SC2735

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCRA NO. 48 OF 2024

BETWEEN:
CARLOS D’ATTANASIO
Appellant

AND:
THE STATE
Respondent

WAIGANI: PITPIT J, AUKA J, NUMAPO J
18 DECEMBER 2024; 09 MAY 2025

CONSITUTIONAL LAW - Part III Basic Principles of Government - Division 3 Basic Rights-Subdivision D - Enforcement of guaranteed rights and freedoms - Enforcement of human rights - Power of the National and Supreme Courts to commence proceedings on its own initiative or on application by any person who has an interest in its protection and enforcement under section 57 (1).

CONSTITUTIONAL LAW - Humans rights application - enforcement of rights under section 57 (1) and (3) for breaches of ss. 36 and 37 of the Constitution.

CONSTITUTIONAL LAW-Division 5 the Administration of Justice - Subdivision A-General Structure and Principles of the National Justice Administration - Section 155 (4) Supreme and National Court inherent power to make in such circumstances as seem proper orders in the nature of prerogative writs and such other orders necessary to do justice in the circumstances of a particular case.

SUPREME COURT-Part VI Subdivision C – Jurisdiction of the Supreme Court s.162 - Appeals to the Supreme Court - Incidental Directions and Interim Orders section 5(1) (b) interim order to prevent prejudice to the claims of the parties. 

BRIEF FACTS
Appellant, a convicted prisoner applied for compassionate release from prison on humanitarian grounds. The appellant in exercising his constitutional right, files an application under section 57 (1) and (3) of the Constitution for enforcement of his guaranteed rights. In support of his primary rights under sections 36 (1) and 37 (1) of the Constitution, the appellant, pursuant to section 5(1) (b) of the Supreme Court Act and section 155 (4) of the Constitution, seeks an order that the Court grant him compassionate release from Bomana Prison and furthermore, authorize the appellant’s transfer to the custody of the Italian authorities in Italy. Appellant also relies on s 158 (2) of the Constitution where the Courts shall give paramount consideration to the dispensation of justice, and any other orders as the Court deems just and equitable.

Held:

(i)	For the appellant to establish a breach of his human rights under section 36(1), there must firstly, be breaches of these constitutional rights whilst in custody supported by credible evidence to invoke s57 to seek enforcement of his rights. Appellant bears the burden of proving a prima facie breach of a constitutional right.

(ii)	Section 37(17) places an active duty on the State to treat those, whose freedom and autonomy it has removed through incarceration, with humanity and respect for their inherent human dignity.

(iii)	Section 155(4) of the Constitution does not vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights and interests are determined by other constitutional laws, statutes and the underlying law. Section 155(4) exists to ensure that these rights and interests are enforced or protected if existing laws are deficient to render protection or enforcement. Section 155 (4) is not a source or basis upon which a cause of action may be commenced without reference to other substantive laws that determined the primary rights of parties. 

(iv)	Furthermore, s.155(4) cannot override the specific provision of the Supreme Court Act such as s 5 (1) and Order 3 Rule 2 the Supreme Court Rules dealing with interim orders pending determination of a substantive appeal under s155 (2) of the Constitution. The inherent power under s 155(4) does not apply when powers granted to the Supreme Court either under the constitutional law or other statutes exist and apply. 

(v)	Application is dismissed in its entirety.

Cases cited
The State v Kenneth Kunda Siune [2021] PGSC 5; SC2070
Application Pursuant to Section 155(4) of the Constitution; Re John Mua Nilkare [1988] PNGLR 472 at pg 504-508
Independent State of Papua New Guinea v Siune [2021] PGSC 5; SC2070
Commander of Beon Correctional Institution v Mal [2022] PGSC 1; SC2186
Independent State of Papua New Guinea v Tamate [2021] PGSC 54; SC2132 
Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 
Goma v Protect Security & Communication Ltd [2013] PGSC 61; SC1300
National Executive Council v Ila’ava (2014) SC1332 

Counsel
Mr. D. Dotaona for the appellant
Mr. R. Luman for the respondent

1.	BY THE COURT: The appellant applied for compassionate release from prison on humanitarian grounds. He was convicted and sentenced to 19 years imprisonment. The appellant files an application under s 57 (1) and (3) of the Constitution for enforcement of his guaranteed rights. In support of his constitutional rights under ss. 36 (1) and 37 (1) of the Constitution, the appellant invokes s. 155 (4) of the Constitution and s. 5(1) (b) of the Supreme Court Act to seek appropriate interim orders to do justice in the circumstances of the case by granting him a release from prison and furthermore, to ‘authorize’ his transfer to a prison in Italy. Appellant also relies on s 158 (2) of the Constitution where the Courts shall give paramount consideration to the dispensation of justice, and any other orders the Court deems just and equitable.

A.	BACKGROUND

2.	Appellant is an Italian citizen. He was convicted on 30th December 2023 on one count of Money Laundering under section 508B (1) and (3) (a) of the Criminal Code (Money Laundering and Terrorist Finance) Act. On 24th September 2024 he was sentenced to 19 years imprisonment at the Bomana Correctional Institution in the National Capital District.

3.	In his extract of submission the appellant amongst others submitted that he had already filed his Notice of Appeal and Application for Leave to Appeal Sentence on the 22nd October, 2024 which is yet to be heard. For purposes of this application, this Court will not divulge into the grounds raised in the Applicant’s substantive appeal that is pending before the Supreme Court. 

4.	The appellant is suffering from stage 4 colorectal cancer, a terminal illness. His condition is rapidly deteriorating, and he would require specialized medical treatment which is available in Italy.

5.	Appellant’s request for release on medical grounds and his repatriation to Italy were based on the following:

(i)	There is no colorectal surgeon in PNG
(ii)	There is no oncology specialist in PNG
(iii)	Hospitals in PNG do not have a PET scan to assess cancer
(iv)	There is no radiotherapy and chemotherapy available in PNG
(v)	There is no multi-discipline team to manage his complex case.

B.	APPELLANT’S CASE

6.	Mr Dotaona for the appellant submitted that the appellant’s terminal illness and the urgent need for specialized medical treatment constitute extraordinary and compelling reasons for his compassionate release. Appellant poses no threat to public safety and has a strong incentive to comply with any conditions of release imposed on him.

7.	Counsel further submitted that the transferring of the appellant to Italy to receive treatment and serve the remainder of his sentence there would align with the principles of international and PNG human rights standards, and the respect for the inherent dignity of the appellant.

8.	The extraordinary circumstance of this case warrants the appellant’s compassionate release and transfer. The Court is urged to grant the appellant’s application to allow him to spend his ‘final days’ with his family and receive the necessary medical care in Italy. It is in the interest of justice that the Court grants the orders sought.

9.	In support of his application, the appellant relies on the following affidavits: 

(i)	         Affidavit of Carlos D’Attansio filed on 3rd December 2024
(ii)	         Affidavit of Reginald Melis filed on 3rd December 2024
(iii)	Affidavit of Reginald Melis filed on 11th December, 2024.

10.	The appellant also relies on the following: 

(i)	Medical report of examination conducted by Dr. Damien Hasola on the 8th of March 2023.

(ii)	Letter dated 16th June, 2023from the Deputy Prime Minister of Italy and Minister for Foreign Affairs of Italy Antonio Tajani to Honourable James Marape, Prime Minister of PNG.

(iii)	Medical report dated 26th October 2023 by Dr. Damien Hasola of the Paradise Private Hospital.

(iv)	Medical report dated 23rd August 2024 by Dr. Damien Hasola of the Paradise Private Hospital.

(v)	Letter dated 9th September 2024 by Chief Superintendent Yelly Oiufa Commanding Officer of Bomana Correctional Institute.

(vi)	Letter dated 21st October 2024 from His Excellency Ambassador Mr. Paolo Crudele of the Embassy of Italy, Canberra, Australia to Honourable Justin Tkatchenko, Minister of Foreign Affairs and Trade.

(vii)	Medical report dated 22nd October 2024 by Dr Karthik Periasmy and Dr. Priya Baskaran Shanmuga of the Office of Clinical Oncology, Port Moresby General Hospital.

11.	The applicant sought further orders of the Court to “authorize” his transfer into the custody of the Italian authorities in Italy after his release from the Bomana Correctional Service, and such other orders as the Court deems just and equitable. 

12.	If the Court grants the appropriate orders sought, the applicant will be released and transferred to Italy to be kept in custody in the Italian Detention Centre, Prison of Rebibba via Raffaele Majetti, 70. 

13.	With respect to his medical treatment, he would be receiving it at a hospital in Rome, Italy called Policilinoco Gemelli Campus of the Faculty of Medicine and Surgery of the Catholic University of the Sacred Heart located at Largo Francesco, Vito, 8.

14.	Appellant submitted that mercy is the hallmark of a civilized and democratic society and in the circumstances of his case, he be treated with mercy and respect within the precincts of the law.

15.	Appellant submitted that the court grant him release from Bomana jail on compassionate grounds and transfer him to Italy. The decision to grant the orders should be based on humanitarian grounds, medical, legal, ethical and economic considerations.

C.	RESPONDENT’S CASE

16.	Respondent conceded that the appellant has a medical condition as attested to in his affidavit which is also supported by various medical reports annexed to it. This was corroborated by Inspector Gibson Darius, officer-in-charge of the Bomana Corrective Institution’s Medical Services Unit in his affidavit filed on 12 December 2024. 

17.	Inspector Darius stated that the appellant has not been denied any medical treatment nor was he refused hospitalization.  Appellant was not subjected to any torture or inhuman treatment whilst in custody. In 2022 when the appellant first developed the symptoms, he was taken to the Port Moresby General Hospital on two separate occasions and later transferred to the Prison Medical Centre outside the prison. He was given a self-contained room for his exclusive use until he was referred to the Pacific International Hospital (PIH) and got admitted twice for further review and treatment in February 2023. 

18.	In March 2023, he was transferred to Paradise Private Hospital where he was admitted for over a year undergoing further medical review and treatment. In October 2024, he was moved back to Port Moresby General Hospital for further treatment. All in all, the appellant spent almost two (2) years in the hospital care outside of prison. He was given adequate medical care and attention available. He was never being deprived of any proper medical care. The lack of specialists and proper medical equipment in the country is beyond the Correctional Service’s control and does not only affect the appellant but everyone else too. 

19.	Mr Luman for the respondent submitted that the appellant erroneously invoked s. 5 (1) (b) of Supreme Court Act to seek release. The appellant’s substantive appeal before the Supreme Court relates to his innocence for which he has already filed an appeal against his conviction. The appeal is pending and there is no prejudice to him in prosecuting his appeal. Justice in the circumstances of the case demands that the appellant prosecute his appeal without delay whilst his medical condition is being managed. Furthermore, the appellant has not shown any special, exceptional or extraordinary circumstances warranting his release from prison and his transfer out of the jurisdiction. Evidence presented to court so far does not suggest that he is in the ‘final days’ of his life. Counsel submitted that the application should be dismissed in its entirety.

D.	CONSIDERATION 

19.  This application appears to be the first of its kind of any Human Rights application made directly to the Supreme Court where the applicant is asking the court to exercise its Constitutional powers for the enforcement of his Constitutional rights under s57 of the Constitution. Over the years such applications for enforcement of constitutional rights under s57 for early release from custody for breach of rights under ss 36(1) and 37(1) of the Constitution were usually made before the National Court to exercise in its human rights jurisdiction. On at least two occasions, prisoners’ applications had been granted for early release from the prison by the National Court. The State on these two occasion challenged the release of these two applicants/prisoners in the Supreme Court case of Independent State of Papua New Guinea v Kenneth Kunda Siune[2021] PGSC5; SC 2070 (4 February 2021), and Commander of Beon Correctional Institution v Mal PGSC 1; SC 2186(6 January, 2022). 

20. The Supreme Court on these two occasions overturned the National Court decisions for early release of the prisoners. In these two cases the Supreme Court made it clear that before invoking s57 for enforcement of the human rights there must first be a breach of s36 (1) and s37(1). Section 36 (1) is a fundamental right and protects the rights of those who are incarcerated against torture, or treatment or punishment that is cruel or otherwise inhuman or inconsistent with the respect for the inherent dignity of human person. Section 37 gives every person the full protection of the law, especially those in custody or charged with offences.

21. The appellant submitted very little in terms of case laws on the constitutional provisions and other supporting materials on the relevant principles of law relating to fundamental human right, protection of the law of these rights and the enforcement of these guaranteed rights and freedom.

22. We begin by discussing the relevant constitutional provisions on human right, protection of these guaranteed rights and its enforcement.  

(i)	 Section 36 of the Constitution (Freedom from Inhuman Treatment) 

23.   Section 36 - Freedom from inhuman treatment 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”.

24. Section 36 (1) is a fundamental right and protects the rights of those who are incarcerated against torture, or treatment or punishment that is cruel or otherwise inhuman or inconsistent with respect for the inherent dignity of a human person. 

25. In SCR No 1 of 1984 both Kidu CJ and Kapi DCJ held that:

“The intention of s.36(1) of the Constitution is to prohibit cruel, degrading and inhuman treatment which features pain and suffering caused to the human person either physically or mentally: it is not intended to prohibit custodial sentences”.

26. For one to establish a breach of his human rights under section 36(1), there must be clear evidence before the Court that his rights have been breached whilst in custody. There must firstly be breaches of these constitutional rights supported by credible evidence for the appellant to invoke s57 to seek enforcement of his rights. Appellant bears the burden of proving a prima fascie breach of a constitutional right.  

27. To establish that breach Berrigan J in Siune (supra) said:

“To establish a breach of s.36(1) or s.37(17) of the Constitution there must be torture, the deliberate infliction of server pain for a particular purpose, or treatment that causes server or intense pain or suffering (physical or mental), or involves cruelty or brutality, or treatment that is inhuman or degrading….In the context of prisoners, it is clear that the pain and suffering, physical or mental, must go beyond that which is unavoidable or inevitable connected with detention.”

28. And breach must be supported by evidence:
“It is also clear that allegations of a breach of a Constitutional right must be supported by evidence. The burden is to be discharge on the balance of probabilities. The claimant bears the burden of proving a prima facie breach of a Constitutional right. In a case like this one, where the State has positive obligation to provide reasonable and necessary medical care, the onus shifts to it to rebut the evidence.” 

29. In the present case, there is no evidence of any torture, or ill-treatment or punishment that is cruel or otherwise inhuman committed on the appellant. It is difficult to say, if indeed, the appellant’s rights under s36 have been breached at all. There is no evidence suggesting that his rights have been breached.

30. Illness or medical condition per se is not a ground upon which a claim on primary right can be made under s36 (1) unless it can be proven that the appellant was ill-treated or denied proper medical care whilst in custody. The appellant has not persuaded us that he was been denied proper medical treatment whilst in custody. It is difficult to grant him the orders sought when there is no evidence that his constitutional rights have been breached.  

(ii)	Section 37 (1) and (17) of the Constitution (Protection of the Law)

31. Sections 37(1) and (17) provides for the protection of the law where it reads:

Section 37
(1)	Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that right is fully available, especially to persons in custody or charge with offences.
.....
(17) All persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person.

32. Section 37(17) goes further and places an active duty on the State to treat those, whose freedom and autonomy it has removed through incarceration, with humanity and respect for their inherent human dignity. 

Berrigan J in Siune (supra) stated that:

“Furthermore, a refusal or failure to provide reasonable and necessary medical care would in my view constitute cruel and inhuman treatment or punishment, or treatment inconsistent with the inherent dignity of a person for purposes of s.36 (1), or a failure to act with humanity and with respect for the inherent dignity of the human person for the purposes of s37(17). If applied for a particular purpose, it would likely amount to torture for the purposes of s.36(1)”. 

33. Section 37(17) places further duties on those relevant authorities in making sure that the rights of those who are incarcerated are not breached.    	
Berrigan J in Siune (supra) further went onto to say that:

“There can be no doubt, however, that Correctional Services has responsibility of providing reasonable and necessary health care. A failure to comply with s 141 (1) of the Correctional Services Act, 1995 would entitle a person to invoke s.37(1) of the Constitution. A detainee has a right to reasonable medical care and treatment consistent with community standards and necessary for the preservation of health including with approval of the Departmental Head of the Department responsible for health matter but at the expense of the detainee, a private medical practitioner”.

  34. There is no evidence suggesting that the appellant has been denied proper medical treatment or refused hospitalization. Appellant was admitted to hospitals outside of prison for a period of two years. There is also no evidence of his continuous detention without medical care and attention. Furthermore, there is no evidence of the appellant being subjected to any form of torture or inhuman treatment whilst in custody. Appellant had not disputed any of the evidence relating to his health, welfare and well-being presented by the respondent. We are satisfied therefore, that the appellant was well treated and looked after whilst in prison.

(iii)	Section 57 of the Constitution (Enforcement of guaranteed rights and freedoms)

36. For purposes of s 57(1) , the five men bench in the case of Independent State of Papua New Guinea v Tamate [2021] PGSC 54; SC 2132  Kandakasi DCJ, Manuhu, J, Makail, J, Kariko, J & Miviri, J at  paragraph 24 per Kandakasi DCJ states:

“In my view, the discussion in the foregoing states the correct position at law as to the meaning and application of the provisions of s. 57(1). In short, both the National Court and the Supreme Court has the power to commence proceedings on their own initiative or act in their own initiative within proceedings already filed by a party and is pending before either of the Courts or proceedings commenced by a judge or a court on its own initiative for the protection and enforcement of a human rights”. [emphasis ours]

37.  Section 57 (1) provides, relevantly that a right referred to in Division 3 is enforceable by the Supreme or National Court, either on its own initiative or on application. Section 57 (3) provides relevantly, that a court which has jurisdiction under s 57(1), may make all such orders as are necessary or appropriate for the purposes of section 57.

38. The duty of the Court when determining a valid application under s57 (3) is to consider all the remedies which it may be able to order for the purposes of enforcing compliance with the human right which had been breached.
39. For purposes of s57 (6) this Court is reminded of Siune’s case at page 38 when Kandakasi DCJ states:

“ it is very clear that the powers vested in the Courts under Constitutions s 57 were not intended to and do not have the effect of overriding, restricting, annulling or relaxing the jurisdictions and powers already vested in the Courts by other provisions of the Constitution. Instead, the powers vested in the Courts under s 57 are complementary to or are in addition to such jurisdictions and powers. That being the case, I am of the view that s 57 does not grant or vest any power in any person, Judge or Court to adopt a process and procedure outside or in competition to or contrary to that which is already provided for by other relevant and applicable substantive and procedural law. Consequently, a party or a person or a Court wishing to take steps to enforce a person’s human rights, must use the relevant and available processes”. [Emphasis ours]

40. Kandakasi DCJ was making reference to s57(6) that the powers vested in the Courts by subsection (1) of the same provision, does not derogate from or otherwise override, diminish, restrict or limit the application of these further process and procedures and the need to use the processes provided for by such laws. Hence any prisoner seeking any pardon from the death penalty or an early release from serving the whole or parts of his or her term of imprisonment or is concerned about his or her treatment in the prison system in any manner or from, must use anyone of these processes as appropriate. They are not permitted and cannot readily resort to the Courts under the guise of an application of an enforcement of a human right without first exhausting this available process. Resorting to the courts without first exhausting the process provided for by the law or outside what is provided for, would no doubt amount to an abuse of the Court’s process; State v Tamate (supra).

41. The process referred to for those seeking early release outside of the court process includes; an application to the Parole Board for release on parole under the Parole Act 1991 or, to the Advisory Committee on the Power of Mercy under s.152 of the Constitution or, apply to be released on license under s.615 of the Criminal Code and/or Correctional Services Act 1995. 

42. It became clear to us that the appellant has not exhausted any of these process available to him before coming to court. In that regard, the appellant’s application before this court for an early release under the pretext of the enforcement of his human right without first exhausting the process provided by law for such application amount to an abuse of the Court’s process. The application should therefore, be refused.

43. These prescribed legal process were discussed in the context of an appeal to Supreme Court against the National Court decision exercising its power in its human rights jurisdiction and the power under s.57 to make such orders which are necessary or appropriate to enforce compliance with human rights is one which must be exercised lawfully and in accordance with judicial principles.

44. We conclude by saying; firstly, that the appellant erroneously invoked s57 (1) and (3) in making this application when there is no evidence of the breach of his fundamental rights under ss 36(1) and 37(1). Secondly, as we stated above, the appellant has not exhausted the process available to him for early release outside of the court process before coming to court hence, his application to the court for early release amounts to an abuse of the Court’s process. 

 (iv)  Section 155(4) of the Constitution (Inherent Power) reads:
“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

45.  In Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 the Court before discussing section 155(4) of the Constitution and whether its application was applicable to the case before it, the Court address the issue and outline the Constitutional bases for the power of the Supreme Court under section 155(4). The court stated that:

 “As section 158 (1) of the Constitution provides that, the judicial power that the Courts exercise, belongs to the people, through the Constitution[2]. Hence, all Courts, including the Supreme Court, are creatures of statue, starting with the Constitution at the highest. They are required to and can only exercise their powers within the parameters of their enabling legislation.[3]
In the case of the Supreme Court, section 155 (1) (a), (2) and (4) of the Constitution are relevant. The first sub-section establishes the Supreme Court as part of the National Judicial System. The next subsection then provides that the Supreme Court is the final court of appeal[4]. It also stipulates that the Supreme Court has the power to review all judicial acts of the National Court[5]. Then subsection (2) (c) provides that the Supreme Court "has such other jurisdiction and powers as are conferred on it by this Constitution or any other law." Finally, subsection (4) vests the Supreme Court with ‘an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”(Underlining ours).

46. This Court is reminded of the Powi’s case which held that the judicial power that this Court exercises belongs to the people through the Constitution. The Supreme Court is a creature of the statue starting with the Constitution and the Supreme Court Act which enable it. 

47. The Court in Powi’s case went further to discuss the power or judicial bases for section 155(4) where it states:

“It would appear that this provision concerns remedies only and is not about a creation of and grant of any right to any person. It grants the Court two categories of power or jurisdiction. These were discussed in a number of decisions of both this Court and the National Courts, including the decision of this Court in SCR No 2 of 1981; Re S.19 (1) (f) of the Criminal Code (Ch262)[6]. The two types of powers, the first in the nature of prerogative writs. The second power comes from the words "such other orders". This power is there to enable the Court to make "such other orders as a necessary to doing justice in the circumstances of a particular case" before the Court, provided the exercise of that power is only remedial in nature and is aimed at protecting and or enforcing the rights of parties granted by other law.”

48. Bredmeyer J. succinctly put the position in this way in Aundak Kupil v. The State[7]:
"... cases have decided that the latter words [of s. 155 (4)] are disjunctive from the former, that is the latter orders do not have to be in the nature of prerogative writs. The section is a grant of power or of jurisdiction. It does not affect the primary rights of parties which are determined by the substantive law. It is no warrant for the court allowing a new cause of action for example. The section encompasses remedies, adjectival and procedural orders. It enables the court to tailor its remedies to the circumstances of an individual case to ensure that the primary rights of a party are protected".

49. Or in other words as Kidu CJ, said in SCR No 2 of 1981; Re S.19 (1) (f) of the Criminal Code (Ch262)[8]:

"The provision under reference ... does not ... vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155 (4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement." 

(Underlining Ours).

50. The Court in Powi’s case went on and stated that section 155(4) does not apply if there is already a remedy provided for by any other law:

“As may be apparent from this, s. 155(4) does not apply if there is already a remedy provided for by any other law. This was acknowledged in Mauga Logging Company Pty Limited v. South Pacific Oil Palm Development[9] in the context of any interlocutory relief. There the Court said:
"Where a case for interlocutory relief falls within the well-established principles of equity, there is no need for the claimant to have recourse to s 155 (4)." 

(Underlying Ours)
51. And the Court in Bill Skate and Peter O'Neil v. Jeffrey Nape, Speaker of Parliament, said:
"It [s.155(4)]is not intended to cover every situation. If this was the case, s 155 (4) would override specific provisions of the law. In Avia Aihi v The State [1981] PNGLR 81 the Court held that s 155 (4) of the Constitution could not override the provision of the Supreme Court Act on the 40 days period in which to appeal against the decision of the National Court. The specific provision dealing with interim orders pending determination of an originating process under s 18 (1) of the Constitution is expressly provided for under O 3 r 2 (b) of the Supreme Court Rules. Section 155 (4) of the Constitution can have no application to the interpretation of O 3 r 2 (b) of the Rules. Whether or not interim order should be made in any case is determined by the words "prejudice to the claims of the parties" and not on any general notion of justice under s 155(4) of the Constitution. We reject the submission based on s 155(4)."  

(Underlining Ours).

52. We adopt the view taken in Powi’s case and endorse the discussion on the power and jurisdiction of s.155 (4). The appellant has informed the Court that he has lodged an appeal against conviction pursuant to the provisions of the Supreme Court Act and his appeal is pending before the Supreme Court. Section 155(4) therefore, cannot override the provision of the Supreme Court Act relating to the appeal. Furthermore, specific provisions relating to interim orders where an appeal is pending is provided for under Order 3 Rule 2 (b) of the Supreme Court Rules and for the same reason, s155(4) has no application to the interpretation of these rules. 

(v)  Section 158(2) of the Constitution (Exercise of Judicial Power)
53. Section 158(2) reads:

(1) Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.  (Underline ours).

54. In Goma v Protect Security & Communication Ltd [2013] PGSC 61; SC1300, Injia, CJ (as he then was) Davani, J (as she then was) and Cannings, J. Cannings, J in paragraphs 118-120 in his judgment clearly interpret and discuss the legislative intent of section 158 (2) in our Constitution where his Honour states:

“These principles require that when interpreting the law the Courts give special attention to the Rule of Law. A statute should be presumed to be imposing enforceable rights and obligations. Statutory provisions should only be regarded as providing merely guiding or otherwise unenforceable principles if they are expressly made non-justiciable or in some other way it is made clear that they are not enforceable.”

55. In interpreting the law the courts shall give paramount consideration to the  dispensation of justice. It means that, when interpreting a law the Court must consider which of the competing interpretations will result in the dispensation of justice. This is not just a guiding principle: it is “a constitutional dictate” and “the Courts are bound by this mandate” (Ginson Goheyu Saonu v Bob Dadae (2004) SC763). Absurd or unjust consequences of interpretation of a law must be avoided (SCR No 6 of 1984; Re Provocation [1985] PNGLR 31).

56. Thompson, J (as she then was) in Siune (supra) clearly state that:

“No court has the power to make unlimited orders of any nature whatsoever, even if unlawful. The Court’s powers may be limited by statute or the common law or some other lawful source, and where they involve a discretion, that discretion must be exercised judicially and in accordance with established principles”. 

57.  Section158 (2) on dispensation of justice according to law is meant that, the court’s powers are not inherent, they arise from and are regulated by various laws and statutes. Such powers must therefore, be exercised within reason and confines of the law. Justice according to law; means decision according to law that is fair, just and equitable.

(vi)  Section 5 (1) (b) of the Supreme Court Act 

58. Section 5 (1) (b) reads:
 
(1) Where an appeal is pending before the Supreme Court–
(a) a direction not involving the decision on the appeal; or
(b) an interim order to prevent prejudice to the claims of the parties; or…
may be made by a Judge.
Section 5(1) (b) of the SCA on the plain reading of it, deals with appeals to the Supreme Court and it grant powers to a single judge of the Supreme Court to make the kind of orders specified in this provision. A single judge of the Supreme Court is empowered to make interim orders to protect prejudice to the claims of the parties. Once such order is made, it can be discharged or varied only by the full bench of the Supreme Court. 
59. The Supreme Court in Powi’s case whilst discussing the application of s 5 (1) (b) and s 10(2) of SCA in the context of the case before them, they were mindful of some consideration in their discussion where they stated:

“We note however, that there is no corresponding right in a person responding to and opposing an application for leave that succeeds, to similarly, apply to the Supreme Court against the decision to grant leave. This is understandable because a grant of leave to appeal is just that and nothing else. The respective rights and or interests in respect of the issues raised in the appeal remains intact for a proper hearing and final determination by the Supreme Court. Hence, it would be inappropriate in our respectful view, to allow a person defending a successful application for leave to appeal to the Supreme Court to apply for a variation or a discharge of such a decision. If that were the case, it would clearly be contrary to clear law as enunciated in SC Review No 4 of 1990; Application by Wili Kili Goiya[16] and it may in our view lead to chaotic situations. It may also cause much delay and frustration before there could be any hearing on the substantive issues on their merits.”

60. In National Executive Council v Ila’ava (2014) SC 1332 the Supreme Court elaborate further on the provision of s 5 (1) where it states:

Section 5(1) of the Supreme Court Act empowers a single Judge of the Supreme Court to give a direction or make an order in specific matters. Pursuant to s. 5(2), a direction or order of a single Judge "shall be deemed to be a direction or order of the Supreme Court. "A direction or order” may be discharged or varied by the Supreme Court" (s. 5(3) of the Supreme Court Act). (Underlining ours).

61. The legislative intent of s 5 (1) (b) of SCA is clear in that it empowers a single Judge of the Supreme Court to issue the Incidental Directions and Interim Orders. The Incidental Directions and Interim Orders can only be discharged or varied by the full Supreme Court comprising of three or more Judges having Jurisdiction; (National Executive Council v Ila’ava, (supra)). 

62. In our considered opinion, s 5 (1) (b) of SCA is only for incidental directions and interim orders to prevent prejudices to the claims of the parties on matters that are pending substantive determination before the court. It does not provide for a permanent, substantive order to be issued such as, a release from prison as sought in this case. For this reason, we see no utility in this application and conclude that s 5 (1) (b) of SCA was erroneously invoked.

(vii)  Conflict of Laws

62. Mr Luman made submissions on the potential conflict of laws between the two countries and on the public policy consideration. Counsel asked the Court to be cautious in dealing with such applications that involves two different legal systems and court processes. 

63. The State of Italy is a different independent sovereign country to PNG. The laws of Italy do not apply and do not have the same legal effect in PNG and vice-versa. Furthermore, the appellant’s criminal conviction for money laundering and sentence of 19 years imprisonment will have no legal effect in Italy. Section 155 (4) will have no legal and binding effect on the Italian Authorities.

64. Furthermore, the State of PNG does not have a bilateral treaty with Italy on prisoner exchange or transfer. Also, PNG does not have the legal framework for prisoner exchange or transfer generally. The Reciprocal Enforcement of Judgment Act applies mostly to enforcement of civil judgments, with limited application to criminal judgments relating to payment of a sum of money in respect of compensation or damages to an injured party (see section 1).

65.The Mutual Assistance in Criminal Matters Act 2005 including the Mutual Assistance in Criminal Matters (Amendment) Act 2015 (MACMA) only regulate (i) provision by PNG of international assistance in criminal matters upon request by a foreign county; (ii) provision by PNG of international assistance in criminal matters when a foreign country requests for arrangement for a person who is in PNG to travel to the requesting country to give evidence in a proceeding or provide assistance in relation to an investigation, and (iii) to facilitate the obtaining by PNG of international assistance in criminal matters (see Preamble to MACMA). There is no provision regulating or extending to the transfer of prisoners.
66. The Extradition Act 2005 is not applicable in the appellant’s case as it only relates to extradition of fugitives into PNG and out of PNG following formal request by PNG or from a requesting country to face criminal charges in the requesting country.

67. Given the lack of an appropriate legal framework and the lack of a bilateral treaty between PNG and Italy on prisoner transfer, the net effect of transferring the appellant to Italy is that he will effectively be set free. Such a result would greatly undermine our criminal justice system and open the flood gates for outsiders and foreigners to come into the country and commit crimes here and use medical conditions or ill-health to escape punishment. It will be their ticket to total freedom back in their own country. We cannot allow this to happen. People will make mockery of our criminal justice system.

67. On public policy consideration that reflects societal values and interests, we need to balance the individual’s rights as against the collective interest and good of society. It is not too difficult to say that, society’s interest prevails and takes precedence over an individual’s interest. Society demands that those who commit crimes must be held to account for their wrong doings and be justly punished. Granting an early release to a prisoner without good reason, defeats the whole purpose of punishment which will ultimately reflect badly on the image of PNG internationally.  

      G. CONCLUSION

We conclude by saying the following:

68. Appellant has not convinced us that his constitutional rights under s36 (1) and 37 (1) were breached for him to invoke s.57 to enforce his human rights. As we stated above, there must first be a breach of his primary rights before a claim can be made for the enforcement of these rights. We concluded therefore, that the appellant had erroneously invoked s.57 (1) and (3) in making this application. 

69. The appellant is a convicted prisoner and has been sentenced to imprisonment. The only way to have his conviction and sentence revisited was by him exercising his right to appeal. His appeal, as we understand, is pending before the Supreme Court and there is no prejudice to him in prosecuting his appeal promptly and without delay.
70. Section 155(4) of the Constitution does not vest in the National Court or the Supreme Court the power to make orders which confer rights or interests on people. Such rights and interests are determined by other constitutional laws, statutes and the underlying law. Section 155(4) exists to ensure that these rights and interests are enforced or protected if existing laws are deficient to render protection or enforcement. Section 155 (4) is not a source or basis upon which a cause of action may be commenced without reference to other substantive laws that determine the primary rights of parties. 

71. Furthermore, s.155(4) cannot override the specific provision of the Supreme Court Act such as s 5 (1) and Order 3 Rule 2 the Supreme Court Rules dealing with interim orders pending determination of a substantive appeal under s155 (2) of the Constitution. The inherent power under s 155(4) does not apply when powers granted to the Supreme Court either under the constitutional law or other statutes exist and apply. The appellant has already filed an appeal against conviction under the SCA and SCR that is pending before the Supreme Court therefore, s 155(4) is irrelevant.

72. The appellant has not exhausted other available process such as under the Parole Act 1991 for parole, or seeking release under the Power of Mercy under s152 of the Constitution and the Organic Law on the Advisory Committee on the Power of Mercy, or being released on license under s165 of the Criminal Code and/or the Correctional Services Act 1995. Appellant’s application to court without exhausting these processes amount to an abuse of the Court’s process. 

73. Section 5(1) of SCA allows a single judge in the Supreme Court to make interim orders to protect prejudice to the claims of the parties. Appellant’s appeal against conviction is pending before the Supreme Court. The rights and interests in respect of the issues raised in the substantive appeal remains intact for proper hearing and final determination by the Supreme Court. It is improper in our view to allow the appellant to apply for interim orders seeking variation or a discharge whilst the substantive appeal is pending determination. It may cause further delays and frustration to the hearing of the appeal proper.

74. Finally, the laws of Italy do not apply and does not have legal effect in PNG and vice-versa. The appellant criminal conviction might not be recognized and enforced in Italy if the appellant is transferred there. PNG does not have a bilateral treaty with Italy on prisoner transfer or exchange. Given all that, it would be too risky to transfer the appellant back to his own country. There is no guarantee that he would serve out and complete his remaining term of imprisonment in Italy. 

E.	ORDER
75.    Application is dismissed in its entirety.

__________________________________________________________________
Lawyers for the appellant: Dotaona Lawyers 
Lawyer for the respondent: Public Prosecutor