N11121
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 23 OF 2024

KELLY HAODA & ASIGAU JACK
Applicants

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: CANNINGS J
14 JUNE, 3 JULY, 6, 8 AUGUST, 19 SEPTEMBER, 3 OCTOBER,
4 NOVEMBER, 2, 20, 27 DECEMBER 2024

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – right to fair trial within reasonable time, Constitution, s 37(3) – expectation of commencement of trial within four months after committal, Constitution, s 37(14) – applicants remanded in custody for more than five years awaiting trial – request for release from custody. 

The applicants were arrested and detained in February 2019 and charged with three counts of wilful murder and six other offences.  They were committed for trial in December 2019. They faced trial on the wilful murder charges in March 2022 and were found not guilty in June (the first applicant) and September (the second applicant) 2022. They have remained in custody for a further two years without being given a trial date for the remaining charges. They sought enforcement of their human rights by being released from custody. 

Held:

(1)	The applicants’ rights to the full protection of the law under s 37(1) of the Constitution have been infringed, in that they have not been afforded a fair hearing within a reasonable time contrary to s 37(3) of the Constitution and their trial has not commenced in a reasonable time after the date of committal for trial contrary to s 37(14) of the Constitution and they have been detained on remand for an unreasonable length of time without being given a date for trial contrary to s 42 of the Constitution. 

(2)	Their continuing detention on remand was unreasonable, having regard to its length, and they were entitled under s 42(5) of the Constitution to be released from custody. There will be a separate hearing on the conditions to which they will be subject. 

Case cited

The State v Borarae [1984] PNGLR 99
Application by Gibson Alabain (2020) N8576
Application by Benetius Gehasa (2005) N2817

Counsel

S Kuli for the applicants
B Samiat for the respondents 

1.	CANNINGS J:  The applicants were arrested and detained in Alotau and transported to Bomana Correctional Institution in February and March 2019. They were charged with three counts of wilful murder and six other offences (arson, break, enter and stealing, armed robbery, unlawful damage, unlawful use of a motor vehicle and breaking and entering and committing a crime within property). 

2.	They were allegedly involved in the mayhem that erupted at Alotau, Milne Bay Province on 23 January 2019, in which the provincial legal officer Michael Efi and two other persons were killed and a police barracks was destroyed by fire and a number of other serious criminal offences were committed by a large number of criminals. 

3.	The applicants were committed for trial on 18 December 2019. In March 2022 they faced trial in the National Court at Waigani before Ganaii AJ with three other accused, Clive Apobo, Judah Yawi and Boaz Izod, on the wilful murder charges. Apobo, Yawi and Izod were convicted. The applicants were acquitted. 

4.	Haoda was acquitted on 12 May 2022 on a no-case submission. Jack was acquitted on 29 September 2022, the same date on which the three other accused were convicted. Haoda and Jack have remained in custody for a further two years without being given a trial date for the remaining charges. They apply for enforcement of their human rights by being released from custody. Their application for release is opposed by the State.

DELAYS

5.	The applicants’ criminal cases have been affected by a series of inordinate delays:

•	they were in custody for three years (February-March 2019 to March 2022) before their trial on the wilful murder charges commenced;

•	their trial on the wilful murder charges did not commence (in March 2022) until more than two years after their committal for trial (in December 2019);

•	they have been in custody for more than two years after their acquittal on the wilful murder charges (in May and September 2022) and have not been given a trial date for the remaining charges;

•	they have been in custody for more than five years (since February-March 2019) without being given a trial date for the remaining charges. 

HAVE THEIR HUMAN RIGHTS BEEN BREACHED?  

6.	All persons in Papua New Guinea charged with a criminal offence have a bundle of human rights to which they are entitled. Those rights are entrenched in Division III.3 (Basic Rights) of the Constitution and enforceable in the National Court and the Supreme Court. They are found largely in ss 37 (protection of the law) and 42 (liberty of the person).

Section 37(1) 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.

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.

Section 37(14) 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.

Section 42(5) 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.

7.	I find that the inordinate delays in prosecution of the criminal charges against the applicants amount to infringement of their human rights. Their right to the full protection of the law under s 37(1) of the Constitution has been infringed, in that:

(a)	they have not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution; and

(b)	their trial has not been commenced in a reasonable time after the date of committal for trial, contrary to s 37(14) of the Constitution;

(c)	their detention on remand is unreasonable, having regard to its length, contrary to s 42(5) of the Constitution. 

SHOULD THEY BE RELEASED FROM CUSTODY?

8.	Having established that the applicants’ human rights have been breached, does it follow that they should be released from custody? No, not necessarily. Determination of a human rights application is a two-step process: first the court identifies whether a breach of human rights has occurred, secondly the court decides on an appropriate remedy (Application by Benetius Gehasa (2005) N2817, Application by Gibson Alabain (2020) N8576). 

9.	Mr Samiat, who appeared for the respondents, submitted that the applicants should not be released. He points out that the office of Public Prosecutor is still intent on prosecuting the applicants on the remaining charges, which are very serious. He relies on an affidavit by State Prosecutor Nathan Pare as evidence of the genuineness of the State’s intention to pursue the remaining charges. Mr Pare explains that the cause of the delay is the National Court registry’s failure to issue the necessary file references. The applicants were committed for trial on 18 December 2019 on all of the charges (three wilful murder and six other charges) and a single file reference was generated for each of them. It is apparent from an affidavit by Jackson Kalel, the track leader. CR1 track, National Court, Waigani, that the file references were CR 129 of 2020 for Kelly Haoda and CR 126 of 2020 for Asigau Jack. Mr Pare states that the trial judge, Ganaii AJ, directed the registry to open new file references for the remaining charges but her Honour’s directions have not been complied with. 

10.	Mr Samiat contends that there is a legitimate public interest in the prosecution of the remaining charges being completed and that the prosecution of those charges has been thwarted by the failure of the National Court registry to issue appropriate file references. It will be contrary to the public interest and be of great concern in particular to the people of Milne Bay Province if the applicants are released without trial. What the Court should do, rather than order the applicants’ release, is to direct the National Court registry to issue the CR file references immediately, so that the remaining charges can be resolved. He contends that if the applicants are convicted, their long time in custody will be able to be deducted from their sentences; and if they are acquitted, they can file a civil claim for breach of their human rights and seek compensation. 

11.	I find those submissions unconvincing. There is little point in trying to blame the registry for not issuing new file references. I see no evidence that anyone from the Office of Public Prosecutor has made any attempt to secure new file references. There is no evidence that this administrative issue has been brought to the attention of the Judge Administrator of the CR1 track. It seems to me that the Office of Public Prosecutor has simply forgotten about the remaining charges. If not forgotten, the matter has been given little or no priority. It is only as a result of this human rights application that the Office of Public Prosecutor has woken up to the importance of the matter.

12.	Mr Samiat is right to highlight the public interest in seeing that all the charges against those allegedly involved in the 23 January 2019 mayhem at Alotau are prosecuted. However, that legitimate interest must be balanced against the also-legitimate interests of the applicants – and the public interest – in enforcement of the human rights of the applicants. I draw upon a statement by Woods J in a criminal case in Madang in which seven accused charged with wilful murder were in custody for 11 months without trial (The State v Borarae [1984] PNGLR 99). His Honour ordered their release from custody and remarked:

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 law breakers 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.

13.	The applicants are not asking for the remaining charges to be dismissed and they are not asking for compensation; though the time might come when they should consider asking for such remedies. They just want to be released from custody and they appreciate that they would be subject to some conditions. 

14.	When the seriousness of the breaches of human rights that has occurred is considered (they have been in remand for almost six years without a date of trial being set for the remaining charges), their request seems reasonable. In fact, having regard to s 42(5) of the Constitution and the Court’s inquiry into their complaint of unreasonable detention, I am not satisfied that, though lawful, their detention on remand is reasonable, having regard to its length. Therefore they have the right to be released. I will enforce that right.  

ORDER 

15.	These declarations and orders are made under s 57(3) of the Constitution to enforce the rights of the applicants under Division III.3 (Basic Rights) of the Constitution.

1	It is declared that the applicants’ rights to the full protection of the law under s 37(1) of the Constitution have been infringed, in that:

(a)	they have not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution; and
(b)	their trial has not been commenced in a reasonable time after the date of committal for trial, contrary to s 37(14) of the Constitution;
(c)	their detention on remand is unreasonable, having regard to its length, contrary to s 42(5) of the Constitution. 

2	The applicants shall be released from custody subject to conditions that will be determined after a separate hearing on conditions.

Lawyer for the applicants:  Public Solicitor	 
Lawyer for the respondents:  Solicitor-General