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Dina v The Independent State of Papua New Guinea [2024] PGNC 1; N10639 (4 January 2024)

-N10639

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 15 OF 2023

IN THE MATTER OF A COMPLAINT
OF UNREASONABLE DETENTION

JETHRO DINA
Complainant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Cannings J
2024: 3^rd, 4^th January

HUMAN RIGHTS – complaint of unreasonable detention, Constitution, s 42(5) – right to full protection of the law, Constitution, s 37(1) – 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) – complainant remanded in custody for 19 months before being committed for trial – still in custody awaiting trial 17 months after committal – whether breach of human rights – whether detention unreasonable.

The complainant was arrested and detained on 7 January 2021, charged with two counts of murder arising from a New Years Eve incident on 31 December 2020-1 January 2020. He was remanded in custody for 19 months before being committed for trial. He has remained in custody for a further 17 months after the date of committal and no date for his trial has been set. He made a complaint of unreasonable detention under s 42(5) of the Constitution and seeks release from custody or progress on his trial.

Held:

(1) The complainant’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 (three years) 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 complainant: declaration of breach of human rights made and orders made to ensure that the complainant’s criminal case is given an urgent priority.

Case Cited

The following case is cited in the judgment.

Kissi v The State (2023) N10479

Counsel

J Dina, the complainant, in person

4^th January 2024

1. CANNINGS J: The complainant Jethro Dina was arrested and detained on 7 January 2021, charged with two counts of murder arising from a New Years Eve incident on 31 December 2020-1 January 2021 at North Waigani, National Capital District. He was remanded in custody at Bomana Correctional Institution for 19 months before being committed for trial. He has remained in custody for a further 17 months after the date of committal and no date for his trial has been set. He made a complaint of unreasonable detention under s 42(5) of the Constitution and seeks release from custody or progress on his trial.

2. Section 42 (liberty of the person) 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.

INQUIRY

3. I have inquired into the complaint and ordered the complainant to be brought before the Court. I have ascertained that after the complainant was committed for trial on 22 August 2022 the Public Prosecutor filed a pre-trial review statement on 17 October 2022. The complainant’s case has been mentioned before several different Judges on the Crimes General track at Waigani without any tangible progress. It is not clear whether he has a lawyer. No trial date has been set.

4. I am satisfied that the complainant’s detention is lawful. I am not satisfied, in view of the very serious charges faced by the complainant that, at this stage, his detention for three years constitutes an unreasonable detention. However, I qualify that remark by saying that unless positive steps are taken to set a date for his trial, the time will come soon when his continuing detention will become unreasonable, in which case the Court would be obliged to order his release, subject to conditions.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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 19 months without being committed for trial; no person should then wait a further 17 months in custody after their committal without their trial commencing; no person should wait in custody for almost three years after their arrest without being given a date for their trial.

10. I find that the complainant’s human rights have already been infringed. His 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.
  

ORDER

11. I will make declarations and orders, like those made in the recent case of Kissi v The State (2023) N10479 (a man was remanded in custody for almost five years without being given a trial date) to ensure that the complainant’s criminal case is expedited.

12. These declarations and orders are made under s 57(3) of the Constitution to enforce the rights of the complainant under Division III.3 (Basic Rights) of the Constitution.

1. It is declared that the complainant’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 (22 August 2022), contrary to s 37(14) of the Constitution.
     
2. The track leader, Crimes General, National Court, Waigani, shall by 15 January 2024:
   
   • (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 HRC 15 of 2023, dated 4 January 2024;
     
   • (b) ensure that each of the Office of Public Prosecutor and Office of Public Solicitor have copies of the depositions from the complainant’s criminal file, CR 1104 of 2022, and if either of those offices do not have the depositions, provide the depositions forthwith.
     
3. The Public Prosecutor shall forthwith assign a prosecutor in his office to take carriage of CR 1104 of 2022.
   
4. The Public Solicitor shall forthwith assign a lawyer in his office to interview the complainant to ascertain whether the complainant wishes to be represented by the Public Solicitor in CR 1104 of 2022.
   
5. These proceedings, HRC 15 of 2023, shall be called for mention on 2 February 2024 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 1104 of 2022 an urgent priority and whether there are any criminal proceedings other than CR 1104 of 2022 involving the complainant that are pending;
     
   • (b) the Public Solicitor will notify the Court whether he is acting for the complainant in CR 1104 of 2022;
     
   • (c) requests will be made by the Court to ensure that CR 1104 of 2022 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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