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Pokarup v Commissioner of the Correctional Service [2024] PGNC 344; N11028 (4 October 2024)

-N11028

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (HR) NO 2 OF 2024

DAVID POKARUP
Plaintiff

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2024: 6^th August, 27^th September, 4^th October

HUMAN RIGHTS – application by former prisoner for enforcement of human rights – allegation of unlawful detention for more than three years – alleged breach of human rights under Constitution, ss 37(1) (full protection of the law), 41 (proscribed acts), 42 (liberty of the person).

PRACTICE AND PROCEDURE – Wrongs (Miscellaneous Provisions) Act – whether a proceeding based on alleged breaches of human rights is a proceeding “in tort” for purposes of s 1 (general liability of the State in tort) – whether proceedings an abuse of process.

EVIDENCE – whether sufficient evidence of alleged period of unlawful detention.

The plaintiff claimed to be unlawfully detained for more than three years after his due date of release from custody in a correctional institution. He commenced proceedings based on alleged breaches of human rights under ss 37(1), 41(1) and 42 of the Constitution, seeking damages. The defendants argued that the proceedings should be summarily dismissed due to lack of proper pleadings (failure to comply with s 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act and abuse of process (due to a multiplicity of proceedings based on the same cause of action). If the proceedings were not summarily dismissed the defendants argued that the proceedings should still be dismissed as the plaintiff failed to establish a factual basis on which the court could make any finding of negligence or breach of human rights against any officer of the defendants.

Held:

(1) Section 1 of the Wrongs (Miscellaneous Provisions) Act applies to torts committed by servants and agents of the State and regulates the State’s liability in tort. Section 1 had no application to the present proceedings as the causes of action pleaded in the statement of claim were not “torts”, but breaches of human rights. There was no lack of proper pleadings.

(2) Though the plaintiff had commenced two previous proceedings on a similar subject matter to that of the present proceedings, those proceedings related to determination of the plaintiff’s due date of release from custody and did not involve any claim for damages, which is the relief sought in the present proceeding. There was no unjustified multiplicity of proceedings and no prejudice to the defendants was caused by commencement of the present proceedings. There was no abuse of process.

(3) Though the proceedings were not summarily dismissed, the proceedings ultimately failed as the plaintiff failed to prove the critical fact that he was in custody for a continuous period of more than three years after his due date of release. Case dismissed.

Cases Cited

The following cases are cited in the judgment.

Pokarup v Commissioner of the Correctional Service (2023) N10635
The State v Elvis Roy & David Pokarup (2007) N5041

Counsel

J P Gene, for the Plaintiff
A Kajoka, for the Defendants

4^th October 2024

1. CANNINGS J: David Pokarup is a former prisoner who claims to have been unlawfully detained for more than three years after his due date of release from custody. He has commenced proceedings against the Commissioner of the Correctional Service and the State based on alleged breaches of human rights under ss 37(1) (full protection of the law), 41(1) (proscribed acts) and 42 (liberty of the person) of the Constitution. He seeks damages.

2. The defendants argue that the proceedings should be summarily dismissed for lack of proper pleadings (failure to comply with s 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act) and abuse of process (due to a multiplicity of proceedings based on the same cause of action). The defendants further argue that if the proceedings are not summarily dismissed the plaintiff’s case should still fail as he has not established a proper factual basis on which the court could make any finding of negligence or breach of human rights against any officer of the defendants.

3. Two key issues arise:

First, should these proceedings be summarily dismissed?

Secondly, if the proceedings are not summarily dismissed, has the plaintiff established a proper factual basis on which the Court can find in his favour?

Before addressing them I will set out some uncontentious facts.

UNCONTENTIOUS FACTS

4. The facts of this case are intriguing for various reasons, one of which is that I have been the judge who has in different court proceedings over a long period addressed the question of whether and for how long the plaintiff should be detained in custody. The story starts in 2007 when in criminal proceedings against the plaintiff at Kimbe I sentenced him to eight years imprisonment for armed robbery (The State v Elvis Roy & David Pokarup (2007) N5041).

5. In 2015 the plaintiff was still in custody at Lakiemata correctional institution near Kimbe and he made a human rights application (HRA 202 of 2015) to clarify his due date of release. I heard the application in Kimbe in 2016. It turned out that the plaintiff had escaped from custody (which explained why he was still in custody serving an eight-year sentence, nine years after the date of sentence). I took the period he was at large into account when determining in an oral judgment on 31 March 2016 that his due date of release was 21 March 2020.

6. In 2022 the plaintiff made another human rights application, HRA 136 of 2022, to clarify his due date of release. By then he was in custody at Bomana correctional institution. I heard the application at Waigani and on 27 December 2023 declared, again, that his due date of release from custody was 21 March 2020. I declared that he was unlawfully detained and ordered that he be released from custody forthwith (Pokarup v Commissioner of the Correctional Service (2023) N10635).

7. He was released from custody on 28 December 2023. Then on 15 February 2024 he commenced the present proceedings, WS (HR) 2 of 2024, alleging that he was unlawfully detained for a continuous period of more than three years from his due date of release, 21 March 2020, to the date of actual release, 28 December 2023, and seeking damages for breaches of human rights.

SHOULD THE PROCEEDINGS BE SUMMARILY DISMISSED?

8. Ms Kajoka, for the defendants, submitted that the plaintiff’s case should be summarily dismissed for two reasons. First, lack of proper pleadings. Secondly, abuse of process.

9. The pleadings argument is based on s 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act, which now provides (following an amendment to this provision through Act No 12 of 2022):

Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject ... in respect of torts committed by its servants and agents, who must be named in the court proceedings. [Emphasis added.]

10. Ms Kajoka submits that the plaintiff is making his claim against the State “in tort” as he is pleading a case of negligence on the part of officers of the Correctional Service who, he alleges, as servants of the State, failed to act on the order I made on 31 March 2016 in Kimbe for his release on 21 March 2020. The plaintiff, however, failed to plead the names and identities of the officers who allegedly miscalculated his due date of release and failed to comply with the order for his release from custody on 21 March 2020. Ms Kajoka submitted that the plaintiff’s statement of claim is defective as it fails to comply with s 1(1)(a) and therefore the proceedings should be summarily dismissed.

11. I reject that submission for the simple reason that the plaintiff’s case is not based on “tort”, which is a category of civil wrongs developed by the common law and adopted as part of the underlying law of Papua New Guinea under s 20 of the Constitution and the Underlying Law Act 2000. The plaintiff’s case is based on breaches of human rights under the Constitution. It is a constitutional action, which is conceptually and legally distinct from an action in negligence, which is a tort and an underlying law action. Section 1(1)(a) of the Wrongs (Miscellaneous Provisions) Act does not apply to this case. The failure to name any particular officer of the Correctional Service as the wrongdoer in the proceedings is of no consequence. The statement of claim is not defective in the manner contended for by the defendants.

12. The abuse of process argument is based on alleged “duplication” of the proceedings HRA 262 of 2015 and HRA 136 of 2022, both of which were aimed at determination of the plaintiff’s due date of release. I reject the argument as, although the relief sought in each proceeding was the same, the facts on which each proceeding was based were different. HRA 262 of 2015 was commenced in good faith as there was confusion as to the due date of release. HRA 136 of 2022 was also commenced in good faith as the plaintiff was still in custody even though his previously-determined due date of release had passed.

13. As I have rejected both grounds provided by the defendants for summary dismissal of the proceedings, I will now address the defendants’ argument as to the merits of the case.

HAS THE PLAINTIFF ESTABLISHED A PROPER FACTUAL BASIS FOR HIS CASE?

14. Put another way, the critical question is whether the plaintiff has proven that he was in fact unlawfully detained for a continuous period from 21 March 2020 to 28 December 2023. He deposes in an affidavit filed on 15 February 2024, which has been admitted into evidence as exhibit P1, that that is the case. However, he has not addressed the evidence, which was adduced in HRA 136 of 2022, of another escape that occurred after my ruling on HRA 262 of 2015. I dealt with the issue of this alleged escape in HRA 136 of 2022 (Pokarup v Commissioner of the Correctional Service (2023) N10635) as follows:

In his Correctional Service file, there is a loose reference to an escape that allegedly occurred after 19 December 2015. It allegedly occurred on 18 August 2016 and he was allegedly recaptured on 16 April 2022. However, there is no formal notification of escape or recapture, no evidence of a charge of escape and no warrant of commitment for the offence of escape.

If it is alleged that a prisoner has escaped from custody, the court must be guided by the best evidence available. If there is no satisfactory evidence of an escape the alleged escape should be disregarded in calculating the due date of release.

I find that there is no satisfactory evidence of a second escape. Only the first escape and the period at large after it, should be considered in determining the due date of release. As it turns out, I have already taken those matters into account when I decided HRA 262 of 2015. ...

The applicant’s due date of release of 21 March 2020 was more than three years and nine months ago. This is intriguing. It makes me think that there perhaps was a second escape and it was perhaps after my decision of 31 March 2016 in HRA 262 of 2015 and perhaps the applicant was recaptured on 16 April 2022. However, where the liberty of an individual is concerned, his right to the full protection of the law under s 37 of the Constitution is paramount. Records must be kept and maintained for every person in custody. If the records do not show an escape and do not show any period at large, such matters must be disregarded. The consequence is that the applicant has passed his due date of release. He is presently unlawfully detained. He is entitled to be discharged from custody forthwith. Because of the uncertainty over whether he might still be charged over the alleged second escape, I will order that he not face action without the leave of the court.

15. I was obviously concerned that there may have been a second escape and that the plaintiff had allegedly been at large from 18 August 2016 to 16 April 2022. However, I decided to disregard the alleged escape and the period at large for the purposes of determining his due date of release. I concluded that his due date of release remained 21 March 2020. I did not make a finding of fact that he was detained continuously in the period from 21 March 2020 to the date of my decision, 27 December 2023.

16. I am now required to determine that question of fact and I do not think the plaintiff has discharged the onus of proving it. I appreciate that he has deposed in a sworn affidavit that he was detained continuously in the period from 21 March 2020 to the date of his release, 28 December 2023. I also appreciate that the defendants have not adduced any evidence to rebut the plaintiff’s evidence. I also appreciate that evidence of the plaintiff being at large from 18 August 2016 to 16 April 2022 was adduced in a separate proceeding to the present case. However, I am not convinced. I cannot ignore the evidence in the previous case. The plaintiff should have expressly addressed it in this case but he hasn’t. I am therefore not satisfied that the plaintiff has proven on the balance of probabilities that he was detained continuously in the period from 21 March 2020 to the date of my decision, 27 December 2023.

17. I accept the defendants’ argument that the plaintiff has not established a proper factual basis on which the court can find in his favour. The case must therefore be dismissed.

CONCLUSION

18. The defendants’ arguments for summary dismissal of the proceedings have failed but their argument that there is no proper factual basis for a finding that the plaintiff was unlawfully detained for more than three years is sustained. The case must be dismissed. The plaintiff has been represented by the Public Solicitor and in such circumstances it is appropriate that the parties bear their own costs.

ORDER

(1) The proceedings are dismissed.

(2) The parties shall bear their own costs of the proceedings.

(3) The file is closed.

__________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendants