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Complaint made pursuant to section 42(5) of the Constution by Talagaim [2010] PGNC 243; N3893 (26 February 2010)

N3893

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 770 OF 2009

IN THE MATTER OF A COMPLAINT
MADE PURSUANT TO SECTION 42(5) OF THE CONSTITUTION
BY OKATA TALAGAIM

Wewak: Cannings J
2009: 20 November
Waigani: Cannings J
2010: 26 February

HUMAN RIGHTS – liberty of the person – right of a person not to be deprived of personal liberty except in execution of sentence or order of a court or in other circumstances prescribed by Constitution, Section 42(1) – complaint as to unlawful detention: Constitution, Section 42(5).

The complainant complained that he was being unlawfully detained at a correctional institution under a National Court order and warrant of commitment for life imprisonment, which had been quashed by an order of the Supreme Court.

Held:

(1) The complaint was sustained as the Supreme Court order, which quashed the National Court order and warrant, had not been given effect.

(2) Arrangements having been made to regularise the Supreme Court file, the National Court ordered that the Supreme Court order and a new warrant of commitment, reflecting the Supreme Court's order, be placed on the complainant's Correctional Service file within 14 days and that a new due date of release be calculated and notified to the complainant.

Cases cited

No cases are cited in the judgment.

COMPLAINT

This was a complaint of unlawful detention under Section 42(5) of the Constitution.

Counsel

A Hombunaka, for the complainant
D Mark, for the State

26th February, 2010

1. CANNINGS J: During a National Court circuit in Wewak in November last year a prisoner at Boram Jail, Okata Talagaim, raised a concern regarding his warrant of commitment. He was in 2004 convicted by the National Court (Kandakasi J) of murder and sentenced to life imprisonment. In 2005 he appealed to the Supreme Court (Hinchliffe J, Lenalia J, Mogish J). His appeal against conviction was dismissed but the appeal on sentence was upheld and the sentence of life imprisonment quashed and substituted with a sentence of 18 years imprisonment.

2. His concern is that there is no new warrant of commitment reflecting the new sentence. He is still being detained in custody under the warrant of commitment for life imprisonment.

3. Having heard from the prisoner I asked the Public Solicitor lawyer, Ms Hombunaka, to look into the matter and if the prisoner's concern seemed valid, to make a formal complaint under Section 42(5) of the Constitution, 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.

4. On 20 November 2009 a formal complaint was made in court and it has been registered as MP No 77 of 2009.

5. I have inquired into the complaint and discovered that the complainant was indeed sentenced to life imprisonment on 21 June 2004 (The State v Okata Tangahin (No 2) (2004) N2671. His appeal was heard in Wewak on 27 April 2005 and a written judgment was delivered by the Supreme Court on 31 August 2006. This confirms that the appeal against conviction was dismissed and the appeal against sentence was upheld: the original sentence was quashed and substituted by a sentence of 18 years imprisonment.

6. However, no formal order or warrant of commitment has been generated to give effect to the Supreme Court's decision. The Correctional Service file and the Supreme Court file were checked and the files show that nothing has been done. This situation has arisen apparently because of administrative oversights.

7. I have therefore liaised with the remaining members of the Supreme Court (Hinchliffe having died in 2009) and their Honours, Lenalia J and Mogish J, have signed a formal order and a new warrant of commitment in the following terms.

8. The Order states:

(1) The appeal is against conviction is dismissed.

(2) The appeal against sentence is allowed.

(3) The sentence of life imprisonment is quashed and substituted by a sentence of 18 years imprisonment.

(4) The existing warrant of commitment shall be revoked and replaced with a new warrant of commitment reflecting the new sentence.

9. The new Warrant of Commitment states:

To the Commissioner of the Correctional Service and to all members of the Police Force and to the Officer in Charge of the Correctional Institution at Boram, Wewak, East Sepik Province.

At the sittings of the Supreme Court of Justice at Wewak on 31 August 2006, the sentence imposed by the National Court on the appellant at Wewak on 21 June 2004 was quashed and the warrant of commitment pertaining thereto was revoked.

AND A SUBSTITUTE SENTENCE WAS PASSED, namely:

(a) Length of sentence : 18 years
(b) Length of period deducted : Nil
(c) Length of sentence to be served 18 years

YOU ARE COMMANDED TO CONVEY the Offender to this Correctional Institution and deliver him together with this Warrant to the Officer in Charge thereof.

YOU ARE FURTHER COMMANDED TO RECEIVE the Offender into your custody and imprison him in this Correctional Institution in hard labour for the term of 18 years, WHICH SHALL BE CALCULATED FROM 31 August 2006.

10. The effect of these documents is to regularise the complainant's detention and to ensure that it accords with the actual order of the Supreme Court made on 31 August 2006.

ORDER

11. This complaint will be resolved by the National Court making an order in the following terms:

1 The Deputy Registrar of the Supreme Court shall ensure that sealed copies of the new Supreme Court Order and Warrant of Commitment, together with a copy of the judgment and order of the National Court, are conveyed forthwith to the Jail Commander, Boram Correctional Institution.

2 The Jail Commander shall ensure that within 14 days after receiving those documents:

(a) all documents are placed on the complainant's Correctional Service file; and

(b) a new date of release is calculated; and

(c) the complainant is given copies of all those documents and notified of the calculation of his due date of release;

(d) notice in writing, certifying that all of the above steps have been taken, shall be forwarded to the Assistant Registrar of the National Court, Madang.

Ordered accordingly.
___________________________________________________________
Public Solicitor: Lawyer for the Complainant
Public Prosecutor: Lawyer for the State