State v Bosco [2023] PGNC 285; N10392 (3 July 2023)

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CRIMINAL LAW – Defamatory publication – cyber defamation -- under the Cybercrime Code 2016 – use of an electronic device namely a mobile phone to publish defamatory material concerning another person –admissibility of screenshots - Trial

Legislations
Cybercrime Code Act 2016
Whistleblower Act 2020
Criminal Code (Amendment) Act 2016

Counsel:
Mr. Joseph Siminji, for the State
Mr. Gibson Bon, for the Accused

(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.

3. At the time of the alleged defamatory publication the accused was a former employee of the Department of Higher Education, Research, Science and Technology (DHERST) having been dismissed due to certain allegations.

4. The victims, Fr Jan Czuba and Leah Margis are also employed by the same department with the former holding the position of Secretary and the latter occupying the position of Deputy Secretary- Research and Innovation.

5. It is alleged that the accused had used his Facebook account registered under three different names of “Ëssemkay Billy”, “Thinkzkstan Sapuakalii” and “Sebastian Bosco Dominique” to post three defamatory materials against Fr Jan Czuba and Leah Margis.

6. The first Facebook post was posted on 30 September 2019 by the accused under his Facebook account named “Essemkay Billy” as follows:

“SYSTEMATIC ABUSE OF THE OFFICE & POWERS OF THE SECRETARY OF THE DEPARTMENT OF HIGHER EDUCATION RESEARCH SCIENCE & TECHNOLOGY

Fr Jan Czuba is well known for his humanitarian works but his true identity turns out he is a WOLF in Sheep’s clothing. His longtime business Cronies/Affiliates Ms Leah Margis and Mr Chandana Silva are no strangers to the payout lists on various DHERST Trust Accounts (Screenshots of Higher Education Sector Improvement Trust Account Ledger Jan-Dec 2017-2018)

Ms Leah Margis is being BAPTIZED into the Public Service (Screenshot of the Appointment provided) by Fr Jan Czuba as the Deputy Secretary to one of the wings (Research & Innovation) in the Department (DHERST) that has all funds in millions stationed and squandered only to heavily facilitate their evil intentions of STEALING.

She (Ms Leah Margis) was introduced by Fr Jan Czuba as a top consultant providing consultant work restricted to Fr Jan Czuba’s private use. A crony and long-time business affiliate of the good priest easily given the top post while other career public servants at DHERST clap with frustration. The companies Fr Jan Czuba and cronies own are heavily sucking our Children’s funds dry in the Higher Education Sector.

Fr Jan Czuba MUST be investigated and brought to Justice. Our call to the good Minister Hon. Nick Kuman and Prime Minister Hon. James Marape to look into the matter as its urgency is paramount to the Nations Success.

7. This Facebook post was directed at Leah Margis and Fr Jan Czuba with the intent to induce other people to shun, ridicule and despise them. As a result of this post, it had attracted a thread of hateful and spiteful comments from commentators on the Facebook platform.

8. The second post was on 8 of January 2020 through the accused’s Facebook account name of “Sebastian Bosco Dominique” the accused posted the following:

“WHY IS THE PRIME MINISTER HON. JAMES MARAPE KEEPING THIS CRIMINAL INSIDE THE DEPARTMENT OF HIGHER EDUCATION RESEARECH SCIENCE AND TECHNOLOGY (DHERST) AFTER BEING CRIMINALLY CHARGED WITH 1 COUNT OF ABUSE OF OFFICE AND 9 COUNTS OF OFFICIAL CORRUPTION! #TakeBackPNG#TakeBackDHERST”

9. The State alleges that he made this post or publication with the intent to induce other people to shun, ridicule and despise Fr. Jan Czuba.

10. The third post was on the 22 October 2020, the accused again using his Facebook account name of “Sebastian Bascoe Dominique” posted the following:

“Very interesting development DHERST staffs and senior executives keep silent on serious issues alleged Criminal Conduct.

Interesting how simple public servants such as Ms Leah Margis, a recently baptized into Public Service as Deputy Secretary and a business crony of Secretary Jan Czuba keeps hundreds and thousands of Kina in her bank account.

Thumbs up Ms Amenda for stealing the money Jan Czuba and Leah Margis STOLE from DHERST Coffers and the People and Children of the Independent State of Papua New Guinea.

11. The State alleges that when he made this publication, he did so with the intent to injure the reputation of Leah Margis and Fr Jan Czuba.

12. The State also alleges that when the accused posted the three publications on 30 September 2019, 22 October 2020 and 8 January 2021, under the Facebook accounts Essemkay Billy, and Sebastian Bascoe Dominique, he did so with the intent to injure the reputation of Fr Jan Czuba and Leah Margis and induce other people to shun, ridicule and despise contrary to s 21 (2) of the Cybercrime Code 2016

13. On arraignment the charges were read to the accused, and he pleaded not guilty to all three (3) counts.

14. The issue is whether all three Facebook posts made by the accused were defamatory publications?

15. The elements of the offence of publishing defamatory publication under Section 21 (2) of the Cybercrime Code Act (Act) are:

16. The state tendered a total of 12 Exhibits marked as “S1-S12” as follows:

No:	Document	number	Page
1	Screenshot of a Facebook Post dated the 30/9/19	S1	1
2	Comments made by Facebook users responding to the Facebook post of 30/9/19	S2 (i- x)	10
3	Screenshot of a Facebook Post dated the 8/1/20	S3	1
4	Screenshot of a Facebook Post dated the 22/10/20	S4	1
5	Record of Interview (English Version) dated 10/2/21	S5
6	Letter from Sebastine Bosco to Fr Jan Czuba dated 31/1/19	S6	1
7	Letter from Fr Jan to Sebastine Bosco dated 16/4/19	S7	2
8	Notice of Acquittal in State v Fr Jan Czuba CR (FC) 15/1/ 2021 dated 19/1/19	S8	1
9	Letter from Ashurst Lawyers to Sebastine Bosco dated 4/10/19	S9	2
10	Letter from Fr Jan Czuba to the Cybercrime & Cyber Security dated 11/1/21	S10	2
11	Master of Education degree –Educational Management and Leadership) from The University of Sydney for Leah Margis	S11	1
12	Committal Court Order discharging Amanda Yeo on the 9/3/21	S12	1

17. The State also called Fr Jan Czuba, Leah Margis and Lisson Salle to give sworn oral testimony. The following is a summary of their evidence.

18. Fr. Czuba is 64 years old and is from Poland. He came to Papua New Guinea (PNG) in 1985 and holds a Permanent residency certificate and has lived and worked in the country for over 35 years. Currently he is the acting Secretary for DHERST and holds no other employment.

19. Fr. Czuba recalls the Facebook post of the 30 September 2019 and when shown to him, he confirms that a colleague of his Fr. Black had taken a screenshot of it and sent it to him, and he read its contents. He said he was traumatized, shocked and disappointed as he was called a “wolf in sheep’s clothing” among other things and that what made him feel traumatized even more is that the said Facebook posts were not true. He testified that after reading that Facebook post, his normal daily routines were greatly affected, and he stopped socializing. He further stated that he did not even want to read the comments that were associated with these posts as he knew that to do so would make things worse.

20. He told the Court that his knowledge of Leah Margis goes back to his time with Divine Word University wherein Leah was the Executive Officer. Her engagement at DHERST came about following an Email invitation by Steven Matainaho, Deputy Secretary to be engaged as a consultant to design online templates as well as Online Selections for tertiary institutions and universities. Fr. Czuba testified that at the time DHERST was being restructured with the creation of three (3) Deputy Secretary positions. Leah Margis applied for and got appointed to one of the 3 deputy positions, the Deputy Secretary (Research and Innovation).

21. Fr. Czuba was referred to the Facebook post, Exhibit S1 that says “She (Ms Leah Margis) was introduced by Fr Jan Czuba as a top consultant providing consultant work restricted to Fr Jan Czuba’s private use. A crony and long time business affiliate of the good priest easily given the top post...”. He explained that the Department of Personnel Management (DPM) made the appointment from among several other shortlisted candidates. He says DPM is the only authority that can make such an appointment for Level 19 positions in the Public Service. He testified that he was not involved in the appointment of Leah Margis as Deputy Secretary (Research and Innovation) and that Leah Margis was not in any way engaged for his “private use”. He refutes as false those Facebook posts.

22. He testified that he was not happy with the post as his reputation was tarnished and his integrity was compromised. He says he was stressed out and lost sleep during the whole ordeal and that even the comments made had worsened the situation.

23. Fr. Czuba was shown Facebook Post dated the 8/1/20, Exhibit S3 labelling him as a criminal. He confirmed that there were allegations levelled against him and to be called and labelled as a criminal on Facebook is not true when the case was still ongoing. He says it is just traumatizing for him and reckless on the part of the accused. The fact is that he was tried at the National Court for the allegations levelled against him and the case was struck out at the no-case stage in the proceeding styled as CR (FC) 151 of 2022, Exhibit S8. He testified that the situation was becoming worse when the Polish Government through its embassy wanted to intervene, but he didn’t want them to for fear of escalating the situation, instead he remained calm.

24. He was also shown Exhibit S4 and was asked if the whole of the contents was true in relation to how Leah Margis was employed and the monies that were squandered in their accounts. Fr, Czuba responded that the Facebook post was not true. He stated that the accused was not terminated when the Facebook post of 22 October 2020, came to his attention and he wanted to talk to Sebastine Bosco and asked if he can come see him however that did not happen. Sebastine went ahead and posted some more Facebook post against him apart from the three posts that were already posted on, 30 September 2019, 8 January 2020 and 22 October 2020 and in evidence.
25. He told the Court that it was at that point that he asked Ashurst Lawyers to write to the accused which they did on the 4 October 2019 and warn him to stop posting Facebook posts against Fr Jan Czuba. (S9). That letter had the effect of stopping Sebastine Bosco from posting for almost 4 weeks or so. Then on the 9 December 2020, Fr Jan was charged with 9 counts of Misappropriation and Abuse of Office. On the 19 January 2022 he was acquitted of the charges. When asked if he forgave the accused about the things he said about him on Facebook, Fr Jan said yes but the damage has been done already.

26. Leah Margis is of mixed parentage from New Ireland and Sepik, age 36. She graduated with a Bachelor’s degree in journalism from the Divine Word University (DWU), Madang. She also undertook a Research Fellowship at the Australian National University graduating with a Master’s Degree in Education. She also did a Post Graduate Certificate in Higher Education Teaching and Learning from DWU and a Certificate of Training in Leadership and Development in the Pacific Institute of Leadership and Governance. All these qualifications were attained prior to taking up the post of Deputy Secretary, (Research and Innovation).

27. The Facebook posts relates to the period when she was the Deputy Secretary (Research & Innovation) for DHERST from 22 December 2019 – June 2021. She is now on suspension and her case is before the Public Service Commission. Prior to that, she worked as a Senior Lecturer at Divine Word University, Port Moresby College for a year. She also worked with NBC as a Journalist and Research Officer in Madang. Whilst she was in Madang, she was involved as an Events Co-ordinator for the DWU Alma-mater.

28. She told the Court that a friend of her informed her of the Facebook post of 30 September 2019 after viewing it on Facebook. She also told the Court that she was approached by Steven Matainaho who works for DHERST to develop digital templates in a consultant capacity. The Department then underwent restructure, and the position of Deputy Secretary (research and Innovation) was created along with three other Deputy positions. She applied and won the position through the Department of Personal Management (DPM). The Deputy Secretary position is a contract position, and it is mandatory for DPM to do the appointments. She says Fr Jan did not in any way influence DPM decision to appoint her. She also says that she did not get the position through her affiliation with Fr Jan Czuba.
29. When shown the screenshot of 30 September 2019 (S1) and 22 October 2020, (S4), she confirms that those posts and assertions contained therein are not true. When asked how she felt after reading them she responded that she felt traumatized. She was shunned by her colleagues and her reputation was tarnished as a result of the post.

30. She was also shown the comments made by Facebook users on the post made on 30 September 2019 by other Facebook users and she described that experience as traumatizing as well as these were comments made by persons who do not know her personally and professionally. Amidst the commentaries being made, the accused through his Facebook account “Sebastine Bosco Dominique” made a comment saying, “Leah em side chick blo Fr Jan” (Leah is a side chick to Fr Jan). The complainant read that comment posted as part of Exhibit S2 and described that revelation as traumatizing.

31. Leah Margis was shown Exhibit S4 which is the Facebook post made by the accused on the 22 October 2020 in which he gave accolades to Amanda Yeou for stealing monies from her bank account. She clarified that Amanda was a colleague who had access to her account after witness agreed to help her financially. Amanda Yeo instead went and withdrew her savings without her knowledge. Leah Margis testifies that upon discovery of the theft, she lodged a complaint with the police leading to the arrest of Amanda for stealing.

32. The case was however dismissed at the Committal Court on the 9 March 2021 in the proceeding styled as Sylvester Mala (informant) v Amanda Yeo, CB 116/2020, Exhibit S12. In relation to the assertion in the Facebook post made by the accused under account name of “Sebastine Bosco Dominique” that the funds stolen by Amanda Yeo were initially stolen from DHERST by the witness, she clarified that the money was her personal savings and were not from DHERST. She maintains that all that was posted were not true and subsequently affected her mentally and emotionally.

33. He is a Senior Constable of police and was tasked to investigate this matter when it was reported by the complainants. He has served in the Police for over 33 years. He is now with the Cybercrime Division of the Criminal Investigation Division (CID).
34. He testifies that a letter dated January 11, 2021, Exhibit S11 written by Fr Jan Czuba was lodged with their directorate and upon receipt, he made the assessment of the complaint and proceeded to investigate the matter. He confirms from his investigation that the Facebook posts were made by the accused under his account names “Essemkay Billy”, “Sebastine Bosco Dominique” and another account which he cannot recall. He explains to the Court that the posts in the Facebook were then followed by threads constituting the “Comments” section. Subsequently a record of interview was conducted, and the accused was arrested and charged for the defamatory posts he made using his Facebook accounts.

35. After a no-case application was refused, the defence called the accused, Sebastine Bosco who also tendered one Affidavit filed on the 20 August 2021, marked as D1.

36. He is 34 years old from Enga Province. He is employed by the DHERST after being reinstated by a National Court Decision. He holds the position of a TVET Officer within DHERST responsible for engaging Grade 12 school leavers in trade courses and securing employment for them.

37. He confirms that he posted the Facebook post of 30 September 2019, Exhibit S1 under the Facebook account name “Sebastine Boscoe Dominique". He explains that he included every bit of evidence and posted them for public consumption as a whistleblower. He says initially in 2018 he lodged a complaint with the Ombudsman Commission (OC) the Police, the Prime Ministers department and other relevant stakeholder to expose corrupt practices. The complaints were in relation to Fr Jan Czuba’s dealing with the DHERST affairs and funds. However, the investigation was very slow, and nothing eventuated.

38. He testifies that then on one occasion, a Dr Francis Hualopmomi who had seen him carrying papers to and from the Government departments threatened him and said he was going to be blackmailed. The accused says as a result, Fr Jan Czuba became aware of the investigations being conducted against him. He further says Fr Czuba then invited him to go to his office with a view to request withdrawal of the investigation, but he refused the invitation, and that was why he was terminated from his employment. As a result, he decided to put everything out in public.
39. He says also that Fr Czuba and Leah Margis were charged however he alleges that some of the evidence was omitted by the prosecutions office without consulting him first. He testifies that initially, there were 9 charges laid against Fr Jan Czuba, but 8 charges were committed for trial in the National Court. However, Fr Czuba stood trial in the National Court on 4 counts.

40. The accused says he used the words, “baptised into the public service” in the Facebook post of 30 September 2019 about Leah Margis because her employment was bizarre. And that Leah Margis and Fr Jan Czuba came in together around the same time to DHERST. He says Leah Margis was engaged as a consultant and was paid K23, 000 and K13, 000 on two separate occasions as part of her consultancy fee and later she was awarded the Deputy Secretary (Research and Innovation) position which is a Level 4 position that Level 4 Public Servants should hold.

41. On why he posted on the 8 January 2020, Exhibit S3 calling Fr Jan Czuba as a “criminal”, he says that after Fr Jan was charged by the police, he was still holding office and was tampering with evidence. He said that he made post to get the attention of the Prime Minister as he could not go to the DHERST Office to get more evidence to further assist the court. He further explains that he called Fr Czuba a “criminal” because he was criminally charged and so he had to use that term.

42. In relation to post of 22 October 2020, Exhibit S4 he says Amanda Yeo was Fr Jan Czuba and Leah Margis’ personal assistant and that was how she had access to Leah Margis’ bank account. He also says the 3 people had companies that were benefitting from the trust accounts held by DHERST. Thirdly, he asserts that any public servants would make the same remarks as he had made on the Facebook post as it would be hard for them to get the job. He maintains that Leah Margis was appointed to the Deputy Secretary Position within a short span of time. He agrees however that the appointment was made after candidates were shortlisted from the Department and sent to DPM for the final selection.

43. The accused further states that what justifies him making the said posts were that to his knowledge, Leah Margis has a 52% share in a company in which she and Fr Jan were directors of and the contracts were paid to those company accounts. He knew that Leah Margis had K115, 000 in her savings account because of that alleged partnership with Fr Jan. He further testifies that even though Amanda Yeo was taken to court for stealing Leah Margis’ money, there were no evidence to sustain it at the committal hearing because Leah Margis did not provide the bank statement.
44. In relation to the phrase “heavily sucking children’s money” which was posted on Exhibit S4, he says that he had knowledge of funds from his division (TVET Division) that were used to fly in, fly out and accommodate other persons that were brought in by Fr Jan and Leah Margis. He says that he has knowledge of how the funds were being used and that was why he posted the Facebook post.

45. The State submits that all three Facebook posts were defamatory and amounts to defamatory publication within the meaning of Section 21 (1) of the Cybercrime Code Act 2016.

46. The State submits that in relation to the assertion of Fr. Czuba as a criminal, the accused had not provided any evidence of Fr. Czuba’s criminality. The evidence before the Court on the other hand negates all of the assertions and the publications made by the accused. State contends that all assertions and innuendos in the Facebook posts that Fr Jan Czuba is a criminal or involved in criminal activity has been vindicated by the Notice of Acquittal in the proceedings styled as State v Fr Jan Czuba CR (FC) 151 of 2022(See Exhibit S8). The labels “Criminal”, and a ‘Wolf in Sheep’s clothing” without being convicted or found to have committed a crime is highly defamatory and wrong in law.

47. As for Leah Margis, State submit that evidence was led to prove that she was appointed by DPM after being shortlisted by DHERST. She believed that she got the job through merits and that she held other senior positions prior to moving to Port Moresby. She possesses the necessary qualification for the job. Evidence was led of her attaining the following academic qualifications:

(ii) Post-Graduate degree in Higher Education Teaching and Learning from Divine Word University.

(iii) Masters Degree in Education from the Australia National University, Exhibit S11.

48. State submit that the evidence shows that Fr Jan Czuba was in no way involved in the appointment process. Both State witnesses corroborated each other on this, and thus proving that those posts asserting her employment as biased are not true. Because of this false assertion, Leah Margis led evidence that she was shunned and held in low regard by her colleagues who have read about the posts through Facebook. She became stressed, traumatized and mentally affected as a result of those Facebook posts. She could have suffered worse had it not been for her family who supported and cared for her during that period.

49. On the Facebook posts of 22 October 2020, Exhibit S 4 referring to Leah Margis having “hundreds of thousands in her account” as moneys stolen or “squandered” from DHERST, she had explained that she had savings in her bank account. State submits that the accused had not led any evidence to show that Leah Margis stole “hundreds of thousand kinas belong to DHERST” and this is outright defamatory and not true. A further assertion by the accused that it was good for Amanda Yeo stealing these monies from Lea Margis as in the Robin Hood analogy, from the rich and giving to the poor is of bad taste and defamatory.

50. Regarding the Facebook commentaries by users in Exhibit S2, State submits that these negative commentaries and conclusions were by strangers to Fr. Czuba and Leah Margis personally and professionally. These comments and negative remarks had shun the complainants, even the accused joined in on the thread and encouraged the comments therein. The State submits that these Facebook posts were not true and their actions including that of the accused are grossly defamatory towards the two complainants.

51. Finally, the State submits that the test is one of a reasonable man’s test. That is, what would an ordinary and reasonable thinking member of the society have thought and concluded after reading the three Facebook posts made by the accused? The State submits that an ordinary and reasonable Facebook user in Papua New Guinea after having seen these Facebook posts would have concluded that they were true. And flowing from that, they would have shunned, ridiculed and despised the reputation of Fr Jan Czuba and Leah Margis.

52. In relation to the first charge, contained in Facebook post of 30 September 2019, defence submits that State failed to produce crucial evidence of:

(i) confirmation of the Mobile Phone alleged to have been used to upload the posts.

(iii) attachments, reference or the statement posts and the comments that follow the posts that confirms the allegations or posts.

(iv) the Post as being false and highly defamatory. That is, fail to provide evidence of Leah Margis application copy, shortlisted candidates per testimonies of both witnesses Fr. Jan Zcuba and Leah Margis from the witness box.

53. Defence further submit that the State intentionally left out crucial evidence which confirms the truthfulness of the statement and extracted only the Posts to sustain the Charge.

54. The defence submits that at the time of publication, Fr. Jan Zcuba was already charged and that the State failed to prove that he was not a criminal, or he was not charged at the time of the Posts to confirm the allegation as false and misleading. And that the evidence of acquittal by the National Court, Exhibit S12 to disprove the assertion is irrelevant as it came well after the posts was made.

55. In relation to the allegation pertaining to employing Leah Margis, Defence submits that the State failed to provide the following documents to confirm the appointment:

(iii) Copy of Leah Margi’s documents when she applied such as Cover letter among others.

(iv) Documents relating to DPM confirming appointment or even appointment letter from DPM and so forth.

(ii) As confirmed in Exhabit S12, and State’s own evidence, Amenda was acquitted from the charge of Stealing K115, 000.00 saving of Leah Margis.

(iii) State failed to produce evidence such as Bank Statement to confirm that money stolen by Amenda were Leah Margis and the allegation is false.

(iv) Leah Margis failed to produce evidence to confirm her position that the money was truly her savings by producing bank statements to confirm accumulative savings.

(v) State failed to include the attachments on the posts that form part of the Posts which confirms the letter of appointment by the Secretary without proper process.

57. Defence submits that the Posts were true and for the benefit of the public in so far as the funds subject of the posts with evidence are monies belonging to the Independent State of Papua New Guinea and the public needs to know the truth.

58. Defence asserts that the posts have attachments which were viewed, and comments made, and that the State’s intentional omission of these crucial evidence renders the posts incomplete. Hence the Defence submits that the accused is not liable as charged.

59. Defence also asserts that Amenda Yeou stole the money Leah Margis stole from the DHERST and further that the State intentionally omitted the evidence of truth rendering incomplete evidence in favour of the accused and thus he ought to be not liable.

60. The three charges for which Sebastine Bosco stand accused emanates from three (3) Facebook posts on 30 September 2019, 8 January 2020 and 22 October 2020. The posts were made under the Facebook accounts of Essemkay Billy and Sebastian Bascoe Dominique. The accused had confirmed in the Record of Interview Q 10, 11, 12, 13, 14 and 15 and in his sworn evidence that at the material times he owned these Facebook accounts and were linked to his mobile phone No.72482433.

61. The charges are laid under s.21 (2) of the Cybercrime Code Act (Act) which provides:

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 ...”

62. What constitutes a defamatory material is defined in s.21(1) of the Act. It states –

“defamatory material" means an imputation, whether directly expressed or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with the intention of -

(iii) inducing other people to shun, avoid, ridicule or despise that person.”

63. The Whistleblower Act of 2020 came into operation following certification on the 7 May 2020. The objects and purpose of the Act is to provide procedures for employees to report suspected improprieties in the workplace by disclosure.

64. The Act defines disclosure as “disclosure of information made by an employee that may show that the employee’s employer, or another employee of the employer, has engaged in, is engaging or intends to engage in conduct that constitutes impropriety. and protection of employees who make protected disclosure.”

65. When a disclosure is made to either a legal practitioner, an employer or Minister it is deemed to be a protected disclosure and the whistleblower is protected in respect to the disclosure.

66. Section 9 of the Whistleblower Act does not protect a disclosure if the person making the disclosure commits an offence by making it.
67. In his opening evidence, the accuse testifies that “he included every bit of evidence and posted them for public consumption as a whistleblower. He says initially in 2018 he lodged a complaint with the Ombudsman Commission (OC) the Police, the Prime Ministers department and other relevant stakeholder to expose corrupt practices. The complaints were in relation to Fr Jan Czuba’s dealing with the DHERST affairs and funds. However, the investigation was very slow, and nothing eventuated ever since.”

68. This clearly set the tone of his intention which was to expose corrupt practices. He appeared agitated that things were slow since he raised the complaint in 2018. However, he differed in his methodology in that instead of merely a whistleblower reporting suspected improprieties in the workplace, he went beyond by labelling Fr. Czuba with adjectives like criminal, wool in a sheep skin and other unpleasant innuendos and imputation at the same time in connection with Leah Margis.

69. When he first posted in the Facebook page on the 30 September 2019, Exhibit S1, he clearly manifested his intention to denigrate Fr. Czuba and Margis through his eyes as:

(ii) His longtime business Cronies/Affiliates Ms Leah Margis and Mr Chandana Silva are no strangers to the payout lists on various DHERST Trust Accounts

(iii) That has all funds in millions stationed and squandered only to heavily facilitate their evil intentions of STEALING

(iv) The companies Fr Jan Czuba and cronies own are heavily sucking our Children’s funds dry in the Higher Education Sector

(v) Leah Margis A crony and long-time business affiliate of the good priest is being BAPTIZED into the Public Service easily given the top post of Deputy Secretary (Research and Innovation) through Fr Jan and not on merit.

(vi) She (Ms Leah Margis) was introduced by Fr Jan Czuba as a top consultant providing consultant work restricted to Fr Jan Czuba’s private use.

70. The posts in his Facebook account cannot be termed as disclosure. There was malice in the use of certain words like “wolf in sheep clothing” which is a direct imputation on Fr. Czuba and it is defamatory per se. The words “...squandered only to heavily facilitate their evil intentions of STEALING” is a clear insinuation that Fr. Czuba stole or was a thief. The other posts were imputations that due to his associations or cronyism the following took place:

(i) Ms Leah Margis and Mr Chandana Silva had been recipients of various DHERST Trust Accounts

(ii) the companies they own are heavily sucking our Children’s funds dry in the Higher Education Sector

(iii) Leah Margis was BAPTIZED into the Public Service easily given the top post of Deputy Secretary (Research and Innovation)

(iv) Leah Margis was introduced by Fr Jan Czuba as a top consultant providing consultant work restricted to Fr Jan Czuba’s private use.

71. Fr. Czuba was told of the defamatory Facebook post by his friend, Fr. Black. I accept his evidence that after being told he was traumatized, his normal daily routines were greatly affected, and he stopped socializing even more is that the said Facebook posts were not true. As for Leah Margis, her evidence after viewing the posts is that she was traumatized. She felt shunned by her colleagues and her reputation was tarnished because of the post.

72. This charge could have been brought as criminal defamation under Division 10 s.362B of the Criminal Code (Amendment) Act 2016. Instead, it is laid pursuant to the Cybercrime Code Act which is a novelty in this jurisdiction. It termed as cyber defamation because it involves statement made in cyber space which hurt the reputation of a person. The publishing of the defamatory material is made with the help of computers, internet and other virtual medium including the Facebook flatform. Although a new concept, the traditional definition of criminal defamation is applicable in which the injury is caused to the reputation of a person in the eyes of a third person. The intention of the person making the defamatory statement(s) must be to lower the reputation of the person against whom the statement has been made in the eyes of the public.

73. It is therefore pertinent to ask whether the accused 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? Certain words or adjectives when used are understood in their clear, direct and definitive meanings. Where other words or statements used have no definitive words, an imputation can be drawn by innuendos, implication and insinuation.

74. The definition of what is a “defamatory material" under the Act is concise and is defined as an “imputation, whether directly expressed or by implication, insinuation, innuendo, or irony, that concerns a person or a member of his family, whether living or dead, with the intention of:

(iii) inducing other people to shun, avoid, ridicule, or despise that person.”

75. In my view all of the above Facebook posts passed the definition of what is a defamatory material. Taking the definition into consideration, the words “wolf in sheep clothing” is a direct imputation on Fr. Czuba and it is defamatory. The words “...squandered only to heavily facilitate their evil intentions of STEALING” is a clear insinuation that Fr,Czuba stole or was a thief. The other posts were imputations that due to his associations or cronyism he stole, benefited, and granted favours to his cronies and business associates including Leah Margis.

76. The Second limb is whether there is an intention to injure the reputation of any person. The words and imputations used manifest the intention. The accused could have used less derogatory or less descriptive words or terms. No, he chose his words properly to make his point and, in the process, he injured the reputation of Fr. Czubak and Leah Margis.

77. Even if there was no intention, this charge can still stand on the basis of the following words, “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”

78. The accused testifies that he commenced the process in 2017 to “...expose corrupt practices” The complaints were in relation to Fr Jan Czuba’s dealing with the DHERST affairs and funds. However, the investigation was very slow, and nothing eventuated. From this statement, his intention was that he must do something drastic, come what may and so he turned to an electronic medium of a Facebook. In my view he was reckless in his choice and use of words when he posted in his Facebook account .
79. The second Facebook post was on the 8 January 2020, Exhibit S3, through the accused’s Facebook account name of “Sebastian Bascoe Dominique” in following:

“WHY IS THE PRIME MINISTER HON. JAMES MARAPE KEEPING T OF HIGHER EDUCATION RESEARECH SCIENCE AND THIS CRIMINAL INSIDE THE DEPARTMENTECHNOLOGY (DHERST) AFTER BEING CRIMINALLY CHARGED WITH 1 COUNT OF ABUSE OF OFFICE AND 9 COUNTS OF OFFICIAL CORRUPTION!

80. This post imputes that Fr Jan Czuba was a criminal after having been charged for 9 counts and so he should be removed from DHERST by the Prime Minister. I note that that Fr Czuba was charged by police with 9 counts of official corruptions in 2018 however these were still to go through the committal process.

81. The accused led no evidence that would have existed at the time of the posts that Fr Jan was found guilty by the court of a crime. The belief and assertion by the accused that Fr. Czuba was a criminal because the accused thinks so or is charged as the basis of the post is wrong in law and fact.

82. By the letter of the law a criminal is a convicted person or one who has been found guilty of a crime or felon by a court of law The accused is represented by counsel, and it is disappointing to say the least, that in this jurisdiction certain fundamental of and principles of law are not properly advised to clients by counsels.

83. The evidence is that 11 months later on the 10 December 2020, Fr. Czuba was committed with 4 counts of abuse of office which is of no consequence to this proceeding. The Court however takes judicial notice of the Notice of Acquittal, Exhibit S8 in relation to criminal proceeding styled as CR (FC) 151 of 2022. The Notice of Acquittal dated 19 January 2022 states, “The accused was this day acquitted and discharged on charges of Three counts of Abuse of Office and one count Abuse for gain ...”. As put an end to any speculation and assertion. The Facebook post of 8 January 2020 is false.

84. In the third Facebook post of 22 October 2020, Exhibit S4, the accused again used his account name of “Sebastian Bascoe Dominique to make the following defamatory imputation:

“Very interesting development DHERST staffs and senior executives keep silent on serious issues alleged Criminal Conduct.

Thumbs up Ms Amenda for stealing the money Jan Czuba and Leah Margis STOLE from DHERST Coffers and the People and Children of the Independent State of Papua New Guinea.

(ii) Leah Margis keeps hundreds of thousand kina in her account which are monies belonging to DHERST which were stolen from her by Amanda Yeo.

86. The accused has not led any evidence to prove that Leah Margis got the Deputy Secretary Position through Fr Jan’s involvement. The assertions and innuendoes about some close relationship between the two complainants as former colleagues at Divine Word University being the basis for being appointed for the job, and not based on merits rings hollow.

87. The evidence even by the accused is that appointments to Grade 19 positions in the Public Service is the domain of DPM. The evidence by Fr. Czuba is that he was involved only as far as recommendation stage and Lea Margis was among the three recommended and DPM made the appointments. I accept this as logical and plausible.

88. As regards the balance to that posts the accused was evasive and aggressive when maintaining the position that Leah Margis was the director and a 52% shareholder of a company that received payouts from the DHERST. He merely asserted without proof of theft of DHERST by Leah Margis who testifies that the money in her account was her savings. For the accused to post in the medium of Facebook that Lea Margis kept stolen monies is a serious indictment on her reputation without evidence. The public has access to that medium and as it is in evidence Annexure 2 that many had commented negatively and ridiculed and shun the complainants.

89. The onus is on the accused to prove the truth of his assertion on a civil standard by proper documentations, statement or financial records and to substantiate the theft not for Lea Margis to prove her innocence. As he himself stated the purpose of the Facebook posts are to get the authorities to act and it is a reasonable inference to draw that it was not about providing factual statements which is what an investigation would uncover.

90. The accused raised the statutory defence of truth and for public benefit pursuant to s. 21(5) of the Cybercrime Code Act 2016 which provides:

“It is a defence to a charge for an offence under the section that the that the defamatory material published:

(d) was made in good faith.”

91. The accused is required to adduce evidence to support his defence. The burden of proof is the civil standard that is, on the balance of probabilities. If he is able to prove the truthfulness of the posts, then the charge against him will need to be proved on the criminal burden of proof beyond reasonable doubt. Put another way, the State will then have to disprove the factual basis of the posts.

92. As to what constitute the truth is a question of fact. Section 21(6) of the Cybercrime Code Act 2016 states:

(6) Whether or not the publication complained of is true, or was made for the benefit of the public, or constitutes fair comment, or was made in good faith, is a question of fact.

93. The accused testimony as to the genesis of the Facebook posts was his claim that Dr. Francis Hualopmomi, Deputy Secretary at DHERST tried to blackmail him, even though the latter was the one pushing for the investigations against Fr. Czuba. The Facebook posts was to fast-track the investigations and to get media publicity. In the same vein he says, he wanted to put pressure on the responsible authorities to fast-track the complaint that he previously lodged. It is evidently that the veracity of the Facebook posts were not the crucial factors when he chose to utilize the electronic medium. He did not care if the posts were true or not. His underlying objective was to have Fr Jan charged and he did not care however it happened.

94. In his letter of 31 January 2019, Exhibit S6 after the first post, the accused told Fr. Czuba that, “The investigation process itself will only prove your innocence as you have mentioned there is no mistake in those alleged conducts and so I believe with good faith the investigation will reveal your innocence”. As it transpired, he posted two more times in his Facebook account.

95. On the defence, for the benefit of the public this is a question of fact. Sure, the public would benefit when public scrutiny and investigation are carried out to investigate any impropriety by public officials. The question is what benefit is derived from posting in the Facebook to the cyber space to the entire world. It has limited exposure to its intended recipients and as in this case frequented by persons with no sense of responsibility as regards what they can post, and comments made. It can become a haven for cybercrime including cyber defamation.

96. In the end, I must ascertain whether the accused had proved and establish that all the posts/ statements in the pertinent Facebook posts against the complainants are true and were for the benefit of the public.

97. I find that the accused had not raised his defence to the required standard. The Charges of criminal defamation against him stand proved. Secondly it is evidently that the three Facebook post hung on the allegations of abuse of office against Fr Jan Czuba up to the day he was charged and with the dismissal/acquittal of the indictment at National Court the allegations should be no more.

98. Finally, the power to prefer indictment in the National Court is the sole prerogative of the Public Prosecutor in accordance with his power under s.525(1)(a)^[1] of the Criminal Code. It is him and him alone that has the power to indict on any charges as the evidence warrant.

Finding
99. The harm to a person by posting or publishing a defamatory statement about him in a Facebook or a website or other virtual domain or flatform is widespread and irreparable as the information is available to the entire world.

100. In the end I find the elements of the charge are proved. I find that the accused, Sebastine Bosco through the use of an electronic device being his mobile phone number 72482433 via his Facebook accounts “Sebastine Bosco Dominique” and “Essemkay Billy” intentionally posted three defamatory Facebook posts on the 30 September 2019. “8 January 2020” and 22^nd October 2020 via his mobile phone which had the effect of inducing other people to shun, ridicule, despise and injure the reputation of Fr Jan Czuba and Leah Margis.

National Court of Papua New Guinea

State v Bosco [2023] PGNC 285; N10392 (3 July 2023)