DC7096
Papua New Guinea
 
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION
 
NCC NO 68 OF 2020
 
BETWEEN:
 
JOHN KAYAPO
[Informant]
 
AND:
 
ALLEN KUKWIN HULA
[Defendant]
 
Waigani: Paul Puri Nii
 
22nd December 2021
 
COMMITTAL PROCEEDINGS: -Charge- Defamatory Publication -Section 21(2) of the Cyber Crime Code Act. Consideration on the tolerability of evidence to inaugurate whether Prosecution provided prima facie evidence meeting the elements of the allegation.
 
PRACTICE AND PROCESS: Appropriate obligation for prima facie case-Making the underpinning of the allegation of Defamatory publication–Eyewitness announcements. Defendant admitted to the allegation- Defendant posted the comments on Facebook because they are true and for the benefit of PNG- Defense under Section 21(5)(a) of the Cyber Crime Code Act.
 
PNG Cases cited:
 
Warka v Agai (2017) (unreported) N6589
Police v Kua [2021] PGDC 136; DC6095 (22 September 2021)
 Paul Kundi Rape v State [1979] PNGLR 96
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Milali v Paraka [2021] PGDC 152; DC7007 (27 October 2021)
 
Overseas cases cited: 
 
Overseas Cases cited:
Nil
 
References
 
Legislation
 
Criminal Code Act 1974, Chapter 262
Criminal Code (Amendment) Act 2016
District Court Act 1963, Chapter 40
Cyber Crime Code Act
 
Counsels
 
Police Prosecutor:             Joseph Sagam                  For the Informant
In person:                          Allen Kukwin Hula              For the Defendant

COMMITTAL DECISION

22nd December 2021
 
INTRODUCTION

NII, P. Paul Magistrate. Consideration under Section 95 of the District Court Act 1963, after the party's arguments are measured.  Accused raised defense under Section 21(5) of the Cyber Crime Code Act that his comments on Facebook were true.  Defense habitually challenged police evidence as is deficient to commit him. Defendant says the comments posted were genuine. Police Prosecutor Joseph Sagam momentarily objected to the Accused case. Submissions were measured and accordingly in the resultant appearances is the court’s ruling.
 
FACTS
 
1.	Police allege Defendant is aged 32 years of age and is from Simbomei in the Yangoru District of East Sepik Province, PNG and the Complainant is the Member for Lae open and Minister for Lands and Physical Planning Hon John Rosso. It was alleged that on 11th June 2019, Defendant posted several comments on Facebook under his name against the complainant regarding the acquiring of a NHC property title by the Complainant’s company which was previously occupied by the Defendant and his family since 1989. Defendant was subsequently arrested and charged for the offense of Defamatory Publication under Section 21(1) and (2) of the Cyber Crime Code Act.

CHARGE
                                    
2.	Defendant is arrested and charged under Section 21(1) and (2) of the Cyber Crime Code Act and Defendant’s charge is enlightened in the consequential mode:
 
“21.    Defamatory publication.
(1)  For the purpose of this Section-
“Publication means using an electronic system or device to make public available defamatory material to persons other than the defamed persons and includes electronic writings, images, audios, visual or audio visual recordings;
 “defamatory material” means an imputation, whether directly or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or death, with the intentions of –
 
(i)             Injuring the reputation of that person; or
(ii)            Injuring the profession or trade of that person; or 
(iii)          Including other people to shun, ridicule or despise that person.
 
(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.
 
a)    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 
b)    In the case of a body cooperate, a fine not exceeding K100,000” 

ISSUE
 
3.	The inquiry of acceptability of evidence is pertinent in the committal jurisdiction; whether evidence is satisfactory to commit the Defendant.
 
THE LAW 
 
4.    Jurisdiction of the Committal court
 
Section 95 of the District Court Act
 
“95.    Court to consider whether prima facie case.
 
(1)[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
 
5.	The court in Milali v Paraka [2021] PGDC 152; DC7007, implemented the principles in Police v Medako [2021] PGDC 54; DC6011, that Prosecution evidence must fulfill the elements of the charge of Defamatory publication against the Defendant.
 
Elements of Defamatory Publication - (Section 21(1) and (2) of Cyber Crime Code Act)
 
          Sec 21(1)
 
a.    Injuring the reputation of that person; or
b.    Injuring the profession or trade of that person; or 
c.    Including other people to shun, 
d.    ridicule or despise that person
 
          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.

          

 
EVIDENCE
 
6.	The regulation in Police v Koka [2021] PGDC 53; DC6010, is appropriate in this inquiry. The court quantified the permitted connotation of evidence by deciding that it plays a remarkable role in the direction of the court to give an open-minded decision. In addition to the above, I have quoted a few lines below which I reflect essential in the deliberation…..
 
…..“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” ….
 
7.	The court will now assess evidence in the police file that was served on the 28th July 2020 and will form its permitted opinion on whether police evidence meets the elements of the charge of Defamatory publication. If evidence is satisfactory then Defendant will be committed, however, if evidence is insufficient then information against the Defendant shall be dismissed.
 
PROSECUTION CASE
 
8.	Prosecution case in the Police file is summarized in the following table including witness names and their corresponding statements.
 
Police confirmation in momentary: 
 
No	Name	Particulars	Statements	
1	John Rosso	MP for Lae and Minister for lands and physical planning	He is the Complainant in this matter and says he is a law abiding citizen but Defendant’s false and unjustified comments on FB had ruined his reputation as a leader and Member of parliament.    	
2	Robert Kewe	General Manager-Rosso Properties	This witness says the property which the defendant claimed as his was acquired by the company Rosso properties even before the Complainant became MP from a person named Nigel Trevor Baul. Witness finally says Defendant’s comments are untrue and it has tarnished the name and reputation of the Complainant. 	
3	Nigel Baul	Previous owner of the property	Witness says he is the previous owner of the property and later sold it to the Complainant and his company Ross properties Limited.	
4	Paul Palek and John Kayapo	Arresting officer	Police arresting officer and Corroborator who arrested the Defendant and conducted ROI which afterward steered to the charge of Defamatory publication against Defendant.	
 
DEFENSE CASE
 
Insufficiency of evidence
 
9.	Defendant submits he is the occupant of the property which was allegedly sold to the Complaint by a Nigel Trevor Baul which the Defendant claimed as Complainant’s associate. Defendant argues his actions of posting such comments against the Complainant is protected and reasonable in law. Defendant relies on the case of Paul Kundi Rape –v- State [1979] PNGLR 96 that police nosedived(failed) to produce satisfactory evidence to make a prima face case against him.

10.	Defendant admits to his post on Facebook both on his ROI and submission but he raised the defense of Section 21(5) of the Cyber Crime Code Act that the publication made was proper and was for the advantage of the open or public at large and it was made out in respectable assurance. Section 21(5) of Cyber Crime Code Act, is as follows:
 
“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)  Constituted a fair comment; or
(d)  Was made in good faith”
 
11.	The accused further went on to support his defense on the case of Warka v Agai (2017) (unreported) N6589, Cannings J that the honors is on the Defendant to prove the alleged publication as true. Defendant says a letter by the Acting Managing Director of NHC Kenneth Cooke to Registrar of titles Mr Benjamin Samson stating the sale of property to the Complainant was done under unethical and suspicious circumstances. Defendant further submitted his Facebook comment as a replica of the initial letter that was written to the Secretary of lands by the acting Managing Director of NHC.

12.	Finally, accused has pleaded Section 362E(1)(a)(ii) and (A) of the Criminal Code (Amendment) Act 2016 that his action of causing publication on Facebook was true and to the benefit to the public and thus submits police evidence is insufficient to commit him to face trial in the national court.
 
CONSIDERATION OF EVIDENCE
                                    
Police evidence and Defense Case
 
13.	Firstly, defendant funded his argument on the case of Paul Kundi Rape –v- State [1979] PNGLR 96, that police evidence be dismissed for want of sufficient evidence. I have noted the case but it is not relevant at the Committal stage when evidence is only assessed. However, it is available when evidence is tested during trial after the State closed their case and when opportunity presents itself for a no-case-answer submission.

14.	Secondly, the witness statements of the Complainant and others in the police file state Defendant posted comments on FB against the victim. I have gone through the Record of Interview(ROI) and Defendant’s submission on police evidence and persuaded myself Defendant purportedly published on FB comment termed as Defamatory publication under Section 21 of the Cyber Crime Code Act. The publication is consistent with Defendant’s admission, however, accused submits on the defense under Section 21(5) of the Cyber Crime Code Act. Defense argues the purported Defamatory publication was proper and was a reflection of things he has evidence to prove and comment was posted for the advantage of the community. Defense also argues his comment created a reasonable statement and was published in respectable trust.

15.	Since Defendant had admitted that he is the author of the comment on Facebook, I will not look at the witness statements again to establish the evidence on whether or not Defendant had published the comments but will proceed to the Defense under Section 21(5) of the Cyber Crime Code Act.

16.	Defense raised by the accused under Section 21(5) of the Cyber Crime Code Act, is in the following terms:
 
“21 DEFAMATORY PUBLICATION
 
(5) It is a defense to a charge for an offence under this section that the defamatory material published-
 
1.    was true; or
2.    was for the benefit of the public; or
3.    Constituted a fair comment; or
4.    was made in good faith.” 
 
17.	 However, Section 21(6) of Cyber Crime Code Act, says “whether or not the publication complained of is true or was made for the benefit of the public, or constitute fair comment, or was made in good faith, is a question of fact”.  An enquiry of law is a request that must be responded to by applying the appropriate legal principles to understanding of the law. In the same manner a question of fact must be retorted by orientation to particulars and evidence to sustain the statement or comment posted to be true. The statement under publication must be for all purposes a statement which is excused by law. Defendant allegedly published the following statements against the Defendant:
“if the member for Lae you are reading this post, ok it's good you became the minister for lands. Upon resuming office, one of your first orders of business is for you to use your ministerial powers to revoke the title given to you. You know that you acquired the land through dubious circumstances. You are not qualified to purchase. The entire legal process is corrupt from the beginning. We are going through the pain and suffering of defending the matter both in the District and National court.”
18.	Defendant’s argument under Section 21(5)[i] is now obvious that it is a question of fact rather than a question of law under Section 21(6)[ii] and thus he must convince me with evidence that he has a defense. Although my function under Section 95 of the District Court Act may be considered as an administrative process or a quasi-judicial function where evidence is merely assessed, I must remind myself that I am a court and thus I will exercise my full judicial authority to sit as a court and rule on evidence.

19.	 In the exercise of my official power, I must be shown with evidence in the form of a court order or a documentation evidence an authorized or uppermost authority to confirm Defendant’s publication was true. Therefore, I will familiarize and upkeep the identical interpretation I took in Police v Kua [2021] PGDC 136; DC6095. I mentioned in this case that there must be evidence that the alleged comment on social media against the Defendant was true. There must be evidence of a court order or a sanctioned authority supporting the Defendant’s allegation. 
 
RULING
20.	On 4th February 2019, Defendant filed a National Court proceedings in W.S No. 52 of 2019, against the Complainant alleging fraud on his part in acquiring the subject property that was involved in the Defendant’s arrest and subsequent charge. Accused informed the court during oral submission that the matter is pending determination in the national court. That means there is no court order to support the Defendant’s assertion or comment on Facebook to be true and thus Defendant’s defense under Section 21(5)[iii] appears to lack support. Nonetheless, on 3rd April 2018, the acting Managing Director of NHC wrote to the Registrar of Titles to revoke the title described as Section 51, Allotment 154, Granville, alleging fraud in the sale of property to the complainant which is currently occupied by the Defendant and his family. The acting Managing Director of NHC (titleholder of the possession) also stated that their investigations revealed the sale of property to Nigel Trevor Baul was not proper and says they suspected fraud and hence the re-transfer of title to the Complainant was also fraudulently done.

21.	The letter to the Registrar of Titles was written on the 3rd April 2018 and Defendant allegedly posted the comments on 11th June 2019, which was way after the letter form NHC was written to the Registrar of Titles. I note the initial complaint of fraud was alleged by NHC upon their investigations. The Defendant acted upon the results from NHC investigations and thus posted the same on Facebook. Defendant’s actions are not in isolation but a replicate of NHC’s findings after initial investigations into the allegation of fraudulent sale. Defendant on his FB post says ``the title of the property was acquired through suspicious circumstance” and also says ``the title was fraudulently acquired” are words taken out from the NHC investigation report. Defendant is a shadow of NHC’s finding and reporting, Defendant has written NHC’s judgements and not his own.

22.	 Defendant’s publication was a finding from an investigation conducted by NHC the legal owners of the property and thus consistent with Section 21(6)[iv] of the Cyber Crime Code Act, evidence from investigations conducted by NHC revealed fraud and suspected deals involved in the transfer of title. Therefore, in the exercise of my authority under Section 95 of the District Court Act, I am satisfied with sufficient evidence Defendant’s defense under Section 21(5) is genuine. Defendant’s actions are supported by evidence from a competent authority and owners of the property who initially conducted investigations and established findings to the effect Defendant posted. 

CONCLUSION
 
23.	Therefore, it is my ruling Defendant has sufficient evidence under Section 21(6)[v] to legitimately justify his Defense under Section 21(5)[vi]  that his purported Defamatory publication  under Sections 21(1) and (2)[vii] is excused by Law. Therefore evidence is insufficient to commit the Defendant for the allegation of Defamatory Publication under Section 21(1) and (2)[viii]. Evidence is therefore insufficient to meet the element of the crime of Defamatory Publication.
 
ORDERS
 
24.	My Final Orders
 
1.	Evidence is insufficient to commit the Defendant.

2.	Information then under inquiry carrying the charge of Defamatory publication under Section 21(1) and (2) of the Cyber Crime Code Act is dismissed.

3.	Defendant’s bail be refunded.

 

 

 

 

 

 

 

 

 
 
.

.

 
In person                                                         For the defendant
Police Prosecutor                                           For the State

 

 

 

[1]          Section 95(1) amended by No. 31 of 1980, s4.

[i] Cyber Crime Code Act
[ii] Supra
[iii] Supra
[iv] Supra
[v] Supra
[vi] Supra
[vii] Supra
[viii] Supra