SC1173

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 146 0F 2004

DAVID MEYAUZIN
Appellant

V

ROBERT VOLO AND OTHER POLICEMEN
First Respondent

RAPHAEL HUAFOLO, COMMANDER,
NATIONAL CAPITAL DISTRICT POLICE
Second Respondent

JOHN WAKON, COMMISSIONER OF POLICE
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Cannings, Kariko & Sawong JJ
2012: 2, 13 March

CONSTITUTIONAL LAW – human rights – Constitution, Section 42 (liberty of the person) – right not to be deprived of personal liberty except in circumstances prescribed by Section 42(1) – whether "reasonable suspicion" existed that appellant had committed an offence – nature of rights under Constitution, Section 42(2).

This was an appeal against a decision of the National Court refusing an application under Section 57 (enforcement of guaranteed rights and freedoms) of the Constitution for enforcement of human rights, including the rights in Section 42 (liberty of the person) of the Constitution. The appellant claimed that he had been arrested at random, without good reason, over alleged involvement in a murder and he was detained in custody without being told why he was arrested and was not told of his right to see a lawyer; nor was he afforded other rights under Constitution, Section 42(2). The trial judge held that he was not satisfied that the appellant was done any wrong by the police and that the appellant's evidence was insufficient to prove a breach of Sections 42(1)(d) or 42(2).

Held:

(1)	Constitution, Section 42(1) guarantees that a person shall not be deprived of his liberty except in one or more of eight circumstances, including "upon reasonable suspicion of his having committed, or being about to commit, an offence".

(2)	Under Constitution, Section 42(2) a person acquires five distinct rights upon being arrested or detained. He must be:

•	informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

•	permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend; and

•	permitted whenever practicable to communicate without delay and in private with a lawyer of his choice; and

•	given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained; and

•	informed immediately on his arrest or detention of his rights under Section 42(2).

(3)	The National Court erred in law by not subjecting the claims of breaches of Sections 42(1)(d) and 42(2) to a sufficiently detailed examination, especially as there was evidence from which reasonable inferences could be drawn as to such breaches and no evidence before the court other than the appellant's.

(4)	The appeal was allowed and the matter remitted to the National Court for a new trial.

Cases cited

The following cases are cited in the judgment:

The State v Paro Wampa [1987] PNGLR 120
SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556
The State v Linus Rebo Dakoa (2009) N3586

APPEAL

This was an appeal against refusal by the National Court of an application for enforcement of human rights.

Counsel

D Keta, for the appellant

13 March, 2012

1. BY THE COURT: David Meyauzin applied to the National Court for enforcement of his human rights. He claimed that he was apprehended by the police for no good reason at Erima, then taken to Boroko Police Lock-up where he was detained without charge and without being told of his rights amongst other things to see a lawyer. He was then remanded in custody at Bomana Correctional Institution where he was assaulted and injured by prisoners who recognised him as a court security guard who had recently apprehended one of them who had attempted to escape at the courthouse. Mr Meyauzin was charged with wilful murder but the case against him was struck out in the District Court. He claimed that his rights under Sections 36 (protection from inhuman treatment), 37 (protection of the law) and 42 (liberty of the person) of the Constitution were breached. Injia DCJ, as he then was, conducted a trial and refused the application, and Mr Meyauzin has appealed against that decision.

2. There are two grounds of appeal. Both allege that the trial judge erred in fact and law in finding that there had been no breach by the police of the appellant's rights under Section 42(1)(d) and Section 42(2) of the Constitution. His Honour held:

In relation to s 42(1)(d) and s 42(2) I am not satisfied that the plaintiff was done any wrong by police. Police apprehended him on a weekend on Saturday and kept him and the others in police detention for the two days of that weekend, had an information laid the first thing on Monday and had him brought before the District Court. There is no obligation on them to conduct an interview within those two days. He was clearly told the reason for his apprehension and detention when he was first apprehended. His detention was lawfully extended by order of Court on Monday the 27th. There is no obligation in law for the police or the court to entertain and deal with his side of the story at that stage. There is no mention in his evidence of his being denied his right to speak to a lawyer or a member of his family, as guaranteed under s 42(2). For these reasons I find the claims under s 42(1)(d) and s 42(2) not proved to the required standard.

SECTION 42(1)(d)

3. Constitution, Section 42(1) guarantees that a person shall not be deprived of his liberty except in one or more of eight circumstances. It states:

No person shall be deprived of his personal liberty except—

(a)	in consequence of his unfitness to plead to a criminal charge; or

(b)	in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or

(c)	by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or

(d)	upon reasonable suspicion of his having committed, or being about to commit, an offence; or

(e)	for the purpose of bringing him before a court in execution of the order of a court; or

(f)	for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or

(g)	for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other lawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or

(h)	in the case of a person who is, or is reasonably suspected of being of unsound mind, or addicted to drugs or alcohol, or a vagrant, for the purposes of—

(i)	his care or treatment or the protection of the community, under an order of a court; or

(ii)	taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i);

(i)	in the case of a person who has not attained the age of 18 years, for the purpose of his education or welfare under the order of a court or with the consent of his guardian.

4. The appellant argued before the National Court that his apprehension could only have been justified, if at all, under Section 42(1)(d) but, in fact it was not justified as he was apprehended at random by the police for no good reason. He argued that there could be no reasonable suspicion that he committed an offence.

5. He gave evidence that he had just finished work on an overnight shift (he was a security guard employed by the National Judicial Staff Service) and gone home to Erima settlement at 10.00 am. He was told that there had been a big fight earlier in the morning between Southern Highlanders and Eastern Highlanders. Soon afterwards a police mobile squad arrived and directed everyone at the settlement to gather at the sports field. He went to the sports field where he and 13 other men were ordered at gunpoint on to a police truck to be taken in for questioning. He tried to explain himself but was told not to say anything. He and the others were taken to Boroko Police Station where they were told that they would be charged for killing a person at Erima.

6. We agree with the submission of Mr Keta, for the appellant, that for the police to arrest or apprehend a person or otherwise deprive a person of his liberty under Section 42(1)(d) of the Constitution there must be grounds on which to base a "reasonable suspicion" that he committed or is about to commit an offence. It is not permissible to select a person at random or arbitrarily and take him in for questioning.

7. We do not consider that the trial Judge appreciated the argument that clearly existed on the available evidence. The respondents did not attend the trial and no evidence was before the Court other than an affidavit by the appellant and affidavits by two other persons which corroborated the appellant's version of events. We conclude that the learned trial Judge erred in law by not subjecting the claim of breach of Section 42(1)(d) to a sufficiently detailed examination.

SECTION 42(2)

8. Constitution, Section 42(2) provides that a person who is arrested or detained must be informed of certain things and permitted to communicate with certain people. It states:

A person who is arrested or detained—

(a)	shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

(b)	shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c)	shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,

and shall be informed immediately on his arrest or detention of his rights under this subsection.

9. As explained in The State v Linus Rebo Dakoa (2009) N3586 a person who is arrested or detained acquires five distinct rights. He shall be:

•	informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and

•	permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend; and

•	permitted whenever practicable to communicate without delay and in private with a lawyer of his choice; and

•	given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained; and

•	informed immediately on his arrest or detention of his rights under Section 42(2).

10. A person is "arrested" when deprived totally of his personal liberty, or when his person is touched in such a way that he is made aware that he is under compulsion in relation to a criminal matter (SCR No 6 of 1987; The State v Songke Mai & Gai Avi [1988] PNGLR 556). As soon as a person is arrested, he or she must be informed of and afforded their Section 42(2) rights. The timing is critical, as explained by Kapi DCJ in The State v Paro Wampa [1987] PNGLR 120:

The need to inform a person of his rights under this provision arises at the time he loses his liberty. … This effectively means that before any questions are asked about a person's participation in a crime, he is to be informed of his rights. … The need to inform the person of his rights arises at the time of the arrest and detention and not at the time of the record of interview.

11. The need for the police to act in a timely way is made clear by the governing words of Section 42(2): shall be informed "promptly"; shall be permitted "whenever practicable"; shall be given "adequate" opportunity; shall be informed "immediately".

12. In the present case we consider that there was sufficient evidence before the National Court to say that the appellant was "arrested" at the Erima sports field. The evidence was that he was ordered into the police truck at gunpoint, without explanation, and that he tried to explain himself but was told to be quiet. That is when he should have been afforded his five rights under Constitution 42(2). With respect, we consider that the trial Judge erred in fact by concluding that the appellant was "told the reason for his apprehension and detention when he was first apprehended".

13. If it was impractical to administer his Section 42(2) rights at the sports field, it was imperative that they be administered to him upon his arrival and detention at Boroko Police Lock-up. We consider that the evidence suggests that that did not happen.

14. His Honour held that there was 'no mention in his evidence of his being denied his right to speak to a lawyer or a member of his family, as guaranteed under s 42(2)'. However, we consider that a reasonable inference that might be drawn from the appellant's evidence – even though he did not state it expressly – is that he was not informed of his rights under Section 42(2), and that as a result he was, in fact, denied his rights. The trial Judge's determination of the facts was confined to the question of whether the appellant was denied the right to see a lawyer or a member of his family, but his Honour's findings of fact, with respect, should have focussed on the question of whether the appellant was informed of his rights. We conclude, with respect, that the learned trial Judge erred in law by not subjecting the claim of breach of Section 42(2) to a sufficiently detailed examination.

CONCLUSION

15. We uphold both grounds of appeal, so the appeal will be allowed and the decision of the National Court quashed. We consider that the interests of justice will best be served by exercising the power in Section 16(d) of the Supreme Court Act and remitting the matter to the National Court and ordering a new trial. Costs will follow the event.

ORDER

(1)	The appeal is allowed.

(2)	The order of the National Court of 13 September 2004 in MP No 753 of 2000 is quashed.

(3)	The whole of the case is remitted to the National Court for a new trial and shall be transferred forthwith to the Human Rights Track and listed for mention at the first available opportunity.

(4)	The respondents shall pay the appellant's costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly.
_____________________

David Keta Lawyers: Lawyers for the Appellant