Salle v Bosco [2021] PGDC 164; DC7020 (22 November 2021)

DC7020

Papua New Guinea

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

COM NO 309-310 OF 2021
COM NO 299 OF 2021
CB NO 431 OF 2021

BETWEEN:

LISON SALLE
[Informant]

AND:

SEBASTIAN BOSCO
[Defendant]

Waigani: Paul Puri Nii

22^nd November 2021

COMMITTAL PROCEEDINGS: -Charge- 3 Counts of Cyber Harassment -Section 21(1) of the Cyber Crime Code Act. Court’s calculation on the adequacy of evidence to establish whether Police delivered prima facie hands-on evidence supporting all the elements of the charge against the Defendant.

PRACTICE AND PROCESS: Legitimate responsibility for prima facie case-Creating the foundation of the allegation of Cyber harassment–Witness statements. Defendant admitted to the allegation- Defendant posted the comments on Facebook because they are true and for the benefit of PNG- Defense under Section 21(5)(a) of the Cyber Crime Code Act.

PNG Cases cited:

Anthon v Chea [2021] PGDC 103; DC6056 (22 July 2021)
Police v Kua [2021] unreported
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Kua [2021] PGDC 136; DC6095
Overseas cases cited:

Overseas Cases cited:
Nil

References

Legislation

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Cyber Crime Code Act

Counsels

Police Prosecutor: John Wamugl For the Informant
Gibson Bon Lawyers: Gibson Bon For the Defendant

COMMITTAL RULING

22^th November 2021

INTRODUCTION

NII, P. Paul Magistrate. Ruling on the sufficiency of evidence, that is whether a prima facie case is properly established inside the request of Section 95(1) of the District Court Act 1963, after submission from parties are reflected. On 7^th September 2021, Defendant’s Lawyer made an oral submission in respect to his client’s case. Defense mostly objected to the police evidence as it is insufficient to commit the Defendant. Defendant says the comments posted were genuine. Police Prosecutor John Wamugl opposed the Defense case. Both submissions were considered and thus in the ensuing lines are my decision on evidence.

FACTS

1. Police information says Accuse is aged 32 years and from Sangurap village in Wabag, Enga Province, who was until 16^th April 2019, employed by the Department of Higher Education, Science Research and technology (DHERST). Police allege Defendant deliberately posted defamatory publications on social media (commonly known as Facebook) against the Complainants, Leah Margis and Fr Jan Czuba, at the time when he was terminated from employment with DHERST. Police says on 4^th October 2019, a letter was written to the Defendant to restrain from posting further defamatory publications against the complainants on Facebook. Police allege Defendant at the time of allegation used three (3) different Facebook accounts with different names and they are Sebastian Bosco Dominique, Essmkay Billy and Thianzkastaan Sapukalo.
2. On 11^th February 2021, Defendant was arrested at the Waigani court house and taken to the police station and interrogated where Defendant allegedly admitted he posted the Comments by using his different FB account names.
   

CHARGE

3. Accused is charged under three counts of Cyber Harassment pursuant to Section 21(2) of the Cyber Crime Code Act. The charge against the Defendant is explained in the resulting style:
   

“21. DEFAMATORY PUBLICATION.

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

a) In the case of a natural person, a fine not exceeding, a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years, or both; and

b) In the case of a body corporate, a fine not exceeding K100,000”

ISSUE

4. The question of adequacy of evidence is applicable in the committal jurisdiction; whether evidence is sufficient to commit the Defendant.
   

THE LAW

Jurisdiction of the Committal court

Section 95 of the District Court Act

“95. Court to consider whether prima facie case.

(1)[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”.

ELEMENTS OF THE OFFENCE

5. A case in fact that recognizes the standing of how elements of the allegation should meet evidence and establish its sufficiency is in the case of Police v Medako [2021] PGDC 54; DC6011.
   

Elements of Defamatory Publication - (Section 21(2) of Cyber Crime Code Act)

a. A person who,

b. intentionally and without lawful excuse or

c. justification, or in excess of a lawful cause or

d. justification, recklessly, uses an electronic system or

e. device to public defamatory material

f. concerning another person

EVIDENCE

6. The basics in Police v Koka [2021] PGDC 53; DC6010, is suitable in this hearing. The court specified the significance of evidence by ruling that it plays a noteworthy proportion in the supervision of the court to arrive at a fair decision. The court further went on to say.....
   

.....“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” ....

7. In the exercise of my committal jurisdiction, evidence in the police file will be comprehensively looked into and subsequently assesse to ratify the contents of police statements that meet the elements of allegation.
   

PROSECUTION CASE

8. Prosecution item/case is in the police file including witness announcements, reports from Police, Complainant’s statement to police and other written indications like demonstrations which are also in the police file.
   

Sate evidence in passing:

No	Name	Particulars	Statements
1	Leah Margis	Deputy Secretary of DHERST	Her statement says Defendant used all his three (3) Facebook accounts and posted wicked commentaries against her. Witness says accused had deliberately targeted her and posted unbecoming and character eliminating comments against her on FB which momentously affected her emotionally and could not take it any further.
2	Fr Jan Czuba	Secretary DHERST	Witness says on 16th April 2019, he terminated the Defendant from employment. Witness says after Defendant’s termination he went ahead on FB and purposely made untrue and uncorroborated defamatory publication against him and Leah Magis
3	Norman Unupite	Corroborator	Police corroborator who was witnessing the Record of interview between police and Accused at the police station.
4	Lison Salle	Arresting officer	Police arresting officer who arrested the Defendant and conducted ROI which subsequently led to the charge of Defamatory publication against Defendant.

DEFENSE CASE

Preliminary issue

9. Defendant through his Lawyer submits there is no police statement to contain the two (2) charges laid against the Defendant. Defendant also submits the allegation was not lodged by Fr Jan Czuba and also there is no evidence Fr Czuba communicated with police regarding the allegation. Lastly, defense argues Information and statement copies are not signed and thus Defense submits there is confusion as to who authors the information and statements.
   

Insufficiency of evidence

10. Defendant submits evidence of Leah Margis is not signed and thus the aspect of the evidence is inadmissible.Defendant’s main argument is on Section 21(5) (a) and (b) of the Cyber Crime Code Act. Based on the cited provision, Defendant says the comments made on Facebook which were then considered to be defamatory publication were in fact posted because the statements were factual or true and for the benefit of the public in relation to the accusations.
    
11. Defendant submits Complainant Leah Margis’ assertion Defendant and a Amanda were seen together which then lead to Amanda stealing money from the Complainant lacked evidence because the allegation of stealing against Amanda was dismissed by the court on deficiency of evidence. Defendant also argues Complainant Fr Zan Czuba was arrested by police for unlawful payment to Leah Margis for consultancy services and others is now pending in another court.
    
12. Defendant finally submits the fact that Fr Zan Czuba was arrested for his part in colluding with Leah Margis to steal money and Legal Margis’ complaint being thrown out by the court are direct indication that the statements/comments posted by the Defendant are true and for the benefit of the public.
    

CONSIDERATION OF EVIDENCE

Police evidence

13. Police evidence is netted in the police file. State has four (4) witnesses in which two (2) from Police and two (2) form victims. The police statements of the Arresting officer and Police corroborator are accounts of events based on the complaint and what happened at the time when Defendant was interrogated by police. Their evidence is only narrowed to the Defendant’s arrest and its subsequent charge. Nonetheless, I will contemplate the evidence of Leah Margis and Zan Czuba as they were the purported victims of the defamatory publication.
    
14. Evidence shows a person named Essemky Billy posted on Facebook on the 30^th September 2019 and wrote (quote) “Systematic Abuse of the office and powers of the Secretary of the Department of Higher Education, Science and Technology by a Syndicate” (end of quote). The poster further went on and displayed a whole paragraph about the victims to the effect as (I quote):
    

“ Fr Jan Cruba is well known for his humanitarian works but his true identity turns out to be a wolf in sheep's clothing. His long time business cronies/Affiliates Ms. Leah Margis and Mr. Chandana Silva are no strangers to the payout list on various DHERST trust accounts..................Ms Leah Magis is being baptized into the public service by Fr Jan Czuba as deputy secretary to one of the wings in the department that has all funds in millions stationed squandered only to heavily facilitate their evil intentions of stealing” (end).

15. Moreover, to the above comments, it was further allege Defendant posted the following comments:
    

“Why is the Prime Minister Hon James Marape keeping this criminal in the Department of Higher education research science and technology (DHERST) after being criminally charged with Abuse of Office and 9 counts of official corruption”

“Very interesting development yet DHERST staff and senior executives keep silent on serious alleged criminal conduct. Thumbs up Ms. Amenda for stealing the money Fr Jan Czuba and Leah Margis stole from DHERST coppers and the people of the independent state of Papua New Guinea.”

16. These are comments allegedly posted on FB against the victims. From the key post there were other comments from Facebook users who commented with mixed and different opinions and reactions, some supported the allegation posted by the Defendant while others came up with diverse and conflicting views. Another facebook user by the name of David Jacob supported the comment by saying “sack the priest, he is a wolf in a sheep skin” while another Facebook user by the name Danny Yapane say “even the most reverend pastors and priests fall for the love of pussy and money”. The Defendant used the name Sebastian Bosco Dominique and commented on the main post as “ Derol Moi Leah m side cheek blo Fr Zan Crook Zuba”. However, another Facebook user named Jimmy Seth says “have some respect for this man for spending most of his life educating PNG students....” While referring to Fr Zan Czuba, so in fact there were mixed reactions and opinions from Facebook users.
    
17. An allegation once when openly raised may give rise to diverse opinions and that is exactly what happened here. Defendant when asked in his ROI he told police that he had two (2) other FB accounts apart from Sebastian Bosco Dominique and these are Thianzkastaan Sapuakali and Essemkay Billy. Since the Facebook name Essemkay Billy allegedly posted the main defamatory publication against the victims it is now established with evidence Defendant posted the purported comments by using his other Facebook account.
    
18. Evidence shows the defendant posted the purported Defamatory publication on FB and thus there is no issue as to who posted the publication but Defendant raised his defense under Section 21(5)(a) and (b) of the Cyber Crime Code Act 2016. Apart from this, Defendant’s other grounds are that the statement of victim Leah Margis is not signed thereby it is not in line with Section 94 (1A) of the District Court Act, and there are no police statements containing the charges against the Defendant. Defendant also argues the information establishing the charges are not signed.
    

RULING

19. I will address the introductory issue first. Defendant firstly submits there is no police statement instituting the charges by Complainant Fr Zan Czuba. It is my attitude that Police statements about the charge come from their statement in the police file and these are the Arresting officer and Police corroborator’s statements. Statement of arresting officer Lison Salle deposed on 13^th February 2021, says on 10^th February 2021, he had interrogated the Defendant upon a complaint lodged by Leah Margis. Leah Margis on her 13 pages’ complaint to police dated 11^th January 2021, allege Defendant posted defamatory publication against her and Fr Jan Czuba. The allegations supposedly made by the Defendant against the victims are associated and that is the comments allegedly posted by the Defendant against Leah Markis simultaneously affects Fr Jan Czuba as demonstrated in Leah Margis statement to police at page 11. Statement of the arresting officer pertaining to the allegations against the Defendant upon a complaint lodged by Leah Markis affecting her and Fr Zan Czuab is appropriate to complete there is a police statement about the allegations concerning the victims. It does not matter who lodges a complaint so long as one of the affected persons lodges a complaint revealing all those who were affected. Thus, defense issue on no police statement about the charges by Fr Zan Czuba is declined.
    
20. Secondly, Defense says the statement of witness Leah Margis is not signed. Defendant based his argument on Section 94 (1A) of the District Court Act. The law upon which Defendant trusted his argument is recited below for my discussion before ruling:
    

“94. COPY OF INFORMATION, ETC., TO BE SERVED.

(1A)[2] A statement referred to in Subsection (1)(d) shall contain the following warning to the maker of the statement and shall be signed by the maker of the statement:–

“I ... certify that this statement is true to the best of my knowledge and belief. I make it knowing that if it is tendered in evidence I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular.

Signed.”

21. The law is clear that a maker of the statement must sign his/her statement at the end of their statement to confirm whatever they put in is the truth and their own evidence. The Law is very clear in Anthon v Chea [2021] PGDC 103; DC6056, that the maker of a statement must sign his or her statement after entirely appreciating the contents of the statements as their own statements. Witness Leah Magis tendered to court her 13 pages’ statements against the Defendant by describing how she was defamed by the Defendant and her background information about her education and how she was given an employment at DHERST. Towards the end of her statement at page 13 she wrote the succeeding:
    

“I leah Magis certify that this statement of 13 pages is true to the best of my knowledge and beliefs. I make it knowing that if it be tendered in evidence, I will be liable for prosecution if I have knowingly state anything that is false or misleading in any particular”.

22. In accordance with the doctrines in Anthon v Chea[i] and Section 94(1A)[ii] , I find the witness certified at the end of her declaration by inserting her name to imply that was her statement and she had every knowledge and belief it was true. It was a 13 pages’ statement containing the witness’ educational background, personal life and prior employment leading to her employment with DHERST. The statement was a comprehensive account of the witness' personal life, education and family. No other person would know much about the Defendant’s personal life, family background and education than herself. Moreover, the witness name at the bottom of the statement signifies she endorsed it by putting her name after writing her statement. Consequently, the defendant's dispute that the witness statement was not signed is rejected.
    
23. Thirdly, Defendant submits the information capturing the charges are not signed. The information copy must be signed by two people to give effect to the information as is permissible and accurately before the court. They are the arresting officer and the presiding Magistrate who arraigned the Defendant after information is registered in court. Defendant was initially arrested for three (3) courts of Defamatory publication and on the 25^th March 2021, he was arraigned by her worship Tracy Ganaii (as she then was) on the three information, that was an information per each count of defamatory publication. All the three (3) information were signed off by her worship on the date of arraignment and the evidence is in the court record. The arresting officer’s signature is also on the information and hence the information is lawfully before the court and thus the argument on this question is declined.
    
24. Finally, Defendant argued that the Defense delivered on Section 21 (5) (a) and (b)[iii] the purported comments on Facebook were true and for the benefit of the public. I am narrating the necessities of the Cyber Crime Code Act, underneath for my dialog:
    

“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. Constituted a fair comment; or

d. was made in good faith.”

25. The law says it is a defense for the accused if the defamatory publication or comments made against another person were true and for the benefit of the public. I will address each defense at a time and first on the issue of “true”. A “true” statement is one that is correct and a false statement is not. How do we determine and assess a statement to be true? A statement is true only if a capable authority pronounces it to be true. The proficient authority assesses the comments with evidence and authoritatively proclaims it to be true. The declaration must be endorsed and inscribed in a written form so that the confirmation for truth will not only be heard and felt but be seen to be believed.
    
26. When the Defendant allegedly posted comments on Facebook, they were not the truth yet but were mere allegations and assumptions. When posts such as “Why is the Prime Minister Hon James Marape keeping this criminal in the Department of Higher education research science and technology” and “ Fr Jan Cruba is well known for his humanitarian works but his true identity turns out his is a wolf in a sheep’s clothing” are being posted on Facebook, it only forms an allegation against the Defendant, it does not make such allegation to be true spontaneously when it was posted but it requires evidence to support such and only a competent authority such as the courts would either confirm or deny the allegations to be true.
    
27. The qualification for the defense under Section 21(5)(a)[iv] is a court order. Assertion and speculation does not make a statement to be true. The court in Police v Kua [2021] PGDC 136; DC6095, evidently affords the principles about a publication to be true. The court shapes an order form the court either in the District, National or supreme court will legitimately and rightfully make a publication to be either true or untrue depending on the mandate. In the deficiency of such, an assertion on Facebook appealing to be true under Section 21(5)(a)[v] is not true. The Defendant asserts “Fr Jan Cruba is a criminal and he is a wolf in sheep clothing”, nonetheless, I do not see any court order completing the assertion. Moreover, there is a consequent statement by a Facebook user in retort to the foremost publication posted by Defendant that “even the most reverend pastors and priests fall for the love of pussy and money” by referring to Leah Magis and Fr Jan Cruba. Again, it is my dutiful attitude that this comment is only a hypothesis and guesswork without any court order or a decree of proclamation from any competent authority. Having said that, it is my conclusion that the argument that publication posted unless certified and sanctioned by a court direction, is not true and thus rejected.
    
28. On the same argument, Defendant submits under Section 21(5)(b)[vi] that the publications were for the benefit of the public. To my understanding, Defendant is arguing the comments are for the advantage and use of the public. Benefit is an advantage or profit expanded from something but what profit did the public gain from the purported publication by the Defendant? If the comments were for the benefits of the public, then why were there diverse reactions and opinions from people who allegedly participated in the comment on Facebook? If the comments posted on FB were for the benefit of the public, then people should be happy and rejoice if such comments were posted. All peoples opinions should be the same across. A Facebook named How Wah said “Getting jobs through the open leg policy” while Defendant under the name Sebastian Bosco Dominique and commented on the main post as “Derol Moi Leah m side cheek blo Fr Zan Crook Zuba”. These comments do not appear to me as for the benefit of the public but connected with dogmatism and detestation. These are revulsion and hatred comments against targeted individuals. However, it is demonstrated that in the heated arguments through the comments posted on FB, a Facebook named Tony Charles Wattx Kerowa replied to the Defendant’s comments by saying “this kind of bitterness can only be spread by someone who has been performing poorly at work and overlooked for promotion. Don’t be jealous of the priest”. This person was not happy with the Defendant’s post and therefore challenged the Defendant’s comments.
    
29. Another person by the name of Jimmy Seth posted on Facebook by commenting on the poste by Defendant by saying “have some respect for this man for spending the most of his life educating PNG students, his rich family in Poland spent millions in building Divine Word University. I have not heard of any PNG family building universities for this country”. This comment is in support of the victim. The revulsion and dissimilarity in judgement from people commenting on Facebook displays to me the publication was not for the benefit of the public but was a disgust and subjective attack on the victims. Having said that, it is my conclusion the argument by the Defendant publication was for the benefit of the public is refused and evidence shows it was an intense and personal attack on the victims.
    
30. Evidence shows Defendant had purportedly used a Mobile phone and posted the following three (3) comments which also computes the three (3) counts of Defamatory publication. The following publications constitute the different courts.
    

a) ....“Very interesting development yet DHERST staff and senior executives keep silent on serious alleged criminal conduct. Thumbs up Ms. Amenda for stealing the money Fr Jan Czuba and Leah Margis stole from DHERST coppers and the people of the independent state of Papua New Guinea.”....

b) ....“Ms Leah Magis is being baptized into the public service by Fr Jan Czuba as deputy secretary to one of the wings in the department that has all funds in millions stationed squandered only to heavily facilitate their evil intentions of stealing”....

c) ....“Why is the Prime Minister Hon James Marape keeping this criminal in the Department of Higher education research science and technology (DHERST) after being criminally charged with Abuse of Office and 9 counts of official corruption”....

31. When exercising my committal powers under Section 95 of the District Court Act, I am content police have delivered appropriate evidence meeting all the elements of the offence under three (3) counts of Defamatory publication pursuant to Section 21(2) of the Cyber Crime Code Act 2016.
    

CONCLUSION

32. Therefore, it is my ruling evidence shows defendant intentionally and without lawful excuse used an electronic system namely Facebook and posted Defamatory publication against the victims and thus evidence is sufficient to commit the Defendant for the whole three counts of Defamatory publication under Section 21(2) of the Cyber Crime Code Act 2016.
    

ORDERS

33. My Final Orders
    

1. Evidence is sufficient to commit the Defendant

.

Gibson Bon Lawyers For the defendant
Police Prosecutor For the State

[1] Section 95(1) amended by No. 31 of 1980, s4.
[2] Section 94(1A) inserted by the District Courts (Amendment No. 2) Act 1986 (No. 45 of 1986), s2(b).



[i] [2021] PGDC 103; DC6056
[ii] District Court Act
[iii] Cyber Crime Code Act
[iv] Supra (Defense on Defamatory publication)
[v] Supra
[vi] Supra