State v Pinen [2022] PGDC 41; DC8081 (12 May 2022)

DC8081

Papua New Guinea

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

COM NO 1153 OF 2021
CB NO 2422 OF 2021

BETWEEN:

LISON SALE
[Informant]

AND:
JACKSON PINEN
[Defendant]

Waigani: Paul Puri Nii

12^th May 2022

COMMITTAL PROCEEDINGS: Charge- Cyber Harassment -Section 21 (2) - of the PNG Cyber Crime Act, Chapter No. 262. Presentation of Committal jurisdiction- establishment of evidence in the Police Hand-up-brief.

PRACTICE AND PROCEDURE: Allowable capability for prima facie Case-Elements of the charge of Cyber Harassment – Elements are not established-Evidence is not fitting to commit the Defendant for the charge to stand trial in the National Court. Defendant is not committed.

PNG Cases cited:

Police –v- Kimisopa [2021] PGDC 76; DC6031 (30 June 2021)
Yarume –v- Euga [1996] PGNC 24; N1476 (6 September 1996)
Police- v- Koka [2021] PGDC 53; DC6010
Police v Kua [2021] PGDC 136; DC6095

Overseas cases cited:

R –v- Thomson (1913) 24 COX CC

References

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

Counsel
Police Prosecutor: Joseph Sangam For the Informant
Public Solicitor: Malcolm Sumbuk For the Defendant

RULING ON COMMITTAL

12^th May 2022

INTRODUCTION

NII, P. Paul Magistrate. My ruling on whether a prima facie case is confirmed within the implication of Section 95 of the District Court Act 1963. This deliberation is done after Police evidence and Defense case are understandingly dignified. On 30^th March 2022, Defendant argued on his submission challenging the capability of police evidence tendered to the court on 26^th October 2021. Thus now is my ruling on the arguments raised.

CHARGE

1. Accused is charged with one count of Defamatory Publication under Section 21(2), of the Cyber Crime Code Act 2016, Chapter No. 35. The supposed offending charging is below:
   

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.

SUMMARY OF FACTS

2. Defendant is aged 44 years old and of Divanap village of Telefomin District in Sandaun Province. Police says on 7^th June 2021, defendant intentionally and without lawful justification used his Facebook to publish defamatory publications words to the following effect:
   

a) Over the last few days, there has been lots of talks and whispers regarding the referral. There have also been many who did not agree with the referral. Some thought of our MPs in prayers. All is good.

b) I was hated, given names like being jealous, opportunists, etc. Regardless, I stand form and call for fair justice.

c) All educated elite and common citizens should stand together to denounce unfairness, and inequality. Transparency and accountability should be promoted at the highest level.

d) Christians should be praying for justice instead of taking sites.

e) I do understand no one is perfect. I am not perfect nether. I am even worse sinner. This does not mean because we are all sinners we should continue to sin. Before imperfection becomes part of you (before it becomes normal) we have to stop it.

f) This is exactly what is happening here. Corruption is like a crocodile, no matter how much you feed it, it will always attack you. Let us not look after crocodiles. It must be killed before it kills us.

g) God bless Telefomin District.

3. The above comments were allegedly posted on a Facebook page known as “Oksapmin Community Forum”. Police allege that there were many reactive comments made under the principal comment allegedly posted by the defendant. A Complainant was lodged and Defendant was subsequently arrested and charged for the offence of Cyber Harassment under Section 21(2) of the Criminal Code Act.
   

ISSUE

4. Whether evidence in the Police file inaugurates a prima facie case gathering all the elements of the offence to commit the Defendant.
   

THE LAW

5. I have the sanctioned authority under Section 95 of the District Court Act to rule on the police evidence put before me.
   

Section 95 of the District Court Act 1963

95. Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division

6. With steady to the ability I have, will assess the police evidence to adopt whether evidence is appropriate to commit the Defendant or to terminate the information under enquiry that introduce the allegation of Defamatory Publication. My power under Section 95 of the District Court is supported in the case of Police v Kimisopa [2021] PGDC 76; DC6031. The court will assess all the evidence in the police file and choose on the competency of evidence. Additionally, the above point is strengthened in Yarume v Euga [1996] PGNC 24; N1476. The court in the latter case says that the determination of committal court is to measure evidence and choose whether there is sufficient evidence sustaining all the elements of the charge.
   

ELEMENTS OF THE OFFENCE

7. The elements of the allegation of Cyber Harassment under Section 21(2) of the Cyber Crime Code Act are recognized by the case of Police v Kua [2021] PGDC 136; DC 6095 as in the succeeding manner:
   

a) A person who intentionally, and

b) without lawful excuse or justification or

c) in excess of a lawful excuse or justification

d) or recklessly uses an electronic system or device

e) to public defamatory material

f) concerning another person

EVIDENCE

8. The court professed in Police v Koka [2021] PGDC 53; DC6010 that a Criminal Charge is only a mere indictment unless strengthened by evidence. (emphasis added from the judgment).
   

“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”.

9. The evidence prepared by Police in the Police-Hand-Up-Brief and tendered in court dated 19^th January 2021 and 17^th February 2021, should succeed the elements of the offence of defamatory publication.
   

PROSECUTION CASE

10. On 30^th March 2022, Prosecutor Joseph Sangam momentarily objected to the Defendant’s oral submission in retort to the police case agreeing to the victim and Police statements. I will for the contemplation of my decision shall judiciously assess all the statements in the police file.
    

Witness list and their Evidence

No	WITNESS	PARTICULARS	STATEMENTS
1	Solan Mirisim	Complainant/Victim	This witness is a mandated leader or member of parliament representing the people of Telefomin. He says his hard earned character and reputation was tarnished and defamed by the defendant.
2	Fragim Weka	a/District Finance Manager	This witness says he was travelling from Telefomin to Vanimo on an AusAid chartered flight. However, he says the defendant was alleging that his trip was funded by the District and was making a derogatory comment against him on FB.
3	Dansim Ekias	Project Officer	This witness says the Complainant, MP for Telefomin was subsidizing school fees for children in his electorate. However, he says the defendant went on FB and posted comments saying the MPs initiative was a scam to syphon public funds to promote corruption.
4	Lison Salle	Arresting Officer	His is the arresting officer and his statement is about how he obtained information to complete the file against the Defendant
5	Martha Maraga	Collaborator	She is a policeman who was with the arresting officer at the time when the Defendant was arrested and interrogated.

DEFENSE CASE

11. Defendant through his Lawyer Malcolm Sumbuk based his argument in admiration to the police file that the evidence is lacking to prove the police case beyond reasonable doubt. Defendant argued that the Complainant’s name was not called as he was the person referred to as a crocodile. However, the defendant says the name crocodile was used as a Metaphor to describe the nature of corruption.
    
12. Defendant also argues that the Complainant was referred to the leadership tribunal for misconduct and thus at questions 8 and 9 of the ROI he says the people of Telefomin needed to know what was happening to their leader so he posted what was then alleged to have been an allegation against him. Defendant says he needed justice to prevail and not corruption and thus he described corruption as a crocodile.
    
13. Defendant also cited Section 21(5) of the Cyber Crime Code Act
    

a) Section 21(5) of the Cyber Crime Code Act 2016.

“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) Constitute a fair comment; or

d) was made in good faith.”

14. Defendant says his publication was the truth and thus it was excused by Law. Based on the above, the defendant argued that the entire allegation be dismissed for lack of evidence under Section 95(2) of the District Court Act.
    

CONSIDERATION OF EVIDENCE

15. The Complainant is the current MP for Telefomin and at the time of allegation was the Minister for Defense. The Defendant is also from Telefomin and was a former employee of Ok Tedi mining. On 7^th June 2021, the defendant allegedly posted defamatory comments against the Complainant and he was subsequently arrested for the offence of Cyber Harassment under Section 21(2) of the Cyber Crime Code Act.
    
16. Defendant admitted to posting the comments on the FB because the people of Teleformin needed to know what was happening to their MP because he was referred to the leadership tribunal for abuse of office. Defendant said he described corruption as a crocodile but did not say the local MP was a crocodile.
    
17. The witness statements of Fragim Weak and Dansim Ekia are about comments allegedly made by the defendant against them. Their evidence is not in line with the Complainant’s allegation but different. They are saying the defendant posted on FB by saying the school fees subsidy scheme initiated by the local MP was a scam and the district’s money was used to hire a plane from Telafomin to Vanimo.
    

RULING

18. Defendant posted a total of 7 paragraphs on FB allegedly against the Complainant. The paragraph which became the subject of the allegation is the last paragraph which reads as:
    

“This is exactly what is happening here. Corruption is like a crocodile, no matter how much you feed it, it will always attack you. Let us not look after crocodiles. It must be killed before it kills us.”

19. Defendant is strongly arguing that the metaphor crocodile was used to describe the extent of corruption in the Telefomin district. However, the local MP/Complainant is saying the defendant used the word crocodile to describe him; so the issue now is who is telling the truth? Corruption is dishonest or fraudulent conduct by those in power typically involving bribery while a crocodile is a reptile that lives in swamp and rivers.
    
20. The metaphor that corruption is like a crocodile must be common. A person from the highlands may not know what a crocodile looks like and its characteristics including “corruption is like a crocodile”. On the international scale the metaphor that “corruption is like a crocodile” must also be proficient, therefore let me look at some other jurisdictions. In the Philippines the mainstream media links corruption to crocodiles[1]. It reads:
    

“Crocodiles are stereotyped as ferocious monsters or bloodthirsty man-eaters and are associated with greed and deceit. Corrupt government officials...............are often portrayed as crocodiles....”

21. Bad person is also referred to as Crocodiles in the Filipino culture. In some other countries like Australia and the USA Crocodiles are often referred to as dangerous situations.
    
22. Having the above at hand, when the defendant had posted as “Corruption is like a crocodile” he was describing the nature of corruption as really bad and a dangerous situation. However, corruption does not exist in vacuum, there should be a person who practices such and thus when the defendant said “Corruption is like a crocodile” did he mean the Complainant was a corrupt person?
    
23. Evidence should be direct, however. implied, proverb and metaphor languages are not helpful here. The court shouldn’t be dragged into a misunderstanding in trying to find out something which is not clear in evidence. Evidence should be clearly presentable.
    
24. Evidence should be direct thereby naming the Complainant as he was corrupt. When I read the evidence I am satisfied that the defendant did not say the Complainant is a crocodile but the practice of corruption in the Telefomin district is like a crocodile and thus I will return a verdict of not sufficient evidence on the defendant.
    

CONCLUSION

25. I have read the police file, Defendant’s ROI and Defense submission and after going through each of them, I am satisfied under Section 95(2) of the District Court Act, Police evidence has not made out a prima facie case against the Defendant. Consequently, Police have not provided sufficient evidence against the Defendants for the allegation of Cyber Harassment against the defendant under Section 21(2) of the CCA and thus the information is dismissed.
    

ORDERS

26. My formal orders:
    
    1. Evidence is insufficient to commit Defendant for the charge of Cyber Harassment under Section 21(2) of the Criminal Code Act.
       
    2. Information is dismissed.
       
    100. Bail is refunded to the Defendant.
         

Public Solicitor For the defendant
Police Prosecutor For the State

.

[1] https://interaksyon.philstar.com/hobbies-interests/2021/06/23/194515/crocodiles-are-not-hated-creatures-symbols-corruption-centuries-heres-why/