Selan v Independent State of Papua New Guinea [2012] PGNC 242; N4938 (18 December 2012)

N4938

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 5 OF 2012

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS

BOBBY SELAN
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Madang: Cannings J
2012: 12 April, 7, 18 December

HUMAN RIGHTS – application for enforcement – Constitution, Section 36, freedom from inhuman treatment – Constitution, Section 37, right to full protection of the law – detainee in correctional institution detained in separate confinement – whether lawful authority for separate confinement – whether conditions of detention breached human rights standards of the Constitution.

The plaintiff claimed that he was, while on remand for a criminal offence unlawfully detained for seven days in a detention cell within a correctional institution in a confined and overcrowded space in conditions that were inhuman. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights, in particular his rights to full protection of the law under Section 37(1) of the Constitution, freedom from inhuman treatment under Section 36(1) of the Constitution, be treated with humanity and respect under Section 37(17) of the Constitution and personal liberty under Section 42 of the Constitution. He sought enforcement of his rights by way of an order for compensation against the State.

Held:

(1) A human rights enforcement application gives rise to two major issues: (a) has a right of the plaintiff been infringed? If yes, (b) what remedy should be granted?

(2) Here, the following rights of the plaintiff were infringed:

• the right to the full protection of the law (Constitution, s 37(1)) in that he was detained in separate confinement for no good reason and in the absence of a written separation order under Section 108(1) of the Correctional Service Act; and
  
• the right to freedom from inhuman treatment and the right to be treated with humanity and respect (Constitution, ss 36(1) and 37(17)), in that he was kept in a confined and overcrowded space in unhygienic and smelly conditions for long periods and denied fresh air and exercise; and
  
• the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family (Constitution, s 42(2)(b)).
  

(3) There was no general breach of the right to personal liberty as the plaintiff was lawfully detained in a correctional institution upon reasonable suspicion of his having committed a criminal offence (Constitution, s 42(1)(d)).

(4) As the plaintiff established that his human rights had been infringed, an appropriate form of relief is an order under Section 58(2) of the Constitution for damages, comprising two components: reasonable damages to compensate the plaintiff for the distress, anxiety and loss of human dignity he suffered during the period of his unconstitutional detention and exemplary damages.

(5) Damages were calculated at the rate of K200.00 per day of unconstitutional detention plus exemplary damages of K100.00 per day, being a total of K2,100.00 plus interest of K599.76, being a total judgment sum of K2,699.76.

Cases cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817
Danny Pirino v The State (2006) N3111
In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969

APPLICATION

This was an application by a detainee for enforcement of human rights.

Counsel

S Tanei, for the plaintiff
S Phannaphen & S Collins, for the State

18 December, 2012

1. CANNINGS J: This is a ruling on an application by a prisoner, Bobby Selan, for enforcement of his human rights which he claims were infringed while he was in remand at Beon Jail awaiting trial. He claims that he was unlawfully detained for seven days in a detention cell in a confined and overcrowded space in conditions that were inhuman. He seeks enforcement of his rights to full protection of the law under Section 37(1) of the Constitution, freedom from inhuman treatment under Section 36(1) of the Constitution, the right to be treated with humanity and respect under Section 37(17) of the Constitution and the right to personal liberty under Section 42 of the Constitution. He seeks enforcement of his rights by way of an order for compensation against the State.

2. As I suggested in Application by Benetius Gehasa (2005) N2817 a human rights enforcement application of this nature gives rise to two major issues:

• have any rights of the plaintiff been infringed? And if yes,
  
• what remedy should be granted?
  

EVIDENCE

3. The plaintiff gave oral and affidavit evidence which was corroborated by affidavit evidence of Peter Allan Popo, Damien Inanei and Reuben Micah who, like the plaintiff, were in remand at Beon Jail in May 2009 on charges of armed robbery and kidnapping in connection with the July 2008 robbery of the Bank of South Pacific, Madang. No evidence was presented for the State.

4. No reason has been provided for rejecting the plaintiff's evidence, which appears credible and believable. I find that he has proven on the balance of probabilities that most of his factual allegations are true. By May 2009 he had been in remand for at least seven months and had not conducted himself in any way that would make him a security threat. However on 22 May he was told that he and others in the remand compound who were facing charges over the BSP Madang robbery would be detained in the detention cells at Beon Jail for an indefinite period. He was not immediately told why but later he learned that there had been a breakout of prisoners at Bomana Jail and the Beon Jail authorities were acting on an intelligence report that a mass escape engineered by BSP Madang robbery detainees was being planned. He with two other detainees (Collin Masilo and Johnny Gumaira) was placed in a dark cell measuring 4 metres x 3 metres, designed to hold two persons, which has a double-bunk steel-framed bed and a toilet without a shower or wash basin or any furniture. There was limited light and ventilation and no privacy when going to the toilet and the toilet odour made conditions very uncomfortable. He was only let out of the dark cell for 20 minutes per day to shower. Breakfast, lunch and evening meals were served to him and his fellow inmates in the cell. He was denied visits by family members: his wife and children travelled from Lae on 23 May to visit him but they were turned away at the prison gate. He felt frustrated and depressed during the period of separate confinement, which lasted until 29 May, a period of seven days.

5. The only part of the plaintiff's evidence I reject is the description of the detention cell as a 'dark cell'. I take judicial notice of my inspection of the cell block in which the plaintiff was detained in a number of Visiting Justice Visits I have made to Beon Jail over the last few years. There is a limited amount of light and ventilation in the cells, enough for them to avoid the pejorative label 'dark cell'. They are in stark contrast to the aptly described 'dark cells' I have inspected on too many occasions in other VJ visits, the worst of which were at Beon Jail in 2006 (before a major redevelopment of the Jail in 2007-2008) which became the subject of a judgment in In the matter of enforcement of Basic Rights under the Constitution re conditions of detention at Beon Correctional Institution, Madang Province (2006) N2969.

HAVE ANY RIGHTS OF THE PLAINTIFF BEEN INFRINGED?

6. Mr Phannaphen for the State submitted that there was no breach of any human rights as the evidence suggests that it was necessary for security reasons that the plaintiff be kept in separate confinement. He refers to the affidavit of Damien Inanei where evidence is given of a mass breakout at Bomana Jail and reports received by the Beon Jail management that the Madang BSP armed robbery suspects would also escape. The conditions of the plaintiff's detention were therefore lawful and reasonable, especially in light of Section 42(1)(d) of the Constitution, which authorises the State to deprive a person of his liberty "upon reasonable suspicion of his having committed ... an offence".

7. With respect, Mr Phannaphen's argument misses the point. The plaintiff's main grievance is not that he was deprived of his personal liberty by being detained in custody but about the conditions of his detention and the lack of justification for his separate confinement. Furthermore there was no evidence to support the argument. The State presented no evidence. It is not good enough to rely on what is stated in one of the plaintiff's witnesses' affidavits by way of speculation and hearsay to justify the State's actions.

8. I am persuaded by Mr Tanei's submissions that the evidence shows that the plaintiff's human rights were infringed in three distinct ways. First he was denied the full protection of the law (Constitution, s 37(1)) in that he was detained in separate confinement for no good and identifiable reason and in the absence of a written separation order under Section 108(1) (separation of one detainee from other detainees) of the Correctional Service Act, which states:

... 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.

9. I continue to be concerned when I see cases such as this one that detainees are held in oppressive conditions in detention cells for no good reason and without adhering to the requirements of the Correctional Service Act. There must be a good and justifiable reason, the order of separate confinement must be in writing and the period of separate confinement is strictly limited in the first instance to 28 days (Danny Pirino v The State (2006) N3111). It must be thoroughly depressing for a detainee to hear that he is to be held in separate confinement 'for an indefinite period'.

10. Secondly, he was denied the rights to freedom from inhuman treatment and the right to be treated with humanity and respect for the inherent dignity of the human person (Constitution, ss 36(1) and 37(17)) in that he was kept in a confined and overcrowded space in unhygienic and smelly conditions for long periods and denied fresh air and exercise. Requiring detainees to eat their meals in a small cell that is also a toilet without hand-washing facilities is indeed an inhuman and deplorable action.

11. Thirdly he was denied the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family (Constitution, s 42(2)(b)). However, there was no general breach of the right to personal liberty as the plaintiff was lawfully detained in a correctional institution upon reasonable suspicion of his having committed a criminal offence (Constitution, s 42(1)(d)).

WHAT REMEDY SHOULD BE GRANTED?

12. I am satisfied that this is an appropriate case for compensation by way of damages under Section 58(2) (compensation) of the Constitution, which states:

A person whose rights or freedoms declared or protected by this Division [the human rights set out in Division III.3 of the Constitution] are infringed ... is entitled to reasonable damages and, if the court thinks it proper, exemplary damages in respect of the infringement.

13. The award of damages will comprise the two components set out in Section 58(2): "reasonable damages" to compensate the plaintiff for the distress, anxiety and loss of human dignity he suffered during the period of his unconstitutional detention and "exemplary damages" to signify the court's disapproval of the State's extra-judicial punishment of a detainee and infringement of human rights. I award damages at the rate of K200.00 per day of unconstitutional detention + exemplary damages of K100.00 per day, being a total of K2,100.00.

INTEREST

14. Interest will be awarded at the rate of 8 per cent per annum on the amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date of the first day of unlawful detention, 22 May 2009, to the date of judgment, a period of 3.57 years, by applying the formula D x I x N = A, where:

• D is the amount of damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus:

• K2,100.00 x 0.08 x 3.57 = K599.76.
  

COSTS

15. The plaintiff is a prisoner who has been assisted in this matter by the Public Solicitor. In these circumstances it is appropriate that the parties bear their own costs.

ORDER

(1) The application for enforcement of human rights is granted.

(2) It is declared that the defendant infringed the plaintiff's rights to the right to the full protection of the law (Constitution, s 37(1)) and the right to freedom from inhuman treatment and the right to be treated with humanity and respect (Constitution, ss 36(1) and 37(17) and the right of a detained person to be permitted whenever practicable to communicate in private with a member of his family (Constitution, s 42(2)(b)).

(3) The defendant is liable to pay to the plaintiff reasonable damages of K1,400.00 + exemplary damages of K700.00 + interest of K599.76, being a total judgment sum of K2,699.76.

(4) The parties shall bear their own costs.

____________________________________
Public Solicitor: Lawyer for the Plaintiff
Solicitor-General: Lawyer for the Defendant