Police v Kanua [2021] PGDC 37; DC5093 (13 May 2021)

DC5093

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DC 157 of 2021

BETWEEN
POLICE
Informant

AND
SHARON KANUA
Defendant

Mt Hagen : L Mesmin

2021: 8^th & 10^th February
13^th May

CRIMINAL LAW- PRACTICE AND PROCEDURE- CYBERCRIME CODE ACT - Whether the charges under section 21 (2) (a) is indictable or summary offence?

CRIMINAL LAW-PRACTICE AND PROCEDURE- Pleas - Plea of guilty - power to change a plea of guilty after allocotus administer but before pronouncing sentence - Whether the police are empowered to prosecute under the Pandemic Act 2020.

Cases Cited
Police v. Lelena Metoa CR 25 of 2014
Sevese v. Cutmore DC4077
Park Sung Soo, MA Building Constructions Ltd v. Hankin Emboge & r Ors N2248
State v Paraka (2020) N8229
Wartoto v The State (2015) SC144
Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4: N3121
The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1
Gabriel Laku v The State [1981] PNGLR 350
State v Tulong [1994] PGNC 165; [1995] PNGLR 329
Koai Keke V Papua New Guinea Colour Laboratories Pty Limited [1992] PGNC 92 N1056

Constitutional Laws
Constitution of the Independent State of Papua New Guinea

Legislations
Cybercrime Code Act
Arrest Act (Chapter 339) consolidated to number 17 of 2015
Criminal Code Act (Chapter 262) consolidated to number 34 of 2016
District Court Act (Chapter 40) consolidated to number 8 of 2000
Interpretation Act (Chapter 2) consolidated to number 52 of 2015

References
Hill E R Powles G; Magistrates Manual of Papua New Guinea, Lawbook Co. (2001). Sydney NSW 2009.

Counsel
Senior Sergeant Malt Plamp for the Police
Ms Sharon Kanua in Person

13^th May 2021

DECISION

L Mesmin. Magistrate:

1. The Defendant, Sharon Kanua, pleaded guilty to one count of Defamatory publication contrary to s. 21(2) Cyber Crimes Code Act and convicted on 8^th March 2020.
   

FACTS

2. The Defendant Ms Sharon Kanua, aged 31 years from Mogekai village in Sinasina/Yongomugl Simbu district is alleged to have electronically sent by way of mobile text messages, offensive, indecent and obscene words to Mr Lasan Annia and Mrs Elizabeth Ak.
3. Mr Lasan Annia and Mrs Elizabeth Ak are a married couple who at the material point of time had custody of the Defendants children also.
4. It is alleged that on 11^th February 2021 at about 2:02pm the Complainant Mr Lasan Annia advised the Defendant to attend at the Mt Hagen police station to respond to his complaint that she had sent him and Mrs Elizabeth Ak offensive, indecent and obscene text messages on the 30 of January 2021 and then again on 10^th February 2021 using her mobile phone under her sim number [phone].
5. It is alleged that the message sent by the Defendant to the Complainants was, “Your daughter was raped, did Lasan tell you that. Go kakikai kan wara blo Elis. Kok slice man. Cut out Wilmas kan and put it on your face”
6. The Defendant was interrogated by the police and it is alleged that she admitted to committing the offence on two separate occasions because she was not given an opportunity by Mr Lasan Annia who is her former husband to speak to her son who was in his custody at that time and who she says was very sick.
7. It is alleged that the Complainants admitted that they ignored and refused to answer the Defendants calls and even restricted her by blocking her number so she could not get through.
8. It is alleged that upon so many failed attempts to get through to Mr Lasan Annia and Mrs Elizabeth Ak to speak to her son, the Defendant became more frustrated and furious resulting in her resorting to send the Complainants those messages to get their attention.
9. The Defendant was explained her Constitutional rights under s. 42(2) of the Constitution and released on K200.00 Police Bail.
10. On the 8^th March 2021, Ms Sharon Kanua, was arraigned in Pidgin and on arraignment the Defendant pleaded guilty to the charge and did not dispute the statement of facts.
11. I confirmed her provisional plea of guilty and based on that finding of guilt, convicted her.
12. On 10^th March 2021 police prosecutions made a very brief submission, but ultimately left it entirely up to the court to decide on. The decision was reserved to 31^st March 2021, but the National and District Court went into shut down mode for 8 weeks immediately after that, due to the spread of Covid 19 in the province. The matter was adjourned again 3 other times on the 4^th April 2021, 5^th May 2021 and 12^th May 2021.
    

ANTECEDENTS

13. The Defendant is 31 years old from Mogekai village, Sinasina/Yongomugl District, Simbu Province. She has 2 sons that she maintains and she lives at Hagen “T” School suburb.
14. She is separated from former her husband who is the first complainant, is unemployed and has no prior convictions.
15. As the Defendant pleaded guilty to the charge of defamatory publication, for this Court to impose the appropriate penalty, the facts and nature of the offence needs consideration.
16. At this juncture the Court noted that the matter may not be properly before it in terms of proper procedure and raised the issue as to whether it had the jurisdiction to deal with this plea under the summary jurisdiction or whether the matter should go by way of the committal process. The Court further raised another issue of whether, if indeed there did exist a procedural irregularity, whether it had the power to determine that very issue at District Court stage.
17. Police prosecution submitted that they were not prepared to assist the court in that regard and left it entirely up to the Court to consider and decide.
18. This then becomes the first issue that must be addressed by this court relating to its jurisdiction.
19. I have taken note that this position the Police Prosecution, who undertake the bulk of prosecutorial work in the District Court, have taken, not to be prepared to assist the court by way of submission in terms of new laws and even on sentence trends is becoming a common practice.
20. Yet again this appears to be another case where I am asked, with no real assistance from prosecutions, to deal summarily with a matter which could likely be properly and lawfully dealt with on indictment. This may be because police prosecutors are either not trained or if they are trained, they just have not checked the legislation and done their research, and have left the issue up to the magistrate.
21. This again is a grave concern for the Court for the same reasons I gave in commentary in the case of Police v. Lelena Metoa CR 25 of 2014, in relation to it becoming a norm in Summary Cases where the Police Prosecution, make no effort to assist the court specifically at the sentencing stage. In that case I stated:
    

“I am quite surprised and concerned that the prosecutions made no attempt to submit on sentence either. This is becoming too common of a trend in my court room especially at this stage where I require some assistance in relation to sentencing ranges.

I am of the view that the sentencing process cannot be expected to operate satisfactorily; in terms of either justice or efficiency, if arguments in support of adopting a particular sentencing option are not advanced at the hearing through the police prosecution.

Due to the fact that the police prosecutor has obligations different to those of defence counsel, owing duties both to the court and the public at large, it demands the prosecutor to act fairly and impartially in discharging his or her duty, one of which is to make submissions on sentence with a view to:

• Inform the court of all of the relevant circumstances of the case;

• Provide an appropriate level of assistance on the sentencing range;

• Identify relevant authorities and legislation; and

• Protect the court from appellable error.

While there may be no need to assist the magistrate on these issues or on sentencing ranges (or to provide comparative sentences) for offences which regularly come before the court, eg. Unlawful assault offences, it is essential to be prepared to assist the magistrate where this is not the case, and to be ready to accurately provide assistance to the court when it is requested on such issues.

Magistrates cannot be expected to have an encyclopaedic knowledge of maximum penalties, sentencing ranges and comparative sentences for the myriad of offences with which they are required to deal with every day.

The list of legislation within the Court’s jurisdiction is continuing to grow also. In addition, a magistrate may not be familiar with particular legislation, let alone sentencing ranges, if he or she is newly appointed. There should not be too much reliance placed on the impossible proposition of magistrates knowing it all.

It is a big concern and unsatisfactory that in this case, no attitude was expressed by the Police Prosecutor who could have mounted a substantial argument in support of the State’s case.”

ALLOCOTUS AND SUBMISSIONS

22. In Allocatus, Ms Kanua showed remorse for what she did and asked the court to show her mercy.
23. Nothing was said by the offender as to what kind of penalty to be imposed on her. However, I take into account what she said in allocotus that she did send those text messages but she did so because she could not get through to her son, who was in their custody. She said that the complainants deliberately refused answering her calls and went further by blocking her number.
24. I note that after the plea was taken, the Defendant convicted and the allocotus administered, it appeared the Defendant had made statements that raised a defense of provocation which placed enough doubt in my mind as to the correctness and safeness of her earlier plea.
25. Again, when asked by the Court, no submissions were raised by the Police Prosecution as to what kind of penalty to be imposed on her nor on the issue of whether the Court has the power to change the plea at this stage.
26. This now becomes the next issue to be addressed as to whether the Court has the power to change the plea after it has pronounced a conviction.
27. The Court made further inquiries about maximum and minimum penalties and the ranges for offences such as this or similar cases but received a negative response.
28. As the defendant had pleaded guilty, she was given the benefit of the doubt on mitigating matters raised in the depositions and the allocotus that were not contested by the police prosecution.
    

ISSUES

29. This matter was adjourned to today for the court to decide on the following issues:
30. ISSUE 1: Does this Court have the jurisdiction to try this matter summarily and if not what then is the correct procedure the Court should apply?
    
    • Does this Court have the power to determine an Application regarding procedural irregularity or defect?
      
    • If it does have jurisdiction to try this matter summarily and was convicted, what type of penalty is deemed appropriate for the Defendant, Sharon Kanua for having pleaded guilty and convicted on a charge of Defamatory publication contrary to s. 21(2) Cyber Crimes Code Act?
      
31. ISSUE 2: Does this Court have the power to change a plea of guilty before sentence is pronounced on the basis that there exists a procedural irregularity resulting in the Court lacking jurisdiction to hear the matter summarily?
    

LAW

32. The offence for which the Defendant is charged is:

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

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

ISSUE 1 - DOES THIS COURT HAVE THE JURISDICTION TO TRY THIS MATTER SUMMARILY AND IF NOT, WHAT THEN IS THE CORRECT PROCEDURE THE COURT SHOULD APPLY?

33. Answer: No. The correct procedure to apply is to have the charge prosecuted in the committal court on the premise that the offence is an indictable offence under the Cybercrime Code Act.
34. This calls for a consideration of the correct procedure in these types of situations.
    

Does this Court have the power to determine an Application regarding procedural irregularity or defect?

35. I rely and apply the recent case of Sevese v. Cutmore DC 4077 where my sister magistrate Laura Wawun-Kuvi, at page 6 stated:
    

“In the present matter, the Supreme Court in Wartoto v The State (2015) SC144 and recently in State v Paraka (2020) N8229 empowers the District Court to deal with issues of defect and procedural irregularity when it arises before it. Sakora J and Kandakasi J as he was then stated at paragraph 41:

“When an information is presented, the District Court has the power to deal with any issue that concerns both the form and substance of the information presented before it. If for example, an information is defective for whatever reason, this can be raised and dealt with by the District Court. If it can be corrected it could be done by way of an amendment to the information. But if it is so serious that no amendment could fix the problem, the information can be struck out. This would apply to both indictable and summary offences. It would also be appropriate to deal with any abuse of process at the investigation state and at the District Court level by the District Court.”

36. This court has the power to determine matters of defect and irregularity at both the Investigation stage and District Court stage.
37. I now move on to deliberate on the remaining issues that I had earlier invited the police prosecutions to submit on but no submissions were forthcoming.
38. The Charge reads:

“Did intentionally and without lawful excuse use a mobile phone to send text messages to publish defamatory material concerning another person(s) namely, Mr Lasan Annia and Ms Elizabeth Ak by texting “Your daughter was raped, did Lasan tell you that. Go kakikai kan wara blo Elis. Kok slice man. Cut out Wilmas kan and put it on your face”.

Can this matter be prosecuted summarily?

39. Section 21 and 22 of the Interpretation Act stipulates that:
    

21. Indictable offences.
An offence—

(a) declared to be treason, crime, misdemeanour or indictable offence; or

(b) punishable by imprisonment for a term exceeding 12 months,

is an indictable offence.(my emphasis)
22. Offences punishable on summary conviction.
An offence that is not an indictable offence is punishable on summary conviction.

40. The law is expressly clear that an offence punishable by imprisonment for a term exceeding 12 months, is an indictable offence. In this case the penalty is imprisonment for a term not exceeding 15 years, therefore it is an indictable offence that must go by way of the committal process prior to it being heard in the National Court instituted through an indictment.
41. I rely and adopt what Justice Cannings said in Kamit v Aus-PNG Research & Resources Impex Ltd [2007] PGNC 4: N3121:
    

“.......the distinction between indictable and summary offences is drawn by Sections 21 and 22 of the Interpretation Act. If an offence is punishable by imprisonment for a term exceeding 12 months, it is an indictable offence. Any offence that is not an indictable offence is punishable on summary conviction.

It is necessary to look at the nature of an offence – more particularly its penalty provision – to determine whether it is an indictable offence (tried by an indictment, following committal proceedings) or a summary offence (tried summarily). The prosecuting authority’s decision whether to prosecute by indictment or summarily is driven by the categorisation of the offence, which is determined by operation of law. An indictable offence can only be tried summarily, if the law expressly provides for it.”

42. The Supreme Court confirmed this position in law in the case of Bank of Papua New Guinea v Eddie Oruba Mai (2007) SC 862 where it decided, after discussing, that it was mandatory that the committal proceedings must necessarily happen first time in terms of practice and procedure for all offences punishable by imprisonment for a term exceeding 12 months.
43. Further, I refer to the case of Sevese v. Cutmore (Supra) where Magistrate Laura Wawun-Kuvi, addressed the issue of whether the charge contravening section 47 (1) (a) of the National Pandemic Act 2020 could be prosecuted summarily or not?
44. Magistrate Wawun-Kuvi referred to the discussions on section 21 and 22 of the Interpretation Act raised in the case of Bank of Papua New Guinea v Eddie Oruba Mai (Supra) and found that in that matter the Defendant was charged with an indictable offence for failing to comply with the Controllers directions under s.47 and therefore must be preceded by a committal hearing.
45. A quick look at the Cybercrimes Code Act reveals that all the penalties for offences punishable by imprisonment ,as an alternative to a fine, provided for under Part III, exceed 12 months and are therefore clearly all indictable offences.
46. Section 48 under Part VII of the Cybercrimes Code Act makes provision for several indictable offences that can be tried summarily and states:
    

“Where a person is charged before a District Court constituted by a Principal Magistrate with an offence specified in Schedule 2, the Court may deal with the charge summarily according to the procedure set out in Section 421 of the Criminal Code Act (Chapter 262).”

47. This clarifies that only a Principle Magistrate of the District Court can hear offences specified under Schedule 2 summarily and the charge for which the Defendant is charged with in the current case is not one that is listed in this Schedule so it does not apply for our purposes.
    
48. In the State v Tulong [1994] PGNC 165; [1995] PNGLR 329, where a mandatory requirement under the Criminal Code was not complied with at the arrest of the defendant, Justice Doherty said:

That law was not complied with in this case and I am therefore obliged to find that the defendant is not properly before the Court...”

49. The procedural irregularity is that the Cyber Crimes Code Act does not permit the charge of Defamatory publication contrary to s. 21(2) to be prosecuted summarily and by not following the proper procedures for the prosecution of indictable offences, I am of the view that the law was not complied with and therefore the Defendant is not properly before this Court.
    

FINDINGS

50. I make the following findings:
    1. The charge of Defamatory publication contrary to s. 21(2) Cyber Crimes Code Act for which the defendant is charge with is an indictable offence;
    2. Cyber Crimes Code Act does not allow the charge to be prosecuted summarily;
    3. All criminal offences under the Cyber Crimes Code Act are indictable offences and must be prosecuted in the Committal Court;
    4. Schedule 2 Offences of the Cyber Crimes Code Act are indictable offences that can be tried summarily and the offence of Defamatory Publication provided for under s. 21(2) is not one of the offences listed.
    5. This District Court sitting in its summary jurisdiction does not have the jurisdiction to summarily determine the matter.
       

What type of penalty is deemed appropriate for the Defendant, for having pleaded guilty and convicted on a charge of Defamatory publication contrary to s. 21(2) Cyber Crimes Code Act?

51. Having made those findings, I see no need to direct my mind to addressing the issue as to what type of penalty is deemed appropriate for the Defendant.
    

ISSUE 2: DOES THIS COURT HAVE THE POWER TO CHANGE A PLEA OF GUILTY BEFORE SENTENCE IS PRONOUNCED ON THE BASIS THAT THERE EXISTS A PROCEDURAL IRREGULARITY RESULTING IN THE COURT LACKING JURISDICTION TO HEAR THE MATTER SUMMARILY?

52. Answer: Yes. The Court does have the power to change a plea before sentence when the proper lawful procedures are followed in prosecuting the charge but in a situation where the Court finds that due to a fundamental procedural irregularity it lacks the jurisdiction under the summary jurisdiction to hear the matter in the first place, it becomes void from the very beginning.
53. In the current case the answer to the issue raised is No.
54. I am of the view that a decision is final when the decision-making forum pronouncing it has no further jurisdiction to rehear the question or to vary or rescind the finding.
55. Substantively, a decision is final when the decision-maker has completely fulfilled his/her task in disposing of issues raised in the proceedings as a whole. Final means there is nothing more to be done to perfect the decision so as to render it effective and capable of execution.
56. It terms of the criminal process in the summary court, I adopt the position in common law that in a guilty plea, there is no conviction until sentence is passed. This means that even if a conviction is made and pronounced, that conviction only becomes final upon sentence being completed. This is a matter in the Courts discretion.
57. In the Magistrates Manual of Papua New Guinea at page 211 it states:
    

“Once a clear plea of guilty has been entered and the court proceeds to hear sentence, the prisoner is regarded as having been convicted, and it is wholly a matter of the courts discretion as to whether the conviction should be set aside or the plea of guilty vacated.”

58. In Park Sung Soo, MA Building Constructions Ltd v. Hankin Emboge & r Ors N2248, Kanadakasi, J at page 8 stated the law on when a plea of guilty may be vacated or changed, that:
    

“It is a well accepted practice in our normal criminal jurisdiction that a guilty plea can be changed before sentence, if there is material that casts doubt on the correctness of proceeding to convict and sentence on a guilty plea. The law on when a plea of guilty may be vacated is set out in The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1. The principles set out in that case were endorsed and applied by the Supreme Court in Gabriel Laku v The State [1981] PNGLR 350. “

59. This Court accepts and adopts the law that relates to the vacating or the changing of a guilty plea and applies it to the current case.
60. I find that the Court does have the power to change a plea of guilty before sentence is pronounced.
61. In the current circumstances the procedural irregularity has resulted in the emergence of a fundamental and critical fact in law in that this Summary Court did not have the jurisdiction to hear the charge in the first place and ultimately this affects the outcome of the decision.
62. On the basis that the Defendant was not properly before the court, I am obligated to discharge Sharon Kanua from the information laid against her and I order so accordingly.
63. The orders of this court are that:
    1. The Information be struck out for procedural irregularity and lack of jurisdiction; and
    2. The Defendant be discharged from the information; and
    3. The Defendant’s police bail be refunded forthwith.
       

Senior Sergeant Malt Plamp for the Police
Ms Sharon Kanua in Person