N5640
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO. 920 OF 2011

STATE

V

JERRY KIWAI

Waigani: Manuhu, J
2014: March 19, 20 & 28; April, 8 & May, 23

CRIMINAL LAW – Particular Offence – Sending offensive language by means of a telecommunication service – Whether the accused was sender – Assessment of evidence.

INTERPRETATION – Effect of repeal – Charge laid under repealed provision – Offence committed when repealed provision was in force.

Cases cited:
Sulu v The State (2003) N2456 State v Daniel [1988-89] PNGLR 580

Counsel:
Ms R. Christensen with Ms M. Tamate, for the State Mr J. Kolkia, for the Accused

23rd May 2014

1. MANUHU, J.: The accused, Jerry Kiwai, is facing two charges which were laid pursuant to the PNG Telecommunications Act 1996 (Act), section 169 (a) for allegedly sending messages by means of a telecommunication service that were offensive. A decision on verdict, following a full hearing, was about to be delivered on 28th March 2014 when it was discovered by the Court that the Act had been repealed. Counsel were advised of the situation and eventually made full submissions on the issue. This legal issue has to be considered. The progress of the substantive matter depends on it.

2. The alleged offences were committed on 25th September 2010. The Act was repealed on 29th October 2010. It was replaced by the National Information and Communications Technology Act 2009 (NICT Act) on the same date: see National Gazette No. G163 of 2010, amended by National Gazette No. G227 of 2010, and section 294 of the NICT Act.

3. It was submitted by Mr. Kolkia that the accused cannot be charged under the Act. He should have been charged under the NICT Act. Counsel also relied on the case of Sulu v The State [2003] N2456. That was a case where the offender was charged on indictment under section 229A of the Criminal Code (Sexual Offences and Crimes Against Children) Act which Act was not in force when the offender committed the offence. The applicable repealed provision was section 216 of the Criminal Code Act. This Court remarked that section 216 had been repealed and had no application, and the prosecution could not sustain a charge under section 216.

4. The observation in Sulu v The State is, however, obiter in that the offender was charged under the new provision, not the old provision, as in this case. In addition, the court in that case did not consider the relevant provisions under the Interpretations Act. In this case, the accused faces charges under the repealed provision and the State now relies upon the Interpretation Act in its argument that the charges in the indictment are valid. 

5. Section 63 of the Interpretations Act provides:

(1)	The repeal of a provision does not- 

(a)	revive anything not in force or existing at the time at which the repeal takes effect; or
 
(b)	affect the previous operation of the repealed provision, or anything duly done or suffered under the repealed provision; or 

(c)	affect any right, privilege, obligation, or liability acquired, accrued or incurred under the repealed provision; or 

(d)	affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against the repealed provision; or 

(e)	affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeited or punishment, 

and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeited, punishment may be imposed, as if the repeal had not been made. 

(2)	The repeal of a statutory provision that validated or continued in force any act, matter or thing does not affect the validation or continuance." 
 
6. The word "repeal" is defined under section 3 of the Interpretations Act as including supersede, expire, cancel or otherwise cease to have effect. This means that section 67 of the Interpretations Act is also applicable. It provides:

"The expiration of a statutory provision does not affect any civil or criminal proceeding previously commenced under the provision, but every such proceeding may be continued, and everything in relation to it be done, in all respects as if the provision continued in force."

7. The word "expire" is not defined. However, if "repeal" means "expire", then "expire" means "repeal".

8. One might argue that these provisions relate to repeal of provisions and are not applicable where the whole Act is repealed. The word "provision" is not defined under the Interpretations Act. However, the words "statutory provision" is defined under section 1(1) as meaning the whole or any part of an Act. This definition in my opinion equally applies in relation to the word "provision" in section 63 (1) and the words "repealed provision" in section 63(3) of the Interpretations Act. To think otherwise is absurd.

9. The acts which gave rise to the charges against the Accused are still offences under the NICT Act in section 266. It is an offence for a person to send a text message that he knows "is offensive or indecent, obscene or menacing character". The penalty is a fine of K20,000 or imprisonment for a term not exceeding 3 months or both.

10. Defence counsel has made further submissions relying on section 37 of the Constitution and public policy considerations. I have considered those arguments and I am not persuaded that the accused has suffered any or any serious miscarriage of justice.

11. In my view, therefore, the charges on indictment against the accused under the repealed provision is valid in that the provisions of section 169 of the Act, under which the Accused stands charged, is saved pursuant to sections 63 (1) (b), (c), (d) and (e) and 67 of the Interpretations Act. I will now proceed with the judgment on verdict. 

12. The complainant is the wife of the accused. They were separated at the time of the offence. It is alleged that on the night of 25th September 2010, the complainant was at her brother in-laws house at Samin Police Barracks at Sabama, NCD, when she heard her mobile phone ringing. She checked her phone and saw 3 missed calls from her husband, the accused. The accused called again from his mobile phone number 71338131. The complainant answered the phone and the accused said:

"Kaikai kok blong Michael Pundia stap ah? Yu mas filim swit ya, yu harim ah."

13. The accused repeated these words but the complainant hesitated to respond and hung up. Few minutes later, the accused sent a text message that reads:

 "Kaikai kok wara blong lapun na mas swit ya"

14. The accused defence is that he is not the owner of mobile phone number 71338131 and, therefore, did not call or text the message to the complainant's mobile phone. 
15. The issue therefore is whether it was the accused that uttered and sent the offensive words on 71338131. 

16. The other elements of the offences are not in dispute. The words used are undoubtedly offensive. The complainant felt offended and insulted. The means by which the messages were sent is not in dispute. The offensive messages were transmitted from Digicel number 71338131 to the complainant's Digicel mobile phone number 71464446. Digicel is a mobile phone company in PNG.

17. The complainant gave evidence that she is employed by Exxon Mobil as Advisor in the Control Integrated Management System. She identified the accused as Jerry Kiwai, her husband. They had been separated since 2010. She has a pending civil suit against the accused. 

18. The complainant recalls that at midnight on 25th Septemebr 2010, she was asleep at the matrimonial home in Mount Hagen when she heard her phone ringing. She woke up and saw 3 miscalls from the accused who was in Port Moresby then. At 3 minutes past midnight, the accused rang again and when she answered, the accused said the following:

 "Yu mas kaikai kok blong Michael Pundia na mass wit ya."

19. The complainant said she got a shock of her life and replied:

 "What did you say?"

20. The accused repeated the same words and she put off the phone. He sounded drunk. Then at 11 minutes past midnight, the accused sent a text message that reads:

 "Kaikai kok wara blong lapun na mass wit ya"

21. The complainant said as she was shocked, she sat for a while thinking about what the accused had said. Then she forwarded the text message to Michael Pundia, her lawyer Allan Baniamai and her close relatives. Michael Pundia advised her to go to sleep. She went to sleep. On the following day, she met up with Michael Pundia and the matter was reported to Police in Mount Hagen.

22. The complainant further stated that she had been married to the accused for 6 years and knows his voice. She maintains that mobile phone number 71338131 belongs to the accused. They have been in touch nearly every day and the accused uses that number, even though he had other numbers including a Be-Mobile number.

23. The complainant's mobile phone was tendered into evidence after the offending message was shown to the Court. The accused's name, Jerry Kiwai, appears in the phone's log as the sender of the message. The complainant maintained in cross-examination that 71338131 belongs to the accused. She was pressed to prove it in cross-examination but counsel for the accused did not ask for the complainant to show other messages from the accused in the mobile phone. In re-examination, the prosecution asked the complainant to show any other message from the accused on his phone number 71338131. The complainant showed the Court a message that reads:

"Governor merry Christmas, nick called me today and advised me that there no funds to pay my firm. Note that my 5 lawyers and my practising certificate will expire in 5 days. My 20 dedicate staff and their families will not have Christmas as I have no funds to pay them even to send my old man home and my staff in hgn locked out of opis for non payment of bills and p ame calling me a lair. Ta." (sic.)

24. This message registered the sender as Jerry Kiwai. It is dated 24th December 2009.
25. The transcript of calls provided by Digicel, which was tendered into evidence by consent, shows that there had been 5 calls from 71338131 to 71464446 earlier on the day in question -25th September 2010. 

26. Michael Pundia gave evidence that the accused is regarded as an adopted son to him. They met in 2003 and has known him since then. They have been involved in business together. Michael Pundia says he is a businessman and community leader in Mount Hagen. He stated that 71338131 belongs to the accused.

27. The accused gave evidence for himself. He said mobile number 71338131 does not belong to him and he did not know that 71464446 was the complainant's number. The accused then gave evidence on other numbers that is registered under his law firm but he uses them for private purposes as well. It is not necessary to provide details of his other numbers. It is not a disputed fact. For the purpose of the charges, the accused has relevantly stated that he does not own 71338131 and he did not know that 71464446 was the complainant's number.

Who does the Court believe? 

28. The accused, a lawyer by profession, is owner of a law firm. However, the Court accepts the prosecution's submission that his answers to cross-examination questions were evasive. The following are some examples:

 "Q. 71338131 – that's one of your numbers?
 A. Why would I own another number.

"Q. When Anna filed proceedings against you claiming K10 million, you'd be upset?
 A. She filed proceedings. Michael Pundia also filed proceedings.

 Q. That would have made you angry?
 A. I didn't communicate with her after the proceedings were filed.

 "Q. This is a letter from Kiwai Lawyers to Digicel?
 A. It has our address but it has not been signed.

 Q. It is a request for phone lines to be reinstated?
 A. It's not signed.

 Q. It's a request to reinstate the phone lines?
 A. It has not been signed."

29. On the other hand, the complainant's performance as a witness was quite good. She holds a senior position with Exxon Mobil. She gave evidence in English. She was not evasive. Her evidence makes a lot of sense.

30. From her mobile phone records, number 71464446, the complainant had been communicating with 71338131 at least since 24th December 2009. Earlier on the day in question, according to Digicel records, which is not disputed, the complainant conversed with the owner of 71338131 four times. It corroborates the complainant's evidence that she spoke to the accused earlier that day on his same number. Clearly, the complainant knows the owner of 71338131. 71338131 was not an unknown number. It was a known number.

31. The complainant identified the accused as the owner of 71338131. The offensive message has Jerry Kiwai as the sender. It means that 71338131 is a saved contact in the complainant's phone. It was saved under Jerry Kiwai. The older message of 24th December 2009 also shows the sender to be Jerry Kiwai. The complainant knew the accused voice and maintains it was the accused that she spoke with at 3 minutes past midnight on 25th of September 2010. See State v Daniel [1988-89] PNGLR 580. She reported the accused the very next day to the Police.

32. The message of 24th December 2009 corroborates the complainant's identification of the accused as the owner of 71338131. It can be seen from the message that the sender is a lawyer and owner of a legal firm in Mount Hagen. The accused fits that description – he is a lawyer and owner of a legal firm that is also based in Mount Hagen.

33. The complainant's evidence is further supported by Michael Pundia who stated that 71338131 belongs to the accused. Michael Pundia was not discredited in any way. Counsel for the accused did not ask a lot of questions in cross-examination. His evidence that the accused is the owner of 71338131 is very much intact.

34. If someone else owns 71338131, it is incomprehensible that the complainant would let that known caller get away with his offensive and insulting language. The complainant has a pending civil suit against the accused for millions of Kina. That is more than enough motivation for her to avoid falsely accusing the accused, a lawyer, and risk losing the civil suit. 

35. On the other hand, the accused would be upset with the complainant and Michael Pundia for taking out proceedings worth millions of Kina against him. The accused is the only person known to the Court that has a reason to dislike the complainant and Michael Pundia. In other words, the accused had the reason, the motive, to send the offensive messages. No one else would send an offensive message that contains Michael Pundia's name or references to Michael Pundia and associate him with the complainant.

36. For all of these reasons, the Court has reached the conclusion that the accused denial is shallow and unconvincing. The complainant's evidence has more depth, is adequately corroborated and is convincing. The accused has the motive to utter the offensive words after the complainant and Michael Pundia filed civil proceedings worth millions of Kina against him.

37. The Court finds ultimately that the accused owns Digicel number 71338131. He knew that the complainant owned Digicel number 71464446. The accused and the complainant had been contacting each other on those numbers. The accused called the complainant at 3 minutes past midnight and repeatedly uttered offensive words to the complainant. The accused did likewise in a text message at 11 past midnight. The complainant was offended and insulted by the offensive words. A reasonable person in the complainant's would have been similarly offended.

38. The Court finds the accused guilty as charged on both counts.
________________________________________________________________
Pondros Kaluwin – Public Prosecutor: Lawyer for the State 
Kiwai Lawyers: Lawyer for the Accused