N3111

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP 588 of 2006

In the matter of a Human Rights Application pursuant to Sections 57 and 37 of the Constitution

BETWEEN

DANNY PIRINO
Applicant

AND

THE STATE
Respondent

Kokopo: Lay J
2006: 17 November

Facts

The applicant was held in solitary confinement for a period of 90 days on a single order of the gaol commander. He was given 30 minutes a day for exercise.

Held

1.	Solitary confinement of more than 28 days on a single order is unlawful. A gaol commander may make an initial order for separate confinement not exceeding 28 days. He may make a subsequent order not exceeding the same period. No further order can be made unless endorsed by a visiting magistrate. The applicant was unlawfully confined separately for 62 days.

2.	It is unlawful to issue an order for separate confinement in terms of ""until further order.""

3.	All prisoners are entitled under CIS Regulations to 1 hour per day to be out in the fresh air. Confining that period to half an hour is a breach of the applicant’s rights to protection of the law.

4.	The applicant should be compensated for the breach of his right to protection of the law. In lieu of monetary compensation on allowance will be made on sentence for the charge of escape.

Cases Cited:
Tom Amaiu v Commissioner for Correctional Institutions and the State [1983] PNGLR 87; 
Bialla Police Lock Up N3022; 
The State v Bafo Quati [1990] PNGLR 57.

Counsel:
P. Kaluwin, for the Applicant
L. Rangan, for the Respondent

17 November, 2006

1.	LAY J.: The applicant has made an application under Section 57 of the Constitution for enforcement of his rights on the basis that he was unlawfully detained in solitary confinement and that as a consequence he was illegally detained, subject to inhuman treatment and subject to acts that were harsh and not reasonably justifiable. 

2. The complaint was initially made orally to myself during arraignment of the applicant on a charge of escaping. I directed the Public Solicitor’s office to assist the applicant to bring his application formally before the Court.

3. An affidavit was filed by the applicant and sworn evidence was given by John Poname, the Lance Corporal in charge of records at Kerevat and Commander Matthew Bine, the OIC of Kerevat Correctional Institution.

4. The applicant was in lawful detention at Kerevat Correctional Facility serving sentences for escape and armed robbery, when he escaped on the 20 February 2003. He was recaptured on 21 September 2005 and on 29 September 2005, he was taken to Kerevat Correctional Facility and placed in the Main Detention Cell where he remained until 29 December 2005, a period of 90 days. On that day he was moved to a separate self-contained cell in the Maximum Security Unit. He was kept there until his release into the open dormitory cells on 13 March 2006. There was no examination or report by a medical officer in relation to either period of detention.

5. The Main Detention Cells at Kerevat are what is commonly known as ""solitary confinement"". There are two cells. Each cell houses one detainee. There is a solid steel door, the walls of concrete, there is an air vent in the ceiling and a window high up in the wall measuring approximately 30 cm x 20 cm which is both barred and covered by a heavy mesh grille on the inside. It would not be possible for a detainee to see through this window. The applicant estimates the size of the cell as 3 m x 2 m. There is nothing in the room, no bed, no toilet. A detainee is given a bucket to use as a toilet. When I inspected these cells they were vacant and clean.

6. The Maximum Security Unit at Kerevat is a concrete block building with a series of self-contained detention Cells with full length steel bar doors facing on to a corridor. There is a common area where detainees take their meals. Unlike the Main Detention Cells, detainees are not completely isolated from each other because they have sight, light and sound through the full-length steel bar doors to each cell in addition to the common sharing of mealtimes where they gather in a common area. Each cell is fitted with a bed and on the floor below the wall opposite the foot of the bed is a stainless steel Asian squat toilet. The applicant estimates the toilet to be 1 m from the bed. According to evidence from Mr. Poname this is a flush toilet which works. On subsequent inspection by myself the running water to the toilets had ceased to function, which has apparently been the case for some time. Prisoners were being provided with a bucket of water to each cell to flush the toilet. There was only one cell occupied at the time of my inspection. The cells were clean and well ventilated.

7. The initial order by which the applicant was detained in the Main Detention Cell was in the following standard printed form:

""ORDER FOR SEPARATE CONFINEMENT

Order No.: 21/05

I, Matthew Bine Gaol Commander of Kerevat Correctional Institution by virtue of the powers conferred on Section 108 (-Section 1-9) of the Correctional Services Act 1995, and All Other Powers Enabling Me

HEREBY DIRECT:

Detainee Danny Pirino Reg. No. 28951 of Kerevat Correctional Institution Being a Detainee Held under Warrant be separated by this separation order.

•	for the good of the detainees.
•	for the good of other detainees at the correctional gaol, and there to remain until otherwise ordered.

Dated at Kerevat This 29th Day of September 2005.""

8. Two other documents produced to the court were two copies of a form the first of which reads:

Correctional Services Act 1995

ORDER FOR RELEASE FROM SEPARATE CONFINEMENT (Review)

No...... 

I, Matthew Bine Gaol Command of Kerevat Correctional Institution, by virtue of the powers conferred by-Section (7) of Correctional Services Act No. 108 of 1995 and all other powers me enabling,

HEREBY DIRECT 

the duty officer at the Correctional Institution, that detainee Danny Pirino being a detainee held under Warrant, and who by Order No. 21/05 dated 29th day of September 2005 was confined to Detention Cell at Kerevat Correctional Institution be released from detention cell.

 Prisoner (s) has completed his (3) months detention period.
 Prisoner (s) term of detention be extended for another (3) months period on the 29th of December 2005.
 Prisoner (s) will remain in the Compound for further assessment before released to the field duties.

Dated at Kerevat Correctional Institution this 29th of December 2005.""

9. It was by that document that the applicant was moved, after 3 months, from the Main Detention Cells to the Maximum Security Unit. And the second similar order, which affected the applicant’s release back into the general population of the prison, was in the following terms:

ORDER FOR RELEASE FROM SEPARATE CONFINEMENT

I, Matthew Bine, Gaol Commander of Kerevat Correctional Institution, by virtue of the powers conferred by Sub -Section (7) of Correctional Services Act. No. 108 of 1995 and all other powers me enabling,

HEREBY DIRECT

the Duty Officer at the Correctional Institution, that detainee Danny Pirino being a detainee held under warrant, and who by Order No. 21/05 dated 29th day of September 2005 was confined to Detention Cell at Kerevat Correctional Institution be released from detention cell.

 Prisoner (s) has completed his (3) months detention period. 
 Prisoner (s) term of detention be extended for another (3) ) months period. 
 Prisoner (s) will remain in the Compound for further assessment before released to the field duties.

Dated at Kerevat Correctional Institution this 13th day of March 2006.""

10. All of these forms are the internal administrative documents for the Correctional Service and are not issued pursuant to the Correctional Services Act or Regulations.

11. Mr. Bine, the Commanding Officer of Kerevat CIS gave evidence that the applicant was given 30 minutes exercise per day. He said that he was entitled under his own authority to make two orders for confinement, the third has to be signed by a Visiting Magistrate. He exercises delegated power from the Commissioner pursuant to Section 66(2). No reports are forwarded to the Commissioner, the records are kept on file. He explained that in terms of the Correctional Services Act the Main Detention Cell is ""separate confinement"" and the Maximum Security Unit is ""confinement in a separate section"".

THE LAW

12. The Constitution s.57 provides that the rights conferred by Division 3 of the Constitution may be enforced by action in the Supreme or National Court.

13. Section 37(1) (protection of the law) of Division 3 provides:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody charged with offences.

14. The Correctional Services Act makes the following provisions relating to solitary confinement and separate confinement of detainees:

108.	Separation of one detainee from other detainees.

(1)	In addition to Section 107(2) and subject to Subsection (2), the Commissioner or a correctional officer authorized by him may, in writing, order the separation of a detainee from other detainees where—

(a)	the separation is necessary or desirable for the safety of the detainee or other persons, or the security, good order or management of the correctional institution; and
(b)	the detainee is only separated from other detainees while the safety of the detainee or other persons, or the security, good order or management of the correctional institution is at risk.

(2)	A separation order under Subsection (1) is not required to be in writing where the separation of a detainee from other detainees is, in the opinion of the Commissioner or a correctional officer authorized by him, required urgently.

(3)	Where an oral separation order is made under Subsection (2), the oral separation order shall be confirmed in writing within 24 hours.

(4)	A separation order under this section shall specify that the detainee to be separated from other detainees be placed—

(a)	in a separate detention cell; or
(b)	in a separate section of the correctional institution.

(5)	A separation order made under this section shall not extend beyond—

(a)	28 days for separate confinement; and
(b)	90 days for confinement in a separate section.

(6)	Where a separation order under this section specifies that a detainee be placed in a separate detention cell, the Commissioner or a correctional officer authorized by him—

(a)	shall assess the daily conduct of the detainee the subject of the order; and
(b)	may order that the detainee be removed from the separate detention cell prior to the expiration of the separation order; and
(c)	shall make an order under Paragraph (b) where a visiting medical officer determines removal to be necessary to safeguard the health of the detainee.

(7)	A detainee shall be removed from the separate detention cell at the expiration of a separation order under this section or such lesser period as may be determined by the Commissioner.

(8)	The Commissioner or a correctional officer authorized by him may in respect of a detainee make a second separation order under Subsection (4)(a) to take effect immediately on the expiration of a previous separation order under Subsection (4)(a) in respect of that detainee, but any further separation order under this section may be effected only after a Visiting Magistrate has—

(a)	satisfied himself as to the need for a further separation order; and
(b)	thereafter endorsed the further separation order.

(9)	The Commissioner may make additional orders under Subsection (4)(b) to take effect immediately on the expiration of the previous orders as required.

The Confinement Orders

15. An order for a prisoner to be in separate confinement cannot, in the first instance, extend beyond 28 days. It is not lawful for an order for separate confinement to extend beyond that period as the initial period of confinement: See s.108(5)(a). Pursuant to s.108(7) a further order for separate confinement can be made for a further period of 28 days. But any third or subsequent order can only be made if it is endorsed by the Visiting Magistrate. 

16. The Order for Separate Confinement in this case ends with the words ""and there to remain until further order."" Nothing in the CIS Act authorizes such an order with a release date to be determined by further order. A prisoner can only be ordered to separate confinement for up to 28 days or confinement in a separate section for up to 90 days. It is wrong and unlawful to order separate confinement until further order. The form is ultra vires the Act in that regard and its use should be discontinued.

17. In this case the initial order for separate confinement was made for a period of 90 days. This is completely unlawful. The prisoner was held unlawfully in solitary confinement for a period of 62 days being the period by which the order exceeded 28 days.

18. It appears to me that this unlawful order for separate confinement has been partly brought about by the Department’s internal forms which are completely inappropriate to the circumstances of separate confinement. The heading to the release forms is inappropriate and misleading. If suitable at all, it would only be suitable for use where the prisoner has been ordered to confinement in a separate section. Hence the heading to the forms should be ""Confinement in a Separate Section"" and not ""Separate Confinement"". However, even in use for confinement in a separate section they are not entirely accurate in making reference to confinement for 3 months, when the Act speaks of 90 days. Three (3) months could be 92 days depending on which months were involved.

19. A form which is designed to facilitate record keeping in respect of a prisoner subjected to separate confinement, should follow the provisions of the Act as closely as possible. It should provide that:

- The order is for no more than 28 days or when the reasons in s108(1)(a) cease to apply, whichever is the earlier;
- the order is the first, second or a subsequent order;
- The third and subsequent orders must be endorsed by a Visiting Magistrate, and make provision for that endorsement;
- The order is necessary for the reasons set out in s.108(1)(a)
- an approved officer has assessed the conduct of the prisoner on a daily basis.

Exercise and Access to open Air

20. The evidence conflicted, the applicant claimed he was only allowed 5 minutes to come out and eat before going back into the cell. The Commanding Officer said the prisoner was given a half hour’s opportunity for exercise every day. It is not necessary for me to resolve that factual question, to find that the applicant’s right to the full protection of the law was once again breached on a daily basis. The Correctional Services Regulation 1995 regulation 79(1) provides:

A detainee has a right to be in the open air for at least one hour each day.""

21. I find that the applicant was deprived of that right by at least one half hour per day during his 90 days in solitary confinement.

General Conditions of Confinement

22. There was a general submission that the circumstances of separate confinement were such as to be inhuman treatment. The evidence, apart from the observations made by myself, and the photographs tendered, was confined to a comment by the applicant that the toilet was but a meter away from the bed. This must refer to the applicant’s confinement in the Maximum Security Unit, because there are no toilets in the cells for the Main Detention Unit. The applicant’s evidence makes no complaint about the conditions in the Maximum Security Unit, apart from the position of the toilet.

23. This is not a case, such as Bialla Police Lock Up N3022 (Cannings J) where the Court can immediately conclude the conditions to be ""unhealthy, unhygienic and uninhabitable;"". On the contrary as I have commented earlier, the facilities were clean and reasonably ventilated. In other countries it is common for self contained cells to have the bed and toilet in the same space, although the space may be larger. Where there is no sewerage connection, as in the Main Detention Cells, bucket toilet arrangements are not per se a breach of guaranteed rights. There is no evidence suggesting that the bucket toilet arrangement in the Main Detention Unit was administered in such a manner that it constituted inhuman treatment: cf. Tom Amaiu v Commissioner for Correctional Institutions and the State [1983] PNGLR 87. Without further evidence, such as from health professionals, I do not consider that on the evidence I am in a position to say that the applicant has been subjected to any inhuman treatment by reason of the toilet or sleeping arrangements in either the Main Detention Cells or the Maximum Security Unit.

Compensation

24. The Constitution s.58(2) provides that a person whose constitutional rights are infringed is entitled to reasonable damages. Damages may be awarded against the person responsible for the infringement or the government body to which the person is responsible.

25. Bredmeyer J considered the issue of compensation for unlawful solitary confinement in the case of Tom Amaiu v Commissioner for Correctional Institutions and the State [1983] PNGLR 87. Considering the unpleasantness suffered there by the prisoner through breach of various fundamental rights compared with what he would have suffered if there was no such breach, his Honour found the sum of K10 per day appropriate damage. Having regard to the substantial reduction in value of the Kina in the interval between that case and the present, I consider K20 per day to be proper compensation with a further K2 per day for loss of the applicant’s right to fresh air and exercise. However, I consider the appropriate course in this case, is not to order compensation, but to take the breach of the applicant's constitutional rights into account when sentencing him in respect of the charge of escaping from lawful custody which is before me. This course has been previously approved by this Court. See the State v Bafo Quati [1990] PNGLR 57.

Recommendations

26. I recommend to the Commissioner of Correctional Services that use of each of the forms set out above (Order for Separate Confinement and Order for Release from Separate Confinement) be discontinued immediately in respect of prisoners ordered to be held in separate confinement and that a new form or forms be designed and introduced which contain the matters suggested in my comments above, which I repeat:

-The order is for no more than 28 days or when the reasons in s.108(1)(a) cease to apply, whichever is the earlier;
- the order is the first, second or a subsequent order;
- The third and subsequent orders must be endorsed by a Visiting Magistrate, and make provision for that endorsement;
- The order is necessary for the reasons set out in s.108(1)(a)
- an approved officer has assessed the conduct of the prisoner on a daily basis.

Orders

1.	The Commanding Officer, Kerevat CIS is to immediately cease issuing orders for separate confinement which contain the words ""until further order"". All future such orders shall specify a period of time not exceeding 28 days for separate confinement;
2.	The Department of Correctional Services is to pay the applicants costs of this application.

Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the State