State v Kor [1983] PGNC 34; [1983] PNGLR 24; N409 (15 February 1983)

N409

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

WIK KOR

Mount Hagen
Kapi DCJ

15 February 1983

CRIMINAL LAW - Compensation orders - Compensation for being in custody - Applicant acquitted of criminal offence - Whether infringement of personal liberty - Compensation not available - Constitution, ss 421, 582.

CONSTITUTIONAL LAW - Infringement of personal liberty - Whether applies to person in custody pending trial - Constitution, ss 423, 584.

COURTS AND JUDGES - Formulation of underlying law - Whether proper to do so by judicial act - Policy considerations relevant - Constitution, Sch. 2.3, Sch. 2.4.

Held

(1) The deprivation of liberty of an accused person whilst in custody in connection with a criminal offence of which that person is subsequently acquitted is not an infringement of personal liberty within s. 42 of the Constitution: it falls within the exception contained in s. 42(1)(d) and does not therefore give rise to any entitlement to compensation under s. 58 of the Constitution.

(2) Although the court may conclude that there is, in a particular case, no rule of law that is appropriate, the court should refrain from formulating an appropriate rule by judicial act where policy considerations are involved.

Application

This was an application, made after acquittal for a criminal offence, for compensation, pursuant to s. 58 of the Constitution, for being held in custody.

Counsel:

C. Narokobi, for the applicant/accused.
G. Salika, for the State.

15 February 1983

KAPI DCJ: The accused was charged with the wilful murder of one Yapo Yuli. The accused pleaded not guilty and I conducted the trial over a number of days. I acquitted him and discharged him.

After the judgment was delivered, counsel for the accused made an application for compensation to be paid to the accused under s. 58 of the Constitution.

He developed his argument in the following way. He submitted that the accused had been held in custody for a period of about twelve months from the time of arrest to the day I acquitted him. He submitted that he was deprived of his personal liberty during this period. He submitted that this was an infringement of his liberty under s. 42 of the Constitution, and therefore the accused is entitled to compensation under s. 58 of the Constitution.

I set out below the relevant provisions.

‘58. Compensation

(1) This Section is in addition to, and not in derogation of Section 57 (enforcement of guaranteed rights and freedoms).

(2) A person whose rights or freedoms declared or protected by this Division are infringed (including any infringement caused by a derogation of the restrictions specified in Part X.5 (internment)) on the use of emergency powers in relation to internment is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

(3) Subject to Subsections (4) and (5), damages may be awarded against any person who committed, or was responsible for, the infringement.

(4) Where the infringement was committed by a governmental body, damages may be awarded either:

(a) subject to Subsection (5), against a person referred to in Subsection (3); or

(b) against the governmental body to which any such person was responsible,

or against both, in which last case the court may apportion the damages between them.

(5) Damages shall not be awarded against a person who was responsible to a governmental body in respect of the action giving rise to the infringement if:

(a) the action was an action made unlawful only by Section 41(1) (proscribed acts); and

(b) the action taken was genuinely believed by that person to be required by law,

but the burden of proof of the belief referred to in paragraph (b) is on the party alleging it.’

‘42. Liberty of the person

(1) 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:

(i) or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community, under an order of a court; or

(ii) for the purpose of taking prompt legal proceedings to obtain an order of a court of a type referred to in subparagraph (i).

(2) ....’

It is to be noted from s. 58 of the Constitution that entitlement to compensation is based on infringement of a right or a freedom.

The question to ask here is whether the deprivation of liberty of the accused during the time he spent in custody in connection with a criminal offence is an infringement of his liberty under s. 42 of the Constitution?

Under s. 42, there are exceptions where the liberty of a person may be deprived. The relevant provision is s. 42(1)(d). He was arrested upon reasonable suspicion of his having committed an offence and held in custody for that purpose. He has been held in accordance with the exception set out under s. 42(1)(d) of the Constitution. I find that there is no infringement of a right or freedom. Section 58 can have no application to the facts of this case.

Is there any other law which may give the right to compensation to the accused in the circumstances of this case?

I am not aware of any common law right or statutory right to compensation for being in custody where an accused, such as in this case, is acquitted. Counsel did not submit that there was any customary entitlement either.

I conclude that there is a gap in the law, so far as entitlement to compensation in the circumstances of this case is concerned. Under Sch. 2.3 of the Constitution, I have the power to formulate an appropriate rule of law as part of the underlying law. It is the duty of this court to develop the underlying law. (See Sch. 2.4 of the Constitution.) However, Sch. 2.4 concludes with the following words:

‘... except insofar as it would not be proper to do so by judicial act.’

I consider that it would not be proper to formulate a principle of law in this area by judicial act. This involves quite a number of policy considerations. There would be considerations of the cost that the Government would have to consider and amendments to existing laws to take into account compensation. I appreciate that there is a sense of injustice to a person who is in custody for an offence for any period of time but I consider that the decision on whether an accused in these circumstances should be entitled to compensation should be left to the representatives of the people in the Parliament. It would be up to the Parliament to decide on whether such a law should be made. I would decline to formulate a principle of law for the above reasons.

The application by the accused is therefore dismissed.

Application dismissed.

_____________________

Lawyer5 for the accused: B. Narokobi.
Lawyer6 for the State: K. Roddenby, Acting Public Prosecutor.