N9211

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 261 OF 2020

STATE

V

EUNICE KAKAS

Waigani: Wawun-Kuvi, AJ
2021: 13th & 14th October
CRIMINAL LAW-TRIAL-Application to stop the trial- Cyber harassment, s23 (1) (a) (c) (i)- Whether the evidence is lacking, tainted or discredited that no reasonable tribunal would convict?
CRIMINAL LAW-INDICTMENT-Whether the indictment is bad for duplicity?

Cases Cited
The State v Paul Paraka (2021) N9159
The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983] PNGLR 287 
The State v Paul Kundi Rape [1976] PNGLR 96

Reference
Cybercrime Code Act 2016
Counsel
Ms Gretel Gunsen, for the State
Mr Jeffery Kolowe, for the Defence

RULING

14th October, 2021

1.	WAWUN-KUVI, AJ:  At the close of the Prosecution case, the defence has made an application to stop the case. The application is based on the second limb of the case of State v Paul Kundi Rape [1976] . 

2.	This is the full reasons of the oral judgment.

3.	It is the defence contention that the evidence is lacking in weight and reliability.  That the posts were obtained without a search warrant, that the complainant was referring to a different post on social media where he was called a womanizer and a drunkard and that the post which is the subject of the charge was not harassing but was a plea for help from a woman who was being bullied by a person in power.

4.	The State submits that the element of emotionally causing distress has been established by the evidence of the complainant and further that the complainant stated that the post defamed his reputation as the Secretary for the Department of Agriculture and Livestock. That there was no need for a search warrant because the complainant was the person who took the screenshot and that the accused identified the post in her Record of Interview.

5.	In an application to stop the case, the Court need not make an in-depth analysis of the State’s case. Rather it must be visible in the State’s case that the evidence is so lacking, tainted or discredited that no reasonable tribunal could convict, see State v Paul Kundi Rape [1976] endorsed by the Supreme Court in The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) [1983]. The State v Pep; Re Reservation of Points of Law under S21 Supreme Court Act (Ch37) endorsed.

6.	In this case and in any criminal prosecution, as said by the Court in The State v Paul Paraka (2021) N9159, “An experienced prosecutor will review a police brief well in advance of any trial. They will identify the most appropriate charges, the elements of those offences, and the evidence required to establish them to the requisite standard. They will understand their case theory, anticipate the defence case, and identify the weakness in their own case…..”.
7.	Going further from the statements in Paraka, an experienced prosecutor would also identify and determine whether for public policy considerations charges ought not to be laid. Justice must never be sacrificed for any ulterior motives.

8.	In this case, I will uphold the application to stop the case. On the face of the case presented by the State, there is a mere scintilla of evidence, there is no criminality established on the evidence and the indictment is duplicitous. I discuss each category hereafter.
Lack of Evidence
9.	The allegation by the State is that the accused posted the following statement on Facebook:
“From Boroko Cell blessed Sunday to the members of this group. I am locked up in the police cells for the 3rd time and charged for the second time for the same offence. The current Secretary for Agriculture and Livestock Department and my legal husband, Mr Daniel Kombuk is the complainant in this regard. We have three male children and not formally divorced but in a defector relationship since 2007 because of the fact that he got another wife. Anyway on Tuesday the 5 November 2019 at about 11am, I and a policeman went to Mr Kombuk’s office to serve a family order. Also there was a couple of Mr Kombuks relatives waiting at the reception area of which one of them started and argument with me. He told me to keep out of the office and that I have no right to enter, The policeman interven and explained to him about our business there. He told us that Mr Kombuk will be arriving from Kimbe in between 11 am to 12 noon so he will pick him up a the airport inform him of the family court summons. He said Mr Kombuk will come and pick up the summons and sign of the proof of service got the policeman’s contact. The policeman told him the pickup location was the Gordon Police Barracks. After two hours Mr Kombuks relatives went to the barracks on a 10 seater and leave a boy there to keep an eye on me. The boy came and told me that Mr Kombuk is very busy but will definitely come and pick up the summons. We waited and waited till at about 4pm a mobile police vehicle came and picked me up and drive me all the way to Hohola police station where I was interviewed by a CID officer from Jiwaka, Mr Kombuk’s home Province. For this same case, I am locked up 3 nights in Goroka cell, 10 nights in Minj cell and 6 nights in Boroko and charged twice. Justice??.- looking for help”
10.	The complainant stated that he was upset because of a post that defamed him. In his evidence in chief, he stated that the post described him as a drunkard and a womanizer. That the statement was untrue and tarnished his reputation as the Secretary for the Department of Agriculture and Livestock.
11.	In cross examination he agreed when it was put to him that, it was a post that said he was a womanizer and drunkard that caused him to report the matter to police. In referring to the post as alleged by the State, he stated that it was defamatory to a certain extent.

12.	It was apparent in the evidence of the complainant that he was referring to a post that was not the subject of the allegations by the State. The post that caused him to be upset and have the matter reported to police was a post that said that he was a drunkard and a womanizer.

Criminality

13.	 In question and answer 21 of the police interview the accused explains that she was seeking legal assistance and that she had to give a background of her case. 

14.	It is evident from the evidence of the complainant, the contents of the post and the explanation provided in the police interview that, the post subject of the allegations was not intended to cause emotional distress and was not unlawful.

Duplicity

15.	The State charged the accused for Cyber harassment pursuant section 23 (1) (a) (c) (i) Cybercrime Code Act 2016. The indictment reads:

EUNICE KAKAS also known as MAXINE HOGA of GOTOMI VILLAGE, LUFA, EASTERN HIGHLANDS PROVINCE stands charged that she on the 10 November 2019 at Port Moresby in Papua New Guinea intentionally and without lawful excuse used an electronic device to connect to the intent with the aid of electronic writings and image posted on social media namely Facebook to initiate and participate in communication and online discussions regarding another person namely DANIEL KOMBUK directly for the purpose of causing the said DANIEL KOMBUK emotional distress. [Emphasis mine].

16.	A charge is bad for duplicity where it contains more than one offence in the statement of offence.

17.	 Section 23 (1) (a) (c) (i) reads:
(1)	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 whether or not it is connected to the internet (with or without the aid of electronic writings, images, audio, visual or audiovisual recordings, or the exchange of messages) to —
(a)	initiate; or
(b)	facilitate; or
(c)	participate in,
any communication or online discussion or posts regarding another person, directly or indirectly (with or without any exchange of messages or electronic writings, images, audio, visual or audiovisual recordings) with the person harassed, for the purpose of —
(i)	coercing, intimidating, threatening, harassing, stalking, or causing emotional distress; ……..”

18.	 Section 1(a), 1(b) and 1 (c) are distinct.  Initiate is to start, facilitate means to aid or enable and participate means to join. These are not merely descriptive but create separate conduct which forms the basis for the allegations. 

19.	The indictment is bad for duplicity because it charges that the accused initiated and participated.

Orders

20.	The Orders of the Court are:
1.	The Application to Stop the Case is Upheld.
2.	A Verdict of Not Guilty is Entered.
3.	The Accused is Acquitted.
4.	The Accused is discharged of the Indictment.
________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence