CONSTITUTION S37 - RIGHT TO FAIR TRIAL WITHIN REASONABLE TIME, CONSTITUTION, S 37(3) – EXPECTATION
N11230
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HRA NOS 97 & 104 OF 2024

KOIARI MIRO & MIRO KOIARI
Applicants

V 

COMMISSIONER OF THE CORRECTIONAL SERVICE 
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: CANNINGS J
31 MARCH, 4 APRIL 2025

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 three years awaiting trial – request for release from custody. 

The applicants were detained at Kerema police lock-up in January 2022 and charged with one count of wilful murder. They were committed for trial by Kerema District Court on 24 May 2023 and remanded to Bomana Correctional Institution. Their National Court proceedings have not progressed and only in March 2025 National Court files were opened for them. They sought enforcement of their human rights by being released from custody. At the time of trial of their human rights applications they had been in custody for three years and three months without any progress towards securing a date for their criminal trial.

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

Application by Gibson Alabain (2020) N8576
Application by Benetius Gehasa (2005) N2817
Applications by Kelly Haoda & Asigau Jack (2024) N11121

Counsel

S Kuli for the applicants

1.      CANNINGS J: The applicants, Koiari Miro and Miro Koiari, have been remanded in custody for a continuous period of three years and three months without trial. They apply for enforcement of their human rights by being released from custody. 

2.     Koiari Miro is 24 years old and he is the son of 48-year-old Miro Koiari. They were detained at Kerema police lock-up Gulf Province in early January 2022, after surrendering to police. They were charged with one count of wilful murder in connection with an incident on the night of 1 January 2022 at their village of Kapiri, Kerema District. 

3.      On 24 May 2023 Kerema District Court (Senior Provincial Magistrate, Mr Oiveka, presiding) committed them to stand trial in the National Court on the charge of wilful murder. 

4.     They remained in custody at Kerema police lock-up until 2 June 2023, when they were transferred to Bomana Correctional Institution, National Capital District. They have remained in custody at Bomana until now.

5.     They have not been brought before the National Court for the purposes of dealing with the charge of wilful murder. It was only last month, in March 2025, that National Court files were opened for the charge of wilful murder: CR 265 of 2025 (The State v Miro Koiari) and CR 266 of 2025 (The State v Koiari Miro).

6.     In summary:

•	they were detained at Kerema police lock-up from January 2022 to June 2023, a period of 17 months;

•	they have been detained at Bomana Correctional Institution from June 2023 to April 2025, a period of 22 months; 

•	they have therefore been detained for a continuous period of 39 months, ie three years, three months.

7.      It took an inordinately long time (17 months) for their committal proceedings to be concluded, and they have remained in custody for a further 22 months without any progress on their National Court proceedings. This is obviously an unsatisfactory state of affairs, giving rise to two questions: Have their human rights been breached? Should they be released from custody? 

HAVE THEIR HUMAN RIGHTS BEEN BREACHED?  

8.      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).

9.      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.

10.     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.

11.      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.

12.     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.

13.     I find that the inordinate delays in prosecution of the criminal charges against the applicants, coupled with their long period of detention, 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; 

(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; and

(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?

14.     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). 

15.     In cases of this nature, the State will usually be represented by a lawyer from the Office of Public Prosecutor or the Office of the Solicitor-General. The State lawyer will usually be well versed in the case, having taken instructions from the police investigator who has carriage of the police case.

16.   In this case, the Solicitor-General is the lawyer on the record for the respondents, the Commissioner of the Correctional Service and the State; and lawyers from that office appeared on various occasions to assist the court in getting the human rights application ready for trial. The Office of Public Prosecutor also provided a lawyer to assist the court ascertain the background to this case. 

17.     However, on the day of the trial, there was no appearance by the State. This was despite the State being given the opportunity to appear and present evidence and give an explanation about the inordinate delays that have occurred and make submissions in particular on the question of whether the applicants should be released from custody. This is unlike the recent similar human rights case of Applications by Kelly Haoda & Asigau Jack (2024) N11121, where the State was represented and well prepared and strongly opposed the release from custody of two detainees who had been remanded in custody for more than five years awaiting trial.

18.     The upshot is that there is no opposition to the submission of Mr Kuli for the applicants that they be released from custody. However, I still need to be satisfied that it is proper that they be released especially given the gravity of the charge of wilful murder that they are facing.

19.     I take into account that the applicants are not asking for the charge to be dismissed and they are not asking for compensation. They just want to be released from custody and they appreciate that they would be subject to some conditions. 

20.     When the seriousness of the breaches of human rights that has occurred is considered (they have been in remand for three years and three months without any progress towards securing a date of trial), 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 

21.     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; and
(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.
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Lawyer for the applicants	:  Public Solicitor