Tanda v Jail Commander, Bomana Correctional Institution [2023] PGNC 327; N10486 (4 October 2023)

N10486

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 5 OF 2023

IN THE MATTER OF A COMPLAINT
OF UNREASONABLE DETENTION

PELE RON TANDA
Complainant

V

JAIL COMMANDER, BOMANA CORRECTIONAL INSTITUTION
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2023: 4^th, 22^nd September, 4^th October

HUMAN RIGHTS – complaint of unreasonable detention, Constitution, s 42(5) – right to full protection of the law, Constitution, s 37(1) – right of all persons deprived of their liberty to be treated with humanity and with respect for inherent dignity of the human person, Constitution, s 37(17) – prisoner with HIV-positive status complains that he is denied access to hospital at which he is registered for regular testing and treatment.

The complainant is a prisoner who is HIV-positive. He was registered as a patient at a hospital and was receiving regular treatment and support prior to his imprisonment, and this continued while he was a prisoner until it was stopped abruptly. He complained under s 42(5) of the Constitution that the abrupt withdrawal of regular hospital access put him in a life-threatening situation and amounted to unreasonable detention. He did not seek release from custody but reinstatement of regular hospital access.

Held:

(1) Evidence from the Jail Commander showed the complainant was being adequately managed at the medical services unit within the prison and that he was provided with anti-retroviral drugs on a regular basis and that he was required to attend the hospital annually for a check on his viral load, which requirement was being adhered to.

(2) There was no evidence from the complainant that rebutted the Jail Commander’s evidence, eg there was no recent evidence from a doctor at the hospital at which he was a registered HIV patient that he needed to be taken to hospital on a regular basis.

(3) The complaint of unreasonable detention was not sustained. Case dismissed.

Cases Cited

The following case is cited in the judgment.

Re Conditions of Detention at Beon Correctional Institution, Madang (2006) N2969

Counsel

C Oresi, for the Complainant
A Kajoka, for the Respondents

4^th October 2023

1. CANNINGS J: The complainant Pele Ron Tanda is a prisoner at Bomana Correctional Institution, serving a six-year sentence for attempted murder. He is HIV-positive. He had the virus when he was imprisoned and he was registered as an HIV patient at Gerehu Hospital, National Capital District. He was receiving regular treatment and support prior to his imprisonment, and this continued for several years after his imprisonment. He was regularly taken under escort by correctional officers to hospital. But this procedure stopped abruptly in April this year.

2. He complains under s 42(5) of the Constitution that the withdrawal of regular hospital access has put him in a life-threatening situation and amounts to unreasonable detention. Section 42 (liberty of the person) states:

Where complaint is made to the National Court or a Judge that a person is unlawfully or unreasonably detained—

(a) the National Court or a Judge shall inquire into the complaint and order the person concerned to be brought before it or him; and

(b) unless the Court or Judge is satisfied that the detention is lawful, and in the case of a person being detained on remand pending his trial does not constitute an unreasonable detention having regard, in particular, to its length, the Court or a Judge shall order his release either unconditionally or subject to such conditions as the Court or Judge thinks fit.

3. He does not seek release from custody but reinstatement of regular hospital access.

HUMAN RIGHTS

4. Prisoners do not lose their human rights upon incarceration. Human rights are permanent and enduring. These include the rights in s 37 (protection of the law) of the Constitution.

5. Section 37(1) states:

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 or charged with offences.

6. Section 37(17) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

HAVE THE COMPLAINANT’S HUMAN RIGHTS BEEN BREACHED?

7. Having inquired into this complaint, it seems that the reason the complainant’s treatment regime changed suddenly in April this year (when the Correctional Service stopped his regular hospital visits) is that he was found by the Jail Commander to have committed an institutional offence and subject to a three-month separate confinement order. The complainant says that conditions were harsh and oppressive but he has not lodged a complaint about that, as such. What he is concerned about is that his regular hospital access has stopped. This is what he wants reinstated.

8. However, I am persuaded by evidence from the Jail Commander showing that the complainant continues to be adequately managed at the medical services unit within the prison. He is being provided with anti-retroviral drugs on a regular basis. He is only required to attend the hospital annually for a check on his viral load, which requirement is being adhered to. He is responding well to his treatment. His next viral load check is due in January 2024. His due date of release from custody is 20 January 2024.

9. There is no evidence from the complainant that rebuts the Jail Commander’s evidence. There is no recent evidence from a doctor at Gerehu Hospital that he needs to be taken to hospital on a regular basis. There is no evidence that he is in a life-threatening situation. I am not satisfied that he is being denied proper medical treatment or that he is being denied the full protection of the law. Nor am I satisfied that he is not being treated with humanity or with respect for his inherent human dignity.

REMARKS

10. I note that the complainant states – and this is not denied by the Jail Commander – that he was subject to a separate confinement order of three months duration after being found guilty of an institutional offence. The Jail Commander determined that after being accorded a one-day leave of absence with other prisoners to come into town to engage in a sports-related activity the complainant and others returned to custody drunk. This was no doubt a serious matter but I raise concern from a human rights perspective as it appears that the Jail Commander might have taken the view that that was the only penalty he could impose. The penalty appears excessive. I raised concern in a somewhat similar case several years ago, Re Conditions of Detention at Beon Correctional Institution, Madang (2006) N2969.

11. Jail Commanders throughout the country need to be aware of the constraints imposed by the Correctional Service Act and the Constitution on the way in which they can use separate confinement orders to impose discipline within correctional institutions.

ORDER

(1) The complaint under s 42(5) of the Constitution that the complainant is unreasonably detained and that his human rights are being breached is not sustained.

(2) The file is closed.

________________________________________________________________
Public Solicitor: Lawyer for the Complainant
Solicitor-General: Lawyer for the Respondents