Police v Pyao [2020] PGDC 55; DC5045 (17 December 2020)

DC5045

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

Comm. No 19 of 2020
BETWEEN

THE POLICE
Informant

AND

RICHARD KYAKAO PYAO
Defendant

Waigani: S Tanei

2020: 17^th of December
      

COMMITTAL PROCEEDINGS - Charge- One Count of Defamatory Publication contrary to section 21 (2)(a) of the Cyber Crime Code Act– Is the Police Evidence sufficient and prima facie sufficient to commit the Defendant to stand trial at the National Court.

COMMITTAL PROCEEDINGS – Legal requirements for prima facie case – No Presence of the elements of the charge of Abuse of Information Communication Services – Evidence is insufficient to commit the Defendant to stand trial in the National Court.

Cases Cited

Akia –v- Francis[2016 ] PNGC 335; N6555
Yarume v Euga [1996] PNGNC 24; N1476

References

Legislation

Criminal Code Act
District Courts Act

Counsel

Sergeant Polon Koniu, for the Informant

Ms. Marum, E, for the Defendant

RULING ON SUFFICIENCY OF EVIDENCE

17^th December 2020

S Tanei: This is a ruling on whether there is sufficient evidence in a Police Hand up Brief to commit the Defendant to stand trial at the National Court pursuant to section 95 (1) of the District Courts Act.

CHARGE:

2. The Defendant is charged with one count of Defamatory Publication under section 21 (2) (a) of the Cyber Crime Code Act 2016.

FACTS:

3. Police say that between 5^th July 2019 and 4^th November 2019 the Defendant used the Digicel PNG Telecommunications network to publish a false and wilfully misleading report on a cell phone accusing the Complainant, Mr. Tom Amaiu of stealing K 6.8 million belonging to the Koekam people of Enga. They say that this was done with intent to defame and injure the character of Mr. Tom Amaiu as a Director of Element Resources PNG Limited.

ISSUES:

7. The Court is faced with the issue of whether there is sufficient evidence in the Police Hand Up Brief to commit the Defendant to stand trial at the National Court.

THE LAW

8. The law on Committal Proceedings is found in sections 94 to 100 of the District Courts Act.

9. I am empowered under section 95 (1) of the District Courts Act to weigh the evidence and decide on its sufficiency to commit to trial.

11. The cases of Akia –v- Francis[2016] PNGC 335; N6555 and Yarume v Euga [1996] PNGNC 24; N1476 laid down the principles and held that the Committal Court’s power is to weigh out the evidence that is presented by the Police through a Hand Up Brief and see if the evidence meets all the elements of the offence or charge. If there is sufficient evidence, the Defendant will be committed to Stand Trial at the National Court. If there is insufficient evidence, the Defendant will be discharged.

12. The Defendant was charged with one count of Defamatory Publication under section 21(2) (a) of the Cyber Crime Code Act.

13. Section 21 (2)(a) of the Cyber Crime Code Act provides that;

“21.Defamatory publication.

(2) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, or recklessly, uses an electronic system or device to publish defamatory material concerning another person, is guilty of a crime.
Penalty:

(a) In the case of a natural person, a fine not exceeding K25,000.00 or a term of imprisonment not exceeding 15 years, or both; and
14. I am not able to locate any reported case law that deals with the elements of this offence. However, from my reading of the law, the following elements must be satisfied by the evidence in the Police Hand Up Brief;

• A person
• Who intentionally and without lawful excuse or justification
• Recklessly uses an electronic system or device
• To Publish Defamatory material against another person
  

15. Section 21(1) of the Cyber Crime Code Act 2016 defines Publication and Defamation. It provides that;

(1)For the purposes of this Section —

"publication" means using an electronic system or device to make publicly available defamatory material to persons other than the defamed person and includes electronic writings, images, audio, visual or audiovisual recordings;

"defamatory material" means an imputation, whether directly expressed or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with the intention of —

(i)injuring the reputation of that person; or

(ii)injuring the profession or trade of that person; or

(iii)inducing other people to shun, avoid, ridicule or despise that person.”

Defendants’ Submissions

16. The Defendant through Ms. Marum of the Public Solicitor’s Office submitted that all the state witnesses gave evidence of what the Defendant has said at a gathering at Koekam in Enga Province, which youths were involved in the issue of the Complainant taking part in the extracting of Gold from the Defendant’s company’s area. None of the Statements in the Police Hand Up Brief satisfies the elements of the offence.

Prosecution’s Submissions

17. The Prosecution did not file any submission nor did they make any submission in Court. They opted to rely on the Police Hand Up Brief.

POLICE HAND UP BRIEF

18. The Police Evidence in the Hand Up Brief consisted of the following;

1. Witness Statements
   
   1. Thomas Amaiu
      

This witness is the complainant in the proceeding and the person who alleges that his character was defamed by the Defendant and his life was threatened by the Defendant’s use of a Telecommunications network.

He states that he was a two term former politician and a businessman. He is a director of Element Resources PNG Limited. His company has an understanding with a landowner company namely Koekam PM Holdings wherein they conduct alluvial mining.

He stated that the Defendant made certain complaints and allegations against him in relation to stealing of gold worth K 6.8 Million.

He states that he received two text messages on his mobile phone from a phone number 79158958 (hand written in his Statement). He states that the text message warned him about some gold that he had in his possession.

He reported this to the Police.

2. Samuel Yongamakali
   

This witness is the Deputy Chairman of Koekam PM Holdings. He states that their company had license issues and investors pulled back their support. He stated that the Defendant instigated criminal acts and encouraged local youths to take up arms against the investors. He also stated that the Defendant publicly announced that Tom Amaiu stole K 6.8 million worth of gold from them.

100. Bill Kolean
     

He is a Director of Koekam PM Holdings Limited. He also stated that the Defendant encouraged youths to take up arms against their investors and promoted violence. He also stated that the Defendant publicly announced that Tom Amaiu had stolen K 6.8 Million worth of gold from them.

4. Nanokali Panyo
   

This witness is also a Director of Koekam PM Holdings and a Village Chief. He also stated that the Defendant encouraged village youths to take up arms against the investor. He also stated that the Defendant announced publicly that the Complainant Tom Amaiu stole K 6.8 million from them.

5. Rex Neapukali
   

This witness is a Public Relations Officer with Elements Resources Limited. He stated that his company was involved with Koekam PM Holdings in alluvial mining. He says due to license issues the company could not continue alluvial mining but leave with the investors. He states that he later learned that the Defendant made accusations against Element Resources Limited in that Element Resources Limited stole K 6.8 million worth of gold.

2. Exhibits
   1. Company Extract of Koekam PM Holdings Limited dated 18^th September 2019
   2. Koekam PM Holdings Limited Board of Directors Meeting Minutes of 19^th February 2020.
   100. Newspaper Publication (Undated and unverified Publisher) publishing appointment of Samuel Yogamakali as Chairman of Koekam PM Holdings Ltd
   4. Operations Message Card dated 1^st December 2019
   5. Antecedent Report
      

Analysis of Police Hand Up Brief

19. In order for the Court to safely commit the Defendant to stand trial at the National Court for the offence of Defamatory Publication under section 21 (2) (a) of the Cyber Crime Code Act 2016, the evidence must satisfy the elements of the offence and these are;

1. There must be a person – The Police evidence must be able to identify the Defendant as the person who Published Defamatory remarks against the Complainant.
   
2. There must be an intention on the part of the Defendant and there must not be any lawful excuse for the Defendant to make that publication – The Police evidence must show that the Defendant had no lawful excuse to post or publish the Defamatory remarks against the Defendant and the evidence must show that he intended to defame the Complainant.
   

100. The Defendant must use an electronic system or device– The Police evidence must show that the Defendant used an electronic device to make that publication against the Complainant or victim.
     
     4. There must be a publication – The Police evidence must show that there was actual publication of the alleged defamatory remarks.
        

FINDINGS

20. I have carefully considered the Police Hand Up Brief and have found that the evidence does not meet the elements of the offence of Defamatory Publication under section 21 (2)(a) of the Cyber Crime Code Act 2016.

22. Firstly, the evidence does not identify the Defendant as the person who made defamatory remarks using an electronic system or device.

23. Secondly, nowhere in the evidence does it lead the Court to see if there is usage of an electronic system or device. There was an attempt to include a purported mobile phone number in the Statement of Thomas Amaiu. However, there is nothing that goes to prove that the number belongs to the Defendant. There was no confirmation from any Telecommunications service provider that the purported phone number belongs to the Defendant.

24. Thirdly, the evidence failed to show a publication that relates to the charge against the Defendant. There is nothing in the evidence that shows the purported defamatory publication. Despite stating that the Defendant publicly defamed the Complainant/victim, all the witnesses failed to point out that those remarks were published using an electronic system or device.

25. In addition, I note that there is no Record of Interview in this Police Hand Up Brief. A Record of Interview in a very important component of a Police Hand Up Brief. It captures the statement of the Defendant against the Evidence by the Police. It also forms the basis for the Defendant’s Defence or a Confession or admission of guilt. It is a very vital component of the Criminal Process in Court. However, this important piece of the Police file was omitted.

CONCLUSION

29. After due consideration and examination of the evidence in the Police Hand Up Brief, I am not satisfied that all the elements of the offence of Defamatory Publication under section 21(2)(a) of the Cyber Crime Code Act are covered by the evidence.

COURT ORDERS

31. The formal Order of this Court is that;

1. There is insufficient evidence to commit the Defendant to trial.
2. The Information bearing the Charge of Defamatory Publication under section 21 (2) (a) of the Cyber Crime Code Act 2016 against the Defendant is dismissed.
3. The Defendant is discharged accordingly.
4. The Defendant’s Bail money is to be refunded forthwith.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Defendant: Public Solicitor of Papua New Guinea