Wera v Pokanis [2023] PGNC 375; N10532 (23 October 2023)

N10532

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO. 54 OF 2022

IN THE MATTER OF AN APPLICATION FOR
ENFORCEMENT OF HUMAN RIGHTS


DANIEL DUALE WERA
Applicant

V

STEVEN POKANIS
in his capacity as the Commissioner,
Correctional Service of Papua New Guinea
First Respondent

YELLI OIUFA
in his capacity as Gaol Commander Bomana Jail
Second Respondent

BOTIN MANTU
in his capacity as Manager Reception Bomana Gaol
Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
in its capacity as the employer of the Respondents
Fourth Respondent

Waigani: Carey J
2023:17^th and 23^rd October

HUMAN RIGHTS – application for enforcement of human rights – deduction of time spent in custody- uncertainty as to due date of release

Mr. Daniel Duale Wera (the Applicant) an adult male of 42 years was convicted of murder on 7^th March 2018 and sentenced to a term of 30 years of imprisonment at Bomana Correctional Institution. He has filed a human rights application to address a calculation in relation to his date of release. He suggests that the due date for his release from incarceration is incorrect and seeks the intervention of the court to remedy this through calculating what his release date should be based on his submission.

Held:

1. The Applicant was required to give notice of his intention to make a claim against the state.
2. Section 57 of the Constitution does not grant the National Court the power to reduce sentence through the lens of enforcing a human right.
3. The Supreme Court has jurisdiction on an appeal or review against a decision on sentence.
4. The Application is refused.
   

Cases Cited

The following cases are cited.
Commander of Beon Correctional Institution and Independent State of Papua New Guinea v Katherine Mal (2022) SC2186
The State v Nimbituo (2020) SC1974
The State v Tamate & Ors (2021) SC2132

Legislation
Claims By and Against the State Act 1996

Counsel:
Plaintiff/Applicant, in person

JUDGMENT

23^rd October, 2023

1. CAREY J: Daniel Duale Wera (the Applicant) is a prisoner at Bomana Correctional Facility. He is serving a 30-year sentence for murder.
   
2. The Applicant asserts that he would be unreasonably and unlawfully detained due to a miscalculation on his due date of release.
   
3. In his submission he has stated that Section 155(4) of the Constitution gives the National Court authority in relation to Human Rights to review the decision of the National Court.
   
4. He has indicated that the time spent in custody was not deducted from his prison sentence.
   

WHETHER THE PROVISIONS OF S.5 OF THE CLAIMS BY AND AGAINST THE STATE ACT (CBASA) APPLIES TO APPLICATIONS OF CLAIMS FOR ENFORCEMENT OF HUMAN RIGHTS?

5. The Applicant has not complied with s. 5 (1) of the CBASA which state:
   

“No action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given in accordance with this Section by the claimant...”

6. Further, the Applicant has not complied with s. 2 (2) of the CBASA which indicate:
   

“The provisions of this Act apply to applications for the enforcement against the State of a right or freedom under Section 57 (Enforcement of guaranteed rights and freedoms) of the Constitution...”

7. In The State v Nimbituo (2020) SC1974, the majority comprising Hartshorn and Kariko JJ confirmed that “..various Supreme Court decisions have considered “claim” in s.5(1) Claims Act and stated that it includes application for enforcement and compensation for a breach of Constitutional rights under s.57 and s. 58 of the Constitution, and given that the National Court is bound by decisions of the Supreme Court, the question whether notice pursuant to s.5(1) Claims Act was required to have been given in this case should have been considered by the primary judge....”
   
8. Given the Supreme Court cases applied which bind this court, the provisions of s.5 of the CBASA having not been complied with renders this application incompetent.
   

WHETHER THE NATIONAL COURT LACKS JURISDICTION TO HEAR THIS MATTER?

9. As indicated in Commander of Beon Correctional Institution and Independent State of Papua New Guinea v Katherine Mal (2022) SC2186:
   

“Once, the National Court has come to a decision on a criminal case ultimately resulting in a conviction and the imposition of a sentence, the Court becomes functus officio. A different administrative quasi-judicial process then takes over.”

10. In the matter of The State v Tamate & Ors (2021) SC2132, it was confirmed that the National Court becomes functus officio once the sentence in a criminal case was given.
    
11. This in effect means that decisions of the National Court then become subject only to a review or appeals to the Supreme Court.
    
12. The National Court lacks jurisdiction to grant the request being sought in this application.
    
13. The Applicant ought to exhaust other avenues or remedies which are compliant with the law.
    
14. The Parole Board which is governed by the Parole Board Act would be an appropriate authority to raise the matter which would result in an early release.
    
15. It is important that when matters are brought before the National Court that an Applicant ensures proper legal advice to be able to afford him or herself the best chance of achieving the outcome he or she is seeking.
    

ORDERS OF THE COURT

1. The Applicant was required to give notice of his intention to make a claim against the state.
2. Section 57 of the Constitution does not grant the National Court the power to reduce sentence through the lens of enforcing a human right.

100. The Supreme Court has jurisdiction on an appeal or review against a decision on sentence.

4. The Application is refused.
   

Ordered accordingly.

________________________________________________________________
Daniel Duale Wera: Plaintiff/Applicant In Person