Nason v Kende [2022] PGDC 4; DC8001 (20 January 2022)

DC8001

Papua New Guinea

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

COM 1206 OF 2020
CB 3606 OF 2020

BETWEEN:

BRIAN NASON
[Informant]

AND:

JERRY KENDE
[Defendant]

Waigani: Paul Puri Nii

20^th January 2022

COMMITTAL PROCEEDINGS: -Charge- Defamatory Publication -Section 21(2) of the Cyber Crime Code Act. Consideration on the assessment of evidence to ascertain whether Prosecution provided prima facie evidence satisfying the elements of the accusation.

PRACTICE AND PROCESS: Suitable requirement for prima facie case-Evidence supporting the allegation of Defamatory publication–Police evidence/witness statements. Defendant denied the allegation- Defendant argues police failed to connect him to the allegation.

PNG Cases cited:

Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Milali v Paraka [2021] PGDC 152; DC7007 (27 October 2021)
Police v Koka [2021] PGDC 53; DC6010

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: Joseph Sangam For the Informant
Public Solicitor: David Kaiok For the Defendant

RULING ON COMMITTAL

20^th January 2022

INTRODUCTION

NII, P. Paul Magistrate. Court’s attention pursuant to section 95 of the District Court Act 1963, after arguments on parties are measured. Defendant argued that Police have failed to meet the elements of Defamatory Publication under Section 21(2) of the Cyber Crime Code Act that the comments on FB were allegedly posted by the Defendant. Defense consistently tested police evidence as is underprovided to commit him. Defendant denied the allegation. Police Prosecutor Joseph Sagam briefly challenged the Accused arguments by supporting police evidence. Both arguments were dignified and therefore now is the court’s declaration on evidence.

FACTS

1. Police information says Defendant is aged 36 years and from Omain village in the Kompiam Ambum village of Enga Province, PNG. Police information provided Defendant on 2^nd October 2020, posted words to the effect as shown below on his Facebook page against another person namely Justin Tkatchenko:
   

“ Ukrainian crook, PNG worst ever corrupt apple, bringing in an inflated contract by crippling the cash flow in putting people’s money into their project and the list goes on, evil. He is still connecting with his former pro corrupt regime PNC, gay, a great pretender and a pro to his counterpart PO and a real snake in the grass”

2. Police allege, Defendant allegedly posted the above by referring to a person named Justin Tkatchenko, who is also the minister responsible for Housing and Urban Development. Defendant was afterwards arrested and charged for the offense of Defamatory Publication under Section 21(1) and (2) of the Cyber Crime Code Act. Defendant is now appearing on a police bail of K200 which was granted on 6^th October 2020.
   

CHARGE

3. Defendant is arrested and charged for Defamatory Publication under Section 21(2) and Cyber Harassment under Section 23(1) of the Cyber Crime Code Act and Defendant’s allegations as it is established on the new cyber Crime Code Act are 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.

(i) 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

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

“23. Cyber Harassment.

1. 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 whether or not it is connected to the internet (with or without the aid of electronic writings, images, audios, visual or audiovisual recordings or the exchange of messages) to
   

i) Initiate; or

ii) Facilitate; or

iii) Participate in,

any communication or online discussion or post regarding another person directly or indirectly (with or without the exchange of messages, images, audios, visual or audiovisual recordings) with the person harassed- for the purpose of-

i) Coercing, intimidating, threatening, harassing, stalking or causing emotional distress; or

ii) Supporting each repeated acts under Subparagraph (i), in respect of that person, is guilty of a misdemeanor

ISSUE

4. The inquest of adequacy of evidence is appropriate in the committal jurisdiction; whether evidence is reasonable to commit the Defendant.
   

THE LAW

Jurisdiction of the Committal court

5. The powers of the court is derived from Section 95 of the District Court Act in the following manner:
   

“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”.

ELEMENTS OF THE CHARGE

6. The court in Milali v Paraka [2021] PGDC 152; DC7007, applied the ideologies in Police v Medako [2021] PGDC 54; DC6011, that Prosecution evidence must accomplish the elements of the charge of Defamatory publication in order to make a case 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.

Elements of Cyber Harassment-(Section 23(1) of the Cyber Crime Code Act)

Section 23(1)

a. A person who,

b. intentionally and without lawful excuse or justification, or

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

d. uses an electronic system or device whether or

e. not it is connected to the internet

f. (with or without the aid of electronic writings, images, audios, visual or audiovisual recordings or the exchange of messages)

g. to Initiate, Facilitate or Participate in any communication or

h. online discussion or post regarding another person directly or indirectly

i. (with or without the exchange of messages, images, audios, visual or

j. audiovisual recordings) with the person harassed-

k. for the purpose of Coercing, intimidating, threatening, harassing, stalking or causing emotional distress

EVIDENCE

7. The guidelines in Police v Koka [2021] PGDC 53; DC6010, is proper in this court’s examination on evidence. The court in the above case emphasized the importance of evidence that it plays a pivotal role in the administration of criminal justice to ensure a fair-minded and justifiable outcome is grasped. I have adopted what I feel is relevant in my ruling in the succeeding lines:
   

.....“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” ....

8. I will now assess evidence tendered to court and ascertain whether or not police evidence meets the elements of the charge of Defamatory publication to make a case against the Defendant on a prima facie basis.
   

PROSECUTION CASE

9. State evidence is in the Police hand-up-brief which is summarized in the following table:
   

Police evidence in brief:

No	Name	Particulars	Statements
1	Justin Tkatchenko	MP and State Minister	He is the Complainant in this matter. His statements say the Defendant’s comments on FB have defamed his personality and character as a family man and national leader.
2	Constable Manase Ibobi	Arresting Officer	Witness says he is a policeman and was contacted by the Complainant about the allegation which subsequently led to the Defendant’s arrest and charge.
3	Senior Constable Lomo Pekori	Rearrested the Defendant	This witness says he is a policeman who rearrested the Defendant for cyber harassment
4	Detective Constable Brian Nason and Constable Paul Depolap	Investigator and Police corroborator who was present at the time	Police arresting officer and Corroborator who arrested the Defendant and conducted ROI which afterward steered to the charge of Defamatory publication against the Defendant.

DEFENSE CASE

Insufficiency of evidence

Arguments on Defamatory Publication-21(2) CCA

10. Defendant though his Lawyer has based his arguments on his submission challenging police evidence filed on 15^th December 2021. Defense argues that Police evidence or complainant’s statement disclosed only the first alleged defamatory publication of 2^nd October 2020 but not the one on 11^th October 2020 and thus submits that there is contradiction as to whether the allegation against the Defendant on the first charge relates to relates to the second charge or neither.
    
11. Defendant further submits that the complaint made is based on a different post but the one alleged by the Complaint is about a comment allegedly posted by the Compliant on 27^th June 2020 which is not the subject of the allegation.
    
12. Based on the above Defendant submits that the allegation of Defamatory publication against the Defendant does not does not qualify to have merit under Section 21(2) of the CCA and thus asked the court to dismiss the information.
    

Arguments on Cyber Harassment -23(1) CCA

13. Defendant adopts the same arguments in Cyber harassment to defamatory publication and moreover argues that police evidence and dates for the alleged publication is inconsistent and evidence failed to satisfy the elements of the offending change of defamatory publication.
    
14. Based on the foregoing, Defendant through his Lawyer submits under Section 95(2) of the District Court Act that police evidence is insufficient to commit the Defendant and thus information against the Defendant be dismissed.
    

DELIBERATION OF EVIDENCE

15. The Complainant in this matter is the member for Moresby South and a state minister in the Marape/Basil government. The Complainant through his statement to police in a form of unsworn Affidavit allege that on 27^th June 2020, the Defendant posted on his personal Facebook account namely “Jerry Kende” words to the effect as I quote: (this is a summary).
    

“hidden motives to cover up in the pretext of bringing development in the District of Moresby South secretly conspiring to have the Complainant’s company bidding and getting all the small projects”

16. The evidence of Police witness constable Manase Ibopi says he was informed by the Complainant about a post made by the Defendant after he was on bail and the post he made is as follows:
    

“He cannot freeride on me to parliament, it is annoying when the MP, like tribal warlords in the highlands is sending his fox units’ warriors to unlawfully bother me while I am out on bail, he is not behaving sensible (by referring to the Complainant)”.

17. Evidently, the above posts formed the basis of the two charges against the Defendant.
    

RULING

Defamatory publication

18. The Complainant in this matter is Hon Justin Tkatchenko and thus the genesis of the allegation should be carefully funded in his statement. The Complainant stated that on 27^th June 2020, the Defendant posted a comment against him on his personal Facebook page. The allegation against the Defendant should be funded on the comment of 27^th June 2020 and nothing else. It was this comment that the complainant felt aggrieved and thus this comment should be the subject of focus.
    
19. The alleged comment against the Complainant posted by the Defendant as mentioned in the Complainant’s complaint to police is as follows:

“Minister for Housing and Local MP for Moresby South is performing well but his hidden motive is to cover up in pretext of bringing development in the district of Moresby South but secretly conspiring to having his own company bidding and getting all the small project. The MP supposed to be delivered the project equally to the people of Moresby south engaging them in small contractors but were not done in the best interest of Moresby South. He is getting all the land shaping jobs prior to and during APEC watering contract ahead of the local competition. The people of Moresby South should not blind leading blind. You people should know that something is totally wrong and abuse of power and officer”

20. The above allegation should be reflected in the information holding the charge against the Defendant. The information should reflect the complaint lodged with police, information does not operate in isolation but it is a replica of the complaint statement. I have read through the police file and noted that the information lodged by police does not contain the allegation as alleged by the Complainant. The Complainant on his statement to Police asserts that the Defendant on 27^th June 2020 published the Defamatory publication against him containing words to the effect as stated above. Nevertheless, the information lodged by police says on 2^nd of October 2020, Defendant posted a different comment which was not mentioned by the Complainant on this statement. Police should not come up with isolated evidence but their evidence should be consistent with the Complainant’s statement in the Complaint to corroborate the allegation.
    
21. Therefore, in the assessment of police evidence under Section 95 of the District Court Act, I am satisfied that the police information holding the charge of Defamatory publication under Section 21(2) of the cybercrime code Act against the defended is defective as it does not reflect the complaint lodge and thus the information under this charge is dismissed.

Cyber Harassment.

22. Defendant was arrested the second time for cyber Harassment under Section 23(1) of the CCCA, for his comments in relation to his re-arrest. Police statement claims Defendant posted the following words against the complainant:
    

“He cannot freeride on me to parliament, it is annoying when the MP, like tribal warlords in the highlands is sending his fox units’ warriors to unlawfully bother me while I am out on bail, he is not behaving sensible (by referring to the Complainant)”.

23. The above comments should prudently capture the element of cyber harassment. The words posted should be annoying, provoking and irritating on the Complainant. The words to this effect should be carefully established and captured in the comment. The comment to me does not seem like harassment but it was a concern over the manner in which the Complainant sent police to have the Defendant re-arrested.
    
24. People should not take advantage of the cybercrime Code Act by labeling any comments involving space/cyber and internet as defamatory and cyber harassment. The intent and purpose of Cyber Crime Code Act should not be abused for political and personal gains but should be applied for its literal and purposive approaches.
    
25. Once a comment is or has been posted, try and assess all the comments properly on whether it would be necessary to attract the offense under the Cybercrime Code Act. Some comments are offensive and harassment while others are challenges which should not be taken and seen from a negative perspective but embrace them as positive towards personal development. Constructive criticism is sometimes good for health with a good intention. I read somewhere in a book and it says “criticisms of political ideas is the process of shaping and forming policies of compromise necessity to the governing of a society with honesty and integrity”
    
26. Therefore, it is my decision that after assessment of police evidence, I am satisfied that police have not provided sufficient evidence to corroborate and attract the offense of cyber harassment under Section 23(1) and Defamatory publication under Section 21(2) of the CCCA and thus these allegations are Dismissed.
    

Record of Interview

27. Finally, I have noted that the Record of interview was not conducted. There is no evidence of a ROI in the police file. A Record of Interview is a fragment of a criminal investigation which subsequently becomes an evidence of arrest and charge of the Defendant. The arresting officer shall administer the ROI and it is from there that the Defendant should be told of the reason why he/she was brought to the police station to be charged. Moreover, the ROI delivers as a prospect where the defendant may present his position whether to confess or refute the change against him.
    
28. The law under the constitution provides for the rights of every person. Section 42 of the Constitution provides for Liberty of the person. I recite Section 42(2) below:
    

“42. Liberty of the person.

(2) A person who is arrested or detained—

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him ; and

(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and

(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained, and shall be informed immediately on his arrest or detention of his rights under this subsection

29. The constitution provides that a person who is arrested shall be told in a language that he/she understood the reasons why he/she was arrested and charged for the allegation. The constitution also provides opportunity for the accused person to communicate with his family members or a lawyer about the allegation in which he/she was arrested. In my opinion the application of Section 42(2) of the Constitution is administered through the Recode of Interview and not through the information or the charge sheet. If the ROI was not conducted, then the Defendant’s rights under Section 42(2) of the Constitution was breached.

CONCLUSION

30. Therefore, it is my ruling under Section 95(2) of the District Court Act, that Defendants submission filed on 15^th December 2021, challenging the sufficiency of police evidence on the charges against the Defendant is upheld. Subsequently, the charges of Defamatory publication under Section 21(2) and Cyber Harassment under Section 23(1) of the CCCA are dismissed.
    

ORDERS

31. My Final Orders
    

1. Evidence is insufficient to commit the Defendant.
2. Information then under inquiry carrying the charges of Defamatory publication under Section 21(2) and Cyber Harassment under Section 23(1) of the Cyber Crime Code Act are dismissed.

100. Defendant’s bail be refunded forthwith.
     

In person For the defendant
Police Prosecutor For the State