Wambun v State [1993] PGNC 13; N1233 (24 June 1993)

N1233

PAPUA NEW GUINEA
[In The National Court of Justice]

0S. 48 (L) of 1993

TUS WAMBUN

V

THE STATE

LAE: SEVUA, J.
10 & 12 November 1993 and 24 June 1994

Notice of Motion - Application for temporary release to bury deceased father - Plaintiff a convicted prisoner - - whether prisoner has right to be released temporarily.

HELD: Plaintiff, as a convicted prisoner, neither has a Constitutional nor a legal right to be temporarily released from prison to go and bury his deceased father.

There are no cases cited in this judgment.

G. Langtry for Plaintiff
R. Saranduo for Defendant

24 June, 1993.

SEVUA, J: In refusing the plaintiff's application on 12 November 1993; I aid I could provide my full reasons at a later date. These are my reasons.

The plaintiff is a prisoner of the State currently serving a sentence of seven (7) years following a conviction for murder at Waigani and was sentenced on 15 April, 1993.

The nature of this application is this. On 6th November, 1993, the plaintiff was informed by his sister of his fathers death. There is no evidence as to the date of death. However, the plaintiff said he, being the eldest son, was required, I assume by custom, to be present at the mourning to supervise the ceremony and bury his demised father. He was required to receive mourners and goods brought by them and distribute wealth, land and other material things amongst his three brothers. In his custom, if he did not do this, "there will be dissatisfaction with the distribution of property which will lead to problems later ----------"

The deceased's properties include a trade store valued at K2000.00, a Toyota stout valued at K5,000.00, pigs valued at K5,000.00 and 20 acres of land and gardens.

The plaintiff therefore claimed he was in great and urgent need and was desirous of attending the funeral to see his father's face for the last time and also sort out the family welfare and property. For these reasons he prayed the Court to invoke its inherent powers to his benefit on humanitarian grounds to release him from prison for one week to attend to these matters.

In his notice of motion, he claimed two orders. Firstly, that he be temporarily released from detention at Buimo CIS to attend his father's funeral and secondly that he be provided escort by CIS and/or police officers to and from Kwimas Village, Wabag in Enga Province. He also claimed such further or other orders.

To support this application, the plaintiff swore an affidavit which sets out the primary facts I have outlined earlier. His counsel has also swore an affidavit which inter alia, deposed to the fact that he has been instructed that the plaintiff would offer a surety of K2,000.00 cash and further that one Peter Hunjeffry of Kaimi Offset Patrols was willing to guarantee the plaintiff's return to prison with or without cash surety. Mr Langtry also said in his affidavit that he had been advised by Buimo CIS officials that if the Court releases the plaintiff, escort would be provided with or without the assistance of police. Mr Langtry therefore prayed for orders under the Constitution to release his client.

In respect of the evidence in support of this application, I am of the view that I should not accept the hearsay evidence of Counsel for the plaintiff in respect of cash surety and CIS escort. If the plaintiff had K2,000.00 cash to offer as security for his return, he has not deposed to that in his own affidavit. Similarly, if Peter Hunjeffrey could offer cash surety to guarantee the plaintiff's safe passage from and to Buimo prison, he should have deposed to this in a separate affidavit. Finally, if the prison officials had escort available, the commandant's evidence would be convincing and necessary.

I consider that the consequences of granting this application would have serious ramifications in our community. It would open the floodgate to all convicted prisoners to apply to the Courts for temporary release to bury their death or attend to other family or private business, whilst they are prisoners. I do not think that this is the reason they are sent to prison in the first place. My view is that, prisoners are convicted persons whose liberty are restricted. They are incarcerated for crimes against society and are locked away as punishment for their crimes. That is the price they must pay for their crimes. Once incarcerated, their rights and freedom are limited. They no longer enjoy the freedom of society like free citizens do outside the confines of prison walls. Whilst they may have certain crime rights under the Constitution which are enforceable under S.57 and S.58, I do not consider such rights include the right to be temporarily released from prison. I also consider that it would be contrary to public policy to release a convicted prisoner for such a purpose. Furthermore, I believe that the community at large and the police would be very concerned.

Mr Langtry's very brief submission's were that I should invoke the provisions of the Constitutions, namely, S.22, S.155(3) S.185 and Schedule 2.1. He said that he relied on the authorities cited on pages 43 and 44 of Andrews in respect of enforcement of the Constitution. He was unable to provide any authority however submitted that I exercise my discretion to grant the orders that his client is seeking. He acknowledged that there is no provision in the Corrective Institution Act to cover this situation and said this was a novel area with no precedent. He further submitted that the provisions of the Constitution he has referred this Court to, are wide enough to cover this situation although he acknowledged that his client's freedom is restricted. And finally, Mr Langtry submitted that I should enforce his client's custom pursuant to Schedule 2.1 of the Constitution.

Unfortunately, I must disagree with those submissions. Whilst I agree that the Courts would normally give recognition to our customary norm and practice so long as they are not repugnant to or inconsistent with this Constitution or the law, the fact is that, the issue in the present application has nothing to do with recognition or non-recognition of our custom. In my opinion, the issue here is whether or not the plaintiff, as a convicted prisoner, has the right to be released temporarily from prison to attend his fathers funeral. In other words, does he have any right under the Constitution or any other law to be released temporarily as a convicted prisoner?

I consider that if the plaintiff has any right, it would be found in the Constitution or the Corrective Institution Act Ch.63. I could think of no other legislation which could provide for such a right.

In England, rules have been made and rules may be made for the temporary release of convicted prisoners. A prisoner may be temporarily released for any period and subject to any conditions. Power to grant temporary release may be exercised on compassionate grounds for instance, visiting a near relative who is dying or attending the funeral of a deceased relative or attending the wedding of a relative. The Prison Rules 1964, S.1 1964 NO 388 made under the Prison Act has provisions which caters for the situations referred to above. See Halsburys Laws of England, Fourth Edition, Vol. 37 p.780.

Unfortunately, we do not have any equivalent rules or legislation and we cannot apply the English and Wales Prison Rules as part of our underlying law because the rules are not part of the common law of England. The rules are therefore inapplicable to the circumstances of Papua New Guinea. I merely refer to them for purpose of comparison to show that whilst other countries in the world may have rules or legislations governing temporary release of prisoners from prison, under the circumstances referred to, Papua New Guinea does not have such legislations.

A while earlier I paused a question whether the plaintiff as a prisoner, has the right to be temporarily released. I consider that in order to answer that question, the word 'right' should first be defined. I think in the ordinary use of the word, we would generally agree that right is something that one is entitled to. In the context of this application and the question paused, right would normally signify something which is enforceable, something which creates an inescapable legal duty or obligation on some other person, the proper discharge of which can be secured by recourse to law and the Courts or some legal tribunal established to provide the machinery for enforcement of the right or obligation. Legal rights are enforceable at the instance of someone so that the possessor of the right has that assurance. One has to be careful though on the rights of prisoners so that one does not confuse himself with the particular right in issue. For example, in the present case, we are not dealing with the so called human rights application, that is, the plaintiff is not seeking enforcement of a Constitutional right that has been allegedly violated or breached. We are looking at whether the Constitution, or the Corrective Institution Act or any law for that matter confers a right to a prisoner like this plaintiff, to be temporarily released from prison for the purpose sought.

The Constitution guarantees certain rights and freedom, however, it is obvious that, there is no right conferred to a prison for a temporarily release to attend personal matters. I therefore find no provision under the Constitution which grants this plaintiff a right to be temporarily released from prison to attend his deceased father's funeral.

Under the Corrective Institutions Act Ch. 63, there are provisions relating to the custody and removal of detainees. Sections 21 -24 of Part V deal with removal of detainees, however the removal is quite restrictive in nature. Removal of detainees can only be made for purpose of trials, attending a hospital due to illness, employment or labour outside an institution and transfer to another institution, police lock-up or rural lock-up. There is absolutely no provision in the act to allow such a temporary release or removal as sought by the plaintiff in his application. Temporary release as provided for in the English Prison Rules are not applicable here for reason stated earlier. The discretionary powers allowed under the Act which I have referred to do not apply to this situation. I therefore find that this statute does not grant a right to the plaintiff to leave the prison for the purpose sought.

As I adverted to earlier, the plaintiff is a convicted prisoner serving a term of imprisonment in hard labour for a very serious crime. He is thus a prisoner of the State. Neither the Constitution nor the Corrective Institution Act empowers this Court to release the plaintiff for the purpose he is seeking. The plaintiff has not satisfied this Court that he has a right to be released under these circumstances.

Perhaps, this could be an area for development as part of our underlying law in pursuance of Schedule 2.3 of the Constitution, however, I say no more than that. I consider that, if the application is granted, I would be setting a dangerous precedent which would open the floodgate to prisoners as I have alluded to earlier. I would also reiterate the public policy consideration.

I consider that the plaintiff, as a convicted prisoner, whose freedom and rights are limited, neither has the legal nor the Constitutional right to the remedy he now seeks. These Constitutional provisions have not seen properly and fully argued before me. I am therefore of the view that Sections 22, 185 and Schedule 2.1 of the Constitution which he sought to rely upon are inapplicable to the circumstances of his case.

For these reasons, I will dismiss this application.

Lawyer for Plaintiff: Godfrey Langtry
Lawyer for State: Public Prosecutor