-N6156
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 182 OF 2015

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER SECTION 57 OF THE CONSTITUTION

ROGER BAI NIMBITUO
First Applicant

JEFFERY WOSI
Second Applicant

RONALD WAFIA
Third Applicant

JACOB WAPAI
Fourth Applicant

GILBERT GUARI
Fifth Applicant

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Cannings J
2015: 1 October, 17, 25 November, 14, 18, December

HUMAN RIGHTS – delay in prosecution of persons charged with criminal offences – delay in conduct of trial – delay in delivery of verdict.

HUMAN RIGHT – freedom from inhuman treatment: Constitution, Section 36 – right to full protection of the law, right to a fair hearing within a reasonable time: Constitution, Section 37 – protection against harsh or oppressive or other proscribed acts: Constitution, Section 41 – right to personal liberty, right not to be unlawfully or unreasonably detained, right to complain to National Court about detention: Constitution, Section 42.

HUMAN RIGHTS – enforcement – remedies for infringement of human rights – Constitution, Sections 57, 58, 42(5).

In the period from May 2009 to March 2010 the five applicants were arrested, charged and detained in custody in connection with an incident in which a number of people were allegedly kidnapped for ransom and unlawfully detained and in the case of one person, raped. Their trial in the National Court commenced on 14 August 2012. Evidence was called over a two-month period to 17 October 2012. The Court then adjourned for one month for submissions. In fact, the adjournment extended for more than two years. On 19 November 2014 submissions on verdict were made, and the trial Judge indicated that verdicts would be delivered by the end of 2014. That did not eventuate. On 4 August 2015 the applicants made a joint application under Section 57 of the Constitution for enforcement of their human rights, which they claimed had been infringed by the State. They claimed, in particular, that the following rights have been infringed by the State: right to protection from inhuman treatment under Section 36 of the Constitution; right to full protection of the law under Section 37(1) of the Constitution, in particular the right to a fair hearing within a reasonable time under Section 37(3); right to protection against harsh, oppressive and other proscribed acts under Section 41 of the Constitution; and their right not to be unreasonably detained, under Section 42 of the Constitution. They sought relief in the form of bail, a permanent stay of their criminal proceedings, damages, a direction that the verdicts be handed down forthwith and/or a retrial. The State opposed all relief sought. 

Held:

(1)	There was insufficient evidence that any person had deliberately subjected the applicants to torture or that the effect of delays in determining their case had resulted in them being tortured or submitted to any other form of inhuman treatment. No infringement of their rights under Section 36 of the Constitution was proven.

(2)	As to the alleged infringement of their rights under Section 37 of the Constitution: there were inordinate delays in prosecution of the applicants (in that each was remanded in custody for long periods prior to commencement of their trial) and in completion of their trials (in that submissions on verdict were not made until more than two years after completion of the evidence) and 13 months have passed since completion of submissions on verdict. The State failed to explain or justify those delays. The applicants have been denied their right to the full protection of the law under Section 37(1), in particular right to a hearing within a reasonable time under Section 37(3) of the Constitution. 

(3)	The extensive, significant, unexplained and unacceptable delays in prosecution of the applicants and in completion of their trial and in delivery of verdict mean that the rights of the applicants, not to be subject to harsh or oppressive acts or other acts not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Section 41 of the Constitution, have been infringed. 

(4)	As to the alleged infringement of their rights under Section 42 of the Constitution: the applicants are being detained unreasonably in that they have been remanded in custody, being charged with criminal offences, for periods of five years, 9 months to six years, seven months without the criminal charges against them being determined.

(5)	The Court ordered and declared, pursuant to Sections 57(3), 58 and 42(5) of the Constitution that: (a) there was insufficient evidence that the applicants had been submitted to torture or other inhuman treatment; (b) the rights of the applicants to the full protection of the law under Section 37(1) of the Constitution, have been infringed; (c) the rights of the applicants to a hearing within a reasonable time under Section 37(3) of the Constitution, have been infringed; (d) the rights of the applicants, not to be subject to harsh or oppressive acts or other acts not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, under Section 41 of the Constitution, have been infringed; (e) the rights of the applicants, not to be deprived of their personal liberty by being unreasonably detained in custody under Section 42(5) of the Constitution, have been infringed; (f) this matter will be reported formally to the Chief Justice so that his Honour might consider what appropriate action to take in relation to the trial Judge's failure to deliver verdicts; (g) the applicants shall be released from custody, on conditions, subject to a further hearing regarding the conditions on which they will be released; (h) the applicants are entitled, subject to a further hearing on assessment, to reasonable damages, and are eligible, subject to further argument and assessment, to exemplary damages, for infringement of their human rights.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Application by John Ritsi Kutetoa (2005) N2819
Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033
Baisom Konori v Jant Ltd (2015) N5868
Bomai Wati v David Gavera (2013) N5363
Herman Joseph Leahy v Pondros Kaluwin (2014) N5813
In The Matter of a Complaint by Paul Niko (2014) N5719
Joe Kape Meta v Constable Paul Kumono (2012) N4598
Kelly Koi v Constable Mathew Anseni (2014) N5580
Kofowei v Siviri [1983] PNGLR 449
McFarlane v Director of Public Prosecutions [2008] ISEC 7
Morobe Provincial Government v John Kameku (2012) SC1164
Re Conditions of Detention at Beon Correctional Institution (2006) N2969 
Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022 
Re Conditions of Detention at Buka Police Lock-Up (2006) N4478 
Re Conditions of Detention at Buka Police Lock-Up (2006) N4976
Re Release of Prisoners on Licence (2008) N3421
Re Ricky Yanepa [1988-89] PNGLR 166
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
The State v Linus Rebo Dakoa (2009) N3586
The State v Peter Kakam Borarae [1984] PNGLR 99
The State v Peter Painke [1976] PNGLR 210
Tom Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87

APPLICATION

This was an application for enforcement of human rights.

Counsel

V Amoko, for the applicants
G Akia, for the respondent

18th April, 2015

1.	CANNINGS J: This is a ruling on an application for enforcement of human rights by five persons who are remanded in custody in connection with serious criminal charges. They have been in custody for periods ranging from five years, nine months to six years, six months. They have been jointly tried in the National Court. Their trial did not commence until after they had spent several years in custody. The trial extended over a period of two years, four months. Their trial was completed 13 months ago. No verdict has yet been delivered. They remain in custody at Bomana Correctional Institution.

2.	The applicants claim that a number of their human rights have been infringed by the State: 

•	the right to protection from inhuman treatment under Section 36 of the Constitution; 

•	the right to the full protection of the law under Section 37(1) of the Constitution, in particular the right to a fair hearing within a reasonable time under Section 37(3) of the Constitution; 

•	the right to protection against harsh, oppressive and other proscribed acts under Section 41 of the Constitution; and 

•	the right not to be deprived of their personal liberty, by being unreasonably detained in custody, under Section 42 of the Constitution. 

3.	They seek relief in the form of bail, a permanent stay of their criminal proceedings, damages, a direction that the verdicts be handed down forthwith and/or a retrial.

4.	The State opposes all relief sought, arguing that the applicants have not proven any inexcusable delay in completion of their trial as there is no evidence of what the normal period for delivering a verdict is. They have been given a fair trial by an independent and impartial court. In the event that human rights breaches are found to have occurred, the State argues that applicants should not be granted bail or otherwise released from custody as they have been accorded a fair trial, they are charged with numerous serious offences, the offences were committed against a family in their home and they failed to disprove the presence of any of the considerations in Section 9(1) of the Bail Act. They should not receive damages. 

FACTS

5.	The facts pertinent to this application are not disputed. The incident that led to the applicants being charged and detained occurred on 17 May 2009. It is alleged that the applicants were members of an armed gang, dressed in Police uniforms, who abducted members of a family from their home at Gerehu and unlawfully detained them, held them for ransom, were paid at least K10, 000.00, and committed the crime of rape on several occasions against one of the victims. 

6.	The applicants were arrested and detained on the following dates:

Roger Bai Nimbituo 1 March 2010
Jeffrey Wosi 22 May 2009
Ronald Wafia 4 September 2009
Jacob Wapai 22 May 2009
Gilbert Guari 13 July 2009

7.	The District Court committed the applicants for trial in the National Court on the following dates:

Roger Bai Nimbituo 14 May 2012
Jeffrey Wosi 27 May 2010
Ronald Wafia 29 June 2010
Jacob Wapai 27 May 2010
Gilbert Guari 13 September 2010

8.	On 14 August 2012 their joint trial commenced in the National Court before Justice Mogish. They were each indicted on:

•	one count of impersonation under Section 488(1) of the Criminal Code;
•	13 counts of unlawful deprivation of liberty under Section 355 of the Criminal Code;
•	one count of kidnapping for ransom under Section 354 of the Criminal Code.

9.	In addition Gilbert Guari was indicted on one count of rape and Jeffery Wosi was indicted on two counts of rape under Section 347(1) of the Criminal Code.

10.	Evidence was heard on six sitting days in the period from 14 August to 17 October 2012, when a no-case submission was made at the close of the State's case. The no-case submission was refused. The defence offered no evidence and the trial Judge allowed an adjournment of one month for submissions. 

11.	In fact, the adjournment was to extend for more than two years. It was not until 19 November 2014 that the case resumed. Submissions on verdict were made. The trial Judge stated that verdicts would be delivered by the end of 2014. That did not eventuate. 

12.	On 4 August 2015 the applicants made a joint application under Section 57 of the Constitution, in accordance with Order 23, Rule 7(1)(c) of the National Court Rules, for enforcement of their human rights, which they claimed had been infringed by the State. As at 14 December 2015 no verdict had been returned. The applicants remained in custody.

13.	To summarise:

•	the applicants' trial commenced after they had been in custody for periods ranging from two years, five months to three years, two months;

•	the period from their dates of committal to the date of commencement of the trial ranged from three months (in the case of the first applicant) to two years, two months (in the case of the second and fourth applicants);

•	their trial, from commencement to submissions on verdict, took two years, four months to complete, including a lapse of two years, one month after the close of evidence to the hearing of submissions on verdict;

•	the verdicts have been reserved for a period of one year, one month; 

•	they have been in custody for periods ranging from five years, nine months to six years, six months. 

ISSUES

14.	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 applicant been infringed 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 applicants are claiming that four of their human rights have been breached, so the issues are:

1	Has the right to protection against torture or other inhuman treatment been infringed?

2	Has the right to the full protection of the law, in particular a hearing within a reasonable time, been infringed?

3	Has the right to protection against harsh, oppressive or other proscribed acts been infringed?

4	Has the right not to be unlawfully or unreasonably detained, been infringed?

5	What orders or declarations should the Court make?

1 HAS THE RIGHT TO PROTECTION AGAINST TORTURE OR OTHER INHUMAN TREATMENT BEEN INFRINGED?

15.	The applicants argue that the State has breached their rights under Section 36 of the Constitution (freedom from inhuman treatment), which states: 

(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.

(2) The killing of a person in circumstances in which Section 35(1) (a) (right to life) does not, of itself, contravene Subsection (1), although the manner or the circumstances of the killing may contravene it.

16.	Ms Amoko for the applicants submitted that the mere fact of waiting so long for a decision from the Court was a form of mental abuse and torture and a form of cruel punishment. While it could hardly be doubted that being in custody for so long waiting for their trial to commence, and then waiting more than two years for the trial to be completed and then waiting another year for the verdict to be handed down, has caused mental strain to the applicants, I am not convinced by the arguments that have been put to the Court that this amounts to torture or treatment or punishment of the type referred to in Section 36(1).

17.	Section 36(1) of the Constitution confers on all persons in Papua New Guinea the right not to be submitted to three sorts of conduct:

•	torture (whether physical or mental);
•	treatment that is cruel, inhuman or inconsistent with respect for the inherent dignity of the human person;
•	punishment that is cruel, inhuman treatment or inconsistent with respect for the inherent dignity of the human person (Baisom Konori v Jant Ltd (2015) N5868).

18.	The terms "torture" and "inhuman treatment" are not defined in the Constitution. However, in ascertaining their meaning it is useful to note that Section 36(1) is not unique to Papua New Guinea. In prohibiting torture and other forms of inhuman treatment and punishment, the Constitution is reflecting Article 5 of the Universal Declaration of Human Rights, which states:

No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

19.	Article 7 of the International Covenant on Civil and Political Rights is in similar terms:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

20.	In SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 Kapi DCJ analysed the meaning of the terms "torture" and "inhuman treatment" in Section 36(1). His Honour stated:

There is one basic theme which runs right through this provision. I regard this as the central theme around which the construction of all the terms must revolve. This section seeks to protect the dignity of the human person. … The last limb of s. 36(1) of the Constitution expressly states this. This special protection under the Constitution is given only to mankind and not other animals. Man is special and unique. Man is created in the image of God: Genesis Ch 1, v 27. In my view, the dignity of the human person stems from the Christian philosophy of mankind. These Christian principles are a foundation upon which our nation has been built. See preamble to the Constitution. When we get away from the uniqueness of mankind, there is a threat to the dignity of the human person. The value and worth of mankind which the Constitution has entrenched let no authority undermine. This is a significant protection because a government which does not believe in the uniqueness of mankind may treat its people like animals. This theme also runs right through the other provisions of the Constitution, s 37(17), s 38(1), ss 39, 40 and 41 of the Constitution.

It follows from this that any treatment or punishment that is inconsistent with respect for the inherent dignity of the human person is prohibited by s 36(1). In my view torture, cruel or inhuman treatment or punishment are inconsistent with respect for the inherent dignity of the human person.

21.	In some cases, treatment given to detainees in correctional institution detainees has been found to amount to torture and inhuman treatment. For example, Re Heni Pauta & Kenneth Susuve [1982] PNGLR 7, Re Heni Pauta & Kenneth Susuve (No 2) (1982) N337, Tom Amaiu v Commissioner of Corrective Institutions [1983] PNGLR 87, Re Conditions of Detention at Beon Correctional Institution (2006) N2969, Re Conditions of Detention at Bialla Police Lock-Up (2006) N3022, Re Conditions of Detention at Buka Police Lock-Up (2006) N4478, Re Conditions of Detention at Buka Police Lock-Up (2006) N4976. In Kofowei v Siviri [1983] PNGLR 449 a number of human rights breaches were found to have been committed against persons detained in custody but a claim based on Section 36(1) of the Constitution was rejected. 

22.	Having regard to the above cases, I will take the approach in Konori. For a person's conduct to amount to torture or otherwise inhuman treatment of another person under Section 36(1): 

•	the conduct is committed without the consent of the recipient; and
•	the conduct must be done with the intent and effect of treating the recipient as less than human.

23.	Though the first criterion is satisfied, there is insufficient evidence that any person or institution had deliberately delayed the applicants' case or treated them in some inhuman way. Their inherent dignity as human persons has not been infringed. No infringement of their rights under Section 36 of the Constitution has been proven.

2 HAS THE RIGHT TO THE FULL PROTECTION OF THE LAW, IN PARTICULAR A HEARING WITHIN A REASONABLE TIME BEEN INFRINGED?

24.	The applicants argue that the State has breached their rights under Section 37(1) of the Constitution (protection of the law), which 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.

25.	In particular the applicants argue that their special rights as persons charged with offences under Section 37(3) have been infringed. Section 37(3) 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.

26.	As I pointed out in Herman Joseph Leahy v Pondros Kaluwin (2014) N5813, 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).

27.	The applicants are not arguing that they have not had a fair hearing. Though it could be argued that a hearing that is unduly delayed ceases to be a fair hearing, that is not their argument. Nor are they arguing that their trial did not take place before an independent and impartial court. Their argument is that their case has not been heard within a reasonable time. They argue that Section 37(3) confers the right to have a case heard and determined within a reasonable time. I uphold that argument. There is no other way to fairly construe Section 37(3). There would be no point in giving a person the right to have the charge against him heard, if he were not given the concomitant right to have a decision on the charge handed down within a reasonable time. 

28.	The "reasonable time" requirement imposes obligations on all persons and institutions involved in the criminal justice system to ensure that all accused persons have the charges against them heard and determined with all due dispatch (Re Ricky Yanepa [1988-89] PNGLR 166, Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033, Bomai Wati v David Gavera (2013) N5363, Herman Joseph Leahy v Pondros Kaluwin (2014) N5813).

29.	Mr Akia, for the State, did not dispute that interpretation of Section 37(3). However, he argued that the applicants had failed to prove that the alleged delays in having their case heard and determined were significant or actionable or exceeded the 'reasonable time' requirements of Section 37(3). He referred to the decision of the Supreme Court of Ireland in McFarlane v Director of Public Prosecutions [2008] ISEC 7, where the Court drew a distinction between three types of delay that can result in a case not being heard and determined with all due dispatch: prosecutorial delay, systemic delay and judicial delay. Mr Akia submitted that in the present case the applicants are complaining about judicial delay but have not adduced any evidence of what is the normal or average time to complete a criminal trial; nor have they demonstrated that the alleged delay in this case is so far outside the norm as to be not reasonable.

30.	While I have found Mr Akia's well researched and detailed submission very useful, as it analyses the different causes and categories of delays in the criminal justice system, I do not agree that the complaint of the applicants is only about judicial delay. Nor do I agree that the applicants have failed to adduce evidence of what is the norm for delivering a verdict. The concerns of the applicants are about delay, generally. It took a long time – more than three years after the first three of them were arrested – for their trial to commence, in August 2012. More than three years after the case commenced, they still have no decision. Their concern is about both prosecutorial and systemic delay, in getting the trial started. It is also about judicial delay, in getting a decision from the Court. They have adduced evidence in the form of a Practice Direction issued by the Registrar of the National Court which suggests that the normal time within which a judgment might reasonably be expected to be delivered is three to six months. So, it is not correct to say that they are only concerned about judicial delay or that they have not adduced evidence. 

31.	In determining whether they have proven a breach of their right under Section 37(3) of the Constitution, it is important to bear in mind that what is a "reasonable time" will vary from case to case. There might be a good reason for a lengthy delay. However, if there is an inordinate delay in having a case commenced or completed, it is incumbent on the person or institution allegedly responsible for the delay to explain the delay and provide good reasons for it. If the delay is not explained and good reasons are not provided, the delay must be regarded as unreasonable. 

32.	In this case there have been inordinate delays in both commencing the trial and the conduct of the trial. I will firstly assess these two periods of delay separately, and then assess their combined effect.

Delay in commencing the trial 

33.	The facts are:

•	the applicants' trial commenced in August 2012 after they had been in custody for periods ranging from two years, five months to three years, two months;

•	the period from their dates of committal to the date of commencement of the trial ranged from three months (in the case of the first applicant) to two years, two months (in the case of the second applicant). 

34.	These are inordinate delays for which no explanation has been provided. The significance of the delays is underlined by Section 37(14) of the Constitution, 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.

35.	I find that the substantial delay in commencing their trial constitutes, by itself, a breach of the rights of the applicants to a hearing within a reasonable time. 

Delay in conduct of the trial 

36.	The facts are:

•	the trial, from commencement in August 2012, to submissions on verdict, in November 2014, took two years, four months to complete, including a lapse of two years, one month after the close of evidence in October 2012 to the hearing of submissions on verdict;

•	the verdicts have been reserved, since November 2014, for a period of one year, one month. 

37.	These are inordinate delays for which no explanation has been provided. I find that the substantial delays in completing their trial and in delivering verdicts further breached the applicants' right to a hearing within a reasonable time under Section 37(3) of the Constitution. 

Combined effect of delays 

38.	The result is that the applicants have been in custody for periods ranging from five years, nine months to six years, six months without their case being finalised. These delays are extensive, significant, unexplained and unacceptable. The applicants have been denied their right to the full protection of the law and their right to a hearing within a reasonable time. Their rights under Sections 37(1) and 37(3) of the Constitution have been significantly infringed.

3 HAS THE RIGHT TO BE PROTECTED AGAINST HARSH, OPPRESSIVE OR OTHER PROSCRIBED ACTS BEEN INFRINGED?

39.	The applicants argue that the State has breached their rights under Section 41 of the Constitution (proscribed acts), which states: 

(1) Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case—

(a) is harsh or oppressive; or

(b) is not warranted by, or is disproportionate to, the requirements of the particular circumstances or of the particular case; or

(c) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,

is an unlawful act.

(2) The burden of showing that Subsection (1) (a), (b) or (c) applies in respect of an act is on the party alleging it, and may be discharged on the balance of probabilities.

(3) Nothing in this section affects the operation of any other law under which an act may be held to be unlawful or invalid.

40.	Section 41 proscribes (ie prohibits) and gives protection against seven sorts of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Joe Kape Meta v Constable Paul Kumono (2012) N4598, Kelly Koi v Constable Mathew Anseni (2014) N5580). Even if done under a valid law and notwithstanding anything to the contrary in any law, an act is unlawful if it is, in the particular case:

1.	harsh; or
2.	oppressive; or
3.	not warranted by the requirements of the particular circumstances;
4.	disproportionate to the requirements of the particular circumstances;
5.	not warranted by the requirements of the particular case; or
6.	disproportionate to the requirements of the particular case; or
7.	otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

41.	The facts speak for themselves. The extensive, significant, unexplained and unacceptable delays in prosecution of the applicants and in completion of their trial and in delivery of verdict mean that the rights of the applicants, not to be subject to harsh or oppressive acts or other acts not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind under Section 41 of the Constitution, have been infringed. 

4 HAS THE RIGHT NOT TO BE UNREASONABLY DETAINED, BEEN INFRINGED?

42.	The applicants argue that the State has breached their rights under Section 42 of the Constitution (liberty of the person) not to be unreasonably detained. 

43.	Section 42 confers the right to personal liberty. It gives effect to the overarching right to freedom based on law, conferred by Section 32 (right to freedom) of the Constitution. It is a qualified, not an absolute, right. A person can be lawfully deprived of his or her personal liberty in any of the circumstances prescribed by Section 42(1), which relevantly provides:

No person shall be deprived of his personal liberty except … (d) upon reasonable suspicion of his having committed, or being about to commit, an offence. 

44.	The applicants are not arguing that they have been unlawfully deprived of their liberty. They are arguing that they have been unreasonably detained. This is a separate argument, arising from 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.

45.	Section 42(5), read together with Section 42(1), reinforces or confers three distinct rights on a detainee:

•	the right not to be unlawfully detained;
•	the right not to be unreasonably detained;
•	the right to complain to the National Court or a Judge that he or she is unlawfully or unreasonably detained.

46.	The last is very significant in the present case. If such a complaint is made the Court is obliged to:

•	order that the complainant be brought before the Court;
•	inquire into the complaint;
•	determine whether the complainant's detention is lawful and reasonable; and
•	if not satisfied, order the release of the complainant (In The Matter of a Complaint by Paul Niko (2014) N5719).

47.	The applicants did not formally complain under Section 42(5) of the Constitution that they had been unreasonably detained. They could, and probably should, have filled in, and filed, a form 125 of the National Court Rules. They instead filled in, and filed, a form 124: a human rights enforcement application form. What they have done, however, is sufficient to show that, in fact, they have complained to the National Court that they are being unreasonably detained. They have accordingly been brought before the Court and I have, in accordance with my obligations under Section 42(5), inquired into their complaints.

48.	I conclude that, though it is lawful, their detention is unreasonable. They are persons detained on remand pending their trial. They are detained unreasonably as they have been remanded in custody, for periods of five years, nine months to six years, six months without the criminal charges against them being determined. Their rights, under Section 42(5) of the Constitution, not to be unreasonably detained, have been infringed. 

5 WHAT ORDERS OR DECLARATIONS SHOULD THE COURT MAKE?

49.	I return to the two-step decision-making process identified earlier. Under step 1, I have concluded that three distinct rights of the applicants have been infringed:

•	the right to the full protection of the law under Section 37(1) of the Constitution, in particular the right to a fair hearing within a reasonable time under Section 37(3) of the Constitution; 

•	the right to protection against harsh, oppressive and other proscribed acts under Section 41 of the Constitution; and 

•	the right not to be deprived of their personal liberty, by being unreasonably detained in custody, under Section 42 of the Constitution. 

50.	I now proceed to step 2: what orders or declarations should be made? What relief should be provided, to enforce those rights? 

Power to order and declare

51.	The Court has wide powers at its disposal under Sections 57 (enforcement of guaranteed rights and freedoms) and 58 (compensation) of the Constitution, and also under Section 42(5).

52.	I first consider 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.

53.	Ms Amoko for the applicants argues that the following remedies should be granted:

•	bail, 
•	a permanent stay of the criminal proceedings, 
•	damages, 
•	a direction that the verdicts be handed down forthwith, and/or 
•	an order for a retrial.

54.	The State opposes all relief sought, arguing that the applicants should not be granted bail or otherwise released from custody. Nor should they be awarded damages as they have been accorded a fair trial, they are charged with numerous serious offences, the offences were committed against a family in their home and they failed to disprove the presence of any of the considerations in Section 9(1) of the Bail Act. 

55.	With respect, these submissions do not address the seriousness of the human rights breaches that have been exposed in this case. The attitude of the State appears to be that, provided an accused person eventually receives a fair trial that is sufficient. Delays in commencing the trial or in the conduct of the trial or in receiving a verdict are relatively unimportant, especially where the charges are very serious, as they are in this case. The accused person must be patient. That is not an approach that the National Court should uphold. 

56.	Having said that, I don't think bail, as such, is an appropriate remedy as the applicants have not made a bail application. What is appropriate, however, is an order under Section 42(5) of the Constitution for their release from custody, which would be an order in similar terms to an order granting bail. I will return to that subject in a moment.

57.	Ordering a permanent stay of the criminal proceedings or directing the trial judge to hand down a verdict or ordering a retrial, are not appropriate remedies. I uphold Mr Akia's submission that it is in the public interest that persons who have faced trial for such serious criminal charges must remain answerable for the allegations against them. 

58.	I do not believe I have the constitutional authority to make such orders, which would involve a Judge of the National Court interposing in a matter in which another Judge is seized of jurisdiction. If the applicants wish to obtain such relief they would need to make their application under Section 57(1) of the Constitution for enforcement of human rights in the Supreme Court, not the National Court. 

59.	As for damages, this is an appropriate remedy, which should be granted under Sections 57(3) and 58(2) of the Constitution, as the human rights of the applicants have been infringed in a significant way. I determine that the applicants are entitled, subject to a further hearing on assessment, to reasonable damages, and are eligible, subject to further argument and assessment, to exemplary damages, for infringement of their human rights.

60.	The issue of whether they should be released from custody is foreclosed by the findings made under Section 42(5) of the Constitution. The applicants are persons being detained on remand pending their trial. I am not satisfied that their detention does not constitute an unreasonable detention having regard, in particular, to its length. I am therefore obliged to order their release either unconditionally or subject to such conditions as the Court thinks fit. 

61.	It would not be appropriate to order their unconditional release. They have been charged with serious criminal offences. Conditions to ensure that they attend Court to receive the verdicts of the Court must be imposed. I will not order their release immediately. There must be a further hearing at which the parties will be heard on the question of conditions to be imposed. It is expected that the Public Prosecutor will appear at the hearing and make submissions as to the appropriate conditions.

62.	I will report this matter formally to the Chief Justice so that his Honour might consider what appropriate action to take in relation to the trial Judge's failure to deliver verdicts. 

63.	None of these remedies is intended to affect in any way the outcome of the criminal trial. Some of the orders, such as the order that the applicants be released from custody, might be affected by orders of the National Court in the criminal proceedings. 

64.	It remains the case that the applicants' fundamental human rights have been breached in a very serious way and to a significant degree. Justice delayed is justice denied. The applicants have been denied the full protection of the law. They have been treated harshly and oppressively. They have been unreasonably detained. I therefore make the following order to enforce those rights. 

ORDER

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

(2)	It is ordered and declared, pursuant to Sections 57(3), 58(2) and 42(5) of the Constitution, that:

(a)	there is insufficient evidence that the applicants have been submitted to torture or other inhuman treatment, under Section 36(1) of the Constitution;

(b)	 the rights of the applicants to the full protection of the law under Section 37(1) of the Constitution, have been infringed;

(c)	the rights of the applicants to a hearing within a reasonable time under Section 37(3) of the Constitution, have been infringed;

(d)	the rights of the applicants, not to be subject to harsh or oppressive acts or other acts not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind under Section 41 of the Constitution, have been infringed;

(e)	the rights of the applicants, not to be deprived of their personal liberty by being unreasonably detained in custody under Section 42(5) of the Constitution, have been infringed;

(f)	this matter will be reported formally to the Chief Justice so that his Honour might consider what appropriate action to take in relation to the trial Judge's failure to deliver verdicts;

(g)	the applicants shall be released from custody, on conditions, subject to a further hearing regarding the conditions on which they will be released;

(h)	 the applicants are entitled, subject to a further hearing on assessment, to reasonable damages, and are eligible, subject to further argument and assessment, to exemplary damages, for infringement of their human rights.

(3)	These proceedings shall be called for mention on 23 February 2016 at 9.00 am, at which time the Court will give directions regarding the further hearings referred to in order (2).

Judgment accordingly.
______________________________________________________________
Public Solicitor: Lawyer for the Applicants 
Solicitor-General: Lawyer for the Respondent