[national court of justice]
in the matter of an application by benetius gehasa
buka: cannings j

21 & 23 March 2005

Constitutional law – Basic rights – Application for enforcement of basic rights – Man detained on criminal charge of wilful murder for 47 months without trial –Trial not commenced within 43 months after date on which he was committed for trial – File lost – Allegation that he is suffering from psychiatric problem – State requested more time to reconstruct file and prepare case for prosecution – Constitution, Section 57 – enforcement of guaranteed rights and freedoms – Constitution, Section 37(1) – Right to the full protection of the law – Constitution, Section 37(3) – Right to be afforded a fair hearing within a reasonable time by an independent and impartial court – Constitution, Section 37(4)(b) – Right to be informed promptly in a language he understands and in detail of the nature of the offence with which he is charged – Constitution, Section 42 – Right not to be deprived of personal liberty except as permitted by law – Whether constitutional rights breached – Finding that a number of rights had been breached – Detention for an unreasonable length of time – Orders made under Constitution, Sections 42(5), 57(1) and 57(3) – Applicant to be released from custody, subject to conditions. 

Facts

The applicant was charged with one count of willful murder. He was detained in custody for almost four (4) years awaiting trial. At the time of the application further investigations into the allegations had not been conducted and completed. The matter was far from trial.

The applicant alleged breaches of his rights under:-
1.	Section 37(4)(b) of the Constitution, to a fair hearing withing reasonable time by and independent and impartial court; and
2.	Section 37(4)(b) of the Constitution, to be informed in detail of the nature of the charge with which he was charged; and
3.	Section 42 of the Constitution, not to be deprived of his personal liberty.
He sought enforcement of these rights under s 57 of the Constitution and release from custody.

Held

1.	A delay in bringing an accused person to trial within four months, as stipulated in s37 of the Constitution, from the date of being charged is unreasonable unless there is a good reason for the delay.

2.	The State did not provide a good reason for the lengthy delay in bringing the applicant to trial. Consequently the applicant's right to be tried within a reasonable time provided under s37(3) of the Constitution was breached.

3.	On the evidence, the state's failure to inform the applicant of the nature of the crime with which he was charged with promptly and in a language understood by him and in detail as required under s37(4)(b) of the Constitution amounts to a breach of the applicant's right thereunder.

4.	The State's: -

a)	failure to inform the applicant promptly, in a language he understands o the resons for his arrest or detention and in detail of any charge against him and 
b)	failure to inform the applicant immediatley on his arrest or detention of his rights, and
c)	the applicant's detention on remand pending trial for an inreasonable length of time;
all account to a breach fo the applicant's right ot personal liberty under s42(2)(a), s42(2) and s42(5)(b) of the Constitution.

5.	The Court has the power to release the applicant from the custody pursuant to ss(42)(5) and 57(3) of the Constitution.

Papua New Guinea cases cited

Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212.
Constitutional Reference No 1 of 1977, Re Section 42 of the Constitution [1977] PNGLR 362.
John Alex v Martin Golu [1983] PNGLR 117.
Pius Nui v Senior Sergeant Mas Tanda & Others (2004) N2765.
Re Complaint of Jacob Hendrich Prai and Otto Ondowame [1979] PNGLR 42.
Re Kaka Ruk [1991] PNGLR 105.
Re Kopa Kaipia (1989) N709 (M).
Re Moki Nikints [1988-89] PNGLR 164.
Re Ricky Yanepa [1988-89] PNGLR 166.
Re Theresa Maip [1991] PNGLR 80.
Re Wagi Non [1991] PNGLR 84.
Re Yamson Vamble (1989) N743.
Rimbink Pato v Anthony Manjin and Others (1999) SC622.
Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532.
Supreme Court Reference No 5 of 1987; The State v Songke Mai and Gai Avi [1988] PNGLR 56.
The State v Bafe Quati and Others [1990] PNGLR 57.
The State v Jeffery Balakau (1996) N1528.
The State v Peter Kakam Borarae and Others [1984] PNGLR 99.
The State v Peter Painke [1976] PNGLR 210.
Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87.

Counsel
L Siminji, for the applicant.
L Rangan, for the State.

23 March 2005

Cannings j. This is a ruling on an application for enforcement of constitutional rights by a man who has been detained for almost four years without trial. He is seeking an order that he be released from custody. 

The term 'constitutional rights' refers to the rights conferred on all citizens, and in some cases non-citizens, by Division III.3 (basic rights) of the Constitution of the Independent State of Papua New Guinea, which is referred to in this judgment as 'the Constitution' or 'the National Constitution', to distinguish it from the Constitution of the Autonomous Region of Bougainville or 'the Bougainville Constitution'.

Background 

This matter came to light during the National Court circuit in Buka earlier this month. I was informed when a callover of criminal cases was conducted on 8 March 2005 that there was a problem with the case of Benetius Gehasa as his file had been lost. He had been in custody for four years. He is suffering from a psychiatric problem. He was charged with murder. More time was needed to request a psychiatric report.

I informed the lawyers concerned, the applicant's counsel, Mr Simingi, and the Senior State Prosecutor, Mr Rangan, that I needed more information on the case. I asked both of them to make further enquiries. Perhaps Mr Siminji could consider a bail application. Mr Rangan could find out whether there was serious objection to the applicant going back to his village. Further efforts needed to be made to find the file.

The matter was called for mention later in the circuit and on this occasion the applicant was present in court. I asked him some questions aimed at finding out a bit more about the background of his case. I also wanted to know whether he wished to be released from custody. He answered the questions lucidly. He said he might have a psychiatric problem that needed sorting out. But, yes, he would like to be released from custody. I asked the lawyers to again consider their positions. 

A case like this should not be left in limbo. There is a danger that if it just adjourned to the next circuit, nothing will be done in the meantime. A different judge will probably arrive, with different lawyers perhaps, and the court will go through the same process again. It was important that some progress be made, I said.

It is in that context that the present application is made. 

Facts 

When the application was heard on 21 March 2005 the applicant's file had still not been located. The Public Prosecutor's office has no file. The Police have no file. The Public Solicitor's office has no file. Not even the National Court has a file. Despite that, or perhaps because of this unsatisfactory state of affairs, I was prepared to deal with the application in the absence of the documentation normally required. 

I have determined the application based on a number of presumed or agreed facts. These are:

d)	on 1 April 2001 there was an incident in a village on Bougainville in which a person was killed;
e)	shortly afterwards, in April 2001, the applicant was arrested and charged with wilful murder and remanded in custody in Buka;
f)	on 9 August 2001 he was committed by the District Court for trial in the National Court;
g)	at some time after that the Buka courthouse was burned down and for that and various other reasons the National Court did not sit at Buka or anywhere else on Bougainville until December 2004;
h)	in 2003 he was transferred to the Kerevat correctional institution, East New Britain Province;
i)	at the end of 2004 he was returned to custody in Buka, where he has been detained in the police lock-up with about 50 other detainees; 
j)	his matter was mentioned in the callover of criminal cases for Buka conducted by Sevua J in December 2004 and in the callover conducted by Lay J in February 2005, and on both occasions the matter was stood down to the next callover;
k)	he has been in custody for a continuous period of almost four years;
l)	there is no correctional institution operating on Bougainville at the moment, the previous one having been destroyed during the Bougainville conflict.

Submissions for the applicant

Mr Siminji submitted that the applicant's constitutional rights had been breached in two respects:

m)	 first, he had been denied a fair hearing within a reasonable time, as required by s37(3) of the Constitution;
n)	secondly, he has not been informed promptly and in detail of the nature of the offence with which he has been charged contrary to s37(4) of the Constitution.

Therefore the court has power to make orders under s57 of the Constitution for the enforcement of those rights. Mr Siminji referred to the decision of Batari AJ, as he then was, in The State v Jeffery Balakau (1996) N1528. In that case the accused applied to be discharged after being charged with various offences, on the ground that there had been an inordinate delay by the prosecution in getting the case ready for trial. It was argued that his right to a fair hearing within a reasonable time were breached. His Honour decided that there was an explanation for the delay and refused the application. However, he indicated that in an appropriate case such an application could be successful. 

Mr Siminji emphasised that the applicant was not asserting that he has a right to be discharged. It is a matter for the exercise of discretion by the court. Here the facts of the case warrant the exercise of discretion in favour of the applicant. As to the allegation that he is of unsound mind, this could only properly be tested if there were a file. But there is no file. It is a mere allegation, not even put on paper. So it is unfair to hold that against the applicant. There are compelling reasons to enforce his rights. 

Submissions for the State

Mr Rangan submitted that there were two explanations for the delay in bringing the matter to trial:

o)	first, the applicant's lawyers had indicated at the previous two callovers that they would arrange a psychiatric examination of the applicant, thus giving the impression that they would wait until that was done before taking the next step in the case;
p)	secondly, the file has been lost and the prosecution has made a genuine attempt to locate the file.

The court should not grant the orders sought. A better course of action would be to set the matter down for trial in the next sittings of the court in May 2005 or to ask the applicant to make an application under s552 of the Criminal Code. In either case the matter could be resolved quickly and the applicant's constitutional rights protected. 

Major issues

An application of this nature gives rise to two major issues:

q)	First, has a right of the applicant been breached? If the answer to that question is no, the court should not intervene.

r)	If, however, the answer is yes, the court needs to consider whether it should grant the remedy sought or make some other order for enforcement of the right. 

Mr Siminji was right to concede that the applicant, upon proving that a right has been breached, does not have a right to be immediately discharged from custody. It is a matter of discretion. Each case has to be assessed on its merits.

The Law

Overview

There are two sets of laws that have a direct bearing on the determination of this application:

s)	The provisions of the Constitution that confer rights on persons detained and charged with criminal offences. These rights apply with full force on Bougainville notwithstanding the imminent coming into operation of the Constitution of the Autonomous Region of Bougainville. (See s178 of the Bougainville Constitution.) The provisions of the National Constitution that are particularly relevant are s37(1), 37(3), 37(4) and 42.

t)	The provisions of the Constitution and the Criminal Code that provide for enforcement of those rights. s57 of the Constitution and s552 of the Criminal Code are relevant; together with s42(5) of the Constitution.

Constitutional rights

Section 37(1) (protection of the law) 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) (protection of the law) 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(4)(b) (protection of the law) states:

A person charged with an offence … shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged. 

Section 42 (liberty of the person) states:

(1)	No person shall be deprived of his personal liberty except—

(a)	in consequence of his unfitness to plead to a criminal charge; or

(b)	in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c)	by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d)	upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e)	for the purpose of bringing him before a court in execution of the order of a court; or

(f)	for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g)	for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h)	in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i)	his care or treatment or the protection of the community, under an order of a court; or

(ii)	taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i)	in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

(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.

(4)	The necessity or desirability of interrogating the person concerned or other persons, or any administrative requirement or convenience, is not a good ground for failing to comply with Subsection (3), but exigencies of travel which in the circumstances are reasonable may, without derogating any other protection available to the person concerned, be such a ground.

(5)	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.

(6)	A person arrested or detained for an offence (other than treason or wilful murder as defined by an Act of the Parliament) is entitled to bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require.

(7)	Where a person to whom Subsection (6) applies is refused bail—

(a)	the court or person refusing bail shall, on request by the person concerned or his representative, state in writing the reason for the refusal; and

(b)	the person or his representative may apply to the Supreme Court or the National Court in a summary manner for his release.

(8)	Subject to any other law, nothing in this section applies in respect of any reasonable act of the parent or guardian of a child, or a person into whose care a child has been committed, in the course of the education, discipline or upbringing of the child.

(9)	Subject to any Constitutional Law or Act of the Parliament, nothing in this section applies in respect of a person who is in custody under the law of another country—

(a)	while in transit through the country; or
(b)	as permitted by or under an Act of the Parliament made for the purposes of Section 206 (visiting forces).

Enforcement of rights

Section 57 (enforcement of guaranteed rights and freedoms) states:

(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.

(2)	For the purposes of this section—

(a)	the Law Officers of Papua New Guinea; and
(b)	any other persons prescribed for the purpose by an Act of the Parliament; and
(c)	any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question, have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

(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).

(4)	Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in, any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(5)	Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(6)	The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution.

Section 552 of the Criminal Code (right to be tried) states:

(1)	In this section, "place of trial" means the place appointed under the National Court Act for sittings of the National Court at which the hearing of a charge of an indictable offence is to take place.

(2)	A person who has been committed for trial or sentence or against whom the Public Prosecutor has laid a charge under Section 526 may make application at any sittings of the National Court to be brought to his trial.

(3)	If no indictment has been presented against the applicant—

(a)	where the application is made at a sittings of the National Court at the place of trial—before the end of the sittings at which the application is made; or

(b)	where the application is made at a sittings of the National Court at some other place—before the end of the next sittings of the court at the place of trial,

the court shall, on application by him, admit him to bail on such terms as the court thinks proper, unless the court is satisfied that there are special reasons why the application should be refused.

(4)	If—

(a)	a person has made an application under Subsection (2); and

(b)	at the end of the sittings of the National Court at his place of trial next following the application—

(i)	no indictment has been presented against him; or

(ii)	the court is satisfied that the prosecution has not in the circumstances of the case made a genuine attempt to complete its case,

he is entitled to be discharged.

Have the applicant's rights been breached?

Overview 

Mr Siminji based the application on two provisions of the Constitution: s37(3) and s37(4). I will first consider whether the applicant's rights under those sections have been breached. 

I will then consider whether his rights under s42 have been breached. Mr Siminji did not rely specifically on s42. But that does not prevent the National Court from inquiring into the issue. The court is empowered by the Constitution, s57, to act on its own initiative in matters concerning enforcement of constitutional rights. Moreover, s42(5) obliges the court to inquire into a complaint that a person has been unlawfully or unreasonably detained. The application before the court is such a complaint.

Cases in which the National Court has inquired into complaints about unlawful or unreasonable detention include Re Complaint of Jacob Hendrich Prai and Otto Ondowame [1979] PNGLR 42, Greville-Smith J; The State v Peter Kakam Borarae and Others [1984] PNGLR 99, National Court, Woods J; Re Moki Nikints [1988-89] PNGLR 164, Woods J; Re Ricky Yanepa [1988-89] PNGLR 166, Brunton AJ; Re Kopa Kaipia (1989) N709 (M), Woods J; Re Yamson Vamble (1989) N743, Brunton AJ; Re Theresa Maip [1991] PNGLR 80, Woods J; Re Wagi Non [1991] PNGLR 84, Woods J; and Re Kaka Ruk [1991] PNGLR 105, Woods J.

Right to a fair hearing within a reasonable time

Every person charged with an offence in Papua New Guinea, whether citizen or non-citizen, must be granted the full protection of the law under s 37(3) of the Constitution. This particular right has three components. The person charged must be afforded:

u)	a fair hearing;
v)	within a reasonable time;
w)	by an independent and impartial court.

(See The State v Peter Painke [1976] PNGLR 210, National Court, O'Leary AJ; The State v Peter Kakam Borarae and Others [1984] PNGLR 99, National Court, Woods J.)

It is the middle component that is at issue here. What is a reasonable time will vary from case to case. There may be good reasons for a trial not to have started for what seems a long time after a person is arrested or committed for trial. But in the event of delay, it is incumbent on the prosecuting authority to explain the delay and provide a good reason for it. If no good reason is presented, the delay is unreasonable. The Constitution gives a pointer to what might be regarded as an unreasonable delay in s.37(14), which 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.

So, if a trial has not commenced within four months after the date of committal the onus is on the prosecution to provide a good reason for the delay. In the present case the applicant was committed on 9 August 2001. The four-month period referred to in s.37(14) ended on 9 December 2001. That was more than three years ago. It is now 43 months after the date of his committal for trial. The prosecution has not provided good reasons for the delay. I do not regard either of the explanations put forward by Mr Rangan as acceptable. Nor is it acceptable to say that the National Court has not sat on Bougainville for the past three years. That might be a fact but it does not provide good reasons for the delay that has occurred. It was incumbent on the prosecuting authorities, the Police and the Public Prosecutor, to address these logistical issues and bring this case to trial or at least to take all practicable steps to do so. That duty has been breached. The flip-side of a duty is a right. 

I accept Mr Siminji's submission that the applicant has not been given a fair hearing within a reasonable time. Therefore his rights under s.37(3) of the Constitution have been breached.

Right to be informed of offence

This right arises under s.37(4)(b) of the Constitution. It is part of the bundle of rights conferred on persons charged with a criminal offence, aimed at giving them the full protection of the law. Like the rights in s.37(3), s.37(4)(b) consists of three components.

A person charged with an offence must be informed of the nature of the offence with which he is charged:

x)	promptly; and
y)	in a language which he understands; and
z)	in detail. 

Without any file on the applicant being available it is very difficult to conclude that these duties, which rest on the Police, have been complied with. The onus of proof therefore moves to the State. That onus has not been discharged. Though it seems that the applicant is aware that he is facing a charge of wilful murder, he has not been informed of the details of the charge. I find that none of the things required by s37(4)(b) of the Constitution has been done. 

I accept Mr Siminji's submission that the applicant's rights under s.37(4)(b) of the Constitution have been breached.

Right to liberty

Overview

S.42 of the Constitution confers a number of rights relating to the liberty of the person. These rights reinforce the general right to freedom based on law conferred by s.32 of the Constitution. They can be put into two categories. First, those that say that a person can only be deprived of his or her liberty in prescribed situations. Secondly those that say what rights a person has, once he or she is arrested or detained. (See generally Supreme Court Reference No 5 of 1987; The State v Songke Mai and Gai Avi [1988] PNGLR 56, Supreme Court, Kidu CJ, Kapi DCJ, Amet J, Los J, Cory J.)

Situations in which a person can lawfully be deprived of their liberty

There are nine, prescribed by Section 42(1), which relate to:

aa)	a person's unfitness to plead to a criminal charge (s42(1)(a)); or
bb)	execution of the sentence or order of a court etc (s.42(1)(b)); or
cc)	a person's failure to comply with the order of a court (s.42(1)(c)); or
dd)	reasonable suspicion of a person having committed, or being about to commit, an offence (s.42(1)(d)); or
ee)	bringing a person before a court in execution of the order of a court (s.42(1)(e)); or
ff)	preventing the introduction or spread of a disease or suspected disease etc (s.42(1)(f)); or
gg)	preventing the unlawful entry of a person into Papua New Guinea etc (s.42(1)(g)); or
hh)	a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant (s.42(1)(h)); or
ii)	a person who has not attained the age of 18 years, for the purpose of his education or welfare (s.42(1)(i)).
Rights once a person is arrested or detained
These are prescribed by Sections 42(2), (3), (5), (6) and (7). A person has a right to:
jj)	be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him (s.42(2)(a)); and
kk)	communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (s.42(2)(b)); and
ll)	give instructions to a lawyer of his choice (s.42(2)(c)); and
mm)	be informed immediately on his arrest or detention of his rights (s.42(2)); and
nn)	be brought without delay before a court or a judicial officer if being brought before a court in the execution of an order of a court or upon reasonable suspicion of his having committed, or being about to commit, an offence and, in the latter case, the person shall not be further held in custody in connexion with the offence except by order of a court or judicial officer (s.42(3)); and
oo)	complain to a Judge that he or she is unlawfully or unreasonably detained, in which case the Judge shall inquire into the complaint, order the person to be brought before the court and order the person's release unless satisfied of the prescribed matters (s.42(5)); and 
pp)	bail at all times from arrest or detention to acquittal or conviction unless the interests of justice otherwise require and, if refused bail, must be given reasons and has a right to review of the refusal (ss.42(6) and (7)).

Have any of the applicant's Section 42 rights been breached?

First, I consider his rights under s.42(1). Was he lawfully detained in the first place, in April 2001? To determine this I need to be satisfied that the circumstances of his detention fit into one of the nine 'pigeonholes' provided by s.42(1). Not all of them. One is sufficient. I can see that one is appropriate but before mentioning it, I will point out two that are not. It is being suggested that the applicant is suffering from a psychiatric problem – that he is long long or haf sens. However, as Mr Siminji pointed out – and I agree with what he submitted – that is only an allegation and it has not been reduced to writing. The applicant's detention cannot be justified by s.42(1)(a), as it has not been established that he is unfit to plead to a criminal charge. Nor can it be justified under s.42(1)(h), as it has not been established that he is of unsound mind. However, that does not mean that his rights under s.42(1) have been breached. He is a person reasonably suspected of having committed an offence. He was arrested and charged with wilful murder in April 2001. His detention was prima facie lawful under s.42(1)(d) of the Constitution. 

I conclude that his rights under Section 42(1) have not been breached.

I now consider the bundle of rights he acquired once he was detained. Some of these have evidently been exercised. I infer from the circumstances of the case, and find, that:

qq)	he has been 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 (s.42(2)(b)); and

rr)	he has given instructions to a lawyer of his choice (s.42(2)(c)); and

ss)	he has been brought without delay before a court and is being held in custody in connexion with the offence by order of a court (s.42(3)); and

tt)	he has, by this application, exercised his right to complain to a Judge that he is unlawfully or unreasonably detained (s.42(5)(a)); and

uu)	he has not been prevented from making an application for bail (ss.42(6) and (7)).

However, I infer from the circumstances of the case, and find, that his rights have been breached in the following way:

vv)	he has not been informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him (s.42(2)(a)); and

ww)	he has not been informed immediately on his arrest or detention of his rights (s.42(2)); and

xx)	he has been detained on remand pending trial for an unreasonable length of time – almost four years (s.42(5)(b)).

I make those findings for the same reasons advanced in relation to my findings on s.37(3) and 37(4)(b). There is no file. The court needs proof that the right things have been done. There is no evidence – written or oral. He has been in custody for almost four years. The facts speak for themselves.

Summary

To sum up, I find that the applicant's constitutional rights have been breached, in that:

yy)	he was not informed promptly and in detail of the offence with which he has been charged and of the reasons for his arrest and detention contrary to s.37(4)(b) and 42(2)(a); and 

zz)	he was not informed immediately on his arrest or detention of his rights contrary to s.42(2); and

aaa)	he has not been afforded a fair hearing within a reasonable time contrary to s.37(3); and

bbb)	he has been detained on remand pending trial for an unreasonable length of time contrary to s.42(5)(b).

Should an order be made for the release of the applicant?

Source of power

I now consider whether I should order the release of the applicant. The court's power to make such an order derives from two sources. One specific and one general. The specific one is s.42(5) of the Constitution. The general one – and the one relied on expressly by Mr Siminji – is s.57 of the Constitution.
Section 42(5)

Section 42(5)(a) gives a person the right to complain to the National Court or a Judge that he or she is unlawfully or unreasonably detained. The court or the judge must then inquire into the complaint and order that the person concerned be brought before the court or the judge. Those things have happened in this case. There was a complaint and an inquiry and the person concerned was brought before the court.

Section 42(5)(b) says what happens next. If the person is being detained on remand pending trial – such as in the present case – the court must order the release of the person unless satisfied of two things:

ccc)	the detention is lawful; and 
ddd)	the detention does not constitute an unreasonable detention having regard, in particular, to its length.

I am satisfied that the applicant's detention is lawful, in the sense that he was lawfully remanded in custody after being arrested and charged with wilful murder. However, for reasons I explained earlier, I am not satisfied of the second matter. Using the language of s.42(5)(b), I am not satisfied that his detention does not constitute an unreasonable detention. Put simply: he has been detained for too long without good reason. 

Therefore I am obliged to order his release, either unconditionally or subject to such conditions I think fit. An example of a case where a judge unconditionally released a person under s.42(5)(b) is Re Ricky Yanepa [1988-89] PNGLR 166. A young man was charged with robbery and remanded at Bihute Correctional Institution, near Goroka, for 17 months. His file was lost. Brunton AJ remarked that the man had become 'lost in the system'. His right to a fair hearing within a reasonable time and his right not to be unreasonably detained were breached. His Honour concluded:

"The negligence of the State has turned an otherwise lawful act into a harsh, oppressive, disproportionate act; and the lengthy detention was not reasonably justifiable in a democratic society. To allow the State to re-arrest Yanepa, re-commit him or attempt to use an ex-officio indictment, in all the circumstances would be unjust, and negate his constitutional rights."

The court thus issued an order prohibiting further criminal proceedings against the man on the robbery charge. That case is very similar to the present case. The applicant's file is lost. Nobody has a copy so he is lost in the system. In the present case the breach of rights is even more serious, as the applicant has been detained without trial for 47 months, almost three times as long as in Yanepa. I agree with the sentiments expressed by Brunton AJ as to the importance of adhering to constitutional standards but given the circumstances of the present case I have decided not to order an unconditional release of the applicant. I think the court should be reluctant to make orders that may be construed as interfering with the constitutional authority of the Police Force to investigate alleged or suspected criminal offences. Since Yanepa was decided, there has been a significant Supreme Court decision cautioning the National Court against making such orders. (See Rimbink Pato v Anthony Manjin and Others (1999) SC622, Sheehan J, Sevua J, Akuram J, discussed in Pius Nui v Senior Sergeant Mas Tanda & Others [2004] PGNC19; N2765, National Court, Cannings J). The other thing is that it has been suggested that the applicant has a psychiatric problem and it might be that he will need to be detained for his own protection. So some conditions on his release should be imposed. 

I will address what the conditions should be in a moment.

Section 57

I will now address the question whether I should make an order for the release of the applicant under s.57 of the Constitution. It is not really necessary for me to consider this question as I have already decided that he has a right to be released under s.42(5)(b). However, s.57 was the provision relied on by Mr Siminji to support the application so it is useful if I address it. 

There is no doubt that s57 allows the National Court to make an order of the sort being sought in this application. The power is given by s.57(1) and 57(3), which provide that the National Court:

eee)	has a duty to protect and enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution.

fff)	may make all such orders and declarations as are necessary or appropriate for the purposes of s.57 (enforcement of guaranteed rights and freedoms).

Section 57 has been applied in numerous decisions of the Supreme Court and the National Court since Independence. For example: Constitutional Reference No 1 of 1977, Re Section 42 of the Constitution [1977] PNGLR 362, Supreme Court, Frost CJ, Prentice DCJ, Williams J, Kearney J, Pritchard J; Supreme Court Reference No 3 of 1979; The State v John Rumet Kaputin [1979] PNGLR 532; Tom Amaiu v Commissioner of Corrective Institutions and The State [1983] PNGLR 87, National Court, Bredmeyer J; John Alex v Martin Golu [1983] PNGLR 117, National Court, Kapi DCJ; Ana Komidese and Others v Commissioner of Correctional Services [1985] PNGLR 212, National Court, Cory J; The State v Bafe Quati and Others [1990] PNGLR 57, National Court, Doherty AJ.

Section 57 reinforces the general principle that the rights and duties conferred by the Constitution are not meant to be illusory, ephemeral or just feel-good principles, but real, tangible, powerful and enforceable obligations capable of immediate effect through court orders and declarations. Other provisions to like effect are s.22 (enforcement of the Constitution) and 23 (sanctions); and, of course, s.42(5).

The Court's power to make an order under s57 for the release of the applicant is discretionary. The matters I consider should be taken into account when deciding whether to exercise the discretion in his favour are:

1	Is there no other way (besides releasing him) to protect and enforce the applicant's constitutional rights? 
2	Is the extent of the breach of constitutional rights serious? 
3	Is the applicant unlikely to be a danger to the community if he is released?
4	Is there only a small risk of him being harmed if he is released?
5	Are the conditions in which he is presently being detained unsatisfactory?

I have framed those questions so that an affirmative (yes) answer will weigh in favour of exercising the discretion to make an order for the release of the applicant. A negative (no) answer weighs against making an order for his release. It is a matter then of weighing the considerations against each other. I answer the questions as follows:

1	No there is one other available remedy and that is to make an order under s.552(2) of the Criminal Code for the applicant to be brought to trial. However, for someone who has already been detained for 47 months that is not as effective a remedy of the breach of rights as an order that he be immediately released.
2	Yes the applicant's constitutional rights have been seriously breached. Indeed, there has been a flagrant and reckless breach of his rights. 
3	Yes I consider that the applicant is unlikely to be a danger to the community if he is released. There is no evidence that he is, in fact, not sane. A person should be presumed sane and treated as such unless by some proper process, this is shown not to be the case or it is clear and obvious that he is suffering from some serious mental incapacity. I gave the State the opportunity to present evidence on this. I was prepared to accept even an indication from somebody from the applicant's village that the village people did not want him back or were scared of him. Nothing has come to light. I interrogated the applicant, to some extent, when he was brought before the court and he gave every impression of understanding what was going on and expressed his desire to be released. 
4	Yes I consider that there is only a small risk of him being harmed if he is released; for the same reasons advanced on issue No 3.
5	Yes the conditions in which he is presently being detained are unsatisfactory. He is being detained at the Buka Police Lock-up. As indicated earlier I inspected it last week, using my powers as a Judge under ss.144, 145 and 148 of the Correctional Service Act. The conditions under which about 50 detainees are being kept breach many constitutional rights. The place is overcrowded and unhygienic. It is not hard to work out why the applicant does not want to be detained there any longer. 

Weighing all those considerations together, I consider that it is necessary and appropriate for the protection and enforcement of the applicant's constitutional rights that he be released from custody. 

Conclusion re release of the applicant

The court will order pursuant to s.42(5), 57(1) and 57(3) of the Constitution that the applicant be released from custody, subject to conditions.

The conditions will recognise that he has been charged with a serious offence and will be framed in such a way that the constitutional authority of the Police Force is not infringed. The conditions are designed to be flexible enough to take account of changed circumstances and to ensure that, if the applicant is subject to the criminal process again, the violation of rights that has occurred is not repeated. 

Order 

The order of the Court is that:

1	The Buka Police Station Commander and the senior officer of the Correctional Service in Buka shall arrange for the applicant, Benetius Gehasa, to be interviewed by the Provincial Welfare Officer within the next 24 hours with a view to arranging his repatriation to a place of his choice.

2	Benetius Gehasa shall be released from custody within 24 hours after the making of this order.

3	The Police shall be at liberty to continue any criminal investigation in which the applicant is a suspect.

4	The State shall be at liberty to pursue any prosecution of the applicant.

5	The applicant shall not be detained further in relation to the charge of wilful murder alleged to have been committed in 2001 unless in the deliberate judgment of the Police officers concerned this is necessary for the protection of the applicant or the public or any member of the public and in the event that he is detained further he shall be brought without delay, and in no circumstances more than 48 hours after his detention, before a court of law to be dealt with according to law.

Lawyer for the applicant: Public Solicitor.
Lawyer for the State: Public Prosecutor.