N5813
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (HR) NO 103 0F 2014

HERMAN JOSEPH LEAHY
Plaintiff

V

PONDROS KALUWIN, IN HIS CAPACITY AS PUBLIC PROSECUTOR,
OFFICE OF THE PUBLIC PROSECUTOR
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Cannings J
2014: 20, 21 October, 7 November

HUMAN RIGHTS – right to a fair hearing within a reasonable time by an independent and impartial court – Constitution, Section 37(3) – remedies for breach – Constitution, Section 57.

CONSTITUTIONAL LAW – constitutional office-holders – role and functions of Public Prosecutor – independence – not immune from direction and control by a court – Constitution, Sections 176, 177 – obligation of Public Prosecutor to comply with Constitution, Section 37(3) – duty to afford accused persons the full protection of the law. 

In 2003 the Police charged the plaintiff with conspiracy and misappropriation offences, allegedly committed in 1998 to 2000. In 2004 the District Court refused to commit him for trial but in 2005 the Public Prosecutor presented an ex officio indictment against him. By 2014 he had not been brought to trial on that indictment. He applied for enforcement of his rights under Section 37(3) of the Constitution to be afforded a fair hearing within a reasonable time by an independent and impartial court. He claimed that the Public Prosecutor's inordinate delay in prosecuting the case amounted to a breach of his rights to be tried within a reasonable time and to be given a fair hearing (which he claimed is now impossible given that the alleged offences were committed 15 years ago and in the interim period many witnesses had died or left the country). He sought orders permanently staying the ex officio indictment and/or discharging him from the indictment, and damages. The defendants opposed all relief sought, arguing that the Public Prosecutor had not breached the plaintiff's human rights as the delay in bringing him to trial was caused by the plaintiff himself who has on three separate occasions applied unsuccessfully to the Supreme Court for review of decisions of the National Court concerning his prosecution, thereby portraying his litigious propensity and engaging in conduct tantamount to an abuse of process; further that a fair trial is not impossible. If, however, the Court finds that a breach of rights has occurred, it should exercise its discretion against granting a permanent stay of prosecution as to do so would amount to an unwarranted interference in the independence of the Public Prosecutor and be contrary to the principle that the Court should only interrupt the work of investigatory, especially constitutional, institutions in exceptional circumstances such as where criminal charges are incontestably bad or utterly misconceived; and no such circumstances existed here.

Held:

(1)	In determining any application for enforcement of human rights, it is useful to apply a two-step decision-making process. First, has any right of the plaintiff actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If no, the court should not intervene. If yes, the court needs to consider whether it should grant the remedy sought or make some other order for enforcement of the right.

(2)	All persons in Papua New Guinea are entitled under Section 37(1) of the Constitution to the full protection of the law and that right must be fully available, especially to persons charged with offences.

(3)	Under Section 37(3) of the Constitution a person charged with an offence must be afforded:

•	a fair hearing;
•	within a reasonable time;
•	by an independent and impartial court (Application by Benetius Gehasa (2005) N2817, Application by John Ritsi Kutetoa (2005) N2819).

(4)	The "reasonable time" requirement imposes two obligations on the prosecuting authority: the prosecution must commence within a reasonable time after the accused is charged, and the prosecution's case must be completed within a reasonable time (Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033).

(5)	What is a "reasonable time" will vary from case to case. If there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the prosecutor to explain the delay and provide good reasons for it.

(6)	Here there was an apparently inordinate delay of nine years, five months from the presentation of the ex officio indictment (May 2005) to this trial (October 2014) during which period the prosecution had not commenced. The defendants adequately explained the delay to July 2010 (the date of the order of the National Court allowing the joint trial of the plaintiff and an alleged co-conspirator). However, the delay of more than four years after that was unexplained. The plaintiff's third Supreme Court review of National Court decisions was dismissed in December 2012 and the inactivity of the Public Prosecutor in the 22 months since then was inexplicable and indefensible. The plaintiff has been denied the right to have the prosecution commenced within a reasonable time.

(7)	He has also been denied the right to a fair trial given that the events underlying the charges occurred 14 to 16 years ago and in that period 14 persons who were possible witnesses have either died or permanently left the jurisdiction.

(8)	The plaintiff therefore succeeded in proving that the Public Prosecutor infringed his rights under Section 37(3) of the Constitution.

(9)	As to what orders should be made, the Court took into account the absence of any proper explanation by the Public Prosecutor for the delay in prosecuting the plaintiff and any indication as to when he would be ready, if he were not prevented by the Court, to commence the prosecution, and the traditional reluctance of the Court to intervene in the prosecution process and the need to preserve the constitutional independence of the Public Prosecutor. However, this was an exceptional case involving such an extensive and blatant breach of human rights, that the Public Prosecutor should be denied the right to prosecute.

(10)	The Court ordered, pursuant to Section 57(3) of the Constitution, a permanent stay of the prosecution and that the plaintiff be discharged from the indictment and discharged from his bail obligations and declared, pursuant to Section 58(2) of the Constitution, that he is entitled to damages, to be assessed, if not agreed.

 Cases cited

The following cases are cited in the judgment:

Anton Kadiko v The State (2005) N2843
Application by Benetius Gehasa (2005) N2817
Application by Herman Joseph Leahy (2006) SC855
Application by Herman Joseph Leahy (2006) SC981
Application by Herman Joseph Leahy (2009) SC994
Application by Herman Joseph Leahy (2010) SC1018
Application by John Ritsi Kutetoa (2005) N2819
Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033
Bank of Papua New Guinea v Marshall Cooke QC (2003) N2369
Bernard Hagoria v Ombudsman Commission (2003) N2400
Dan Kakaraya v Ombudsman Commission (2003) N2478
Eremas Wartoto v The State (2013) N5320
Eremas Wartoto v The State (2013) SC1298
Ex parte Smedley [1978] PNGLR 156
Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) SC1118
Herbert Bell v Director of Public Prosecutions of Jamaica [1985] AC 937
Pius Nui v Mas Tanda (2004) N2765
Re Conditions of Detention at Buka Police Lock-Up, Autonomous Region of Bougainville (2006) N4478
Re Release of Prisoners on Licence (2008) N3421
Rimbink Pato v Anthony Manjin (1999) SC622
Royale Thompson v Sylvester Kalaut (2011) N4265
SC Ref No 3 of 2005, Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011
SC Ref No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362
SC Ref No 1 of 1993; Re Section 365 of the Income Tax Act (1995) SC482
SC Ref No 2 of 1982; Re Organic Law on National Elections (Amendment) Act [1982] PNGLR 214
SC Rev No 1 of 1989; The State v Patrick Saul [1988-89] PNGLR 337
SC Rev No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi [1991] PNGLR 239
Simon Ketan v Lawyers Statutory Committee (2001) N2290
Sir Salamo Injia v Thomas Eluh (2012) N4617
Tasman Australia Airlines Pty Ltd v Andrew Ogil (2004) N2711
The State v Alphonse Wohuinangu (1991) N966
The State v Jack Gola and Mopana Aure [1990] PNGLR 206
The State v Jeffrey Balakau (1996) N1528
The State v Jimmy Mostata Maladina (2004) N2530
The State v John Koma (2002) N2176
The State v Linus Rebo Dakoa (2009) N3586
The State v Luke Kokon (2007) N3353
The State v Michael Nama (1999) N1884
The State v NTN Pty Ltd [1992] PNGLR 1
The State v Peter Kakam Borarae [1984] PNGLR 99
The State v Peter Painke [1976] PNGLR 210
Zachary Gelu v Sir Michael Somare (2008) N3526

APPLICATION

This was an application for enforcement of human rights.

Counsel

I Molloy, for the plaintiff
M Kias, for the defendants

7th November, 2014 

1. CANNINGS J: This is a ruling on an application for enforcement of human rights. The plaintiff, Herman Joseph Leahy, is applying for enforcement of his rights to a fair trial within a reasonable time, which he claims have been breached by the defendants, the Public Prosecutor and the State, due to the inordinate delay in commencing the prosecution of criminal charges against him. He seeks a permanent stay of the prosecution and damages.

2. In 2003 the Police charged the plaintiff, a lawyer, with conspiracy and misappropriation offences, allegedly committed in the period from November 1998 to October 2000 when he was employed by the National Provident Fund Board of Trustees as Legal Counsel. In 2004 the District Court refused to commit him for trial but in 2005 the Public Prosecutor presented an ex officio indictment against him. By 2014 he had not been brought to trial on that indictment.

CONSTITUTION, SECTION 37(3)

3. The plaintiff seeks enforcement of his rights under Section 37(3) of the Constitution, which 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.

4. Section 37(3) confers three distinct rights. The person charged must be afforded:

•	a fair hearing;
•	within a reasonable time;
•	by an independent and impartial court (The State v Peter Painke [1976] PNGLR 210, The State v Peter Kakam Borarae [1984] PNGLR 99, Application by Benetius Gehasa (2005) N2817).

5. Section 552 (right to be tried) of the Criminal Code is a law that reinforces the rights conferred by Section 37(3) (The State v Alphonse Wohuinangu (1991) N966, The State v Jeffrey Balakau (1996) N1528, Anton Kadiko v The State (2005) N2843). It allows an accused person who is aggrieved by delays in his prosecution to apply to the Court to be brought to trial. This triggers a process that can result in an accused person being discharged, including in cases where the prosecution has not made a genuine attempt to complete its case. 

6. I uphold the submission of Mr Molloy for the plaintiff that it was not necessary for the plaintiff to make an application under Section 552 before seeking to enforce his rights under Section 37(3) of the Constitution.

7. The rights conferred by Section 37(3) are not unique to Papua New Guinea. Similar rights are conferred in numerous other jurisdictions in which human rights are entrenched by written law including those countries in which human rights are constitutionally entrenched (Herbert Bell v Director of Public Prosecutions of Jamaica [1985] AC 937).

8. In this judgment I use the term 'human rights' interchangeably with the terms 'constitutional rights' and 'basic rights'. These words mean the same thing. They refer to the rights conferred on all citizens, and in some cases non-citizens, by Division III.3 (basic rights) of the Constitution (Re Conditions of Detention at Buka Police Lock-Up, Autonomous Region of Bougainville (2006) N4478, Re Release of Prisoners on Licence (2008) N3421).

PLAINTIFF'S ALLEGATIONS
 
9. The plaintiff claims that the Public Prosecutor's inordinate delay in prosecuting the case amounts to a breach of his rights to be tried within a reasonable time and to be given a fair hearing, which he claims is now impossible given that the alleged offences were committed 15 years ago and in the interim period many witnesses have died or left the country. He does not allege that the Public Prosecutor has acted in bad faith or that the delays that have occurred are actuated by malice or bias. He alleges that the Public Prosecutor has breached his human rights and that he deserves relief from the consequences of those breaches.

DEFENDANTS' POSITION

10. The defendants oppose all relief sought. They say that the Public Prosecutor has not breached the plaintiff's human rights. The delay in bringing him to trial has been caused by the plaintiff himself who has on three separate occasions applied unsuccessfully to the Supreme Court for review of decisions of the National Court concerning his prosecution. They say that this portrays his litigious propensity and that he has engaged in delaying tactics tantamount to an abuse of process. A fair trial is not impossible.

11. If, however, it is found that a breach of rights has occurred, the defendants argue that the Court should exercise its discretion against granting a permanent stay of the prosecution. They argue that that would amount to an unwarranted interference in the independence of the Public Prosecutor and be contrary to the principle that the Court should only interrupt the work of investigatory, especially constitutional, institutions in exceptional circumstances such as where criminal charges are incontestably bad or utterly misconceived; and no such circumstances exist here.

ISSUES

12. In determining any application for enforcement of human rights, it is useful to apply a two-step decision-making process. First, has any right of the plaintiff actually been breached or will it imminently be infringed or is there a reasonable probability of infringement? If no, the court should not intervene. If yes, the second step is for the Court to decide whether it should grant the orders sought or make some other order for enforcement of the right (Application by John Ritsi Kutetoa (2005) N2819). The plaintiff is claiming that two of his rights have been breached, so the issues are:

1	Has the plaintiff's right to a hearing within a reasonable time been breached?

2	Has the plaintiff's right to a fair hearing (trial) been breached?

3	Should the Court make the orders sought?

1 HAS THE PLAINTIFF'S RIGHT TO A HEARING WITHIN A REASONABLE TIME BEEN BREACHED?

13. The "reasonable time" requirement in Section 37(3) of the Constitution imposes two obligations on the Public Prosecutor:

•	he must commence the prosecution within a reasonable time after the accused is charged; and

•	he must complete the case within a reasonable time after commencing it.

14. As to the first obligation, if the accused is charged with an indictable offence the Constitution gives a pointer to what might be regarded as an unreasonable delay, in Section 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.

15. What is a "reasonable time" will vary from case to case. If there is an apparently inordinate delay in having a case commenced or completed, it is incumbent on the prosecutor to explain the delay and provide good reasons for it (Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033).

16. Here the four-month guideline provided by Section 37(14) has been exceeded. There has been an apparently inordinate delay of nine years, five months from the presentation of the ex officio indictment (May 2005) to this trial (October 2014) during which period the prosecution has not commenced.

Findings of fact

17. Before considering the explanation provided by the Public Prosecutor, I make the following findings of fact.

July 2003: the Police charged the plaintiff with conspiracy with five other persons to defraud the National Provident Fund Board of Trustees of K2.65 million and misappropriation of K70,000.00 from Kumagai Gumi Co Ltd; the charges emanated from the findings of the NPF Commission of Inquiry, chaired by Retired Judge Tos Barnett.

September 2004: after committal proceedings that took over a year to complete, the Waigani District Court decided that there was insufficient evidence against the plaintiff and refused to commit him for trial.

May 2005: the Public Prosecutor presented an ex officio indictment under Section 526 of the Criminal Code against the plaintiff, in CR No 835 of 2005, The State v Herman Joseph Leahy. The indictment contained one charge of conspiracy and two charges of misappropriation.

June 2005: the National Court (Mogish J), on 8 June, overruled the plaintiff's objection to the ex officio indictment and accepted it; the plaintiff on 21 June, filed an application in the Supreme Court (SC Rev No 34 of 2005) under Section 155(2)(b) of the Constitution for review of Mogish J's decision. This was the first of three applications the plaintiff made to the Supreme Court in the period from 2005 to 2010 for review of National Court decisions regarding his prosecution.

December 2005: the Supreme Court (Kapi CJ, Cannings J, David J) heard SC Rev No 34 of 2005 and reserved its decision.

August 2006: while the decision in SC Rev No 34 of 2005 was pending, the plaintiff filed an application for disqualification of one of the Judges on the ground of apprehended bias.

September 2006: the Supreme Court heard the disqualification application.

December 2006: the Supreme Court on 1 December refused the disqualification application (Application by Herman Joseph Leahy (2006) SC981) and on 15 December delivered its decision in SC Rev No 34 of 2005, granting leave for review but dismissing the substantive application (Application by Herman Joseph Leahy (2006) SC855).

April 2007: the National Court conducted a pre-trial review and gave directions that the State respond to the plaintiff's request for further and better particulars.

May 2007-March 2008: there was correspondence between the Public Prosecutor and the plaintiff's lawyers. In March 2008 the plaintiff's case was the subject of three directions hearings and the trial was set for 11 August 2008.

August 2008: the trial date was vacated by the National Court.

December 2008: the National Court (Kirriwom J) heard and granted an application by the Public Prosecutor to amend the ex officio indictment.

January 2009: the plaintiff filed an application in the Supreme Court (SC Rev No 1 of 2009) under Section 155(2)(b) of the Constitution for review of Kirriwom J's decision to allow amendment of the indictment. This was the second of three review applications to the Supreme Court.

October 2009: the Supreme Court (Batari J, Cannings J, Kariko J) on 27 October heard and granted leave for review in SC Rev No 1 of 2009 (Application by Herman Joseph Leahy (2009) SC994) and on the same day heard the substantive application for review and reserved its decision.

March 2010: the Supreme Court delivered its decision in SC Rev No 1 of 2009, dismissing the substantive application (Application by Herman Joseph Leahy (2010) SC1018).

July 2010: the National Court (Kirriwom J) heard and granted an application by the Public Prosecutor for a joint trial of the plaintiff and a person named in the conspiracy charge as a co-conspirator, Jimmy Mostata Maladina (in CR No 402 of 2004).

August 2010: the plaintiff filed an application in the Supreme Court (SC Rev No 30 of 2010) under Section 155(2)(b) of the Constitution for review of Kirriwom J's decision to allow a joint trial. This was the third review application to the Supreme Court.

December 2012: the Supreme Court dismissed SC Rev No 30 of 2010 for want of prosecution.

February 2013: the joint criminal proceedings were mentioned in the National Court, which was unaware of the dismissal of SC Rev No 30 of 2010. This was the last occasion on which the proceedings were mentioned.

March 2014: the plaintiff filed and served the present application for enforcement of his human rights.

October 2014: the trial of the application for enforcement of human rights was conducted.

Public Prosecutor's explanation

18. The Public Prosecutor blames the plaintiff for the delay of nine years, five months after presentation of the ex officio indictment: he has filed three separate applications for review of National Court decisions regarding his case, each one has been unsuccessful, he has challenged the prosecution every step along the way, he has engaged in stalling tactics, he has shown a litigious propensity bordering on abuse of process.

Good explanation?

19. I uphold the submission of Mr Molloy for the plaintiff that that is an inadequate explanation, for a number of reasons.

20. First, none of the three Supreme Court applications was vexatious or entirely without merit. The first two resulted in considered decisions by the Supreme Court that leave should be granted and considered decisions dismissing the substantive applications. The third, though ultimately dismissed for want of prosecution, was never ruled to be without merit.

21. Secondly, none of the three applications was attended by any stay order in relation to the criminal proceedings. There was nothing, at any time, to stop the Public Prosecutor commencing the case.

22. Thirdly, each of the three applications was a legitimate (and quick) response by the plaintiff to a change in position on the part of the Public Prosecutor. On each occasion the change in position came after the lapse of a considerable period, in that:

(a)	SC Rev No 34 of 2005 was filed in June 2005 in response to the ex officio indictment accepted by the National Court earlier that month, and presentation of the ex officio indictment was a significant change in position that occurred eight months after the District Court's refusal in September 2004 to refuse to commit the plaintiff to trial;

(b)	SC Rev No 1 of 2009 was filed in January 2009 in response to the amendment of the ex officio indictment one month earlier, in December 2008, and amendment of the indictment was a significant change in position that occurred two years after the Supreme Court's decision in December 2006 in SC Rev No 34 of 2005;

(c)	SC Rev No 30 of 2010 was filed in August 2010 in response to the order for a joint trial with Jimmy Maladina made one month earlier in July 2010, and the decision that there be a joint trial was a significant change in position that occurred four months after the Supreme Court's decision in March 2010 in SC Rev No 4 of 2009.

23. Fourthly, by July 2010 the Public Prosecutor was well placed to commence the trial. Three significant prosecution decisions had been endorsed by the National Court:

•	presentation of the ex officio indictment;
•	amendment of the indictment; and
•	preferring a joint trial of the plaintiff and another accused.

24. The first two of those decisions had in effect been confirmed as legally correct by the Supreme Court. The plaintiff's third application to the Supreme Court (SC Rev No 30 of 2010, made in August 2010) was no bar to the prosecution. As was the case with the previous Supreme Court applications, no stay order was in place.

25. So what did the Public Prosecutor do after July 2010? Nothing. The only time the plaintiff's case was mentioned in the National Court was on 5 February 2013. The Court was informed by the Public Prosecutor's counsel that the Public Prosecutor needed to check the status of the plaintiff's Supreme Court "appeal" (an incorrect description of the application for review, SC Rev No 30 of 2010). It appears that the Public Prosecutor was unaware of the dismissal of SC Rev No 30 of 2010 in December 2012. It also appears that the plaintiff's case has never returned to the National Court, not even for mention.

26. To sum up, the Public Prosecutor has provided a reasonable explanation for the delay in prosecuting the plaintiff from May 2005 to July 2010 but has failed to provide a good explanation for the delay since July 2010. The Public Prosecutor seems to have harboured the view that because the plaintiff filed his third review application to the Supreme Court, nothing could be done until that application was determined. If that was in fact the approach being taken, it was ill-conceived, naive and meritless. If it was not his view, what is the explanation for doing nothing? None has been forthcoming.

27. I find that, for the purposes of Section 37(3) of the Constitution, the reasonable time within which the Public Prosecutor was obliged to commence the prosecution of the plaintiff lapsed in July 2010. The Public Prosecutor has since that time been in continuing breach of his obligation to bring the plaintiff to trial, and that means that he has continued to breach the plaintiff's right under Section 37(3) to a hearing within a reasonable time. The delay that has occurred since December 2012 (when SC Rev No 30 of 2010 was dismissed for want of prosecution) is particularly inexcusable and indefensible.

28. I conclude that the Public Prosecutor has breached the plaintiff's right to a hearing within a reasonable time.

2 HAS THE PLAINTIFF'S RIGHT TO A FAIR HEARING BEEN BREACHED?

29. The plaintiff argues that his prosecution has been so long delayed that he cannot now be given a fair trial. I uphold this argument for two reasons.

30. First, the charges relate to events that occurred from November 1998 to October 2000: 14 to 16 years ago. It will inevitably be difficult for witnesses to provide a clear recollection of events occurring such a long time ago.

31. Secondly the plaintiff has provided credible and uncontroverted evidence that a number of persons who would reasonably be expected to have been witnesses at his trial have died or left the jurisdiction:

1	Chronox Manek (deceased), Public Prosecutor;
2	Evoa Lalatute (deceased), Member, NPF Board of Trustees;
3	Francis Misso (deceased), Chief Sergeant, OIC Anti-Corruption, Police Force;
4	Gabriel Gris (deceased), employee, Pacific Architects Consortium;
5	Henry Fabila (deceased), Managing Director, NPF Board of Trustees;
6	Jack Pambel (deceased), acting Public Prosecutor;
7	Kazu Kobayashi (left PNG), Kumagai Gumi project manager;
8	Koiari Tarata (deceased), senior officer, Department of Treasury;
9	Mete Kohona (deceased), senior officer, Department of Treasury;
10	Mike Simpson (deceased), director, Pacific Architects Consortium;
11	Roger Dalton (left PNG), employee, Pacific Architects Consortium;
12	Salome Dopeke (deceased), NPF Accountant;
13	Shuichi Taniguichi (left PNG), Kumagai Gumi PNG manager;
14	Tau Nana (deceased), Member, NPF Board of Trustees.

32. I conclude that in these circumstances the plaintiff cannot now be given a fair trial. It is too late. His right to a fair trial under Section 37(3) of the Constitution has been breached.

3 SHOULD THE COURT MAKE THE ORDERS SOUGHT?

Power to order and declare

33. Having found that the plaintiff's rights have been breached, I must now consider what relief, if any, should be provided. How should those rights be enforced? What orders and/or declarations should be made? The Court has wide powers at its disposal under Sections 57 (enforcement of guaranteed rights and freedoms) and 58 (compensation) of the Constitution. I highlight three provisions from those sections: Sections 57(1), 57(3) and 58(2), which state:

57(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.

57(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).

58(2) A person whose rights or freedoms declared or protected by this Division are infringed … is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

Strong case

34. The plaintiff has provided a strong case for a permanent stay of prosecution and other orders including damages. The Public Prosecutor's inaction has resulted in him being denied his rights to a fair trial within a reasonable time. These are fundamental as distinct from qualified rights (SC Ref No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362, SC Ref No 2 of 1982; Re Organic Law on National Elections (Amendment) Act [1982] PNGLR 214, The State v NTN Pty Ltd [1992] PNGLR 1, SC Ref No 1 of 1993; Re Section 365 of the Income Tax Act (1995) SC482). The rights that have been infringed are inalienable, ironclad, sacrosanct. There is no higher level of human rights in Papua New Guinea than Fundamental Rights.
 
35. All the orders the plaintiff seeks can be made under the provisions highlighted above. He is clearly eligible for those orders. He is not entitled to them. He must persuade the Court to exercise its discretion in his favour.

Public Prosecutor's response

36. The Public Prosecutor might have been able to repel the almost inexorable result of such a serious breach of human rights – orders for a stay of prosecution and damages – if he had provided the Court with evidence that he could start a trial immediately and that it would not be an exercise in futility and that the bleak picture of deceased and unavailable witnesses painted by the plaintiff is misleading. Or, if not immediately, that he has a plan in place that would enable a trial to start early in 2015. But nothing has been forthcoming from the Public Prosecutor. Not even the filing and service of the present proceedings in March 2014 pricked him into action.

37. Mr Kaluwin, the present Public Prosecutor, was appointed in November 2011 and cannot be held personally responsible for all of the delay that has occurred in the plaintiff's case. But he is responsible, I consider, for everything that has happened, or not happened, since his appointment. One of his two primary functions (the other being to do with Leadership Code proceedings), under Section 177(1)(a) (functions of the Public Prosecutor and the Public Solicitor) of the Constitution is:

to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court.

38. Mr Kaluwin should, with respect, have given evidence in this case. It is disappointing that he chose not to. His evidence should have been frank. Is he in a position to commence the prosecution? If so, when? What is the plan of action? Perhaps his view is that it is no longer worthwhile devoting resources to the case, and that he has decided to offer no evidence or to seek leave to withdraw the ex officio indictment or to decline to lay a charge (under Criminal Code, Section 525(3)) or to file a nolle prosequi (under Criminal Code, Section 527). If that is his view, he should say so. The Public Prosecutor has a duty to be frank with the Court (The State v Luke Kokon (2007) N3353). But he has said nothing.

39. The only evidence for the Public Prosecutor has been given by Senior State Prosecutor (and former acting Public Prosecutor) Camillus Sambua, who deposed that he has had carriage of the prosecution of the plaintiff since the criminal proceedings commenced (presumably this means since early 2005). Mr Sambua blames the plaintiff for the delays, a view that I have rejected. He gives no assurance that the prosecution is imminent. He says nothing on the crucial question: when will the prosecution commence?

40. Ms Kias for the defendants submitted that the Court should refrain from granting a permanent stay of the prosecution. It would mean that serious criminal charges and allegations of high-level corruption would be left un-determined. It would amount to an unwarranted interference in the independence of the Public Prosecutor. It would also be contrary to the principle that the Court should only interrupt the work of investigatory, especially constitutional, institutions in exceptional circumstances such as where criminal charges are incontestably bad or utterly misconceived; and no such circumstances exist here. I accept that those are indeed important considerations to bear in mind.

Leaving criminal charges un-determined

41. I agree with Ms Kias's submission that the criminal justice system has two sides. As Woods J stated in The State v Peter Kakam Borarae [1984] PNGLR 99:

I must comment here that there are two sides to justice. There is the need to bring wrongdoers to justice. This requires the efforts of the people involved as witnesses or complainants and the authorities. I emphasise that it is the responsibility of the Police to take all steps necessary to bring lawbreakers to justice. Then there is the other side that justice must be seen to be done and human rights must not be infringed. People must not be detained for an unreasonably long period of time without a full and fair hearing. Eleven months is without doubt an unreasonable length of time.

42. A balance must be struck between the public interest in seeing that the plaintiff, who is alleged to have committed serious criminal offences, is brought to justice, and the private interest of the plaintiff in seeing that he is given the full protection of the law and the public interest in seeing that the human rights of all persons are enforced. I have had close regard to these different interests.

43. It is not a simple case of the Court identifying a breach of human rights and then automatically deciding that the prosecution must be stayed. The task of the Courts in enforcing human rights is not as simple as that (The State v Linus Rebo Dakoa (2009) N3586). What is important to take into account is the likelihood that the plaintiff can be brought to trial in a proper way, compared with the extent of the breach of his human rights that has occurred and is likely to recur if the prosecution is allowed to proceed. I have concluded that it is unlikely that the plaintiff can be properly brought to trial, but that the breach of his human rights has been severe, and will be seriously exacerbated if a prosecution is allowed to continue.

Independence of Public Prosecutor

44. The Public Prosecutor is a constitutional office-holder whose independence is guaranteed by Section 176(3)(a) of the Constitution, which states:

Subject to this Constitution ... in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority ...

45. In The State v Jimmy Mostata Maladina (2004) N2530 Davani J refused an application to stay the criminal prosecution of the applicant for the very reason propounded by Ms Kias. Her Honour held that the prosecution of offences in the National Court was the sole responsibility of the Public Prosecutor. The exercise and performance of the prosecution function is placed in the Public Prosecutor by Section 177 of the Constitution; and in the performance of that function, the Public Prosecutor is not subject to direction or control by any person or authority, the only exception being under Section 176(3)(b), where the Head of State, on the advice of the National Executive Council, gives a direction to the Public Prosecutor.

46. There have been a number of other cases in which the Courts have emphasised and preserved the independence of the Public Prosecutor in making decisions on who, what and when to prosecute, for example: SC Rev No 1 of 1989; The State v Patrick Saul [1988-89] PNGLR 337, SC Rev No 9 of 1990; Application by the Principal Legal Adviser Bernard M Narokobi [1991] PNGLR 239, Ex parte Smedley [1978] PNGLR 156, The State v Jack Gola and Mopana Aure [1990] PNGLR 206, The State v Michael Nama (1999) N1884, The State v John Koma (2002) N2176.

47. However, as is the case with all constitutional office-holders and constitutional institutions, the independence of the Public Prosecutor is not absolute. This is made clear by Schedule 1.19 (independence) of the Constitution, which states:

Where a Constitutional Law provides that a person or institution is not subject to control or direction, or otherwise refers to the independence of a person or institution, that provision does not affect—

(a) control or direction by a court; or

(b) the regulation, by or under a Constitutional Law or an Act of the Parliament, of the exercise or performance of the powers, functions, duties or responsibilities of the person or institution; or

(c) the exercise of jurisdiction under Division III.2 (leadership code), Subdivision VIII.1.B (the Auditor-General), or Subdivision VIII.1.C (the Public Accounts Committee),

and does not constitute an appropriation of, or authority to expend, funds.

48. Schedule 1.19(a) is critical: the Public Prosecutor can be subject to direction or control by a Court. I accept that the power of the Court to interfere with the free exercise by the Public Prosecutor of his decisions as to who, what and when to prosecute should be exercised sparingly and only in cases where it is proven that the Public Prosecutor has acted or proposes to act unlawfully.

49. In the present case it has been proven that the Public Prosecutor has acted unlawfully. He has breached his obligation to bring the plaintiff to trial within a reasonable time and to enable the plaintiff to have a fair trial. He has breached the plaintiff's human rights. He ought to be restrained from further breaching his obligations as a prosecutor and from further breaching the plaintiff's rights. It is constitutionally justifiable to order a permanent stay of the prosecution.

Non-interference in investigations

50. As for the other principle invoked by Ms Kias – that the Court should only interrupt the work of investigatory, especially constitutional, institutions in exceptional circumstances – this is indeed the case. I upheld this principle, which emanates from the Supreme Court decision in Rimbink Pato v Anthony Manjin (1999) SC622, in Pius Nui v Mas Tanda (2004) N2765 and Zachary Gelu v Sir Michael Somare (2008) N3526. Kandakasi J has consistently applied the principle in a string of cases including Simon Ketan v Lawyers Statutory Committee (2001) N2290, Bank of Papua New Guinea v Marshall Cooke QC (2003) N2369, Bernard Hagoria v Ombudsman Commission (2003) N2400, Dan Kakaraya v Ombudsman Commission (2003) N2478 and Tasman Australia Airlines Pty Ltd v Andrew Ogil (2004) N2711. The recent decision of the Supreme Court in Grand Chief Sir Michael Thomas Somare v Chronox Manek (2011) SC1118 reinforces the need for judicial restraint in interfering in the process of law enforcement.

51. Strictly speaking, the principle has no application here as the Office of the Public Prosecutor is not an investigatory agency. The Public Prosecutor's primary role is to prosecute, not investigate. He prosecutes criminal offences that have been investigated by the Police. He prosecutes alleged misconduct in office under the Leadership Code that has been investigated by the Ombudsman Commission (SC Ref No 3 of 2005, Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011). The plaintiff is not seeking a stay of any investigation. He wants a stay of the prosecution of the charges that have been hanging over him since 2003 and of the indictment that has been outstanding since 2005.

52. However the underlying concerns in what might be called the Pato v Manjin principle are clear: the Court should not lightly interfere in the natural flow of investigation and prosecution in the criminal justice system, as to do so might curtail the work of law enforcement agencies and disrupt adherence to the Rule of Law. An order permanently staying an investigation or a prosecution should only be granted in exceptional circumstances (Eremas Wartoto v The State (2013) SC1298, Royale Thompson v Sylvester Kalaut (2011) N4265, Sir Salamo Injia v Thomas Eluh (2012) N4617, Eremas Wartoto v The State (2013) N5320). I have had full regard to those concerns and principles in deciding what orders are necessary and appropriate in this case.

Exceptional circumstances

53. For exceptional circumstances to exist it is not necessary, in my view, for an accused person to prove that the charges against him are incontestably bad or utterly misconceived or that there has been an abuse of process (as was the case in Thomson v Kalaut). It is sufficient that the accused person proves that his human rights, especially his right to be brought to trial within a reasonable time and to have a fair trial, have been breached.

Conclusion

54. The plaintiff's fundamental human rights have been breached in a serious way and to a significant degree. He was first arrested and charged with the offences that are the subject of the ex officio indictment 11 years ago, in July 2003. He has contributed to some of the delay, that is true, but his challenges to the decisions of the Courts and the Public Prosecutor have been valid exercises of his constitutional right to the full protection of the law.

55. This is an exceptional case, warranting exceptional orders. There has been such an extensive and blatant breach of human rights that the Public Prosecutor should be denied the right to prosecute. The Court is obliged to stop further breaches of the plaintiff's human rights. I will grant the permanent stay of prosecution sought by the plaintiff and discharge him from the indictment presented against him and make other consequential orders. Costs will follow the event.

ORDER

(1)	The application for enforcement of human rights is upheld.

(2)	It is declared, pursuant to Section 57(3) of the Constitution, that the defendants have infringed the plaintiff's rights under Section 37(3) of the Constitution to a fair hearing within a reasonable time.

(3)	It is ordered, pursuant to Section 57(3) of the Constitution, in relation to the charges in the ex officio indictment of 15 May 2005, as amended, that:

(a)	the prosecution of the charges is permanently stayed;
(b)	the plaintiff is discharged from the indictment;
(c)	the plaintiff is discharged from his bail obligations and his bail shall be refunded forthwith.

(4)	It is declared, pursuant to Section 58(2) of the Constitution, that the plaintiff is entitled to damages, which shall, if not agreed, be assessed by the Court.

(5)	The defendants shall pay the plaintiff's costs of the proceedings to date, on a party-party basis, which shall if not agreed be taxed.

Judgment accordingly.
_____________________________________________________________
H J Leahy Lawyers: Lawyers for the Plaintiff 
Solicitor-General: Lawyer for the Defendants