to bring these issues into the open and have them determined by the National Court or perhaps the Supreme Court. My persuasive skills have been ineffective.
33. I now announce that it is my intention to commence proceedings on my own initiative under s 57 of the Constitution to ventilate these issues aimed at determining whether the current practice of prosecuting offences under the Controlled Substance Act in the District Court is in accordance with the Constitution and the District Courts Act and other laws and whether that practice has resulted in a system in which the human rights of many persons have been routinely infringed.
ORDER
(1) The application for enforcement of human rights is refused.
(2) The file is closed.
__________________________________________________________________
Lawyer for the respondent: Solicitor-General
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