Police v Tindil [2021] PGDC 134; DC6097 (19 May 2021)

DC6097

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE CRIMINAL/COMMITTAL JURISDICTION COM: 164-172/2021 CB NO: BETWEEN:

THE POLICE

(Informant)

-VS-

SAM MUH TINDIL

(Accused/Defendant)

WABAG: L SANI

2021: 19TH MAY

COMMITTAL PROCEEDI NGS

INTRODUCTION

Background - Due to seriousness of bringing a person for trial before a Judge in the higher court, the Law requires that a preliminary examination be conducted by a Committal Magistrate to assess the strength of the allegation that the accused person did commit an indictable offence.

The Primary Objective of the Committal Proceeding - is to determine whether there is Sufficient Evidence to warrant the person accused of the indictable offence to be sent to trial in the National Court. This proceeding is conducted in accordance with the procedures outlined under section 95 & 96 of the District Court Act, Ch. 40.¹

Cases cited:

R -v- McEachern (1967-1968) PNGLR 48

Legislation

Cybercrime Code Act, No. 35 of 2016

District Court Act, Ch. No. 40

PNG Criminal Code Act, Ch. No. 262

Evidence Act, Ch. No. 48

PNG Constitutional Law

References

Hill E R Powles G; Magistrate's Manual of Papua New Guinea, Lawbook Co. (2001) Sydney NSW

2009; Nature and purpose of Committal Proceedings, at pg. 193

1. My own emphasis - Magistrate's Manual of Papua New Guinea, Hill ER Powles G law book co.2001, Sydney NSW at pg. 193

Counsel

Senior Constable Jonathan Nefoti

Leslie Mamu of Public Solicitors, Wabag

- For the Public Prosecution

• - For the Defendant

19th May, 2021

DECISION ON MY RULING ON PROSECUTION EVIDENCE

L SANI - Committal Magistrate

2.1 In this instance, the case arose out of information laid by Police Detective Sergeant Edward Tagone attached to CID Section of Wabag Police Station Headquarters in Enga Province, Papua New Guinea.

2.2 The accused is SAM MUH TINDIL aged 28 years of lmbilik village, Kompiam District, Enga Province. He is charged on 9 counts of Publishing Defamatory Information thereby contravening section 21(2) of the PNG Cybercrime Code Act, No. 35 of 2016.

BRIEF FACTS

3. (a) The complainant is the Honorable Governor for Enga Province Grand Chief Sir Peter lpatas.

It is alleged that on or between the 8^th of September and the 17^th of October, 2020, the accused created and used a fake Facebook Account registered under the name of "Grace Wabiro" through his Digicel mobile number-79354744.The accused published defamatory remarks towards the complainant and posted in the "Enga Politics Page" using Enga, pidgin and English languages.

(b) It is further alleged that the publicity was done intentionally without lawful justificati on causing great distress which were injurious towards the Governor's reputation, integrity character,

tarnishing his undeniable leadership in Enga Province and Papua New Guinea.

LAW

4. CHARGE: DEFAMATORY PUBLICATION - Section 21 (2) of PNG Cybercrime Code Act, No. 35 of

2016.

(2) A person who intentionally and without lawful excuse or justification or in excess of it recklessly uses an electronic system or device 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 term of imprisonment not exceeding 15 years or both; and

(b) In the case of a body corporate, a fine not exceeding K100, 000.00

ELEMENTS OF THE CHARGE

(a) A PERSON
(b) TIME
(c) DATE

(d) PLACE

(e) DID PUBLISH DEFAMATORY INFORMATION USING ELECTRONIC DEVICE

(f) WITH INTENT WITHOUT LAWFUL JUSTIFICATION AND EXCUSE

(g) CONCERNING ANOTHER PERSON

ASSESSMENT & ANALYSIS OF PROSECUTION EVIDENCE

(a) A PERSON

4. The accused is the person identified by 3 eye-witnesses; 1) Sir Peter lpatas saw the Defamatory Publication against him in social media 'Enga Politics Page' in the Facebook. 2) Detective S/C Uson Salle, IT Specialist & OIC Cybercrime unit based in Port Moresby who conducted the search and identified the user as the accused. 3) Mr. Michael Henau - Head of Legal & Regulatory Division of

Digicel Headquarters in Port Moresby who tracked down the accused through his mb registration details.

(b-d) DATE, TIME & PLACE

5. That it was between gth of September & 17th of October, 2020 at 9:00 am in his home in Port Moresby first and Wabag. More than two (2) witnesses confirm these evidences.
   

(e) DID PUBLISH DEFAMATORY WORDS USING ELECTRONIC DEVICE

6. The 9 pages documentary evidence, Pages 1-9 of the H.U.B are the remarks published by the accused towards the complainant. The accused used the account Grace Wabiro in his Digicel mobile number; 79354744 in 'FB ENGA POLITICS PAGE'. The words he published were, i.e. "lpatas ak Auuulaoo konjeroalen Sik Aids am yap kuma meaning IPATAS DIE QUICKLY WITH AIDS AND I WILL CELEBRATE AND CUT HIS BODY" This information is supported and confirmed and filed by the two eye-witnesses whom are experts whose names mentioned above compiled the evidence after tracking the information in the electronic device.
   

(/) INTENTIONAL! Y WITHOUT LAWFUL JUSTIFICATION OR EXCUSE

7. The facts as stated by the complainant did nothing to provoke the accused personally in any way. The remarks made were personal to the accused as it shows he was participating in a public forum however, where any Act, ii f done without a Lawful excuse or lawful cause is an offence, the burden of proof that the ACT was done with lawful excuse or lawful cause, as the case may be, is on the person charged with the offence.
   

8 Section 24 of the PNG Criminal Code Act, Ch. 262 states² that motive by which a person is induced to do or omit to do the act, or to form an intention is immaterial as far as criminal responsibility is concerned and is declared by law. According to the facts the remarks were freely expressed out of free-will and not by accident. The fact that the "ENGA POLITICS PAGE" was a public forum he published the remarks out of his own free-will and he participated without prior approval or being authorized by law.

The evidence also revealed his participation in another forum namely: 'Kompiam Amburn District, PNG Anti-corruption movement' reveal his intentions and further induced others causing them to post their reactions and their likes to his remarks. There is enough evidence to support this element.

2 Selected Laws of Papua New Guinea, at pg.481-Section 24 Intention: Motive, PNG Criminal Code Act, Ch. 262

{g) CONCERNING ANOTHER PERSON

9 Facts indicate that the complainant and the person aggrieved is the Honorable Governor for the Enga Province who's the victim of the most grievous kind of publicity in the 'social media FB Enga Politics Page'. The complainant with the two (2) expert witnesses and the documental evidence contained in the H.U.B confirm and support this element of the charge.

DOCUMENTARY EVIDENCE

10. The Police Hand Up Brief (HUB) includes print out of 9 pages containing words published in "Social Media Facebook -ENGA POLITICS PAGE".
11. Witnesses' certified statements
12. English Version of the Record of Interview (ROI)
13. Section 37 & 42 of the Constitution administered before interview began³ COURT RULING ON NOCASE SUBMISSION
14. Defence has only one point of argument - Counsel submitted that, his client did not have many names as shown by Police and is not the natural person who created the account name 'GRACE WABIRO'. He further submitted that the Prosecution did not provide sufficient evidence to show the link, snap shot or printout to show that the accused used the link to publish post to defame the complainant.
    15. He did not dispute the mobile number 79354755 belong to Samuel Mauwa birth name of Sam Muh Tindil.
        
16. ISSUE: Whether the accused Sam Muh Tindil or Samuel Mauwa is the same person who operated the Fake FB account namely: "Grace Wabiro"?
    
17. ISSUE: Whether there is sufficient evidence to support all the elements of the charge and establish a Prima-facie case against the defendant/accused to stand trial in the National Court?

I will deal with the first issue and deal with the 2nd later -

18. Prosecutions Rebuttal -The evidence clearly reveals the accused as Sam Muh Tindil who's the owner of the mobile phone number: 79354755. The documental evidence provided by the two (2) expert witnesses from their findings support the identity of the accused as the PERSON who used the Fake FB account was connected to the number.
    
19. Prosecution further submitted that the accused in the ROI confirmed his real name at QlO, 12, 31,21,22 & 23, as Samuel Mauwa & his full name as Sam Muh Tindi. In Q17 he confirms his mb number as 79354755 and this no is linked or connected to the FB account named as 'Grace Wabiro.'
    

RULING

20. I concur with Prosecution that accused is Sam Muh,by his birth name Samuel Mauwa created FB Account which is linked to a Fake FB account named as 'Grace Wabiro'. The prosecution provided Intel Report showing the accused's personal detail with his photograph therefore I over rule the defense NOCASE SUBMISSION due lack of strength to show cause.
    

3 PNG Constitution; Section 37 & 42

COURT FINDINGS

21 Prosecution evidence containing both written and oral statements of the witnesses are reliable. Other material and documental evidence have all been analyzed and tested to my satisfaction.

There is more than enough evidence to support all the elements of the charge.

22. The offence under the PNG Cybercrime Code Act, carries strict liability, where defendant's motive to do the ACT complained of and whether he had the intention under section 24 of the PNG Criminal Code the Prosecution must prove that the defendant is criminally liable and whether or not he had a lawful excuse or justification, the burden is on the accused and for the trial court to determine.
    

CONCLUSION - RULING ON PROSECUTION EVIDENCE

ISSUE: Whether there is sufficient evidence to establish a Prima-facie case against the accused to answer in the National Court?

23. Finally, the test is whether in the court's opinion in good faith there is "SUFFICIENT EVIDENCE TO ESTABLISH A PRIMA-FACIE CASE ³ against the accused/defendant to answer in the National Court?
24. Based on the foregoing Assessment and Analysis of the Prosecution Evidence whilst administering Section 95 of the District Court Act, Ch. No. 40,⁴ I find in my opinion, there is "SUFFICIENT EVIDENCE TO SUPPORT ALL THE ELEMENTS OF THE CHARGE AND ESTABLISH A PRIMA-FACIE CASE AGAINST THE DEFENDANT TO ANSWER IN THE NATIONAL COURT.⁵
    

Section 96 Whether the defendant desires to give evidence?

25. At this juncture court shall explain its nature in the following manner; ‘'You have heard the ruling on the Prosecution evidence, do you wish to something to the court on your own behalf, or say anything in answer to the charge, if you wish to then anything you say on oath will be written down and given to the National Court as your evidence on your trial". ⁶ What he said is as follows:
    
26. I quote; "I'm a young man and the Governor is too big. Governor is everything to me and my family. For the past 7 months I have been in Police custody, I have been punished for something I have never done and never think of it too. He was in Port Moresby when he saw it and I was at home and I am not the person behind the that account. God is watching and I am happy about the ruling" End quote.

3 Sections 37 & 42 of the PNG Constitution

4 RE: R. -V-McEachern (1967-1968) PNGLR 48

5. supra. The court to form a bona fide opinion on the sufficiency of ha Prosecution evidence
   
6. My own emphasis - Court Ruling on Prosecution Evidence; Section 95 of District Court Act, Ch. No. 40
   
7. Administration of Section 96 of the District Court Act, Ch. No. 40

6

27 I now make the following Court Orders:

1. Defendant has a case to answer in the National Court for the 9 counts of Publishing Defamatory Information contrary to section 21 (2) of the Cybercrime Code Act, No. 35 of 2016, and
   2. Defendant is committed to the National Court to stand trial, and

100. Case is transferred to the National Court Registrar in Wabag for call-over at a date and ti"'e convenient to the National Court and set by the Registrar.

4. Defendant is remanded in CS custody in Baisu Western Highlands Province, and
5. Remand Warrant is issued forthwith.
   

Senior Constable Jonathan Nefoti- for the Police Prosecution

Leslie M amu of Public Solicitor's Office Wabag, EP- for the Defendant

1. Magistrate's Manual of Papua New Guinea by HILL ER & POWLES G; LAWBOOK C0{2001) SYDNEY, NSW 2009-My own emphasis.
   
2. Section 24 Intention: Motive Selected Laws of Papua New Guinea; PNG Criminal Code Act, Ch. 262 at page 481.
   
3. Section 37 & 42 of !tie PNG Constitution administration in the ROI
   4. R v McEachern {1967-1968) PNGLR 48.
      
5. Supra; Court to make a bona fide opinion on the sufficiency of the Prosecution Evidence.
   
6. Court to consider whether Prlma-facie case Is made out by Prosecution; Section 95 of the District Court Act, Ch.No. 40.
   
7. Accused to be asked whether he desires to give evidence; Section 96 of the District Court Act, Ch. No. 40