Yasause v Commissioner of the Correctional Service [2021] PGNC 528; N9380 (31 December 2021)

N9380

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 21 OF 2021

IN THE MATTER OF AN APPLICATION FOR
ENFORCEMENT OF HUMAN RIGHTS

DR THEO YASAUSE
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

THE PAROLE BOARD
Third Respondent

Waigani: Cannings J
2021: 22^nd, 24^th, 31^st December

HUMAN RIGHTS – application by prisoner for enforcement of human rights – Constitution, s 37(1): right to full protection of the law – alleged error by Parole Board in calculation of date of eligibility for parole.

JUDGMENTS AND ORDERS – declaration of date of eligibility for parole in previous proceedings – doubt re service of order on Parole Board – whether appropriate to restate the order.

The applicant, a prisoner, is serving a 30-year sentence for murder. The Court on 22 January 2021 ordered in previous proceedings that his date of eligibility for parole was 29 January 2021. The Parole Board on 4 October 2021 refused his parole application on the ground that he was not eligible for parole until 30 March 2022. The applicant then filed another human rights application seeking a declaration that the Parole Board erred in law and that his right to the full protection of the law had been breached and an order that due to the continuous breaches of his rights, he be released on parole.

Held:

(1) It was not appropriate to revisit the question of the date of eligibility for parole as the order of 22 January 2021 spoke for itself and there was no order of the Supreme Court setting it aside.

(2) As there was no evidence that the order of 22 January 2021 had been served on the Parole Board or that it had been formally brought to its attention, it could only be reasonably inferred that the Board was unaware of it and made its decision to refuse the applicant’s parole application in ignorance of the order. It should be regarded as an inadvertent error.

(3) It was appropriate for the avoidance of doubt to affirm the order of 22 January 2021 and to order that it, and the order in this proceeding, be served personally on the Chairman of the Board and the Chief Parole Officer and to further order that the applicant’s parole application that was refused on 4 October 2021 be re-submitted to the Board so that it can be considered on its merits.

(4) It was inappropriate for the Court, in the absence of evidence that the order of 22 January 2021 had been deliberately ignored or disobeyed, to consider ordering the release of the applicant on parole or through any other process. Other relief sought by the applicant was therefore refused.

Cases Cited

The following cases are cited in the judgment.

Application by Jacob Eddie (2014) N5735
Application by Samalan Peter (2014) N5631
Application by Waga Kumutz (2014) N5633
Application of Bradley Neri (2020) N8577
Complaint by Jack Kumul Kora (2014) N5632
Complaint by John Irekau (2013) N4958
Complaint by John Siko Wel (2015) N6150
Complaint by Michael Tambeng (2013) N4959
Complaint by Okata Talagaim (2010) N3893
Complaint by Paul Niko (2014) N5719
Complaint by Trevor Waidau (2013) N5417

Counsel:

T Yasause, the applicant, in person
N Aiwara, for the Respondents

31^st December, 2021

1. CANNINGS J: The applicant, Dr Theo Yasause, is a prisoner at Bomana Correctional Institution, serving a 30-year sentence for murder. This Court on 22 January 2021 ordered in previous proceedings, HRA No 64 of 2020, that his date of eligibility for parole under the Parole Act 1991 was 29 January 2021. He then made a parole application but the Parole Board on 4 October 2021 refused it on the ground that he was not eligible for parole until 30 March 2022.

2. He then filed another human rights application in these proceedings, HRA No 21 of 2021. He seeks a declaration that the Parole Board erred in law by refusing his parole application and that his right to the full protection of the law under s 37(1) of the Constitution has been breached and an order that due to the continuous breaches of his rights, he be released on parole. The following issues arise:

1. Should the question of the date of eligibility for parole be revisited?
   
2. Did the Parole Board err in law by refusing parole?
   
3. Has a breach of human rights been proven?
   
4. What orders should the Court make?
   
1. SHOULD THE QUESTION OF THE DATE OF ELIGIBILITY FOR PAROLE BE REVISITED?
   

3. This is the order of 22 January 2021:

1. The application for enforcement of human rights is granted and these orders are made under s 57(1) and (3) of the Constitution to remedy the breach of the right of the full protection of the law under s 37(1) of the Constitution that has occurred.
   
2. It is declared that the applicant is eligible for parole on 29 January 2021.
   
3. It is declared that the applicant’s due date of release from custody with remission is 29 January 2031.
   
4. The Jail Commander, Bomana Correctional Intuition, shall ensure that by 28 January 2021:
   
   1. sealed copies of these orders are placed on the applicant’s Correctional Service file, and
      
   2. the applicant’s Correctional Service file and all other relevant files on record are amended to show the applicant’s date of eligibility for parole and due date of release are as shown in this order.
      
5. The matter shall be called on 4 February 2021 at 1.30 PM to check compliance with this order.
   

4. HRA No 64 of 2020 was called on 4 February 2021 and the following order was made:

1. The Court is satisfied that its order of 22 January 2021 has been complied with.
   
2. If there are any further issues regarding the applicant’s parole application, such issues shall be brought to the Court by a fresh human rights application.
   
3. The present proceedings are closed.
   

5. There are three observations to make about those orders. First, the applicant has done what is provided for by order 2 of 4 February 2021. Issues have arisen regarding his parole application so he has brought them to Court by a fresh human rights application. Secondly, there has to my knowledge been no appeal or application for review lodged in relation to those orders, but if there has been, no order has been made by the Supreme Court to stay or set aside the orders. Thirdly, it follows that it would be inappropriate to revisit the orders, in particular the order of 22 January 2021 as to the date of eligibility for parole. The order speaks for itself.

6. However, as the order as to the date of eligibility for parole was made in an oral judgment, it is worthwhile explaining in writing, in this judgment, the reasons for making the order and the method of calculation of the date.

7. The applicant was sentenced on 29 November 2012, having been convicted on 28 September 2012 of murder under s 300 of the Criminal Code. The sentence is summarised as follows:

Length of sentence imposed	30 years
Pre-sentence period to be deducted	1 year, 10 months
Resultant length of sentence to be served	28 years, 2 months
Amount of sentence suspended	Nil
Time to be served in custody	28 years, 2 months

8. The applicant was sentenced in 2012, well before the amendments to the Parole Act, made by the Parole (Amendment) Act No 13 of 2018 commenced operation on 28 November 2018. Act No 13 of 2018 commenced operation, by virtue of s 110(1) of the Constitution, on the date of certification by the Speaker, 28 November 2018, as it was not expressed to come into force on any other day. The amendment to s 17, which lengthened the proportion of a sentence a prisoner must serve to be eligible for parole, was not expressed to operate retrospectively, and therefore does not apply to the applicant. His parole eligibility is determined according to the former s17(1)(b) (eligibility for parole) of the Parole Act, which stated, until 28 November 2018:

Subject to this Act, a detainee who ... having been sentenced to a term of imprisonment of three years or more - has served not less than one third of the sentence ... is eligible for parole.

9. The applicant was eligible for parole after serving one third of his sentence of 30 years, ie after serving 10 years of the sentence. The pre-sentence period in custody of 1 year, 10 months was properly regarded as a period of serving the sentence, so the balance of 8 years, 2 months after the date of sentence had to be served, to be eligible for parole. Thus 29 November 2012 + 8 years, 2 months = 29 January 2021.

10. Looking at it another way, the notional date of commencement of sentence was 29 January 2011 + 10 years = 29 January 2021.

11. Every prisoner has the right under s 37(1) of the Constitution to the full protection of the law and this includes the right to know with certainty their date of eligibility for parole and due date of release from custody. I have stated this in numerous cases over a long period, such as Complaint by Okata Talagaim (2010) N3893, Complaint by John Irekau (2013) N4958, Complaint by Michael Tambeng (2013) N4959, Complaint by Trevor Waidau (2013) N5417, Application by Samalan Peter (2014) N5631, Complaint by Jack Kumul Kora (2014) N5632, Application by Waga Kumutz (2014) N5633, Complaint by Paul Niko (2014) N5719, Application by Jacob Eddie (2014) N5735, Complaint by John Siko Wel (2015) N6150 and Application of Bradley Neri (2020) N8577. Those are some of the reported cases. There are many more in which I have given oral judgments or ex tempore rulings to the same effect.

12. I reiterate that I have not revisited the question of the date of eligibility for parole. I have simply put in written form the reasons for determining that date as 29 January 2021 in my oral judgment of 22 January 2021 in HRA No 64 of 2020.

2 DID THE PAROLE BOARD ERR IN LAW BY REFUSING PAROLE?

13. Yes, the Board erred, as the date of eligibility of parole had already been declared in a Court order, and the Board departed from the order. However, there is no evidence that the order of 22 January 2021 was served on the Board or that the order was formally brought to its attention. It must be inferred that the Board was unaware of it and made its decision to refuse the applicant’s parole application on the ground that he was not yet eligible for parole in ignorance of the order. The Board’s error must be regarded as an inadvertent one.

3 HAS A BREACH OF HUMAN RIGHTS BEEN PROVEN?

14. Yes, refusal of a prisoner’s parole application on the ground that he is not eligible for parole, notwithstanding that it has been determined by the National Court that he is eligible, is a denial of his right to the full protection of the law under s37(1) of the Constitution.

4 WHAT ORDERS SHOULD THE COURT MAKE?

15. As the applicant has shown a breach of human rights, the Court will invoke its powers under ss 57(1) and 57(3) of the Constitution to enforce his human rights and make orders that are necessary and appropriate. Section 57(1) states:

A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

16. Section 57(3) states:

A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

17. I consider that it is necessary and appropriate for the avoidance of doubt to affirm the order of 22 January 2021 and to order that it, and the order and judgment in these proceedings, be served personally on the Chairman of the Board and the Chief Parole Officer and to further order that the applicant’s parole application that was refused on 4 October 2021 be re-submitted to the Board so that it can be considered on its merits.

18. It is unnecessary and inappropriate for the Court, in the absence of evidence that the order of 22 January 2021 had been deliberately ignored or disobeyed by the Parole Board, to consider ordering the release of the applicant on parole or through any other process. Other relief sought by the applicant is therefore refused.

ORDER

(1) It is affirmed that pursuant to the order of 22 January 2021 in HRA No 64 of 2020 the applicant’s date of eligibility for parole is 29 January 2021.

(2) The Registrar of the National Court shall ensure that within ten days after the date of this order, the following documents are served on the Chairman of the Parole Board (the Secretary for Justice, Dr Eric Kwa) and on the Chief Parole Officer or if either or both of them cannot conveniently be personally served, that the documents are left with a responsible person at their respective offices: (a) the order of 22 January 2021 in HRA No 64 of 2020; (b) this order; (c) the judgment of the Court in these proceedings; and furthermore, that an affidavit of service of those documents is, within three days after the date of service, filed in these proceedings.

(3) The Parole Board shall by 28 February 2022 meet and re-hear and re-determine the applicant’s parole application that was refused in October 2021.

(4) These proceedings shall be called for mention on 24 January 2022 at 1.30 pm to check compliance with this order and the Chairman of the Parole Board or the Chief Parole Officer and the officer of the Court who has filed the affidavit of service referred to in this order shall appear before the Court so that any remaining issues regarding compliance with this order can be fully and meaningfully resolved in a spirt of cooperation and in the interests of justice.

__________________________________________________________________
Solicitor-General: Lawyer for the Respondents