In the Matter of an Application under s 42(5) of the Constitution and In the Matter of Yamson Vamble [1989] PGNC 13; N743 (22 July 1989)

Unreported National Court Decisions

N743

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF AN APPLICATION UNDER S 42(5) OF THE CONSTITUTION AND IN THE MATTER OF YAMSON VAMBLE

Lae

Brunton AJ
21-22 July 1989

CONSTITUTIONAL LAW - Constitution s 42(5) - Unlawful detention - right to a fair trial within a reasonable time Constitution s 37(3) - young man in custody eight months - charge of unlawful carnal knowledge - committal papers lost - substantial defence to charge raised.

Order

Applicant to be released and discharged forwith.

Counsel

Mr. Konido: for the applicant.

DECISION

BRUNTON AJ: Mr. Ko for the Public Soli Solicitor’s Office in Lae informed me that a 20 year old man, Yamson Vamble, was being unlawfully detained at Buimo Corrective Institution. He informed me that this person had been held for some seven months, and that no committal papers were to hand. Mr. Peter of the Public Prosecutor’s Office was unable to provide any information on Yamson Vamble. In accordance with s 42(5)(a) I ordered Vamble to be brought into court and an inquiry commenced as to the legality of his detention.

On the 22 July, 1989 Vamble was brought into court and gave evidence on oath. He testified that he was 20 years old; that on the 20th of November, 1989 he was arrested and charged with the Unlawful Carnal Knowledge of a girl under 16 years of age; that he had a defence to that charge, namely that the girl “is my girlfriend and she is not a small girl”; that although granted bail of K100 by the magistrate at Bulolo of K100 cash, the police had refused to release him when his sister came to pay the bail; that on the 20th of December, 1988 he was told by the Magistrate that he would have to go to the National Court; that he was never given any copies of the District Court committal papers.

The Corrective Institution file on Vamble showed that he was admitted as a remandee to Buimo Corrective Institution on the 28th of January, 1989. The Warrant of Remand issued by the District Court, Wau on the 25th of January, 1989 appeared to have been written in three different hands. It was signed by Mr. C. Koi of the District Court, Wau.

Mr. Konido, from the bar-table, said that he had notified the State Prosecutor’s Office of the application. He said he had intended to call the Clerk of Lae District Court to give evidence of a search of the registry that had been conducted, without success, for the committal papers. The Clerk was not available at the time of the hearing.

Yamson Vamble’s name did not appear on the list for the National Court, and in the absence of evidence to the contrary, I concluded that his committal papers had been lost.

Mr. Konido asked me to release the applicant using my powers under s 42(5)(b) of the Constitution on the basis that the remand constituted an unreasonable detention; that the applicant had been improperly denied his right to bail; and that he had been denied his right to a fair trial within a reasonable time under s 37(3) of the Constitution.

The length of the detention on remand, or awaiting committal proceedings is now over eight months. During that period the applicant has not been able to exercise his right to bail. He has testified that he has a defence to the charge he faces, and it appears that even if he was convicted he may not get more than eight months, or a like sentence part of which would be suspended. But in any case the period awaiting trial is unreasonable when the nature of the offence is taken into account. Further, there is the aspect that this person has become lost in the system, with no committal papers being lodged with the National Court Registry, or with the District Court in Lae, or with the Public Prosecutor, or the Public Solicitor. In these circumstances, using my power under s 42(5)(b) of the Constitution, I order that the applicant be released, and further to my powers under s 57(3) of the Constitution I order that he be discharged from the committal proceeding on which he was remanded, as I can see no useful purpose in the State pursuing that matter.

Lawyer for the applicant: The Public Solicitor