Hai v Commissioner of the Correctional Service [2024] PGNC 182; N10849 (20 June 2024)

-N10849

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRA NO 11 OF 2024

WANG HAI
Applicant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 14^th & 20^th June

HUMAN RIGHTS – right to full protection of the law, Constitution, s 37(1) – right to fair trial within reasonable time, Constitution, s 37(3) – expectation of commencement of trial within four months after committal, Constitution, s 37(14) – applicant remanded in custody for 25 months after arrest without being given a date of trial – in custody 15 months after committal – whether breach of human rights.

The applicant was arrested and detained on 11 May 2022 and charged with one count of murder. He was remanded in custody for almost ten months before being committed for trial. He has remained in custody for a further 15 months after the date of committal and no date for his trial has been set. He applied for enforcement of his right to a trial within a reasonable time and seeks an order to get his trial progressed or an order granting him bail.

Held:

(1) The applicant’s rights to the full protection of the law under s 37(1) of the Constitution have been infringed, in that he has not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution and his trial has not been commenced in a reasonable time after the date of committal for trial contrary to s 37(14) of the Constitution and he has been detained on remand for an unreasonable length of time (25 months) without trial and without being given a date of trial, contrary to s 42 of the Constitution.

(2) It was necessary and desirable to make declarations and orders under s 57(3) of the Constitution to protect and enforce the human rights of the applicant: declaration of breach of human rights made and orders made to ensure that the applicant’s criminal case is given priority.

Case Cited

The following cases are cited in the judgment.

Dina v The State (2024) N10639
Kissi v The State (2023) N10479

Counsel

S Kuli, for the Applicant

20^th June 2024

1. CANNINGS J: The applicant Wang Hai was arrested and detained on 11 May 2022 and charged with one count of murder. He was remanded in custody for almost ten months before being committed for trial on 8 March 2023. A file for his matter has been opened in the registry of the National Court at Waigani, as CR 414 of 2023. He has remained in custody for a further 15 months after the date of committal and no date for his trial has been set. He applied for enforcement of his right to a trial within a reasonable time and an order to get his trial progressed or an order granting him bail.

HUMAN RIGHTS

2. All persons in Papua New Guinea who are charged with a criminal offence have a bundle of human rights to which they are entitled. Those rights are entrenched in Division III.3 (Basic Rights) of the Constitution and enforceable in the National Court and the Supreme Court. They are found largely in s 37 (protection of the law), and in particular in three subsections of s 37, ss 37(1), 37(3) and s 37(14), that are relevant in this case.

3. 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.

4. Section 37(3) states:

A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

5. Section 37(14) states:

In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.

6. I find that the applicant’s human rights have already been infringed. His right to the full protection of the law under s 37(1) of the Constitution has been infringed, in that:

• he has not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution; and
  
• his trial has not been commenced in a reasonable time after the date of committal for trial contrary to s 37(14) of the Constitution.
  

ORDER

7. I will make declarations and orders, like those made in the recent cases of Kissi v The State (2023) N10479 (a man was remanded in custody for almost five years without being given a trial date) and Dina v The State (2024) N10639 (a man was remanded in custody for three years without being given a trial date) to ensure that the applicant’s criminal case is expedited. The delays in the present case are not as extensive as those in Kissi or Dina, but are nonetheless significant and amount to infringement of the applicant’s human rights.

8. These declarations and orders are made under s 57(3) of the Constitution to enforce the rights of the applicant under Division III.3 (Basic Rights) of the Constitution.

1. It is declared that the applicant’s rights to the full protection of the law under s 37(1) of the Constitution have been infringed, in that:
   
   • (a) he has not been afforded a fair hearing within a reasonable time, contrary to s 37(3) of the Constitution; and
     
   • (b) his trial has not been commenced in a reasonable time after the date of committal for trial (8 March 2023), contrary to s 37(14) of the Constitution.
     
2. The track leader, Crimes General, National Court, Waigani, shall by 24 June 2024:
   
   • (a) serve on the Office of Public Prosecutor and Office of Public Solicitor a sealed copy of this order and a copy of the judgment of this Court in HRA 11 of 2024, dated 20 June 2024;
     
   • (b) ensure that each of the Office of Public Prosecutor and Office of Public Solicitor have copies of the depositions from the applicant’s criminal file, CR 414 of 2023, and if either of those offices do not have the depositions, provide the depositions forthwith;
     
   • (c) place a sealed copy of this order and a copy of the judgment of this Court in HRA 11 of 2024, dated 20 June 2024 in the file of CR 414 of 2023.
     
3. The Public Prosecutor shall forthwith assign a prosecutor in his office to take carriage of CR 414 of 2023.
   
4. The Public Solicitor shall forthwith assign a lawyer in his office to interview the applicant to ascertain whether the applicant wishes to be represented by the Public Solicitor in CR 414 of 2023.
   
5. These proceedings, HRA 11 of 2024, shall be called for mention on 3 July 2024 at 9.30 am before Cannings J so that:
   
   • (a) the prosecutor assigned to take carriage of CR 414 of 2023 or another prosecutor on their behalf shall appear and notify the Court what steps are being taken to accord CR 414 of 2023 priority and whether there are any criminal proceedings other than CR 414 of 2023 involving the applicant that are pending; and
     
   • (b) the lawyer from the Office of Public Solicitor assigned to CR 414 of 2023 or another lawyer on their behalf will notify the Court whether the public Solicitor is acting for the applicant in CR 414 of 2023; and
     
   • (c) requests will be made by the Court to ensure that CR 414 of 2023 is immediately brought to the attention of the Judge Administrator, Crimes General track at the National Court at Waigani, so that it can be given appropriate priority.

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Public Solicitor: Lawyer for the Applicant