Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Complaint of Pami Kipiria, In re [2011] PGNC 318; N4248 (8 April 2011)

N4248

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

IN THE MATTER OF AN INQUIRY INTO A COMPLAINT OF UNLAWFUL AND UNREASONABLE DETENTION OF A PERSON UNDER SECTION 42(5) OF THE CONSTITUTION

RE: COMPLAINT OF PAMI KIPIRIA

Mount Hagen: Makail, J
2011: 08th April

CONSTITUTION - Liberty of person - Complaint of unlawful and unreasonable detention - Inquiry of - Jurisdiction of - Grounds of - No record of committal - No record of matter registered in National Court - Order for release of person granted - Constitution - Section 42(5).

No cases cited:

Counsel:

Mr J Waine, for the State
Mr F Kirriwom, for Complainant

RULING

08th April, 2011

1. MAKAIL, J: This person Pami Kipiria appears before this Court because a complaint has been made on his behalf by his lawyer Mr Kirriwom that he has been unlawfully and unreasonably detained at Buihebi CIS in the Southern Highlands Province pursuant to section 42(5) of the Constitution.

2. Mr Kirriwom submitted although there appears to be records of Mr Kipiria's appearances before the District Court in Mendi in relation to a charge of wilful murder under section 299 of the Criminal Code, Ch 262, there is no evidence that he was committed to stand trial in the National Court. This is confirmed by the fact that the National Court Registry in Mt Hagen has no record of him being committed to stand trial in the National Court and a National Court file opened and given a reference number.

3. I agree with Mr Kirriwom's submissions. It appears Mr Kipria was detained for the alleged offence in 2007 and appeared in the District Court in Mendi. Since that time, it is not clear or not known if the District Court committed him to stand trial in the National Court. There is no notice of committal signed by the Magistrate to confirm if Mr Kipiria has been committed to stand trial in the National Court pursuant to section 118 of the District Courts Act, Ch 40.

4. There is also no record of the matter being registered in the National Court. He has been detained since 2007. There was a suggestion he had escaped whilst in custody and that may have resulted in his files being misplaced or lost but in my view, it does not make any difference.

5. The National Court has power to deal with a complaint of this nature under section 42(5) of the Constitution and if satisfied that a person has been unlawfully and unreasonably detained, may order his release either unconditionally or with appropriate conditions. It states:

"(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. I am satisfied in this case, Mr Kipiria has been detained unlawfully and unreasonably. I order that he be released forthwith. The CIS officers at Buihebi CIS must facilitate his release forthwith.

Ruling accordingly.
____________________________________
Lawyers for the State: Acting Public Prosecutor
Lawyers for Complainant: Public Solicitor