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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
HRC NO 2 OF 2025
KEVIN VITOLO
Complainant
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent
WAIGANI : CANNINGS J
23 OCTOBER, 7, 21 NOVEMBER 2025
HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – right to fair hearing within a reasonable time, Constitution s 37(3), right to commencement of trial within a reasonable period after committal for trial, Constitution, s 37(1) – whether a period of two years six months from date of arrest to date of sentence is an unreasonable delay amounting to infringement of an accused’s rights under s 37 of the Constitution – whether infringement of human rights has adversely affected a prisoner’s eligibility for parole, due to amendments to Parole Act.
The complainant served two years six months in custody from the date of his arrest to the date of sentence. He claimed that there was a prolonged delay in resolution of his criminal proceedings, and that his rights to a fair hearing within a reasonable period and to be brought to trial within four months after committal for trial, were infringed. He claimed that this adversely affected his date of eligibility for parole, due to an amendment to the Parole Act in 2018 that increased the time he has to serve in custody before being eligible for parole, which came into force three months before the date of sentence. He sought a declaration that he be deemed eligible for parole under the statutory regime that existed prior to the 2018 amendment to the Parole Act.
Held:
(1) It cannot be said, without clear evidence to the contrary, that a period of two years six months is an inordinate period for completion of the criminal process.
(2) A person alleging breach of human rights due to delays in the criminal process would need to prove that an inordinate delay occurred due to lack of diligence or malicious motive by the police in bringing charges before the District Court or by the District Court or by the National Court. None of those details were provided by the complainant.
(3) The complainant failed to prove that his human rights had been breached in the manner alleged. His application for a declaration that his parole eligibility be determined under the statutory regime that existed prior to the 2018 amendment to the Parole Act was refused.
Cases cited
Application by Dumbal (2025) N11252
Application by Gehasa (2005) N2817
Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033
Kissi v The State (2023) N10479
Leahy v Kaluwin (2014) N5813
Neri v Commissioner of the Correctional Service (2020) N8577
Nimbituo v The State (2015) N6156
Nimbituo v The State (2016) N7235
Re Ricky Yanepa [1988-89] PNGLR 166
The State v Borarae [1984] PNGLR 99
The State v Nimbituo (2020) SC1974
The State v Painke [1976] PNGLR 210
Wati v Gavera (2013) N5363
Wera v Commissioner of the Correctional Service (2024) N10709
Yasause v Commissioner of the Correctional Service (2021) N9380
Counsel
K Vitolo, the complainant, in person
J Murian for the respondent
1. CANNINGS J: Kevin Vitolo is a prisoner at Bomana Correctional Institution serving a sentence of 50 years imprisonment for various sexual offences. He was convicted on 9 August 2018 and sentenced on 8 March 2019. He served two years six months in custody from the date of his arrest in 2016 to the date of sentence, and that period has been deducted from the head sentence.
2. He claims that there was a prolonged delay in resolution of his criminal proceedings and that his rights under s 37 of the Constitution to a fair hearing within a reasonable period (s 37(3)) and to be brought to trial within four months after committal for trial (s 37(14)) were infringed.
3. He claims that the prolonged delay and infringement of his rights have adversely affected his date of eligibility for parole, due to an amendment to the Parole Act in 2018 that increased the time he must serve in custody before being eligible for parole, which came into force three months before the date of sentence.
4. He seeks a declaration that he be deemed eligible for parole under the statutory regime that existed prior to the amendment to the Parole Act.
ELIGIBILITY FOR PAROLE
5. The complainant is correct about the effect of his date of sentence on his date of eligibility for parole. I have addressed this issue in several cases in recent years including Neri v Commissioner of the Correctional Service (2020) N8577, Yasause v Commissioner of the Correctional Service (2021) N9380, Wera v Commissioner of the Correctional Service (2024) N10709 and Application by Dumbal (2025) N11252.
6. I decided that if the date of sentence is before 28 November 2018, parole eligibility is determined under the former s 17(1)(b) (eligibility for parole) of the Parole Act, prior to its amendment by the Parole (Amendment) Act No 13 of 2018. The former s 17(1)(b) stated:
Subject to this Act, a detainee who ... having been sentenced to a term of imprisonment of three years or more - has served not less than one third of the sentence ... is eligible for parole.
7. If the date of sentence is on or after 28 November 2018, parole eligibility is determined under the new s 17(1) of the Parole Act, which states:
Subject to this Act and unless otherwise determined by an order of the Court, a detainee who has been sentenced to a term of imprisonment of five years or more and has served not less than half of the sentence is eligible for parole.
8. The reason 28 November 2018 is the critical date is that it is the date of commencement of operation of the Parole (Amendment) Act No 13 of 2018. That Act commenced operation, by virtue of s 110(1) of the Constitution, on the date of certification by the Speaker, 28 November 2018, as it was not expressed to come into force on any other day.
9. The Parole (Amendment) Act No 13 of 2018 is not expressed to have retrospective operation, so the amendments to parole eligibility it made – making prisoners spend more time in custody before becoming eligible for parole – does not apply to prisoners sentenced before the date of commencement of the Act.
10. The complainant was sentenced on 9 March 2019, three months and nine days after 28 November 2018, so he must serve 25 years in custody before being eligible for parole.
11. If he had been sentenced before 28 November 2018, he would have had to serve only 16 years and eight months before being eligible for parole.
HAVE HIS HUMAN RIGHTS BEEN INFRINGED?
12. The complainant is correct in saying that, as an accused person, he had rights under s 37 of the Constitution.
13. Section 37(1) of the Constitution (protection of the law) 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.
14. 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.
15. 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.
16. The complainant argued that s 37(14) required that his trial be commenced within four months after the date of committal but that did not happen, so his rights under s 37(14) were breached. That argument has no merit. Section 37(14) sets out the aspiration that a trial should commence within four months after committal. It does not confer any right on an accused person to have their trial commenced within any specific timeframe. The only right it confers, in a way that is complementary to s 37(3), is to have the trial commenced within a reasonable time after committal (Kissi v The State (2023) N10479).
17. In terms of the time it takes to complete the criminal process, s 37(3) is the key provision. As I pointed out in Leahy v Kaluwin (2014) N5813, it confers three distinct rights. The person charged must be afforded:
18. The complainant is not arguing that he did not get a fair hearing. Nor is he arguing that his trial did not take place before an independent and impartial court. His argument is that his case was not heard within a reasonable time. He argues that s 37(3) confers the right to have a case heard and determined within a reasonable time. I upheld a similar argument in Nimbituo v The State (2015) N6156. There is no other way to fairly construe s 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. It follows that s 37(3) confers the right to be sentenced, so that the entire criminal process is completed, within a reasonable time.
19. 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, Wati v Gavera (2013) N5363, Leahy v Kaluwin (2014) N5813).
20. I said in Nimbituo 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.
21. In Nimbituo five co-accused were charged with a range of serious offences. They were detained in custody for periods of five years nine months to six years nine months. Lengthy periods elapsed between their date of arrest and date of committal and commencement of trial. There was a two-year gap between the closure of evidence and the making of submissions. Thirteen months had passed after the making of submissions and still no verdict was given.
22. to the full protection of the law and to a fair hearing within a reasonable time were infringed and ordered that they be released from custody on conditions. (I also ordered that they be awarded damages (Nimbituo v The State (2016) N7235), and though that order as to damages was overturned by the Supreme Court (The State v Nimbituo (2020) SC1974), the decision as to infringement of rights and release from custody was left intact).
23. Another relevant case is Kissi v The State (2023) N10479. The applicant spent four years and 11 months in remand without being given a trial date. I declared that his rights to the full protection of the law and to a fair hearing within a reasonable time were infringed and ordered that his trial be expedited for hearing. I declined his application to be released from custody.
24. I mention the cases of Nimbituo and Kissi as in each case infringement of the right to a fair hearing within a reasonable time was clear and manifest and was unexplained. The facts spoke for themselves.
25. The complainant’s case is different. His entire case from beginning (date of arrest) to end (date of sentence) took two and a half years. I am not saying that is necessarily acceptable but this is not a case where the facts speak for themselves.
26. It cannot be said, without clear evidence to the contrary, that a period of two years six months is an inordinate period for completion of the criminal process.
27. A person alleging breach of human rights due to delays in the criminal process would need to prove that an inordinate delay occurred due to lack of diligence or malicious motive on the part of the police in bringing charges before the District Court or by the District Court or by the National Court. None of those details have been provided by the complainant. No specific allegations against any person or authority have been made by the complainant. He has not provided specific dates of events during the criminal process and he has not pinpointed any example of delay. His complaint is ultimately vague and general.
28. I decline to declare that the complainant’s right to the full protection of the law and to a fair hearing within a reasonable time have been infringed.
29. His application for a declaration that his parole eligibility be determined under the statutory regime that existed prior to the 2018 amendment to the Parole Act must therefore be refused.
ORDER
(1) The complaint of breach of human rights is refused.
(2) The file is closed.
__________________________________________________________________
Lawyer for the respondent: Solicitor-General
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