Police v Amaiu [2021] PGDC 137; DC6094 (21 September 2021)

DC6094

Papua New Guinea

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

NCC NO 1024 OF 2020
CB NO 3335 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:
JOHN SIMON AMAIU
[Defendant]

Waigani: Paul Puri Nii

21^st 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 not Established-Evidence is not fitting to commit the Defendant for the charge to stand trial in the National Court. Defendant is not committed.

PNG Cases cited:

Police –v- Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)
Yarume –v- Euga [1996] PGNC 24;N1476 (6 September 1996)
Police- v- Koka [2021] PGDC 53; DC6010

Overseas cases cited:

E –v- R [2014] NZCA 300’
Queen –v- Hutton [2008] NZCA 126
Lundy –v- R [2013] NZPC 1
R v Davis [2013] NZHC 2080 (15 August 2013)
Duncan v Harveys Floor Pride Ltd (Christchurch) [2009] NZERA 120 (10 March 2009),

References
Carl J Franklin The Investigator’s Guide to Computer Crime (Charles C Thomas, Springfiled, Illinois, USA, 2006).

DR. SAUL GABBAY “Expert Witness & Research Services” (Global Research Institute, Geneva, n.d.).http://www.muslimworldexpert.com/

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

Counsel
Police Prosecutor: John Wamuru For the Informant
Public Solicitor Bernard Popeu For the Defendant

RULING ON COMMITTAL

21^th 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 25^th March 2021, Defendant filed his submission challenging the strength of police evidence served on 2^nd March 2021. On 11^th March 2021, Defendant through his Lawyer made oral submissions while Police Prosecutor momentarily objected to the submission and now is the decision on evidence.

CHARGE

1. Defendant is charged with three (3) count of Defamatory Publication under Section 21(2), of the Cyber Crime Code Act 2016, Chapter No. 35. The purported offending charge is hereunder:
   

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.

FACTS

2. Police classified the Defendant as 42 years of age and from Lyapos village in Kompiam Ambum District of Enga Province, Papua New Guinea. Police information says, on 25^th February 2020, Defendant now before me was alleged to have involved in an allegation against three (3) victims.
   
3. Police allege on 5^th February 2020, Defendant was using a Facebook name of Harry Saa and posted a comment under the Kompiam Ambum Development Forum. Police allege Defendant posted words to the effect of (I quote), “who really is Dr Ken Ngangan? A wolf in a sheep skin and a small corruption tactician.” (end of quote) On 25^th February 2020, the post was shared by a Suwan Parange in the Kompiam Ambum Development forum and on 27^th February 2020, the same post was shared by a Henry Saa on the PNG news Report page by commenting the phrase “these are some serious allegation that need investigation”
   
4. It was further allage that on 29^th May 2020, accused also posted a comment by saying, “ Dr Ken Nangan will contest 2022 Kompiam Ambum Open”. The allege Defendant moreover went on to post as I quote, “Lawrence Talipo and Nathan Lapakio considered the highest monarchical titles. Nathan Lapakio, the King of Tinalapin and Lawrence Talipao, the emperor of Tenalapin. Completely PONGO ANDAK.” Pongo Andak is said in the Engan language to mean a person that has a big penis.
   
5. Police information provides Defendant’s comments on social media have slandered the victims’ characters and their standing in their professional life and community. Police say the comments had attracted mix reactions from people all over the country that had excess to the comments on Facebook.
   
6. Police says the allegation was carefully investigated by police and on 7^th February 2020, Defendant was arrested and charged by Police for the allegation of three (3) counts of Defamatory Publication under Section 21(2) of the Cyber Crime Act 2016.
   

ISSUE

7. Whether police evidence is sufficient to commit the Defendant for the allegation of Defamatory Publication under Section 21(2) of the Cyber Crime Code Act.
   

THE LAW

8. I am authorized by law under Section 95 of the District Court Act to decide on evidence in the police file and make a ruling on its strength, that is whether the evidence is sufficient to commit the Defendant or dismiss the information under enquiry which carries the charge.
   

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

9. With reliable to the power I have, will assess the police evidence and choose whether evidence is appropriate to commit the Defendant or to terminate the information under investigation that introduce the allegation of Defamatory Publication. My power under Section 95 of the District Court is supported in the case of Police v Kimisopa [2021] PGDC 76; DC6031. It states the court will measure all evidence in the police file and adopt same on the sufficiency of evidence. Additionally, the above locus is strengthen in the matter of Yarume v Euga [1996]PGNC 24;N1476. The court in this mater says the purpose of committal court is to measure evidence and select whether there is sufficient evidence sustaining the elements of the offending charge.
   

ELEMENTS OF THE OFFENCE

10. The elements of the charge of Defamatory Publication are described and displayed

as how it does under:

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 publish defamatory material
6. concerning another person
   

EVIDENCE

11. Once an allegation is filed against any person, it only becomes an allegation. Nevertheless, evidence material is required to substantiate the allegation. This principle is acknowledged in the case of Police v Koka [2021] PGDC 53; DC6010. The court in this matter says an information is only supported by evidence to decide whether the assertion is true or fabricated. The principle in this case appears as below:
    

“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”.

12. The evidences arranged by Police in the Police-Hand-Up-Brief and tended in court dated 2^nd March 2021 should meet the elements of the offence of Defamatory publication under Section 21(2) of the Cyber Crime Code Act.
    

PROSECUTION CASE

13. On 04^th August 2021, Police Prosecutor John Wamuru briefly objects to the Defendant’s oral submission in reaction to the police hand-up- 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

NO	WITNESS NAMES	PARTICULARS	STATEMENTS
1	Dr Ken Ngangan	Victim-Secretary Department of Finance	He is the first victim and Secretary for Finance. His statement contains his response and what he saw from the social media about the defamatory publication allegedly posted by the Defendant.
2	Lawrence Talipao	Victim-Senior Accountant with Department of Finance	He is the second victim, his statement contain the alleged comments and how he came to realize the statement as that of the Defendant and also how the Defendant’s fake names were traced to the phone number and his identity.
3	Nathan Lapakio	Victim-Provincial Finance Manager-Enga Province	He is the third victim. He says the Defendant’s comments affected him mentally and how people reacted to the comments. This witness says his character was terribly defamed by the Defendant’s comments
4	Samson Pundari	Witness-Executive Logistic Officer with Department of Finance	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
5	Timson Lawa Yamahri	Witness-District Finance Manager for Mul Baiyer District	This witness also says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
6	Stanley Lapan	Witness-Nurse at Gerehu General Hospital	This is another witness who claims he was defamed by Defendant that Dr Ngangan has illegally helped him in some ways.
7	Leme Lapan	Witness-Casual Administrative officer with Kompiam District	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
8	Jacob Mark	Witness-Finance Assistant Control- Finance Manager	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
9	Jason Tupi	Witness-Assistant Secretary- Payment Division	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
10	Jeffery Pongo Lyangao	Witness-Logistic Oficer-Kompiam District Finance	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
11	Betty Jamika	Witness-District Examiner- Kompiam finance officer	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
12	Joseph Kala	Witness-Accountant for Jimi District	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
13	Nganga Lakio	Witness-District Examiner-Kandep District Finance	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
14	Penny Lapakio	Witness-Team Leader with MVIL finance	This witness statement is about how he was described by the Defendant as the one who facilitates for Dr Ken’s vehicles and his movements.
15	Joseph Lakai	Witness-General secretary for Baptist union of PNG	This witness says he was described by the Defendant as unfit and not qualified for a job and resources but Dr Ken Ngangan through nepotism had appointed him.
16	Jerry Maku	Witness-A health worker in Porgera District	This witness says he was described by the Defendant as someone that was assisted by Dr Ken Ngangan to get his employment.
17	Peter Ngangan	Witness-Council President of Kompiam LLG	This witness says he was alleged by the Defendant to have conspired with Dr Ngangan for his benefits in an illegal way.
18	Liason Salle	Witness-Police investigator	He is the police arresting officer, person who arrested the Defendant and investigated on the file leading to this hearing.
19	David Saule	Witness-Police corroborator	He is a policeman who assisted the Arresting Officer at the time when the Defendant was interrogated and charged thereafter.

DEFENSE CASE

14. Defendant through his Lawyer Benard Popeu from the Office of the Public Solicitor contends there are no evidences to display the Pseudonymous characters in Harry Saa and Sauwan Parange associates to the defendant through his phone number 71811726. Defense argues on the Police statement which pronounced the assertion that the Defendant is interrelated to the counterfeit Facebook characters is uncorroborated since police have nosedived (failed) to inaugurate their assertion with unfailing evidence.
    
15. Defendant went on to argue police evidence is deficient to authorize that an electronic device was engaged by Harry Saa to Post Defamatory publications against the victims namely, Dr Ken Ngangan, Mr Talipo and Mr Lapakio. Defendant says, police evidences have not branded the accurate narrative of the device (Phone or Computer) used by the Defendant to post such allegations and thus he submits the evidence is unreliable.
    
16. Defendant finally argues there is no evidence that the Defendant Simon John Amaiu was operating the Facebook names Harry Saa and Sauwan Parange by posting derogatory commentaries against the victims.
    

CONSIDERATION OF EVIDENCE

17. I will now consider all the evidence that is put before me. There are aggregate of 19 state witness giving evidence in the form of witness statements against the Defendant. The first state witness statement is from the first victim, Dr Ken Ngangan. In his 12 pages’ statement to police described the comments on Facebook purportedly authored by the Defendant through the imitation names of Harry Saa and Sauwan Parange. In his statement the victim reiterated all the supposed allegations against him and his responses. Towards the last paragraph at page 12 of Dr Ngangan’s statement, he offered police leave to advance with investigations based on the allegations and deal with the alleged perpetrator. The second state witness is from the second victim Mr Lawrence Talipao. This witness says he was described as Pongo Anadake which translates in the Enga language as a male with huge penis by a Facebook name Sauwan Parange. Witness says such claimed blasphemy has numerous adverse cultural consequences in which he is now a casualty. This witness says in one of Sawan Parange’s post, the Defendant commented by using his factual Facebook account name Simon John Amaiu but for motives known to himself obliterated (deleted) the comments. The third victim statement is from witness Nathan Lapakio. Witness allege he was branded by the allege suspect as being handpicked by Dr Ngangan and employed him without following the accurate occupation process with the Department of Finance since they were cousins.
    
18. These are three (3) statements from Complainants. They all have one thing in common and that is they are all responding to the purported allegations by the Defendant. Moreover, evidence of Dr Ngangan only requests for police to do further investigations and find out who was at the back of the two named Facebook accounts while Lawrence Talipao says, he suspects the Defendant was using the Facebook account names Harry Saa and Sauwan Parange. Rest of the witness statements from Samson Pundari, Timson Lawa Yamari, Stanley Lapan, leme Lapan, Jacob Mark, Jason Tupi, Jeffery Lyangao, Betty Jamika, Joseph Kala, Nganga Lakio and Penny Lapakio allege they were negatively defamed by the Defendant by purportedly positing comments on Facebook under the names Harry Saa and Sauwan Parange enquiring onto their educational values and merits. All their statements are replying to the allegations made by the Defendant through the fake Facebook accounts against them.
    
19. The evidence of all the witness including the victims is not supporting me accurately by attaching the Defendant to the fake accounts. Their evidence is very much about assertion and disbelieves which may assist me in my quest for ruling, nonetheless, the evidence must be undeviating that Defendant was the owner of the two face book accounts pronounced as Harry Saa and Sauwan Parange. In order to persuade much ambiguity, I will now go further and study witness statements put before me by Police.
    
20. The witness statement of policeman Lison Salle is imperative in my ruling and thus much emphasis shall be given. Apart from him being the arresting officer, his statement is about how police investigation was conducted leading to the Defendant’s arrest. Witness stated at Paragraph 7 of his statement that his investigation had proven the identity of the alleged suspect who was using the name Harry Saa and Sawan Parange because Defendant’s digicel Ph Number 71811726 is connected to the two (2) counterfeit Facebook accounts.
    
21. Looks like there are some evidence of defamatory publications authored by the two fake accounts in Harry Saa and Sauwan Parange but the question is who authors the fake Facebook accounts? Most of the witness statements did not says they saw the Defendant was using the Facebook accounts but they suspected. The exhibit evidence of witness Jacob Mark labeled as exhibit ‘H’ displays the counterfeit Facebook account Sauwan Parange made a comment in support of the Defendant by saying Simon Amaiu was the son of chief John Amaiu, a leader in his tribe. To me, the Facebook account Sawan Parange seems to know something about the Defendant.
    

RULING

22. Cyber Crime is an emerging crime in Papua New Guinea where its importance was realized in the late 1990s as opposed to other developed jurisdictions elsewhere around the world. Papua New Guinea government thus developed the law described as the Cyber Crime Code Act 2016 which was enacted and made into Law in 2016 and now the Defendant is charged under this law. The usual traditions and approaches employed by police in obtaining of evidence for common crimes should not be adapted and applied for crimes under the cybercrime Code Act. There should be distinguished and re-modified modus operandi and new introduced ways where crimes involving space should be dealt with.
    
23. Police have been using the normal practice of obtaining evidence when encountering issues of cyber in nature and that is obtaining hidden information/evidence through search warrant. A search warrant would permit a police officer to excess someone’s Facebook and email accounts. By common practice most people have excess to their Facebook accounts by either using their email address or phone numbers to log on. The warrant would then empower police investigators to log onto the Defendant’s electronic devices and confirm he is the owner of the two fake accounts. I have not cited any evidence of search warrant in the police file and wonder how the Defendant’s telephone number was linked to the two Facebook accounts. Police arresting officer has not clearly demonstrated how he linked the Defendant’s phone with the two fake Facebook names. However, there is an evidence of a telephone number linked to one of the alleged bogus Facebook account of Harry Saa with a telephone number 71510622 as shown in the evidence of Stanley Lapan. This evidence now contradicts police statement by Constable Lison Salle that Defendant’s telephone number 71811726 is connected to the alleged bogus accounts.
    
24. It is enormously challenging to follow and capture online evidence of any allegations made through the use of internet or other online means. Some offenders’ might post injurious comments against particular targeted persons on social medias but, those comments do not last long as it may be defaced instantaneously by the poster after perceiving that the person against whom those comments were labelled at read^[1]. The New Zealand court of appeals in E v R [2014] NZCA 300 affords there must be precise information and impression that the person against whom the allegation has been made had actually instigated the crime by legally linking the Defendant to the offence.
    
25. The onus to achieve the acceptability test for online crimes is far beyond reachable^[2]. It is really an intricate method where the likelihood of certainty for obtaining evidence for such crimes is not guaranteed. Only few have succeeded, however, to date, it appears that it still remains a challenge for the court and the judiciary and this issue is now relevant in this allegation against the Defendant because evidence linking the Defendant to the fake Facebook accounts and the telephone number are not properly identified and put before the court. Police must prove their allegation with evidence that Defendant at the time when the allegations were made was using an electronic device or system and these were either through his personal phone or computer to post defamatory comments against the victims.
    
26. My observations conclude police have not done that and moreover police have failed to engage a skilled person who is expert in Computer Forensic to conduct investigations to link the two fake accounts to the person of interest who could be the shadow behind the accounts. Evidence from the Computer forensic expert could possibly offer to the court some likely returns which would otherwise least be seen in other ordinary ways of giving evidence. The experts may have worked on comparable matters over time and they could have a dynamic history and acquaintance of the case before the court^[3].
    
27. In Queen v Hutton [2008] NZCA 126., the Appellant was convicted for crimes of unlawfully being in possession of a pounamu^[4], a greenstone. The Appellant denied the charge by saying that the pounamu was never stolen but were taken from his own area. There was no evidence before the court to give credits to the Appellant’s side of the story except a video evidence for the crown’s case. However, an expert engaged by the crown produced scientific proof that manifestly connected the Appellant to the crime and the location where the crime was alleged to have occurred. This case is an example of why expert evidence would be engaged to conduct investigations involving computer and telephones so reliable outcome would be produced.
    
28. The criminal balance of proof is on the victim or the police to prove their case beyond reasonable doubt should they want to certainly authenticate their assertion against the indicted person. In order to do this, it is imperious that the victim should accumulate all relevant proof that have primary relationship to the allegation and the suspected person so that it should subsequently build their case up. Failure to do this would discredit their evidence and may consequently acquit an accused. This was the precise position undertaken in the New Zealand case of Lundy –v- R [2013] NZPC 1. The Appellant successfully appealed the conviction and the court ordered for a retrial. The Appellant was convicted by the lower court for murdering his wife and seven (7) year old daughter. The court of Appeal noted that evidence obtained by the prosecution from a computer were sketchy and remotely connected to the crime. It noted that the electronic data was unreliable and considered to be corruptible. The appeal court found out that the alleged time of the commission of crime, as provided by the prosecution, contradicted what was clocked on in the computer. It could not be merely concluded by noting the court of appeals position as having the ultimate justice. The court’s position does not mean that the Appellant did not commit the crime. Even if he had committed the crime, it seems obvious that the impossibility and inaccuracy of obtaining computer evidence by ordinary police officers who had no knowledge of computer forensic science may have caused the Appellant to be a free man.
    
29. Most online evidence including from computers and phones could lack probative value and hence they may have a slight chance of being recognized by the courts. In R v Davis [2013] NZHC 2080 (15 August 2013), the defendant, an Osteopath, was charged for sexual violation. It was alleged that the defendant had accessed a pornographic website on his laptop computer and viewed nude images. It was further alleged that after being motivated with sexual desires, went and sexually assaulted his patients on a number of occasions. The crown made an application for the court to accept the alleged sexual images in the defendant’s laptop as admissible evidence which the defendant objected. The court observed that the alleged images in the computer lacked the quality of proving such images as having a direct link to the allegations. Furthermore, the court ruled that the acceptability of the evidence would have no impact to the case as it failed to demonstrate consistency and accuracy of the account of events which led to the allegation. The allegation was dismissed.
    
30. Furthermore, in Duncan v Harveys Floor Pride Ltd (Christchurch) [2009] NZERA 120 (10 March 2009), among other allegations, the Plaintiff was dismissed from work for accessing pornographic images in a work computer. However, the Plaintiff sued the Defendant seeking damages for distress occasioned by the allegation and termination. A computer forensics expert who carried out investigations into the said computer concluded that there was indication of phonographic websites viewed through the computer which the Plaintiff used during her employment with the defendant.
    
31. I have prudently scrutinized the evidence presented to me and conclude the acceptability of the evidence would have no impact on the Defendant’s case as it failed to establish uniformity and precision of the account of events which led to the assertion. it seems understandable to me that the impracticality and imprecision of gaining computer evidence and phone to link the Defendant to the two (2) fake Facebook accounts by regular police officer who has fewer hand on knowledge and experience of computer forensic science and electronic device may led to indulging and upsetting of police evidence and thus is evident here.
    
32. When exercising the powers under Section 95 of the District Court Act, I have come to a conclusion that the Defendant is not accurately identified to be the person who is linked to the two Facebook accounts of Harry Saa and Sauwan Parange with the telephone number 71811726. Having said that, there is no evidence meeting all the elements of the offence of Defamatory Publication under Section 21(2) of the Cyber Crime Code Act 2016 that Defendant had intentionally and without lawful excuse uses an electronic system which is Facebook to publish defamatory remarks against the victims.
    

CONCLUSSIONS

33. There is insufficient evidence to make a case against the Defendant for the allegation of three counts of defamatory publication under Section 21(2) of the Cyber Crime Code Act 2016.
    

ORDERS

34. My final Orders:
    
    1. Evidence is insufficient to commit the Defendant for the allegation of three counts of Defamatory Publication under Section 21(2) of the Cyber Crime Code Act 2016.
       
    2. The information under enquiry founding the allegation of defamatory publication is dismissed.
       
    100. Defendant’s bail be refunded forthwith.
         

Public Solicitor For the defendant
Police Prosecutor For the State

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^[1] Debbie Roome Cyber-Bullying is Never Alright: Dealing with the Pain of Cyber Abuse (USA, 2012) at pg 51.
^[2] Carl J Franklin The Investigator’s Guide to Computer Crime (Charles C Thomas, Springfiled, Illinois, USA, 2006).
^[3] DR. SAUL GABBAY “Expert Witness & Research Services” (Global Research Institute, Geneva, n.d.).http://www.muslimworldexpert.com/
^[4] Refers to several types of hard, durable and highly valued nephrite jade, bowenite, or serpentinite stone found in southern New Zealand. Pounamu is the Māori name. These rocks are also generically known as "greenstone" in New Zealand English