Gaso v Lapakio [2022] PGDC 105; DC9010 (12 September 2022)

DC9010

Papua New Guinea

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

NCC NO 626 OF 2022
CB NO 627 OF 2022

BETWEEN:

PETER GASO
[Informant]

AND:

NATHAN LAPAKIO
[Defendant]

Waigani: Paul Puri Nii

12^th September 2022

COMMITTAL PROCEEDINGS: -Charge- Defamatory Publication -Section 21(2) of the Cyber Crime Code Act. Contemplation on the acceptability of evidence to install whether Prosecution delivered prima facie evidence convention to the elements of the accusation.

PRACTICE AND PROCESS: Suitable responsibility for prima facie case-assessment of evidence to withstand the allegation of defamatory publication–Eyewitness announcements. Defendant denied the allegation- Defendant argued that he did not post the comments on Facebook.

PNG Cases cited:

Warka v Agai (2017) (unreported) N6589
Police v Kua [2021] PGDC 136; DC6095 (22 September 2021)
Paul Kundi Rape v State [1979] PNGLR 96
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Milali v Paraka [2021] PGDC 152; DC7007 (27 October 2021)

Overseas cases cited:

Overseas Cases cited:
Nivrutti v State of Maharashtra and Pooja Nivrutti 2020
References

Legislation

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

Counsels

Police Prosecutor: Chris Iga For the Informant
Gibson Bonn Lawyers: Gibson Bon For the Defendant

COMMITTAL DECISION

12^th September 2021

INTRODUCTION

NII, Puri. Paul. Magistrate. Deliberation under Section 95 of the District Court Act 1963, after the party's urgings are restrained. Defense habitually challenged police evidence as it is deficient to commit him. Defendant says the comments posted were genuine. Police Prosecutor Chris Iga briefly objected to the defense arguments. Submissions were dignified and therefore in the resultant entrances are the court’s decision.

FACTS

1. Defendant is aged 50 years old and is from Laiagam village in the Kompiam District of Enga Province whom police allege that did intentionally and without lawful justification used an electronic device namely Watsap to publish defamatory material to the effect as I quote “. Vote for senior Statesman John Thomas Pundari. My district my rules. No roads. I will buy your cars. Eight more. Reduce the population. Low living standards, at least you can survive, 2022 National election”. Moreover, police allege that the defendant used a fake Facebook name of Nakau Pakepao and made the following comments on Facebook: “Sir Pundari, why should you carry K4 million to the electoral commission again when your first offer was rejected? Shame on you”, concerning another person namely the Complainant. The Defendant was afterward arrested and charged for the offense of two counts of Defamatory Publication under Section 21 (2) of the Cyber Crime Code Act.
   

CHARGE

2. Defendant is arrested and charged with two counts of Defamatory publication under Section 21(2) of the Cyber Crime Code Act and Defendant’s charge is enlightened in the consequential mode:
   

“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 cooperate, a fine not exceeding K100,000”

ISSUE

3. The inquiry of acceptability of evidence is pertinent in the committal jurisdiction; whether evidence is satisfactory to commit the Defendant.
   

THE LAW

4. 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 CHARGE

5. The court in Milali –v- Paraka [2021] PGDC 152; DC7007, executed the attitudes in Police v Medako [2021] PGDC 54; DC6011, that Prosecution evidence must achieve the elements of the charge of two counts of Defamatory publication against the Defendant.
   

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

Sec 21(2)

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 ruling in Police v Koka [2021] PGDC 53; DC6010, is suitable in this investigation. The court enumerated the acceptable connotation of evidence by deciding that it plays an outstanding role in the course of the court to give an unprejudiced decision. In addition to the above, I have reiterated a few outlines below which I replicate essential in the negotiation.....
   

.....“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. The court will now gauge evidence in the Police-Hand-Up-Brief that was served on the 29^th June 2022 and will form its acceptable judgment on whether police evidence meets the elements of the charge of defamatory publication. If evidence is reasonable then Defendant will be committed, nevertheless, if evidence is unsatisfactory then information against the Defendant shall be discharged.
   

PROSECUTION CASE

8. Prosecution case in the Police file is abridged in the subsequent table including witness names and their equivalent statements.
   

Police evidence in brief:

No	Name	Particulars	Statements
1	Sir John Thomas Pundari	Complainant	Witness says on 18th March 2022, at around 10pm, his public relationship officer and media officer Mr Feaser Liu informed him that there was a post made against him by the defendant in a private whatsapp group called brothers club. Witness says upon his request Mr Fraser Liu took a snapshot of the post and forwarded it to him through his Watsap. Witness says upon receipt of the post he noted that the post contains graphic images including a photo of himself with certain defamatory publications to the effect of “ Vote of senior statesman John Thomas Pundari, my district, my rules, no roads, I will buy you cars, fight more, reduce the population, low living standards, at least you can survive, 2022 National election”. Witness says he was greatly offended by the defendant’s comments on the whatsapp group. Witness says on 24th March 2022, the defendant apologized to him through a letter about the Watsap comments. The Complainant moreover says on 22nd March 2022, at around 8pm, his Public Relations and Media Officer again told him that there was another post on facebook made against him by a person named Nakau Pakepao and was allegedly posted on the Kompiam Ambum political page. The Comments posted were “Sir Pundari, why should you carry K4 million to the electoral commissioner again when your first offer was rejected? Shame on you.” Witness says upon his request Mr Fraser Liu took a snapshot of the post and sent it to him on his whatsapp. The Complainant says the comments were totally false and he found it highly scandalous, slanderous and defamatory. Witness says as a citizen, he was greatly offended since the post was calculated to injure his reputation. Witness says he suspects the comments were made by the defendant under the false FB name.
2	Fraser Liu	Public Relations and Media Officer-	Witness says on 18th March 2022 he saw a comment on warsap group ‘brothers’ carrying an image of the Complainant and words to the effect as “Vote of senior statesman John Thomas Pundari, my district, my rules, no roads, I will buy you cars, fight more, reduce the population, low living standards, at least you can survive, 2022 National election”. Witness says since the comments and the image depicted the Complainant in a negative way, he quickly shared the comments and image to the Complainant. This witness says the comments were posted by the Defendant using phone number 71493428. This witness says the post was shared by many FB users on other forums thereby tarnished the Complainant’s reputation. This witness moreover says on 22nd March 2022, he logged onto his FB account and assessed the Kompiam Ambum political page and noted several descriptive posts and one such post was allegedly posted by a person named “Nakau Pakepao” to the effect as “Sir Pundari, why should you carry K4 million to electoral commissioner again when you first offer was rejected? Shame on you.” Witness says immediately after viewing the post he shared the post with the Complainant. Witness says there were other reactive comments and defamatory posts by other FB users which were character assassinating on the Complainant.
3	Kenneth Kolou	Cyber Crime ICT Officer @Police Headquarters-NCD	Witness says the accused was arrested on 2nd April 2022 at Wapanamande in Enga province. Witness says the accused was arrested and charged for two counts of defamatory publications, however, for the first count Defendant has written a letter of apology to the Complainant and posted on whatsapp group “Brothers club” on 24th March 2022. Witness says defendant had admitted to the first count of defamatory publication by saying he wrote an apology letter. Witness says the second count of defamatory publication was posted by a person named “Nakau Pakepao”. Witness says he did an investigation into the allegation and found out that the name “Nakao Pakepao” has two email addresses as his recovery emails if he forgot his password and one of the email address was [e-mail] Witness says a search with digicel revealed that phone Number [phone] is owned by the defendant and is listed as a back-up phone for the FB account Nakau Pakepao. Witness says from his investigations he has revealed that the accused owned phone number [phone] and the accused email address is [e-mail]. Witness hence finally says the accused is the author of the facebook page Nakau Pakepao and owner of the phone number [phone] whose recovery email address was [e-mail] and says defendant was the one who used the fake account Nakau Pakepao to post the defamatory publications against the complainant.
4	Lison Salle	Police officer	This witness says he was the one who arrested the defendant. Witness says the phone number that shared the defamatory publication is [phone] and this number is connected or linked to the fake Facebook account “Pakau Pakepao”. Witness says the fake facebook name of Nakau Pakepao was created using email addresses akem07@gmailcom and [e-mail]. Witness moreover says these email addresses were used as recovery email address for the face account.
5	Peter Gaso	CID Police detective	Witness says he was part of the police team that investigated the allegations against the defendant. Witness says the defendant was subsequently arrested and charged for the offences.
6	Steven Philipo	Police Officer	He says he was part of the policemen who were involved in the arrest and charge of the defendant against the charge.
7	Charles Wanako, Paul Uragen, Mr Elaine Auo, Chadrek Guldi, Kenneth Golou and Lison Salle	Witness	These are people including Lawyers and policemen who were initially involved in the search warrant with digicel to identify and link the telephone number to the accused and also the policemen who were tasked with the investigations that thus led to the arrest and laying of the 2 count of charges.

DEFENSE CASE

Insufficiency of evidence

9. Defendant through his submission filed on 1^st August 2022, argued on the sufficiency of police evidence that was served on the 29^th of June 2022. Defendant argued on the two counts of defamatory publications under Section 21(2) of the Cyber Crime Code Act differently.
   
10. The first count of defamatory publication was about the following posts which the defendant allegedly posted on a private WhatsApp group, the Brothers club as follows:
    

“Vote of senior statesman John Thomas Pundari, my district, my rules, no roads, I will buy you cars, fight more, reduce the population, low living standards, at least you can survive, 2022 National election”.

11. Defendant argued that in order to substantiate the above allegation police have to prove all the elements of the allegation but they have failed to establish that with evidence. Defendant argued and established the following as the elements of the offence of defamatory publication under Section 21(2) of the Cyber Crime Code Act:
    

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.

12. Defense through his lawyer argued that one of the elements of defamatory publication is “public defamatory material” however defendant argued that he did not publish the post publicly and thus it did not qualify to be an office under this category since the post was not published but was privately shared within a private WhatsApp group called the “brothers club”. Defendant moreover argued that the message was shared from a private group to a more private WhatsApp group for the members’ consumption only and clearly defendant had no intention to harm anyone including the Complainant. However, the defendant argued that it was the Complainant’s Public Relations and Media officer who was also a member of the WhatsApp group that caused the allegation when the message was initially not meant for public consumption.
    
13. Defense argued on the principles in the case of Nivrutti v State of Maharashtra and Pooja Nivrutti 2020 private WhatsApp messages does not amount to public in so far as it is protected by features end to end that is, the communication is between the sender and receiver only or members in the private WhatsApp group. Based on the above principles and the arguments, the defendant submits that the first count of defamatory publication be dismissed.
    
14. Defendant’s second arguments are on the second count of defamatory publication under Section 21(2) of the Cyber Crime Code Act. The second allegation was defendant used a fake name of Nakao Pakapao and posted the following words on Facebook:
    

“Sir Pundari, why should you carry K4 million to the electoral commissioner again when your first offer was rejected? Shame on you.”

15. Defendant argued that police had failed to provide evidence to identify the real person who was operating under the name of Nakao Pakapao. Defendant argues that police have confiscated all the defendant’s devices through a search warrant and thus they should be in a better position to confirm the author and owner of the fake account but they have failed. Defendant stressed that each Internet Protocol address or IP gives a clear customer or user address and identification and the location too but in the case involving the defendant, police have failed to connect the defendant to the IP and his name and location and thus argues that the second count of the charge be dismissed for lack of evidence.
    

CONSIDERATION OF EVIDENCE

Police evidence and defense case

16. The Defendant was arrested by police for posting defamatory publication against Sir John Pundari.
    
17. The first charge relates to a WhatsApp message that was allegedly shared by the defendant to a group called “Brothers club” in which it was allege that the defendant shared defamatory publications and the second charge relates to defendant was using a fake name of Nakao Pakapao to public defamatory publications against the Complainant.
    
18. Defendant admitted to the first allegation and on 23^rd March 2022 wrote a letter of apology to the Complainant. Defend on the letter of apologies denied the author of the post and the Complainant’s edited image on the post but he says was only trying to forward it to a friend but accidently he shared it on the WhatsApp group the brothers club and it became an issue. However, for the second allegation the defendant denied authoring the fake account of Nakao Pakapa and hence denied the allegations.
    
19. Nonetheless, police say their evidence in the P-H-U-B strongly supports the two counts of defamatory publication under Section 21(2) of the Cyber Crime Code Act.
    

RULING

First count of defamatory publication

20. I will deal with the two counts of charges under Section 21(2) of the Cyber Crime Code Act separately. The first charge narrates to the following statement allegedly by the defendant:
    

“Vote of senior statesman John Thomas Pundari, my district, my rules, no roads, I will buy you cars, fight more, reduce the population, low living standards, at least you can survive, 2022 National election”.

21. Defendant admitted to the above allegation and on 23th March 2022 and wrote a letter of apology to the Complainant. However, says the art work and statement was not his. Moreover, he says he sighted the original work on Kompiam Ambum Professionals and elites WhatsApp group and was trying to share it with a friend on WhatsApp but accidently pressed the wrong key and it ended up in brothers’ club WhatsApp group.
    
22. Funded on the defendant’s admission, his defense submission was that the message was intended for the closed WhatsApp group members and not for the public's consumptions and thus says he was wrongly charged under Section 21(2) of the Cyber Crime Code Act. I again recite the charged provision as follows:

“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 cooperate, a fine not exceeding K100,000”

23. The key argument here is that the post that was seen and made known was posted to a closed WhatsApp group members and was not made or intended for the public’s consumption. Defendant says by implication to Section 21(2) of the CCCA, the published material was not a public defamatory material. A public information or public defamatory material is something that is open and reckonable to anyone while a closed information is open to a certain individual.
    
24. The connotation of the law is not about where the information was posted but the exposure and reachable aspect and how many people viewed it. if the posted information/statement was also viewed by some other people apart from the sender and the receiver then the information was posted to a public forum and was made reachable and viewed by them. The term “public view” in my interpretation is viewing and accessing of information by more than two people. It is about how many people viewed and accessed the information that was posted.
    
25. I have read the high count of India’s judgment in Nivrutti Hariram Gaikwad vs The State Of Maharashtra And Anr, the case put forward by defense Lawyer in his argument. This is a case involving WatSap communication between two people, message between the wife and the husband in which the husband called his wife a prostitute, the wife sued her husband for slandering her name and the matter went before the high court of India. The court ruled that:

“WhatsApp calls are end- to-end encrypted so WhatsApp and third parties can't listen to them. It also claims that nobody in between, not even WhatsApp, can read these messages. These messages are secured with lock and only the recipient and sender have special key needed to unlock and read them....

....... Therefore, WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons........ If these messages had been posted on WhatsApp Group, in that case the same could have been called as public place because all the members of the group, will have access to those messages....... The court then went on to state that ....”It is not the prosecution case that the alleged obscene messages were posted on WhatsApp Group of which the petitioner and the respondent and the others are members”.

26. The high court of India’s perceptive is in line with my opinions about Private WhatsApp group between two people and public WhatsApp group between more than two people. The court also made it clear that an end-to- end encrypted message between 2 people is private but sent to a WhatsApp group with more than two members is not private but public.
    
27. The high court dismissed the charge because State prosecutors have failed to convince the court that the messages were posted on a WhatsApp group. If the massages were posted on a WhatsApp group, then it would attract the criminal burden of “public viewing” and thus the wife could have won the case. However, the court ruled it was a private communication between two people and it was not made public. However, in the current allegation, the WhatsApp message was not sent by one person to another where there would be end-to- end encrypted which means, only the sender of the message and the recipient of the message can read the messages and respond between themselves but it was sent to a WhatsApp group and thus was viewed by all the members of the group. The post was thus viewed by more than two (2) people and therefore the case of India is not applicable in the current case.
    
28. I am also of the view that there was an apology letter written to the Complainant by the defendant by expressing his remorse and ingratitude in the manner in which the post was initially shared. However, Complainant despite the letter of apology decided to peruse the matter criminally so it is now my duty to assess evidence and rule.
    
29. Therefore, when assessing the evidence, I am satisfied that there is prima facie evidence that the defendant had intentionally and without lawful excuse or justification recklessly used an electronic system to post public defamatory material concerning the victim. Thus the post was sent to a WhatsApp group called Brothers club and hence it became a public defamatory material and thus the first charge under Section 21(2) of the Cyber Crime Code Act is sustained. Evidence is sufficient to make a prima facie case against the first count.
    

Second Count of defamatory publication

30. The second count of allegation under Section 21(2) of the Criminal Code Act, is about a Facebook posting where police alleging the defendant used a fake account name of Nakau Pakepao and posted the following comments on Facebook:
    

“Sir Pundari, why should you carry K4 million to electoral commissioner again when your first offer was rejected? Shame on you.”

31. I have read through the evidence and noted that there is evidence of search conducted on the defendant by police and thus devices such as flash drives and phones were confiscated. All police men including the Complainant and his Public Relations and media officer gave evidence. Police witness Lison Salle says his investigation had led him to connect the defendant’s telephone number [phone] to the email address of [e-mail] and [e-mail]. The Evidence of Kenneth Kolou says his investigations had led him to confirm that the email address [e-mail] is the other mode of recovery for the Facebook account name Nakeo Pakeo.
    
32. The Internet Protocol(IP) address obliges as system interface documentation and position addressing. This means the IP will link an internet user to the device together with its feathers. Defendant argued that police have failed to connect the defendant to the IP address and thus asked me to dismiss the information. I have assessed this argument and noted that police have conducted investigations into the allegation and say they linked defendant Nathan Lakapeo to the fake account Nakau Pakepao with his telephone number. The evidence I want is that police should apply the principles in the case of Police v Amaiu [2021] PGDC 137; DC6094 when dealing with fake accounts on Facebook. I have cited the following principles in the above case and stated that:
    

“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.”

33. With consistent to the above principles, although police have stated that they did their search and linked the defendant to his telephone number and the Pseudonymous character of Nakau Pakepao but they have not actually say they logged into the fake account with the information obtained and identified the defendant to be the owner of the fake account, no evidence here.
    
34. On a balance less than the criminal standard of proof, police have failed to access the fake account by actually logging onto it. Evidence shows Police have not truly and carefully identified and connected defendant Nathan Lakapeo to the fake account Nakau Pakepao, that was not done here. Evidence shows police have not assessed the fake account but assumed the fake account only after seeing it. A person can be committed on hypothesis and assumption but based on tangible and observable evidence meeting the elements of the offence but nothing of that much here.
    
35. Therefore, it is my ruling that the charge of second count of defamatory publication under Section 21(2) of the Cyber Crime Code Act is dismissed.
    

CONCLUSION

36. Therefore, it is my ruling under Section 95(1) of the District Court Act that evidence is sufficient to make a case against the defendant for the first count of defamatory publication under Section 21(2) of the Cyber Crime Code Act and therefore evidence is sufficient to meet the element of the first counts of Defamatory Publication. However, evidence is not sufficient to commit the defendant for the second count.
    

ORDERS

25. My Final Orders
    
    1. Evidence is sufficient to commit the Defendant for the first count of Defamatory publication under Section 21(2) of the Cyber Crime Code Act and thus the charge is sustained.
       
    2. The second count of charge is dismissed for lack of prima facie evidence.
       
    100. Defendant’s bail is extended.
         

Gibson Bon Lawyers For the defendant
Police Prosecutor For the State

[1] Section 95(1) amended by No. 31 of 1980, s4.

[i] Cyber Crime Code Act
[ii] Supra
[iii] Supra
[iv] Supra
[v] Supra
[vi] Supra
[vii] Supra
[viii] Supra