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State v Naka [2021] PGDC 175; DC7028 (24 November 2021)

DC7042

PAPUA NEW GUINEA

[IN THE DISTRICT OF JUSTICE COURT OF JUSTICE
SITTING IN IT’S COMMITTAL JURISDICTION]

COM.NO. 1533/2020.

THE STATE

V

AMENDA NAKA

Waigani: Garry Unjo

2021: 24 November

Cyber Crime Law ---Defendants charged on one count of defamatory publication --Indictable Offence---- District Court-Practice and Procedure ---Prima facie evidence a requirement –--letters of publication fall within the meaning of section 21 (1) (c) ----sufficient evidence established---Defendant to stand trial.

Cases Cited
The State v Saul Ogerem [2004] N2780 (2008) N3570

Appearances

Prosecutor: Mr. Chris Iga

Defendant: In person

G Unjo: Introduction

1. The Defendant is appearing before this court on one count of defamatory publication. She was arrested on the 7^th December 2020 and on the 25^th March 2021, she was arraigned in English, her elected language, and understood the reason why she was arrested and charged by police. The matter was then adjourned from time to time to allow the police to file evidence. The evidence was filed and submissions allowed from both parties. The defendant filed a written submission, whilst the prosecution submits to rely on the police evidence, and is before the court for its determination on evidence.

Background Facts

2. The defendant is 30 years of age from Eritei Village, Lumi, West Sepik Province. She is in the employ of Credit Corporation and is the residence of Port Moresby, National Capital District. It is alleged that, on the 19^th July 2020 at about 7:34, the defendant used her Whatsup account and sent defamatory remarks to the complainant, who is currently living with her husband. She made the following publications on whatsup and it reads:

“You are my rubbish collector. How do I taste, you queen blo husait??? You are queen B1”.“We are laughing at you queen blo kok blo papa blo ol pikinin know your level hoe.No one will want to be in your place right now.” “Yuck Yah!!! Pasin blo lus meri yah nogat moa youngpla mahn I mean who would want someone like you a Rehabilitation Centre for men, we know your stories. “A married man will never leave his wife and marry you. He can only use you to pass time and go back to his wife so sister get sense.

3. The comments of such were defamatory and the police compliant was laid and the defendant was arrested and charged under section 21 (2) of the Cyber Crime Act for the defamatory publications.

Issue

4. Whether or not the publication made by the defendant is defamatory and be committed to stand trial at the National Court.

Law

21.Defamatory publication.

5. (1) For the purposes of this Section

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 —

(i) injuring the reputation of that person; or

(ii) injuring the profession or trade of that person; or

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

(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. `

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; and

(b) In the case of a body corporate, a fine not exceeding K100,000.00

Evidence

6. There are six people giving evidence and the two of which are police officers that interviewed and corroborated the defendant and compiled the record of interview statement as part of the evidence to substantiate the charge.
7. The witness Niamaiau Vutliu, the principal witness says, she entered into a relationship with one Philip Macca’s, whom she later found out that, she had a defecto relationship with the defendant. From that relationship with the defendant, they had three children and she is his partner. There had been threatening and defamatory text messages were posted on the whatsup to her on 28^th May 2020 and these publications reads:

“You are my rubbish collector. How do I taste, you queen blo husait??? You are queen B1”“We are laughing at you queen blo kok blo papa blo ol pikinin know your level hoe.No one will want to be in your place right now.” “Yuck Yah!!! Pasin blo lus meri yahnogat moa youngpla mahn I mean who would want someone like you a Rehabilitation Centre for men, we know your stories. “A married man will never leave his wife and marry you. He can only use you to pass time and go back to his wife so sister get sense.

8. These texts published by the defendant through whatsup were made with an intention to shun, irritate, ridicule and despise her, and a police complaint was laid to have her arrested and charged under the Cyber Crime Act.
9. The witness Vutliu Joseph is an acting Secretary to the Department of Tarde & Industry. He says on the 27^th May 2020, there was a big commotion at the car park, so asked one of the security guards of the reasons of the gathering, and he was informed that a group of ladies are here to attack the complainant.
10. Witness Jackson says, he is the security guard of the Commerce & Industry’s premises and there were group of women were at the premises to attack the complainant with the defendant.
11. The whatsup text messages were enclosed as evidence and the record of interview statement of which the defendant admits publishing the comments in the record of interview.

Ruling on Evidence

12. The evidence itself, is in the lettering and the content of the publication and requires the courts to determine on whether such lettering was made with an intention to shun, ridicule, irritate or despise another person, distinct from other crimes committed that is established on the weight of the evidence, giving effect to by the corroboration of material evidence and evidential statements.
13. The Section 21 of the Cyber Crime Act, defines the definition of defamatory materials 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 —

(i) injuring the reputation of that person; or

(ii) injuring the profession or trade of that person; or

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

14. The Section 21 makes it clear and outlines the type of publication that would constitute defamatory in nature. Therefore, the prosecution has a duty to state under which definition the publication correctly fit, subject to Section 21 (2) of the Cyber Crime Act.
15. The charge must be structured to capture what comments were made on the use of electronic devices which amounts to a defamatory publication, so that when arraigned, all what had been published is read out to the accused, without leaving out some publications in the affidavits or in sworn statements as evidence. This is to make the defendant understand fully the reasons why he is brought before the court and is a mandatory requirement in law.
16. Because determination is made on its own lettering of the publication, it requires the prosecution to capture all the letters of publications in the charge in order to bring out clearly to the defendant of the reasons why she was arrested and charged by police on arraignment. The failing in my view amount to breach of Section 37 (4)(b) of the Constitution which reads:

37. Protection of the law.

(4) A person charged with an offence—

(b) shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged;

17. This sentiment is expresses in The State v Saul Ogerem [2004] N2780 where Lay J whilst acquitting the accused after recalling and quashing his earlier acceptance of the accused’s guilty plea based on inaccurate legal advice of counsel on the basis that the charge in the indictment was badly pleaded by not setting out the elements of the offence charged and not put to the accused on arraignment and no application was made to amend the indictment before the arraignment. When defense counsel’s assistance was drawn to the possible injustice abound strangely enough supported the correctness of the plea of guilty and requested amendment to the charge to conform to the brief facts given for arraignment. He was supported by the prosecuting counsel. The court rejected the submissions of counsel. His Honor said:

“Although no amendment has been sought, any variance, omission or insertion would be for the purpose of turning a nullity into an effective indictment on which the Defendant could be properly convicted. Therefore, it is impossible to say that the variance, omission or insertion would not be material to the merits of the case.”

18. In perspective of the above circumstance, I now look at the charge to determine, whether the letter and content quoted in the charges has the substance of the defamatory publication within the meaning of S 21 (1) of the Cyber Crime Act. The charge reads:

Did intentionally and without lawful justification used an electronic device to publish defamatory material namely “You’re are my rubbish collector. How do I taste. Yu queen blo husait???You are no queen!!!We are laughing at you queen blo kok blo papa blo ol pikinini know your level hoe.No-one will want to be in your place right now” concerning another person, Niamaia Ilius.

19. In my view on the letters of the publication, the defamatory publication falls within the meaning of section 21 (1)(iii) which defines as, a publication material by a person with an intention to induce other people to shun, avoid, ridicule or despise that person constitute a defamatory publication. I further give the oxford dictionary of the words, for some appreciation.
    1. Shun = avoid or reject
    2. Avoid =keep away from, stop yourself from doing/prevent something from happening
    3. Ridicule –contemptuous mockery
    4. Despise –feel hatred, disgust for
20. The emotions created by the material publication is the essential element and the complainant must state to make it fall within the definition of s 21 (1) (iii) that, by such publication she was made shunned, avoided, ridiculed or ill feeling and frustrated by the publication or the reasonable person reading the publication would feel the same, that the publication was defamatory in nature.
21. In consideration of the letters of the publication made, the complainant was under emotional stress that, caused hatred, irritated and being mocked by the material published and defendant to stand trail
22. The defendant’s defense of being provoked by the complainant and made the publication through phone whatsup is something for the trail court to established and is premature at this committal stage to deliberate on it.