N368
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 8 OF 1982 IN THE MATTER OF AN APPLICATION BY THE PUBLIC SOLICITOR UNDER S. 51 OF THE CONSTITUTION CONCERNING HENI PAUTA AND KENNETH SUSUVE.

AND IN THE MATTER OF THE COMMISSIONER FOR CORRECTIVE INSTITUTIONS, HIS SERVANTS AND AGENTS.

Waigani
Kidu CJ

16 February 1982
18-19 February 1982

HUMAN RIGHTS - Fundamental rights - Protection of law - Cruel and inhuman punishment and treatment - Inherent dignity of the human person - Prison detainees - Assaults by prison warders occasioning bodily harm - Orders restraining further breaches - Constitution, ss. 36(1), 37(17), 37(18), 37(19), 57(1), and 57(3).

CRIMINAL LAW - Prisons - Fundamental rights - Treatment of detainees - Right of juveniles to be separated - Cruel and inhuman punishment and treatment - Inherent dignity of the human person - Assaults by prison warders - Orders restraining further breaches - Constitution, ss. 36(1), 37(17), 37(18), 37(19), 57(1) and 57(3).

Two persons, one aged seventeen years of age, were arrested following the killing of a policeman. One was charged with unlawful use of a motor vehicle, convicted and sentenced to three months. The seventeen year old was charged with murder and detained on remand. Both were held in the B division of the Bomana Corrective Institution, a division maintained for dangerous prisoners and for prisoners whose safety is in danger. Both detainees alleged they had been severely assaulted by prison warders whilst so being detained and sought orders restraining such conduct and compensation.

Held:

(1) The evidence supported the allegations of serious assaults occasioning bodily injuries.

(2) Such conduct by prison warders constituted cruel and inhuman punishment and treatment and was inconsistent with the inherent dignity of the human race within the meaning of s. 36(1) and s. 37(17) of the Constitution.

(3) In pursuance of the duty imposed on the Court under s. 57 of the Constitution, to protect guaranteed rights and freedoms, orders should be made pursuant to s. 57(3):

(a) restraining the Commissioner of Corrective Institutions, his agents or servants from inflicting any cruel or inhuman treatment on the detainees whilst in jail;

(b) directing the Commissioner, his servants or agents to treat the detainees with humanity and respect for the inherent dignity of the human person; and

(c) that the detainee aged seventeen years be transferred forthwith to a C division in pursuance of his rights under s. 37(19) of the Constitution.

Cases Cited:

Supreme Court Reference No. 1 of 1982; Re P. Bouraga [1982] P.N.G.L.R. 178.

Application

This was an application by two persons detained in a corrective institution, for orders pursuant to s. 57 of the Constitution, for breaches of human rights.

Counsel:

C. Bruce and P. Kivung, for the detainees.
R. Gunson, for the State.
Cur. adv. vult.

19 February 1982

ORDERS SOUGHT

KIDU CJ: The applicants have applied for the following orders:

1. An order restraining the Commissioner for Correctional Services, his servants and or agents from inflicting cruel and inhuman punishment and treatment on them.

2. An order directing the Commissioner for Correctional Services his servants or agents to treat them with humanity and respect for inherent dignity of the human person.

3. An order directing the Commissioner for Correctional Services, his servants or agents to transfer Heni Pauta to the remand section of Bomana Corrective Institution and to transfer Kenneth Susuve to the "A" Division of the said Bomana Corrective Institution.

4. Such other orders as may seem fit.

Under the last head, the application is that compensation be paid to the two applicants under s. 58 of the Constitution.

The last order sought has to be yet argued.

CONSTITUTIONAL PROVISIONS APPLICABLE

The first three orders sought are asked for under s. 57 of the Constitution for breaches of human rights guaranteed by s. 36(1), s. 37(17), s. 37(18) and s. 37(19) of the Constitution. These provisions read:

s. 36(1) "No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person".

s. 37(17) "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person".

s. 37(18) "Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons".

s. 37(19) "Persons under voting age who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age".

FACTS

The applicants were arrested as a result of the killing of a policeman late last year. Susuve was arrested on 25th November, 1981. The next day he was convicted of the unlawful use of a motor vehicle and sentenced to three months imprisonment. He has not been charged with any other offence and will be released from Bomana later next week.

Heni Pauta was arrested on 27th November, 1981. He was interviewed on that day by Sub-Inspector Lalu at Boroko police station. He has been charged with the murder of the policeman I mentioned earlier.

Both applicants have filed affidavits. They were examined by their counsels and cross-examined by counsel for the Commissioner of Correctional Services. They alleged that on 1st December, 1981, when they were taken to Bomana Corrective Institution, they were assaulted and injured by some assistant correctional officers.

Heni Pauta is seventeen years of age. This is not challenged by counsel for the Commissioner for Correctional Services. There is no contention that he is being kept in the "B" division of Bomana Corrective Institution. This division of the institution is where dangerous detainees are kept. Also other detainees are kept there for their own safety.

His evidence is that on 1st December 1981 he was taken by police to Bomana. He says in his affidavit:

"On or about the 1st day of December, 1981 at about 1 p.m. I was taken by the police to the reception area at the C.I.S. at Bomana. While I was at the reception area the following events occurred:

(i) I was hit on the face and at the same time hit around my legs by a number of C.I.S. Warders;

(ii) I was slapped and punched on my face by a number of C.I.S. Warders; and

(iii) I was hit around my legs with short rubber hoses by a number of C.I.S. Warders".

He says he was in great pain and crying when the above happened. The warders stopped, he says, when a senior C.I.S. officer told the warders to "stop belting them, that’s enough. Take them down". He was then taken down to the general area where prisoners are kept. "I was then hit by C.I.S. warders with short rubber hoses and fists outside the cage."

At this time he was in great pain and a warder he knew, Philip Ivora, punched him on the left eye. As a result of this he sustained an injury to his left eye which remained bruised and swollen for approximately a week. He now has a scar under his left eye and I have noticed a black mark under his left eye myself during these proceedings.

From the general area he was taken to a room where he washed his face and then taken to "B" division of the institution. There "two C.I.S. warders hit me on the back with short rubber hoses. Five C.I.S. warders then stood approximately ten to twenty yards from each other and I was told to run fast from one warder to another. I was told to do this three times and each time I reached a C.I.S. warder I was hit with a short rubber hose on my back, arms, chest and stomach. By the time the C.I.S. warders stopped hitting me it was meal time and I was taken to eat my meal". Then after he had his meal "three C.I.S. warders stood approximately twenty yards from each other and I was told to run fast from one C.I.S. warder to the other. As I did this the C.I.S. warders hit me with the short rubber hoses on my back each time I reached one of them. The C.I.S. warders then called to me ‘man bilong kilim policeman’."

Then the next day he says he was taken to the oval in the "B" division and told to run around by three C.I.S. warders who stood at different points on the oval. "Each time I passed one of the three C.I.S. warders they hit me with short rubber hoses around my legs and on my back. This went on for approximately ten to fifteen minutes." He then went to have his breakfast and to shower. "I was then told to put my hands on the fence and I was hit with short rubber hoses on my back, legs and arms by two C.I.S. warders whose faces I can recognize but whose names I do not know."

On that day he says he was hit on the head with a pick handle by a warder. On 3rd December, 1981, he was taken to Boroko police station. He told a police officer Inspector Lalu what had happened to him on 1st December, 1981, and 2nd December, 1981. The police took photographs of the injuries to his face, back and legs. He was then taken to Port Moresby General Hospital where a nursing sister checked his body and was given two injections and taken back to Bomana.

Inspector Lalu gave evidence and he confirmed this. He said Constable Maleckey took photos of the applicant’s face and back. There is no doubt that Pauta has been beaten up. I have no doubt that he was beaten and sustained injuries. I’ll come to that later on.

In oral evidence Pauta said he did not know how many warders hit him. He was hit on his back and calf. At that time he was just wearing a laplap. He was assaulted by warders at the reception area and at the remand section by different warders. He said Susuve was there and he said they "belted us together".

In cross-examination he said the officer who told the warders on 1st December, 1981, to stop hitting him was from Samarai. He said he was not hit with rubber hoses at the reception area. He did not understand why warders hit him. He was made to run from the reception area to the remand section by the warders on 3rd December. At the hospital the nurse only put blue paint on his injuries. He was arrested by two policemen on 27th November, 1981. And he said when he was arrested the police were not angry with him. They neither punched him nor assaulted him. He said before he was arrested on 27th November, 1981, he had had a fight with the warder Ivora and had been punched on the nose by him. There has been no trouble with warders since 3rd December, 1981, of last year. He said warders have been good to him.

Constable Oss Maleckey gave evidence of taking photographs of Pauta at Boroko police station on 3rd December, 1981. Two photos were tendered. One shows the front. The photograph is dark. However his swollen face is obvious.

The other quite clearly shows the cuts and bruises on Pauta’s back. It confirms Pauta’s evidence of being beaten with rubber on his back by some people. Maleckey in his oral evidence said Pauta had "serious injuries on his back" and his face was swollen.

Sub-Inspector Lalu interviewed Pauta on 27th November, 1981, at Boroko police station. There were no injuries on his body then and Pauta did not complain of any injuries. After the interview Pauta was put in the cell. He did not know when Pauta was taken to Bomana. He saw Susuve on 25th November, 1981. He did not see any injuries on him. On 3rd December, 1981, Pauta was brought to Boroko police station. In his affidavit he says: "I could see that Heni Pauta had a badly swollen face and cuts and bruises all over his body. Heni Pauta told me that C.I.S. warders at Bomana had bashed him."

He had photographs taken and then he and a constable Boping took Pauta to Port Moresby General Hospital for medical treatment. In his oral evidence he said most of the cuts and bruises on Pauta were on his back. Pauta also had marks on the back of his legs below the knee. Pauta was in pain. He said he ordered the photograph to be taken because there might be an allegation of assault against police. He later reported the matter to his officer in charge but there has been no police investigation.

On cross-examination he said Pauta had been charged with the murder of a policeman and he thinks police would be angry about it. There was however, no trouble when Pauta was brought in on 27th November, 1981. He said some injuries on Pauta were "fresh"—about two days old.

The other applicant, Susuve, then gave oral evidence after his affidavit was tendered.

He is eighteen years old. He was arrested on 25th November, 1981, and charged with stealing a motor vehicle. On 26th November, 1981, he was convicted of that offence by the Port Moresby District Court and sentenced to three months I.H.L. He was placed in the cells at Boroko police station until 1st December when he was taken to Bomana.

"On or about the 1st day of December, 1981, I was taken to the reception area of the C.I.S. Bomana where the following events occurred.

(i) I was repeatedly hit by C.I.S. warders who used their fists and short rubber hoses; and

(ii) I was punched on and about my face, eyes and head and as a result I could not identify which C.I.S. warders were hitting and punching me."

He suffered pain and discomfort as a result of the above assaults. From the reception area he was taken to "A" division by a number of warders where he was again punched on the face and hit all over his body with short rubber hoses. He bled from his mouth and nose. From "A" division he was transferred to "B" division where he was again hit on the face and around the legs by C.I.S. warders using their fists and rubber hoses. As a result he bled from his nose, mouth and back. He had black eyes, a swollen face and his body was bruised and extremely painful.

The following day, 2nd December, 1981, he says after breakfast warders again punched him and hit him with a short rubber hose on his back and chest. In the afternoon he was also beaten. On 3rd December, 1981, in the morning and again in the afternoon, he was hit with rubber hoses on his back and chest. He received medical treatment for his face, sore back, chest and legs afterwards; where he received treatment is not in evidence.

At no time, he says, did he give any provocation for these beatings. In oral evidence Susuve said during all these incidents, other detainees were present. He showed his injuries later to Mrs. Kivung from the Public Solicitor’s Office. He was cross-examined. He had not fought with anyone. Some warders at the reception area had rubber hoses (12"-15" long) but they came and only punched him at the reception area. Later he said the warders did not have rubber hoses at the reception area. When he was arrested he said police were angry and slapped him on his face. That was all.

After the court case on 26th November, 1981, he says he was kicked on the chest and punched on the back by police. He bled from his nose. In the cells he was not attacked by any prisoners. He says he was frightened of being attacked by prisoners at Bomana. His treatment in jail is good. He says he saw Pauta on 27th November, 1981, in the Boroko police cells. He heard him crying and when he went to wash he had blood on his mouth and nose.

Mrs. P. Kivung gave oral evidence. She first saw Pauta at the Port Moresby District Court in early December, 1981. She appeared for him at his committal hearing. She did not notice anything about him. She next saw Pauta on 18th December, 1981, again in the Port Moresby District Court. This time he had a black mark under his left eye, long healing scars on his back, both arms, his chest and stomach, around his leg below the knee. She did not see Pauta again until 19th January, 1982, in the "B" division at Bomana. His healing injuries had disappeared except for a few scars on his back and the black mark under his left eye.

Susuve, she first saw him on 19th January, 1982, in the "B" division as well. She noticed scars on his back and a black eye (right eye). He also had marks around his legs below the knee and his arms. She says Pauta’s injuries were worse than Susuve’s. She made inquiries at the hospital about Pauta’s record. None have been found.

The Commissioner for Correctional Services gave evidence orally after his affidavit was read. Although he was aware of the two applicants being received at Bomana he did not see them. However, he decided that for their own safety they were to be kept in the "B" division, more popularly known as the maximum security division. This division houses dangerous detainees and others like Pauta and Susuve. The Commissioner says he made the decision because there were Sepiks in jail, and that he thought Pauta and Susuve might be attacked by them and also by warders. Warders regard themselves as part of the law enforcement agency like the police. As a policeman had been killed and Pauta and Susuve might also be attacked by warders as well.

The rest of the Commissioner’s evidence is of general interest. He gave an account of how prisoners in "B" division are treated. It seems they are taken out for meals and exercise but otherwise they remain in the cells and do nothing else. In his affidavit the Commissioner says he recirculated a 1973 instruction to officers and A.C.O.s in relation to treatment of detainees and a fresh circular outlining constitutional rights of the detainees guaranteed by our Constitution.

This is a non-criminal matter and the onus of the proof required is not proof beyond a reasonable doubt. This has been confirmed again by the Supreme Court in Supreme Court Reference No. 1 of 1982 [1982] P.N.G.L.R. 178.

As far as I am concerned I am satisfied that Pauta and Susuve were assaulted and beaten by some warders at the Bomana Corrective Institution on 1st December 1981, 2nd December 1981 and 3rd December 1981. The evidence I have outlined speaks for itself in my opinion.

Mr. Gunson suggests that Pauta and Susuve might have been beaten by police when they were arrested and before being taken to Bomana on 1st December, 1981. I accept Susuve’s evidence that he was punched on the face and back by police when he was in the Boroko cells. That is all. Whether Pauta was also assaulted is not so clear. He did have a bleeding nose in the police cells on 27th November, 1981. However, there is no evidence that he was assaulted by police. In fact Pauta denied being assaulted by police.
The Commissioner for Correctional Services is to be complimented. As soon as he was made aware of allegations by Pauta and Susuve he ordered an investigation. No report has been furnished to him yet. This is more than that can be said about the police. Inspector Lalu reported the allegations to his superior officers on 3rd December, 1981 but no police investigations have been undertaken. One can only hope that proper criminal investigations will be carried out by the police in this matter.

I find that there has been breach of rights guaranteed by the Constitution, s. 36(1) and s. 37(17). The two applicants have been beaten in jail and treated in a cruel and inhuman way by unnamed warders. This court has a constitutional obligation to protect them and assure them that their rights will not be breached again while they are in jail. This obligation on the court is contained in s. 57 of the Constitution.

Mr. Gunson submits that there is no need to make any orders as the Corrective Institution Act 1957 and Regulations ensure that detainees are protected. He refers to the 1973 circular recirculated by the Commissioner with an attached memo recently to all officers and men. Although that action is to be complimented there is no guarantee that the two applicants will be protected by the circular.

I have a duty to perform and I believe a court order would be more effective. The orders allowed under s. 57(3), of course, are of a discretionary nature. From all the evidence before me I consider that I must issue my orders restraining the Commissioner, his agents and servants from inflicting any cruel punishment and treatment on Heni Pauta and Kenneth Susuve while they are in jail in Bomana. I also order that they treat them with humanity and respect for the inherent dignity of the human person as directed by the Constitution.

The other order asked for is for Heni Pauta to be transferred from "B" division to the remand section of "A" division and for Kenneth Susuve to be transferred from "B" division to the "A" division.

The Constitution is quite clear on the treatment of unconvicted persons. It is in mandatory terms. Section 37(18) says:

"Accused persons shall be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons." (Emphasis mine.)

Pauta is only seventeen years old. Section 37(19) says:

"Persons under voting age [18] who are in custody in connexion with an offence or alleged offence shall be separated from other persons in custody and be accorded treatment appropriate to their age." (Emphasis mine.)

This guarantee of right is also in mandatory terms and must be observed by courts and prison authorities and other authorities who might look after prisoners. Bomana has separate divisions. There is a remand section in the "A" division, and "C" division accommodates juveniles.

The Constitution must be observed. I am not satisfied that if Pauta is transferred to "C" division his life or safety would be in jeopardy. He will be amongst young people, one hopes. I order that Pauta be transferred forthwith to "C" division where the Constitution says he should be. I make this order after very serious consideration of the possibilities of attack or pay back by those in the juvenile section who might be from the Sepik region, who might be related to the deceased police officer. If I was convinced that he would be subject to payback I would not (in his own interest) make the order applied for.

Susuve is due for release from jail late next week. He has not been charged with the killing of the policeman. I do not see why he should be now in "B" division. If he is considered to be in danger from attack by warders, this can happen in any division of the prison. I order that he be transferred forthwith to "A" division.

The Constitution guarantees in s. 37(18) and s. 37(19) are able to be observed only if prisons like Bomana are divided into separate sections for convicted persons, juveniles, and remand detainees. I know myself that in most jails this cannot be done. Such rights cannot be accommodated if the Correctional Services does not have the facilities.

Our Constitution guarantees these rights and yet after over six years of Independence most prisons are unable to comply with its terms in relation to prisoners and detainees. I sympathise with the Commissioner of Correctional Services and his men. As far as different facilities for different categories of detainees are concerned they are, in most prisons, unable to comply with the clear dictates of the Constitution. It is not their fault. The blame does not lie with them. It lies with those who control the distribution of funds contained in the public purse.

As to the claims for compensation I will hear arguments in relation to them now.

Orders accordingly.

__________________________________

Solicitor for detainees: Public Solicitor.
Solicitor for State: Secretary for Justice.