Police v Kua [2021] PGDC 136; DC6095 (22 September 2021)

DC6095
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

NCC NO 1178 OF 2020
CB NO 3488 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:
JOHN ENDEMONGO KUA
[Defendant]

Waigani: Paul Puri Nii

22^nd September 2021

COMMITTAL PROCEEDINGS: Charge- Cyber Harassment -Section 21 (2) - of the PNG Cyber Crime Act, Chapter No. 262. Presentation of Committal jurisdiction to establish evidence in the Police Hand-up-brief.

PRACTICE AND PROCEDURE: Permitted Ability for prima facie Case-Elements of the charge of Cyber Harassment – Elements are Established-Evidence is fitting to commit the Defendant for the charge to stand trial in the National Court. Defendant is committed.

PNG Cases cited:

Police –v- Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)
Yarume –v- Euga [1996] PGNC 24;N1476 (6 September 1996)
Siwi Kurondo –v- Kevin Wylde[1973] PNGLR 110
Police- v- Koka [2021] PGDC 53; DC6010
Hure Vebubu –v- Nelly Maleva[1987] PNGLR 87

Overseas cases cited:

R –v- Thomson (1913) 24 COX CC

References

Legislation
Cyber Crime Code Act 2016, Chapter No. 35.
District Court Act 1963, Chapter 40
Cyber Crime Code Act

Counsel
Police Prosecutor: Peter Samghy For the Informant
Peter Daime Kaii Lawyers: Peter Daime For the Defendant

RULING ON COMMITTAL

22^nd September 2021

INTRODUCTION

NII, P. Paul Magistrate. My ruling on whether a prima facie case is verified within the significance of Section 95(1) of the District Court Act 1963. This consideration is done after Police evidence and Defense case are considerately measured. On 21^th May 2021, Defendant filed his submission challenging the competence of police evidence filed on 19^th January 2021 and 17^th February 2021. On 04^th August 2021, Defendant appeared in person and made oral submissions while Police Prosecutor briefly responded to the submission and now is the ruling on evidence.

CHARGE

1. Defendant is charged with one count of Defamatory Publication under Section 21(2), of the Cyber Crime Code Act 2016, Chapter No. 35. The supposed offending charging is below:
   

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 public defamatory material concerning another person, is guilty of a crime.

FACTS

2. Police identified the Defendant as aged 60 years and from Gewale village in Kerawaghi District of Simbu Province, Papua New Guinea. Police information says, on 23^rd September 2020, Defendant now in court was alleged to have involved in an allegation against the Victim. I will now acclimate the alleged facts from the police information. Police says:
   

“Did intentionally and without lawful justification, used his mobile phone to publish defamatory materials namely Banjamin Samson is the biggest fraudster serving the government of Papua New Guinea as Secretary for the Department of Lands and Physical Planning. How do we take back PNG when we put criminals like him to manage our lives, our land, concerning Benjamin Samson”

3. To my understanding, I believe Defendant was arrested by Police on 12^th August 2020 for allegedly posting Defamatory Publication on social media against the complainant who is the Secretary for the Department of Lands and Physical Planning.
   

ISSUE

4. Whether evidence in the Police file establishes a prima facie case meeting all the elements of the offence to commit the Defendant.
   

THE LAW

5. I have the official power under Section 95 of the District Court Act to rule on the police evidence put before me.
   

Section 95 of the District Court Act 1963

95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division

6. With consistent to the authority I have, will weigh the police evidence to decide whether evidence is sufficient to commit the Defendant or to dismiss the information under enquiry that institute the assertion of Defamatory Publication. My authority under Section 95 of the District Court Act is sustained in the case of Police v Kimisopa [2021] PGDC 76; DC6031. It says the court weights all the evidence in the police file and decide on the sufficiency of evidence. Moreover, the above position is reinforced in Yarume v Euga [1996]PGNC 24;N1476, that the objective of committal court is to assess evidence and decide whether there is agreeable evidence satisfying all the elements of the allegation.
   

ELEMENTS OF THE OFFENCE

7. The elements of the allegation are characterized and assembled as how it performs underneath:
   
   1. A person who intentionally, and
   2. without lawful excuse or justification or
   100. in excess of a lawful excuse or justification
   4. or recklessly uses an electronic system or device
   5. to public defamatory material
   6. concerning another person
      

EVIDENCE

8. The court declared in Police v Koka [2021] PGDC 53; DC6010 that an information rests a mere accusation unless reinforced by evidence. (emphasis added)..
   

“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up”.

9. The evidence prepared by Police in the Police-Hand-Up-Brief and tended in court dated 19^th January 2021 and 17^th February 2021, should succeed the elements of the offence of Defamatory publication or otherwise there is no case against the Defednat.
   

PROSECUTION CASE

10. On 04^th August 2021, Police Prosecutor Peter Samghy briefly objects to the Defendant’s oral submission in reaction to the police hand-u- brief embracing the victim and Police statements. I will for the purpose of my ruling shall carefully asses all the statements in the police file.
    

Witness list and their Evidence in brief

No	WITNESS	PARTICULARS	STATEMENTS
1	Benjamin Samson	Complainant/Victim	This statement is about how Defendant defamed the victim’s character by publishing comments on FB.
2	F/C Sylvester Mala	Arresting Officer	His is the arresting officer and his statement is about how he obtained information to complete the file against the Defendant
3	Cons Stanley Kiapa	Collaborator	He is a policeman who was with the arresting officer at the time when the Defendant was arrested and interrogated.

DEFENSE CASE

11. Defendant through his Lawyer Peter Dame based his disagreement in respect to the police file on two areas of law. Defendant cited Section 21(5) of the Cyber Crime Code Act and Section 29 of the District Court Act 1963.
    
    1. Section 21(5) of the Cyber Crime Code Act 2016.
       

“21 Defamatory Publication

(5) it is a defense to a charge for an offence under this section that the Defamatory material published:

a) Was true; or

b) was for the benefit of the public; or

c) Constitute a fair comment; or

d) was made in good faith.”

2. Section 29 of the District Court Act 1963.
   

“29. INFORMATION TO BE FOR ONE MATTER ONLY.

An information shall be for one matter only, except that–

(a) in the case of indictable offences, if the matters of the information are such that they may be charged in one indictment; and
(b) in other cases, if the matters of the information are substantially of the same act or omission on the part of the defendant,

those matters may be joined in the same information.”

12. Defense submits there is defects of law in the application of facts as to the charge when charge is being duplicated. Defense says there are two (2) set of facts giving rise to the same offence where there was a Facebook post allegedly caused by Defendant on 12^th August 2020 at 4.40am and another allegedly by the same Defendant on the same date but at 5.42am. Defendant submits that pursuant to Section 29 of the District Court Act, Defendant should be charged only once. Defendant based his argument on the principles in Siwi Kurondo –v- Kevin Wylde[1973] PNGLR 110. In this matter, the court upheld the appeal and dismissed a District Court conviction because the court was of the opinion that two charges were both written on one information. The court noted that one information should contain one charge. Defense also cited the principles in the case of Hure Vebubu –v- Nelly Maleva[1987] PNGLR 87, where the court ruled on the bad duplicity of charges and information. The Defendant’s Lawyer adapted the rule in R –v- Thomson (1913) 24 COX CC at page 46 to the principles in Vebubu –v- Maleva^[1] as I quote below:
    

“ we are of the opinion that, although very high authorities have, in the past, expressed the opinion that, as a matter of law, even two offences of felony could be charged in the same court(see Castro v Queen (1881) 14 Cox CC 546 ) the practice is uniform and well established that several offences should not be charged in the same count and the indictment in the case was irregular”.

13. Defendant says the basic principle is one allegation and one indictment. However, Defendant submits Defendant is alleged to have committed one offence but he was charge for the two (2) different posts on different times. On these basis Defendant argued that the charged be dismissed. Defendant further argued that there is a defense in law that protects him from allegation under Section 21(5) of the Cyber Crime Code Act 2016. On the two legal grounds, Defendant argued that entire allegation be dismissed for it denies the laws under the District Court Act and Cyber Crime Code Act.
    

CONSIDERATION OF EVIDENCE

14. I have considered the evidence and noted Defendant’s purported allegation was in relation to state lease title described as Allotments 1 and 2 (consolidated) and section 468, Hohola, NCD. It is evidence that the land was formerly owned by the Kone Tigers Rugby Football League Club (KTRFLC) but later sold to a Brandon Limited. Evidence also indicated the Defendant was claiming to be an advocate of the KTRFLC is disputing the land was dishonestly sold to the later (Brandon Limited) and hence he followed up with the Department of lands and Physical planning for the title to given back to the former which is KTRFLC but nothing had been forthcoming and hence Defendant purportedly posted the comments on FB to show his frustrations against the Lands Department.
    
15. Defendant during his oral submission admitted he posted the publication on Social Media because he was frustrated with the Secretary for the Department of Lands and Physical planning for not transferring the title back to KTRFLC. Defendant also stated that he wrote some complaint letters to Police to arrest the Complainant but police have not arrested the Complainant. My records show Defendant has also field a proceeding in the National Court termed as OS No 68 of 2020 for the issue of State lease with KTRFLC and Brandon Limited, but to date it is pending determination.
    
16. Evidence before the court shows Defendant published the Defamatory Comments against the victim. Defendant admitted at paragraph 18 of his Record of Interview that he described the victim as a fraudster because he has evidence to proof in court. Defendant also says police and courts are corrupt because they do not deliver on matters concerning the land and arrest suspects involved in the land deal.
    
17. Defendant says he has his evidence and reason for posting such defamatory publication against the victim. However, only the National court has inherent jurisdictions to looks at reasons and motives for the allege crime of Defamatory Publication while I assess only on sufficiency of evidence, my authority is limited while National court has unlimited jurisdictions.
    

RULING

18. Firstly, there is no doubt Defendant purportedly posted the Defamatory publication against the Complainant, nevertheless, the question is does his action justifiable in law? Defendant submits that there were two allegations on one information which is illegal as per the principles in Section 29 of the District Court Act, Kurondo –v- Kevin^[2], Vebubu –v- Nelly Maleva^[3] and R –v- Thomson (1913) 24 COX CC^[4]. Defendant says the first allegation was on 12^th August 2020 at 4.43am and second was on 12^th August 2020 at 5.42am. The law under section 29 of the District Court Act makes it an unlawful to put two charges on one indictment or information. By practice and through the attitude under Section 29 of the District Court Act, each charge shall have its own indictment or information. The purported comments on the social media are not charges; they are mere facts that constitute the allegation against the Defendant. Defendant says there were two posts made by the Defendant against the victim, first was on 12^th August 2020 at 4.43am and second was on the same date but at 5.42am. The two alleged comments by the Defendant are not charges but are mere facts which attract the offence of defamatory publication under Section 21(2) of the Cyber Crime Code Act. Defamatory publication now becomes a charge under the Cyber Crime Code Act.
    
19. The Police information or indictment shows defendant was charged with only one offence and that is Defamatory Publication. This charge is on the information that court arraigned on 12^th October 2020. I do not see two or three different charges on one information/indictment but one charge and therefore the argument under Section 29 of the District Court Act is not pertinent in the current case.
    
20. Lastly, Defendant raises the defence of Section 21(5) of the Cyber Crime Code Act 2016. I recite the law below:
    

“21 Defamatory Publication

(5) it is a defense to a charge for an offence under this section that the Defamatory material published:

a) Was true; or

b) was for the benefit of the public; or

c) Constitute a fair comment; or

d) was made in good faith.”

21. There is no evidence that the alleged comment on social media against the Defendant was true. There is no evidence by way of a court order either from the District, National or Supreme courts that orders to the effect that the victim is a fraudster. I have seen correspondents and letters to the police and Department of Lands and physical planning by the Defendant regarding the land but not a court order. There is evidence a person by the name of Stanley Haru was convicted for his part in fraudulent transfer of land tile and there is a court order but no orders against the secretary for the Department of lands and physical planning. In the absence of such, the Dependant’s opinion on the allegation of fraud against the victim is a mere allegation.
    
22. Based on the above, my evidence shows, the assertion by the Defendant against the victim lacks material evidence from the courts to confirm such to be true (until and unless evidence is provided) but for now it is not true and was not for the benefit of the public and the defamatory publication did not constitute a far comment and lastly it was not posted in good faith. Therefore, the final submission on the defence of publication under Section 21(5) of the Cyber Crime Code Act 2016 is not appropriate here.
    
23. The grounds for submission put forward by Defendant funded on Section 29 of the District Court Act and Section 21(5) of the Cyber Crime Code Act are not appropriate in the circumstance and thus refused.
    

CONCLUSSION

24. After having said that, I am satisfied that there is enough evidence for the offence of Defamatory Publication, when Defendant admitted he posted the words to the effect, as I quote “the victim (name withheld) is the biggest fraudster serving the government of PNG as Secretary for Department of Lands and Physical Planning. How do we take back PNG when we put criminals like him to manage our lives and land? (end of quote). Therefore, there is evidence meeting all the elements of the offence of defamatory publication under Section 21(2) of the Cyber Crime Code Act that Defendant intentionally, and without lawful excuse or justification recklessly used his phone to post defamatory publication against the victim on social media.
    

FINAL ORDERS

25. My final Orders:
    
    1. Defendant is now committed for the allegation of Defamatory Publication under Section 21(2) of the Cyber Crime Code Act 2016.
       
    2. Matter is adjourned to the 04^th October 2021 at 9.30am for consideration of Section 96 statement.
       
    100. Defendant’s bail extended.
         

Peter Daime Kaii Lawyers For the defendant
Police Prosecutor For the State

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^[1] Supra (two charges one indictment.
^[2] Supra
^[3] Supra
^[4] Supra (Principles of double felony on one indictment)