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State v Kime [2023] PGNC 429; N10573 (20 November 2023)

N10573

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 17 OF 2021


THE STATE


V


SAMUEL JAMAL KIME


Vanimo: Miviri J
2023 : 20th November


CRIMINAL LAW – PRACTICE AND PROCEDURE – Cybercrime Code Act 2016 – Section 25 (1) (a) – Unlawful Disclosure – Intentional & Without Lawful Excuse – Use of Electronic System – Information for Benefit of Public – Question of Fact Benefit of Public – “confidential or classified communication, meaning of – Publication for Benefit of Public Defence made out – Balance Not Discharged – Acquitted & Discharged – Bail Refunded Forthwith.


Facts
Accused published on Facebook form 103 under the Forestry Act and the Sandaun Provincial Forest Management Committee Meeting. He did not have authority to it was confidential information.


Held
Defence made out publication for good cause not malice section 25 (3) of the Cybercrime code Act 2016.
Acquitted & Discharged
Bail refunded forthwith.


Cases Cited:
Cory v Blyth (No 1) [1976] PNGLR 274
Bewani Oil Palm Plantations Ltd v Dotaona [2019] PGNC 51; N7761


Counsel:
F. Popeu, for the State
O. Himore, for the Defendant


VERDICT

20th November 2023


  1. MIVIRI J: This is the verdict after trial of Samuel Jamal Kime of Yapru, Vanimo, West Sepik province who was charged under section 25 (1) (a) of the Cybercrime Code Act 2016.
  2. Which section is in the following terms: “UNLAWFUL DISCLOSURE.


(2) Where the offence is committed by a person with lawful authority, custody, access or control, in respect of such confidential or classified communication or sensitive data, the offender is guilty of a crime.


(3) It is a defence to a charge for an offence under this section to prove that it was for the benefit of the public that confidential or classified communication or sensitive data was disclosed.
(4) Whether the unlawful disclosure under this section is for the benefit of the public, is a question of fact.


  1. The head note to the section is unlawful disclosure. The law does not permit the disclosure. Or it is a breach of law to disclose. The reasons are not specified except that it is any confidential or classified communication (whether content, data or electronic output) or sensitive data.” What is confidential is not defined and why it is regarded as confidential. And classified communication is also not defined. Including what is sensitive data. There is no legislation as in the case of the United States were, “A classification level must be assigned to information when that information is determined to be classified. A classification level indicates the relative importance of classified information to national security and thereby determines the specific security requirements applicable to that information. Clearly defined classification levels are essential to an effective classification system.

The U.S. classification of information system has three classification levels -- Top Secret, Secret, and Confidential -- which are defined in EO 12356. Those levels are used both for NSI and atomic energy information (RD and FRD). Section 1.1(a) of EO 12356 states that:

(a) National Security Information (hereinafter "classified information") shall be classified at one of the following three levels:

(1) "Top Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security.

(2) "Secret" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.

(3) "Confidential" shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security.

Section 1.1(b) of EO 12356 states that "except as otherwise provided by statute, no other terms shall be used to identify classified information."


  1. The closest in this regard is under Cybercrime Code Act 2016 section 2 Interpretation relating to the definition of "sensitive data" means any data or content whether in writing, images, audio, visual, audiovisual or in any other form -
  2. The evidence led has not established that the content of that Facebook publication by the accused were sensitive data and so its publication was prejudicial falling under section 25 (1) (a) making the accused, criminally liable for the publication. The Evidence relied fall short as to why the law forbids in disclosure to the world at large. It is one aspect to establish publication by the Accused. It is another aspect to establish that the publication is not allowed to the world at large. The evidence that was tendered into evidence by the state comprised Exhibit P1, record of interview of the Accused conducted with police on the 29th July 2020. In it he confirmed his Facebook account in his name. And admitted that he published on that account National Forest Authority Form 103 together with the meeting minutes of the Sandaun Provincial Forest Management Committee full thirteen documents. And that they had supplied him by one Paul Anthon on the 29th June 2020 via his email. And he admitted making the statements in the face book account depicted out by Exhibit P2 of the State.
  3. The post was made on the 22nd July 2020 from Jamal S Kime is with Judith Monoar Sirias and 7 others. Leakage in the roof of the kwila house in Vanimo.

SPFMC’s chartered corruption, engineered by crooks and advanced robber barons of the Forestry Sector in West Sepik Province continues.

The harboured criminals strutting their best moves again, bending the rules by increasing the allowable cut limits aimed at nothing by more environmental rape and socioeconomic injustice for the Los.
All names are spelt correctly by the Minute taker and signed by what Justice Barnett termed as robber barons. Sad but they can’t stop.” This were what was posted at the outset next the Form 103 is attached with the letter under hand of the chairman of the Sandaun Provincial Forest Management Committee advising of the deliberation of that Committee to the Chairman of the National Forestry Board PNG Forestry Authority P. O. Box 5055 Boroko NCD. It is relating to the final draft amended project agreement relating to Amanab Blocks 1-4 & Imonda- Awi Consolidated FMA project West Sepik Province. Then the Minutes inclusive of all eight pages of that meeting as attached also on the post. Then there is a letter dated the 22nd June 2020 addressed to Mr Tunou Sabuin Managing Director of the PNG National Authority Hohola. The subject is Amanab Blocks 1-4 Imonda Forest Project Development Agreement Review and proposed Extension of Project include AWAI FMA.

  1. The overall post in aggregate do not show as in Cory v Blyth (No 1) [1976] PNGLR 274 slanderous or derogatory or defamatory material against law infringing rights in law. That is not our situation here by the evidence that has been led by the State. What is set out here by the publication is evidence of the working of a Provincial Forestry Management Committee working with the National Forestry Authority. Section 71 of the Forestry Act 1991 sets up the Provincial Forest Management Committee in these terms: - “Provincial Forest Management Committee To Enter Into Negotiations.

The Provincial Forest Management Committee shall–

(a) negotiate a project agreement in accordance with Section 70; and
(b) submit the final draft of the project agreement to the Board.”
Which under section 70 the Board will consider the agreement and recommend to the Minister for Forest. It is a process of government in the control and management of the Forestry Industry: Bewani Oil Palm Plantations Ltd v Dotaona [2019] PGNC 51; N7761 (22 February 2019). Primarily that is the subject minutes that have been posted. What is the harm in its publication to the world at large. And it is no secret that disclosure is for the common good of the people and the Country. Transparency and accountability are key to good governance. Checks and balances meted out by Individuals such as the accused and NGOs fighting corruption in this industry unearthed by the Barnett Report is clear demarcation that all is not well in this Industry.


  1. So, the publication by the Accused on his Facebook account of material given to him by Paul Anthony Forestry Manager Vanimo is per se not wrong given that the supply of the materials are by the man in charge of Forestry on the ground. It no doubt has come with the Blessings of the Forestry Manager. So, it is not wrong given that he is the Government Officer designated from that Office to do as he has done with the records of Government. Yes, the accused is not an oath member of the Sandaun Provincial Forest Management Committee. But his authority flows from the local Forestry Authority who have given the subject records for publication which he has accorded. He is not privy to that meeting on the 19th June 2020. But the draft agreement done by the committee and the required form 103 under the Forestry Management Act with copies of the Provincial Committees Minutes of that meeting are government documents. Why would a government officer designated give to a private individual, a non-governmental organization to publish using Facebook. Has the Accused breached Section 25 (1) (a) of the subject Act in this way.
  2. So the intended publication of the subject can be classed as confidential or classified communication remained to be established by the Prosecution. In what way was it classified communication and confidential has not been established by the Prosecution. This point is so that there is a reason a basis to get at a person publishing as here breaching a level of the classification of the communication. And why it is classified communication and confidential and in the hands of the accused published as he has done, detrimental in the way he has done. There must be a balance drawn with freedom of Speech pursuant to section 46 Freedom of Expression:-

(1) Every person has the right to freedom of expression and publication, except to the extent that the exercise of that right is regulated or restricted by a law–

(a) that imposes reasonable restrictions on public office-holders; or
(b) that imposes restrictions on non-citizens; or
(c) that complies with Section 38 (general qualifications on qualified rights).

(2) In Subsection (1), “freedom of expression and publication” includes–

(a) freedom to hold opinions, to receive ideas and information and to communicate ideas and information, whether to the public generally or to a person or class of persons; and
(b) freedom of the press and other mass communications media.

(3) Notwithstanding anything in this section, an Act of the Parliament may make reasonable provision for securing reasonable access to mass communications media for interested persons and associations–

(a) for the communication of ideas and information; and
(b) to allow rebuttal of false or misleading statements concerning their acts, ideas or beliefs,

and generally for enabling and encouraging freedom of expression.”

  1. Here the evidence relied on in my view do not establish beyond all reasonable doubt the allegation levelled against the Accused containing section 25 (1) (a) of the Cybercrime Code Act 2016. Because of the doubts raised set out above, it is unsafe to return the verdict sought by the State.
  2. The aggregate is that I find the Accused not guilty, and I acquit him of the charge forthwith. I order his bail money to be refunded forthwith.

Orders Accordingly


__________________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Defendant

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