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Kissi v The Independent State of Papua New Guinea [2023] PGNC 317; N10479 (22 September 2023)

N10479

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 6 OF 2023

IN THE MATTER OF AN APPLICATION
FOR ENFORCEMENT OF HUMAN RIGHTS

SAM KETENG KISSI
Applicant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Cannings J
2023: 5^th, 13^th, 22^nd September

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37 – right to fair trial within reasonable time, Constitution, s 37(3) – expectation of commencement of trial within four months after committal, Constitution, s 37(14) – applicant remanded in custody for four years before being committed for trial – nil progress on applicant’s case more than eight months after committal – whether breach of human rights – whether declarations and orders for enforcement of human rights should be made.

The applicant was detained on 8 October 2018 in connection with various offences. He was remanded in custody for more than four years before being committed for trial. In that period, he made two unsuccessful bail applications. Nine months after the date of committal no tangible steps had been taken to prepare his case for trial. He applied for enforcement of his human rights. He sought orders for dismissal of the charges against him and discharge from custody.

Held:

(1) The applicant’s rights to the full protection of the law under s 37(1) of the Constitution have been infringed, in that he has not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution and his trial has not been commenced in a reasonable time after the date of committal for trial contrary to s 37(14) of the Constitution and he has been detained on remand for an unreasonable length of time (four years, 11 months) without trial and without being given a date of trial, contrary to s 42 of the Constitution.

(2) It was necessary and desirable to make declarations and orders under s 57(3) of the Constitution to protect and enforce the human rights of the applicant: declaration of breach of human rights made and orders made to ensure that the applicant’s criminal case is given an urgent priority.

(3) Application for dismissal of criminal case and for discharge from custody refused. Those matters are best dealt with by the National Court in its criminal jurisdiction.

Cases Cited

The following cases are cited in the judgment.

Application by Benetius Gehasa (2005) N2817
Application by Gibson Alabain (2020) N8576
Commander of Beon Correctional Institution v Mal (2022) SC2186
Kaluwin v Haiveta (2023) SC2381
Leahy v Kaluwin (2014) N5813
The State v Siune (2021) SC2070
The State v Tamate (2021) SC2132
Wartoto v The State [2015] 1 PNGLR 26

Counsel

S K Kissi, the applicant, in person
A Kajoka, for the Respondents

22^nd September 2023

1. CANNINGS J: Sam Keteng Kissi has been remanded in custody at Bomana Correctional Institution for almost five years. He is facing various criminal charges. He applies for enforcement of his human rights, which he says have been breached. He seeks dismissal of the criminal charges against him and his discharge from custody. His application is opposed by the State, which is the sole respondent.
   
2. The applicant was arrested and detained on 8 October 2018 in connection with various charges of child sexual offences allegedly committed against girls under the age of 16 years, in separate incidents involving separate complainants. He remained in custody for more than four years before being committed for trial on 14 December 2022, on two charges only: abduction of a girl under the age of 16 years, contrary to s 351(1) of the Criminal Code and unlawful deprivation of liberty, contrary to s 355 of the Criminal Code.
   
3. Since the date of committal, he has remained in custody. A criminal case file has been opened in the National Court registry at Waigani, which reflects his committal for trial on those charges. It is CR 173 of 2023. His case has been mentioned on three occasions but he has not been brought to the court on any of those occasions. No directions have been given in relation to his case. No trial date has been set. The case is apparently stalled.
   
4. He has now been in custody for a continuous period of four years and 11 months. In that period he has made two unsuccessful bail applications in the National Court.
   

BREACHES OF HUMAN RIGHTS

5. The applicant’s allegation of breach of human rights is well founded. All persons in Papua New Guinea who are charged with a criminal offence have a bundle of human rights to which they are entitled. Those rights are entrenched in Division III.3 (Basic Rights) of the Constitution and enforceable in the National Court and the Supreme Court. They are found largely in s 37 (protection of the law), and in particular in three subsections of s 37, ss 37(1), 37(3) and s 37(14), that are relevant in this case.
   

Section 37(1) 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(3) states:

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.

Section 37(14) states:

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.

6. But s 37 is not the only human rights provision of the Constitution relevant in this case. Section 42 (liberty of the person) also comes into play, in particular s 42(5), which 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.

7. This is a case in which the facts speak for themselves. Unless there is a very good explanation provided by the State: no person should wait in custody for more than four years without being committed for trial; no person should then wait a further nine months in custody after their committal without their trial commencing; no person should wait in custody for almost five years after their arrest without being given a date for their trial.
   
8. The delays in this case are extraordinary and no explanation for them has been given by the State.
   
9. I uphold the applicant’s contention that his human rights have been infringed. I find that:
   
   • the applicant’s right to the full protection of the law under s 37(1) of the Constitution has been infringed, in that:
     
   • he has not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution;
     
   • his trial has not been commenced in a reasonable time after the date of committal for trial contrary to s 37(14) of the Constitution.
     

I find also that:

• he has been detained on remand for an unreasonable length of time (four years, 11 months) without trial and without being given a date of trial, contrary to s 42 of the Constitution.
  

REMEDIES

10. Does it follow that the charges against the applicant ought to be dismissed and he ought to be discharged from custody? No, not necessarily. Determination of a human rights application is a two-step process: first the court identifies whether a breach of human rights has occurred, secondly the court decides on what the appropriate remedy is (Application by Benetius Gehasa (2005) N2817, Application by Gibson Alabain (2020) N8576).
    
11. The National Court has broad powers under ss 57(1) and (3) (enforcement of guaranteed rights and freedoms) to protect and enforce human rights and decide on what the appropriate remedy is. These provisions state:
    

57(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

57(3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

12. The Supreme Court has in a series of cases in recent years urged caution in the application of human rights in criminal proceedings: Wartoto v The State [2015] 1 PNGLR 26 (which contained obiter disapproving of enforcement of human rights to permanently stay a criminal proceeding in Leahy v Kaluwin (2014) N5813), The State v Siune (2021) SC2070, The State v Tamate (2021) SC2132, Commander of Beon Correctional Institution v Mal (2022) SC2186 and recently Kaluwin v Haiveta (2023) SC2381. I was the trial judge in most of those cases.
    
13. In this case I have insufficient material before me to seriously consider ordering that the charges against the applicant be dismissed or that he should be released from custody. I am intrigued by the very serious charges that the applicant originally was facing, yet he has only been committed for trial on two of those charges (and those two only carry maximum penalties of two and three years). He has apparently not been committed for trial on the more serious charges he was originally facing (eg child sexual penetration, s 229A of the Criminal Code, which has a potential maximum of life imprisonment).
    
14. The best thing to do is to make orders to ensure that the applicant’s criminal case is expedited and to put the case before the National Court in its criminal jurisdiction. He may be able to make an application to be brought to trial under s 552 of the Criminal Code. He might consider making a fresh bail application, given the very long period he has been in remand. I will make appropriate orders to see that his human rights are enforced in those ways.
    

CONCLUSION

15. The applicant has proven that his human rights have been breached. I have decided that the most appropriate way to enforce those rights is to order that the criminal case against him be expedited without further delay.
    

ORDER

16. These declarations and orders are made under s 57(3) of the Constitution to enforce the rights of the applicant under Division III.3 (Basic Rights) of the Constitution.
    
1. It is declared that the applicant’s rights to the full protection of the law under s 37(1) of the Constitution have been infringed, in that:
   
   • (a) he has not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution;
     
   • (b) his trial has not been commenced in a reasonable time after the date of committal for trial (14 December 2022), contrary to s 37(14) of the Constitution;
     
   • (c) he has been detained on remand for an unreasonable length of time (four years, 11 months) without trial and without being given a date of trial, contrary to s 42 of the Constitution.
     
2. The track leader, Crimes General, National Court, Waigani, shall by 25 September 2023:
   
   • (a) serve on the Office of Public Prosecutor and Office of Public Solicitor a sealed copy of this order and a copy of the judgment of this Court in HRA 6 of 2023, dated 22 September 2023;
     
   • (b) ensure that each of the Office of Public Prosecutor and Office of Public Solicitor have copies of the depositions from the applicant’s CR file, CR 173 of 2023, and if either of those offices do not have the depositions, provide the depositions forthwith.
     
3. The Public Prosecutor shall forthwith assign a senior lawyer in his office to take carriage of CR 173 of 2023.
   
4. The Public Solicitor shall forthwith assign a senior lawyer in his office to interview the applicant to ascertain whether the applicant wishes to be represented by the Public Solicitor in CR 173 of 2023.
   
5. These proceedings, HRA 6 of 2023, shall be called for mention on 28 September 2023 at 9.30 am before Cannings J so that:
   
   • (a) the Public Prosecutor will notify the Court what steps are being taken to accord CR 173 of 2023 an urgent priority and whether there are any criminal proceedings other than CR 173 of 2023 involving the applicant that are pending;
     
   • (b) the Public Solicitor will notify the Court whether he is acting for the applicant in CR 173 of 2023;
     
   • (c) directions will be given by the Court to ensure that CR 173 of 2023 is immediately brought to the attention of the Judge Administrator, Crimes General track at the National Court at Waigani, so that it can be given an urgent priority.

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Solicitor-General: Lawyers for the Respondent