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Wambun v The State [1994] PGNC 148; [1994] PNGLR 488 (24 June 1994)

PNG Law Reports 1994

[1994] PNGLR 488 - Tus Wambun v The State�

[1994] PNGLR 488

N1233

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TUS WAMBUN

V

THE STATE

Lae

Sevua J

10 November 1993

12 November 1993

24 June 1994

CONSTITUTIONAL LAW - Rights of convicted prisoners - Whether Constitution includes right to temporary release to attend father�s funeral.

EVIDENCE - Hearsay - Counsel�s affidavit containing alleged statements by third parties - Whether admissible.

WORDS AND PHRASES - Meaning of �right�.

Facts

The plaintiff was a prisoner serving a sentence of seven years imprisonment on being convicted for murder. On a notice of motion he sought orders under Constitution ss 22, 155(3), 185, and Sch 2.1 for temporary release from the gaol where he was serving his sentence to enable him to attend his father�s funeral, and for the provision of escorts by prison officers or police officers on his journey to and from his home village where the funeral was to be held.

The plaintiff deposed in an affidavit that he was his father�s eldest son, and so required to attend the funeral for customary purposes. The plaintiff�s counsel deposed in an affidavit that the plaintiff instructed him he would offer a surety of K2,000, that a third person would guarantee the plaintiff�s return to prison, with or without a surety, and that prison officials had advised him that an escort could be provided.

Held

N1>1.������ The affidavit sworn by the plaintiff�s counsel comprised hearsay evidence which was rejected by the Court.

N1>2.������ There being no right under either the Constitution or statute for a person sentenced to a term of imprisonment to be temporarily released for personal reasons, such as to attend a funeral of a family member, there was no legal basis on which to make the orders sought. Although not fully argued, ss 22, 185 and Sch 2 of the Constitution were not applicable to the circumstances of the case.

Counsel

G Langtry, for the plaintiff.

R Saranduo, for the defendant.

24 June 1993

SEVUA J: In refusing the plaintiff�s application on 12 November 1993, I said I would provide my full reasons at a later date. These are my reasons.

The plaintiff is a prisoner of the State, currently serving a sentence of seven years imprisonment following a conviction for murder. He was sentenced on 15 April 1993.

The nature of this application is this. On 6 November 1993, the plaintiff was informed by his sister of his father� death. There is no evidence as to the date of death. However, the plaintiff said he, being the eldest son, was required, I assume by custom, to be present at the mourning, to supervise the ceremony, and bury his demised father. He was required to receive mourners and goods brought by them and distribute wealth, land, and other material things amongst his three brothers. In his custom, if he did not do this, �there will be dissatisfaction with the distribution of property, which will lead to problems later.� The deceased�s properties include a trade store valued at K2,000, a Toyota Stout valued at K5,000, pigs valued at K5,000, and 20 acres of land and gardens.

The plaintiff claimed that he was in great and urgent need and was desirous of attending the funeral to see his father�s face for the last time, and also sort out the family�s welfare and property. For these reasons, he prayed the Court to invoke its inherent powers to his benefit on humanitarian grounds, to release him from prison for one week to attend to these matters.

In his notice of motion, he claimed two orders. Firstly, that he be temporarily released from detention at Buimo prison to attend his father�s funeral and, secondly, that he be provided escort by prison and/or police officers to and from Kwimas Village, Wabag, in Enga Province.

To support this application, the plaintiff swore an affidavit which sets out the primary facts I have outlined earlier. His counsel has also sworn an affidavit which, inter alia, deposed to the fact that he has been instructed that the plaintiff would offer a surety of K2,000 cash and, further, that one Peter Hunjeffry of Kaimi Offset Patrols was willing to guarantee the plaintiff�s return to prison, with or without cash surety. Mr Langtry also said in his affidavit that he had been advised by Buimo Correctional Institution Services (CIS) officials that, if the Court releases the plaintiff, escort would be provided, with or without the assistance of police. Mr Langtry, therefore, prayed for orders under the Constitution to release his client.

In respect of the evidence in support of this application. I am of the view that I should not accept the hearsay evidence of counsel for the plaintiff in respect of cash surety and CIS escort. If the plaintiff had K2,000 cash to offer as security for his return, he has not deposed to that in his own affidavit. Similarly, if Peter Hunjeffry could offer cash surety to guarantee the plaintiff�s safe passage from and to Buimo prison, he should have deposed to this in a separate affidavit. Finally, if the prison officials had escort available, the commandant�s evidence would be convincing and necessary.

I consider that the consequences of granting this application would have serious ramifications in our community. It would open the floodgate to all convicted prisoners to apply to the Courts for temporary release to bury dead, or attend to other family or private business, whilst they are prisoners. I do not think that this is the reason they are sent to prison in the first place. My view is that prisoners are convicted persons whose liberty is restricted. They are incarcerated for crimes against society. They are locked away as punishment for their crimes. That is the price they must pay for their crimes. Once incarcerated, their rights and freedom are limited. They no longer enjoy the freedom of society like free citizens do outside the confines of prison walls. Whilst they may have certain rights under the Constitution, which are enforceable under s 57 and s 58, I do not consider such rights include the right to be temporarily released from prison. I also consider that it would be contrary to public policy to release a convicted prisoner for such a purpose. Furthermore, I believe that the community at large and the police would be very concerned.

Mr Langtry�s very brief submission�s were that I should invoke the provisions of the Constitution, namely, ss 22, 155(3), 185, and Sch 2.1. He said that he relied on the authorities cited on pages 43 and 44 of Chalmers, Weisbrot and Andrew Criminal Law and Practice of Papua New Guinea, 2nd edn (1985), in respect of enforcement of the Constitution. He was unable to provide any other authority. However, he submitted that I exercise my discretion to grant the orders that his client is seeking. He acknowledged that there is no provision in the Corrective Institutions Act Ch 63 to cover this situation, and said this was a novel area with no precedent. He further submitted that the provisions of the Constitution he referred this Court to are wide enough to cover this situation, although he acknowledged that his client�s freedom is restricted. And, finally, Mr Langtry submitted that I should enforce his client�s custom pursuant to Sch 2.1 of the Constitution.

Unfortunately, I must disagree with those submissions. Whilst I agree that the Courts would normally give recognition to our customary norms and practices so long as they are not repugnant to or inconsistent with this Constitution or the law, the fact is that the issue in the present application has nothing to do with recognition or non-recognition of our custom. In my opinion, the issue here is whether or not the plaintiff, as a convicted prisoner, has the right to be released temporarily from prison to attend his father�s funeral. In other words, does he have any right under the Constitution or any other law to be released temporarily as a convicted prisoner?

I consider that if the plaintiff has any right, it would be found in the Constitution or the Corrective Institutions Act. I could think of no other legislation which could provide for such a right.

In England, rules have been made and rules may be made for the temporary release of convicted prisoners. A prisoner may be temporarily released for any period and subject to any conditions. Power to grant temporary release may be exercised on compassionate grounds, for instance, visiting a near relative who is dying or attending the funeral of a deceased relative or attending the wedding of a relative. The Prison Rules 1964 (S I 1964 No 388), made under the Prison Act 1952, has provisions which caters for the situations referred to above. See Halsbury�s Laws of England, 4th edn, vol 37 para 1184.

Unfortunately, we do not have any equivalent rules or legislation, and we cannot apply the English and Wales Prison Rules as part of our underlying law, because the rules are not part of the common law of England. The rules are, therefore, inapplicable to the circumstances of Papua New Guinea. I merely refer to them for purpose of comparsion, to show that whilst other countries in the world may have rules or legislations governing temporary release of prisoners from prison under the circumstances referred to, Papua New Guinea does not.

A while earlier, I posed a question whether the plaintiff, as a prisoner, has the right to be temporarily released. I consider that in order to answer that question, the word �right� should first be defined. I think in the ordinary use of the word, we would generally agree that a right is something that one is entitled to. In the context of this application and the question posed, a right would normally signify something which is enforceable, something which creates an inescapable legal duty or obligation on some other person, the proper discharge of which can be secured by recourse to law and the Courts or some legal tribunal established to provide the machinery for enforcement of the right or obligation. Legal rights are enforceable at the instance of someone, so that the possessor of the right has that assurance. One has to be careful, though, on the rights of prisoners so that one does not confuse himself with the particular right in issue. For example, in the present case, we are not dealing with a so-called human rights application. That is, the plaintiff is not seeking enforcement of a constitutional right that has been allegedly violated or breached. Rather, we are considering whether the Constitution, or the Corrective Institutions Act, or any law for that matter, confers a right on a prisoner, like this plaintiff, to be temporarily released from prison for the purpose sought.

The Constitution guarantees certain rights and freedom. However, it confers no right to a prisoner for a temporary release to attend personal matters. I, therefore, find no provision under the Constitution which grants this plaintiff a right to be temporarily released from prison to attend his deceased father�s funeral.

Under the Corrective Institutions Act, there are provisions relating to the custody and removal of detainees. Sections 21 to 24 deal with removal of detainees. However, the removal is quite restrictive in nature. Removal of detainees can only be made for purpose of trials, attending a hospital due to illness, employment or labour outside an institution, and transfer to another institution, police lock-up, or rural lock-up. There is absolutely no provision in the act to allow such a temporary release or removal as sought by the plaintiff in his application. Temporary release, as provided for in the English Prison Rules, is not applicable here for the reason stated earlier. The discretionary powers allowed under the Corrective Institutions Act, which I have referred to, do not apply to this situation. I, therefore, find that this statute does not grant a right to the plaintiff to leave the prison for the purpose sought.

As I adverted to earlier, the plaintiff is a convicted prisoner serving a term of imprisonment with hard labour for a very serious crime. He is, thus, a prisoner of the State. Neither the Constitution nor the Corrective Institutions Act empowers this Court to release the plaintiff for the purpose he is seeking. The plaintiff has not satisfied this Court that he has a right to be released under these circumstances.

Perhaps, this could be an area for development of our underlying law in pursuance of Sch 2.3 of the Constitution. However, I say no more than that. I consider that, if the application is granted, I would be setting a dangerous precedent which would open the floodgate to prisoners, as I have alluded to earlier. I would also reiterate the public policy consideration.

I consider that the plaintiff, as a convicted prisoner, whose freedom and rights are limited, neither has the legal nor the constitutional right to the remedy he now seeks. These constitutional provisions have not been properly and fully argued before me. I am, therefore, of the view that ss 22, 185 and Sch 2.1 of the Constitution, which he sought to rely upon, are inapplicable to the circumstances of his case.

For these reasons, I dismiss this application.

Lawyer for plaintiff: Godfrey Langtry.

Lawyer for State: Public Prosecutor.