N10709
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

HRC NO 18 OF 2023

DANIEL DUALE WERA
Complainant

V

COMMISSIONER OF THE CORRECTIONAL SERVICE
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2024: 15th March, 3rd April

HUMAN RIGHTS – complaint by prisoner of unlawful detention: Constitution, s 42(5) – due date of eligibility for parole – Parole Act, s 17. 

CLAIMS BY AND AGAINST THE STATE ACT – whether a prisoner proposing to  make a complaint of unlawful detention under Constitution, s 42(5) must give notice of his intention to do so under s 5(1) of the Claims By and Against the State Act.  

The complainant is serving a 30-year sentence for murder. He complains under s42(5) of the Constitution that he is unlawfully detained in that he has been accorded an incorrect due date of eligibility for parole. He has been told he will be eligible for parole in 2028. He asserts that he is eligible for parole in 2024. The respondents argue that his complaint ought to be summarily dismissed because he did not give notice of his claim in accordance with s 5 of the Claims By and Against the State Act, and the complaint is an abuse of process as it should have been filed as a human rights application, and it has already been dismissed in an earlier case in the National Court.

Held:

(1)	A prisoner who complains about their due date of eligibility for parole is not required to give notice of their intention to make a complaint under s 5 of the Claims By and Against the State Act.

(2)	The subject of the previous National Court proceedings lodged by the complainant, which were dismissed, was his due date of release from custody, whereas in the present proceedings he is complaining about his due date of eligibility for parole. There was no abuse of process.

(3)	The complaint is compliant with s 42(5) of the Constitution and in a form provided for by the National Court Rules. 

(4)	The complainant was sentenced on 7 March 2018, prior to commencement of the 2018 amendments to the Parole Act. His parole eligibility is to be determined according to the statutory regime under the former provisions of the Parole Act. 

(5)	If a prisoner has a pre-sentence period of custody deducted from their head sentence, that period is regarded as a period of serving the sentence. 

(6)	The complaint is sustained in that it has been established that the terms of the complainant’s detention, by which he is regarded as having a parole eligibility date in 2028, are unlawful. He is eligible for parole on 24 May 2024.

(7)	Ordered that he be assisted forthwith in making an application for parole to the Parole Board. 

Cases Cited
Commander of Beon Correctional Institution v Mal (2022) SC2186  
Neri v Commissioner of the Correctional Service (2020) N8577
Nimbituo & Others v The State (2015) N6156
Nimbituo & Others v The State (2015) N7235
The State v Nimbituo & Others (2020) SC1974
The State v Tamate (2021) SC2132
Wera v Pokanis (2023) N1052
Yasause v Commissioner of the Correctional Service (2021) N9380

Counsel
D D Wera, the Complainant, in person
A Kajoka, for the Respondents

3rd April 2024

1.     CANNINGS J: Daniel Duale Wera is a prisoner at Bomana Correctional Institution, serving a 30-year sentence for murder, imposed by the National Court at Waigani on 7 March 2018. He complains under s 42(5) of the Constitution that he is unlawfully detained in that he has been accorded an incorrect due date of eligibility for parole. He has been told he will be eligible for parole in 2028. He asserts that he is eligible for parole in 2024. 

2.     The respondents argue that his complaint ought to be summarily dismissed because he did not give notice of his claim in accordance with s 5 of the Claims By and Against the State Act, and the complaint is an abuse of process as it should have been filed as a human rights application, and it has already been dismissed in an earlier case in the National Court.

THE SENTENCE

3.     The details of the complainant’s sentence are reflected in the warrant of commitment, which is expressed in these terms:

Length of sentence 	30 years imprisonment	
Length of period deducted	3 years, 9 months, 1 week, 4 days (custody period)	
Length of sentence suspended	Nil	
Length of sentence to be served	26 years, 2 months, 2 weeks, 3 days	

SHOULD THE COMPLAINT BE SUMMARILY DISMISSED?

4.     No. This is a simple complaint by a prisoner that he has been given an incorrect parole eligibility date. He is not making a “claim” against the State. He is not seeking damages. 

5.     There are comments in two Supreme Court decisions that appear at first glance to support an approach that would require prisoners who propose to enforce their human rights to give notice of their intention to make a claim against the State under s 5 of the Claims By and Against the State Act. 

6.     In The State v Nimbituo & Others (2020) SC1974 a majority of the three-Judge bench (Hartshorn J and Kariko J, Kirriwom J refraining from deciding the point) indicated through obiter dicta that for a detainee to be awarded damages for a breach of human rights, notice of a claim would have to be given under s 5 of the Act. In Commander of Beon Correctional Institution v Mal (2022) SC2186 the majority of the three-Judge bench (Kandakasi DCJ and Anis J, Makail J not expressing an opinion on this point) held that a prisoner intending to make an application for early release as an enforcement of human rights must give notice of the claim under s 5 of the Act.

7.     The present case must be distinguished from both those cases. 

8.      Nimbituo was a case in which the five respondents’ action in the National Court was for enforcement of their human rights to a fair trial within a reasonable time in view of their six-year period in custody awaiting finalisation of their trial. The National Court (I was the trial judge) declared that their human rights were breached and ordered that they be released from custody pending the result of their trial (Nimbituo & Others v The State (2015) N6156). I later awarded the respondents damages for breach of their human rights (Nimbituo & Others v The State (2015) N7235). It was from the order for damages that the Supreme Court appeal was made, which resulted in the decision in The State v Nimbituo & Others (2020) SC1974. There are three aspects of that decision that make it inapplicable to the present case. First, it was an application for enforcement of human rights under s 57 of the Constitution, not a complaint, like the present case, of unlawful detention. Secondly, the National Court decision involved an award of damages, whereas the present case involves no claim for damages. Thirdly, the opinion of the majority was obiter, and not binding on the National Court. 

9.     As for Mal, this was an appeal by the State against the order of the National Court (again I was the trial judge) that the respondent, Kathrine Mal, a prisoner with a life-threatening diabetic condition be accorded early release as an enforcement of human rights. The appeal succeeded and the Supreme Court quashed the order for early release and ordered that the respondent be recommitted to custody. This case is also to be distinguished from the present case as it was an application for enforcement of human rights under s 57 of the Constitution, not a complaint, like the present case, of unlawful detention. 

10.      I reiterate, the matter before me is a complaint of unlawful detention lodged under s 42(5) of the Constitution, which 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.

11.    Calculation of a prisoner’s date of eligibility for parole is a matter of law, to be calculated by examining the warrant of commitment and interpreting and applying provisions of the Parole Act. It is a matter falling within the jurisdiction of the National Court under s 42(5) of the Constitution as a complaint of unlawful detention. It is not a claim against the State, so no notice of the intention to make the complaint has to be given under s 5 of the Claims By and Against the State Act.

12.     The other ground on which the respondents argue that this complaint should be summarily dismissed is that it is an abuse of process. It is argued, first, that the complainant should have filed his complaint as a human rights application. It is correct that he could have filed an application for enforcement of human rights, using form 124 of the National Court Rules, but it is not correct to say that that is the only way he could have brought his complaint to court. It is equally acceptable for a prisoner to bring their concern about the legality of the terms and conditions of their detention by a complaint of unlawful or unreasonable detention, using form 125 of the National Court Rules. 

13.     The respondents’ second argument is that the complainant recently had a similar complaint refused in a separate case and that he is abusing the processes of the court by, without appealing against the decision in his earlier case, coming back to the National Court to have a second bite at the cherry. 

14.     The earlier case is Wera v Pokanis (2023) N1052 in which the complainant made an application for enforcement of human rights regarding calculation of his due date of release from custody. Carey J dismissed the application as incompetent due to the failure to give notice to the State under s 5 of the Claims By and Against the State Act. His Honour also determined that the National Court had no jurisdiction, relying on the Supreme Court decision in The State v Tamate (2021) SC2132.

15.     I am not bound, sitting as a judge of the National Court, by any other National Court decision, and I feel no inclination to agree with Carey J’s assessment of s 57 of the Constitution. Suffice to say, it was an application for enforcement of human rights under s 57 of the Constitution. It was not a complaint of unlawful detention under s 42(5) of the Constitution. Also,  the subject matter case was the complainant’s due date of release from custody, not his date of eligibility for parole. Those two matters are related, but they are different dates and different matters. The complainant is not reagitating his application for enforcement of human rights. He is making a new and separate complaint and it is not about his due date of release from custody. There is no abuse of process.

16.    Quite the contrary. The complainant is doing what he is encouraged and entitled to do by the Constitution and by the Judges, who have made the ‘Human Rights Rules’ as Order 23 of the National Court Rules. He has filled out the right form, he has lodged it in the registry and I as a judge of the National Court am inquiring into his complaint as I am required to do under s 42(5) of the Constitution.

17.     Why the respondents would want to have this simple and straightforward but important constitutional process labelled an abuse of process is beyond me. 

WHAT IS THE DATE OF ELIGIBILITY FOR PAROLE?

18.     In determining the date of eligibility for parole I take the same approach I took in Neri v Commissioner of the Correctional Service (2020) N8577 and Yasause v Commissioner of the Correctional Service (2021) N9380. The starting point is the date of sentence. If it is before 28 November 2018, parole eligibility is determined under the former s 17(1)(b) (eligibility for parole) of the Parole Act, prior to its amendment by the Parole (Amendment) Act No 13 of 2018. The former s 17(1)(b) stated:

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.

19.     If the date of sentence is on or after 28 November 2018, parole eligibility is determined under the new s 17(1) of the Parole Act, which states:

Subject to this Act and unless otherwise determined by an order of the Court, a detainee who has been sentenced to a term of imprisonment of five years or more and has served not less than half of the sentence is eligible for parole.

20.    The reason 28 November 2018 is the critical date is that it is the date of commencement of operation of the Parole (Amendment) Act No 13 of 2018. That Act 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. 

21.    The Parole (Amendment) Act No 13 of 2018 is not expressed to have retrospective operation, so the amendments to parole eligibility it made – making prisoners spend more time in custody before becoming eligible for parole – cannot apply to prisoners sentenced before the date of commencement of the Act.

22.    The complainant’s date of sentence is 7 March 2018, prior to commencement of the 2018 amendments. This means the complainant is eligible for parole after serving one third of his sentence of 30 years, ie 10 years of the sentence. 

23.    The pre-sentence period in custody of 3 years, 9 months, 1 week, 4 days is regarded as part of the period of serving the sentence (The State v Yomba (2022) SC2274).  The balance of the 10 years to be served after the date of sentence, before reaching the parole eligibility date, is 6 years, 2 months, 2 weeks and 3 days. Thus 7 March 2018 +  6 years, 2 months, 2 weeks and 3 days = 24 May 2024. 

24.    The date of eligibility for parole is 24 May 2024. 

CONCLUSION

25.    The complaint is sustained in that it has been established that the terms of the complainant’s detention, by which he is regarded as having a parole eligibility date in 2028, are unlawful. 

26.    This means that under s 42(5)(b) of the Constitution I am obliged to order the complainant’s “release either unconditionally or subject to such conditions as the Court or a Judge thinks fit”. 

27.     I will order that the complainant be released from custody in accordance with any decision by the Parole Board that he be granted parole and in the event that he is not granted parole, in accordance with his due date of release as calculated by taking due account of the period of remission as determined under s 120 of the Correctional Service Act and the decision of the Supreme Court in The State v Yomba (2022) SC2274. 

ORDER

(1)	The complaint is sustained, in that it is declared that the complainant is being detained with an incorrect due date of eligibility for parole in 2028.

(2)	The complainant shall be released from custody in accordance with any decision by the Parole Board that he be granted parole and in the event that he is not granted parole, in accordance with his due date of release as calculated by taking due account of the period of remission as determined under s 120 of the Correctional Service Act and the decision of the Supreme Court in The State v Yomba (2022) SC2274. 

(3)	The complainant’s parole eligibility date is 24 May 2024.

(4)	The commanding officer, Bomana Correctional Institution, shall ensure that by 15 April 2024:

(a)	sealed copies of this order and judgment are placed on the complainant’s Correctional Service file; and
(b)	the complainant’s Correctional Service file and all other relevant files and records are amended to show that the due date of eligibility for parole is as shown in this order;
(c)	there is provided to the Parole Board the particulars and assessment report required by ss 18(2) and 20(2) of the Parole Act, together with any other documents or information required by the Parole Board to enable the expeditious hearing and determination of a parole application by the complainant.

(5)	The matter shall be called on 16 April 2024 at 1.30 pm to check compliance with this order.

__________________________________________________________________
Solicitor-General: Lawyers for the Respondents