N9637

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 175 OF 2021

STATE

V

DOMINIC AKU JASON
(No 1)

Waigani: Wawun-Kuvi, AJ
2022:   22nd & 24th February, 1st March, 3rd & 17th March

CRIMINAL LAW-TRIAL-Cyber Harassment, section 23(1)(a)(i) Cybercrime Code Act- Whether the accused intended to threaten the Prime Minister James Marape

The accused was charged with cyber harassment under section 23(1)(a)(i) of the Cybercrime Code Act 2016. A post was made on the social media site Facebook under the account Nicky Jason. The post stated “PMJM you need to stap down a.s.a.p before bullet penetrate your head”. The post was circulated and eventually reached the attention of Prime Minister James Marape. The Prime Minister laid a formal complaint and investigations were conducted. The accused was arrested as a result of police investigations.

Held:

1.	The elements of cyber harassment are: (1) intentionally and without lawful excuse or justification OR in the excess of a lawful excuse or justification OR recklessly (2) uses an electronic system or device (3) to initiate any communication or online discussion or posts regarding another person (4) directly or indirectly with the person harassed (5) for the purpose of coercing, intimidating, threatening, harassing, stalking, OR causing emotional distress.

2.	 Prime Minister James Marape confirms that he is referred to as PMJM. The accused in his confessional statement admits that he made the post against Prime Minster James Marape. That is sufficient proof that the initials PMJM are that of the complainant Prime Minister James Marape.

3.	The statements of the police officers combined with the confessionals statement are sufficient proof that the accused initiated or started the post. It later went viral and was received by the Prime Minster.

4.	The post was directed at Prime Minister James Marape and was indirectly received by him.

5.	The accused explanation that family pressure caused him to make the post is both is both illogical and incredible.

6.	A verdict of guilty is returned.

Cases Cited

State v Robert Kerowa [2022] N9393
Bukoya v State [2007] PGSC 15; SC887
State v White [1996] PGNC 73; N1441 
Davinga v The State [1995] PNGLR 263 
Paulus Pawa v The State [1981] PNGLR 498

Reference

Cybercrime Code Act 2016

Counsel

Ms Lilly Jack, for the State
Mr Bernard Popeu, for the Defence

VERDICT

17th March, 2022

1.	WAWUN-KUVI, AJ:   Dominic Aku Jason (the accused) was indicted on one count of Cyber Harassment under section 23 (1) (a)(i) of the Cybercrime Code Act 2016. 

2.	The accused pleaded not guilty, and a trial followed. This is the Court’s decision on verdict.

The Charge

3.	The State charged:

“….. on the 29th day of July 2020 at Bomana, National Capital District in Papua New Guinea did intentionally without lawful excuse use an electronic device namely a mobile phone connected to the internet with the aid of electronic writings posted on social media, namely Facebook, to initiate an online post and discussions regarding another person namely JAMES MARAPE directly for the purpose of threatening the said JAMES MARAPE.”

The Allegations

4.	In support of the charge, the state alleged that the accused had an account on the social media site Facebook under the name Nicky Jason.  On 29 July 2020, he used a mobile phone and logged into his account. He then posted in a public forum titled “TEAM O’NIEL- WOK MAS GO YET”. His post was “PMJM you need to stap down a.s.a.p before bullet penetrate your head”.

5.	The State alleged that the post generated likes, reactions, and comments from other Facebook users. The complainant subsequently read the post and became concerned for his life and safety and that of his family. He reported the matter to police.

6.	The Accused was subsequently arrested following police investigations.

Burden of Proof

7.	The onus is on the State to prove its case beyond reasonable doubt and to disprove any defences properly raised beyond reasonable doubt.

The Elements

8.	The elements of the offence of cyber harassment under section 23 (1) (a) (i) are:
1)	intentionally and without lawful excuse or justification OR in the excess of a lawful excuse or justification OR recklessly 
2)	uses an electronic system or device
3)	to initiate any communication or online discussion or posts regarding another person, 
4)	directly or indirectly with the person harassed
5)	for the purpose of coercing, intimidating, threatening, harassing, stalking, OR causing emotional distress.
Evidence
9.	The State tendered by consent witness statements, the confessional statement, and Record of Interview.

10.	James Marape and David Patrick Manning gave sworn evidence.

11.	The accused remain silent and called no evidence. I remind myself that no inference of guilt can be drawn by the accused exercising his right to remain silent: Paulus Pawa v The State [1981] PNGLR 498 and Bukoya v State [2007] PGSC 15; SC887. The onus is always on the State to prove its case to the required standard. The effect of the accused remaining silent will be that the State’s case may be uncontradicted or unexplained on vital matters: Paulus Pawa v The State [1981] PNGLR 498.

The Documentary Evidence

12.	In State v Robert Kerowa [2022] N9393 I referred to the case of State v White [1996] which discussed the legislative basis for tendering of statements by consent and its legal effect. 

13.	State v White referred to the Supreme Court decision in Davinga v The State [1995] where it was held:

"This tendering of evidence by consent is provided for in the Criminal Code S.589" Admission. An accused person may admit on the trial any fact alleged against him, and the admission is sufficient proof of the fact without other evidence" but "A trial judge should always consider carefully whether there can be no prejudice to a fair trial by the admission of such evidence."”

14.	Once the statements are admitted into evidence, the matters stated are sufficient proof of the facts and do not require any other evidence.

15.	 The facts contained in the statements Billy Keto, Liaison Salle, Botting Mandu, Joel Simatab, Yaki Koya and David Saule are therefore undisputed.

16.	The statements establish that:

•	There was a complaint by the Prime Minster James Marape regarding the post.
•	Investigators commenced investigations and searched for the post.
•	As a result of the investigations the accused was arrested.
•	The accused provided a confessional statement and surrendered the sim card.

17.	The Confessional Statement of the accused in pidgin and the English translation were tendered without objection and were marked as “S5” and “S6”.  The accused confirmed that he has a Facebook account under the name Nicky Jason. He admits that he wrote the post, but he did not have an intention to kill the Prime Minster. He apologized to the Prime Minister James Marape.  He stated that family pressure caused him to post the statement against the Prime Minister.

18.	The accused remained silent in his interview with police.

David Patrick Manning

19.	 He is the Police Commissioner.

20.	He was informed of the post through a WhatsApp Messenger group administered by the Royal Papua New Guinea Constabulary. Additionally, several colleagues also contacted him and expressed their concerns over the nature of the post.

21.	He received a screenshot of a Facebook message to the effect that the Prime Minister should step down or he will be shot in the head.

22.	He contacted the Prime Minister and enquired whether he was aware of the post. The Prime Minister informed him that he was and that he would make an official complainant.

23.	The Prime Minister subsequently made a formal complaint. He then commissioned a special investigation team to investigate the matter.

24.	It was his assessment that the nature of the message was threatening, and investigation needed to be conducted to determine the viability of the threat.

James Marape

25.	James Marape is the Prime Minister. 

26.	He confirms that he uses the initials PMJM and is referred to as PMJM. 

27.	He confirmed that he read the post and that he contacted the police and made a complaint.

28.	He explained that when he first read the post, he had initially ignored it, but many people voiced their concerns. 

29.	He stated that he has received threats in his political career and has taken those threats seriously. He stated that as a public figure he must take all threats on his life seriously and it is a matter for police to investigate to determine whether the threats are real.

Issues

30.	The issue before the Court is whether the purpose of the post was to threaten the complainant?

Assessment

31.	The State argued that the evidence establishes beyond a reasonable doubt that the accused committed the offence.

32.	The defence contention is threefold. 

1)	There is no evidence confirming that the initial PMJM is that of James Marape.
2)	There is no evidence that the accused initiated the post.
3)	The State did not prove that the accused directly communicated with James Marape.

33.	The first submission is without merit. The confessional statement was tendered by consent and contained therein is the admission by the accused that the post was towards the Prime Minster James Marape. Pursuant to section 589 of the Criminal Code that is sufficient proof of who the accused was referring to when he typed the initials PMJM. 

34.	As to the second contention that the accused did not initiate the post, the evidence demonstrates that the accused initiated or started the post which was then disseminated to other persons. The accused in his confessional statement does not deny that he posted the statement. Both the Police Commissioner and the Prime Minister confirm that not only did they see the post, but many others had raised concerns about the post. The evidence of the Police Commissioner that the post was raised in the police WhatsApp Group further demonstrates the extent to which the post was circulated. I find and accept that the author of the post and the person who initiated it or started the post was the accused.

35.	The last contention and what was argued to be the main contention was that the State failed to prove that the accused communicated directly with James Marape. Mr. Popeu for the accused placed reliance on the word “directly” within section 23 (1) (a)(i) of the Cybercrime Code Act. 

36.	It is clear from submissions by counsel that the word directly in the provision has been misconstrued. He misunderstands the use of the word directly used in the indictment.

37.	 The word directly in the indictment is descriptive and encompasses the element of the purpose of the post, that is, that the accused initiated communications for the specific purpose of threatening the Prime Minister. This is distinguished from the word ‘directly’ used in the act which is the adverb meaning the direction of going straight to .

38.	The provisions states: 

“…..any communication or online discussion or posts regarding another person, directly or indirectly ……… with the person harassed, for the purpose of-….”

39.	The elements of the offence of cyber harassment have been identified above. It is not material or the State is not required to prove whether the communication was direct. As it relates to the charge contained in the indictment, the State must prove:

•	the accused had an intention and without lawful justification;
•	used a device namely mobile phone
•	to initiate an online post or discussion regarding James Marape, 
•	directly or indirectly with James Marape, 
•	for the purpose of threatening James Marape.

40.	The post was directed at Prime Minister James Marape and was indirectly received by him. 

41.	As is evident from the post and as admitted by the accused the message was intended for or directed Prime Minister James Marape. Whilst it was not sent to him directly, it was published on a public social networking site. And the message went viral as evidenced by the Police Commissioner and the Prime Minister himself. It eventually, reached the Prime Minister.

42.	The argument by the defence that the accused did not post directly on the Facebook page TEAM O’NEIL-WOK MAS GO YET’ but rather on is own ‘wall’ cannot stand for several reasons. Firstly, as already stated it is material whether the accused communicated directly or indirectly. Secondly, there was no evidence led as to what defence counsel termed as “a wall”. The only evidence before the Court is that the accused posted on the social network site Facebook. Thirdly and finally, the Statement of Lison Salle “S10” confirms that the accused posted on the Facebook page called “TEAM O’NIEL -WOK MAS GO YET’ on 31st July 2020. This is undisputed.

43.	Whether the Prime Minister received the post directly or whether he received it though other concerned users, he nonetheless received the message in which he was specifically named. The post stated that if James Marape did not step down he would be shot in the head. Even though, the accused did not send a message directly to James Marape, it is foreseeable that because the message was targeted at him specifically, the message would reach him via computers, smartphones, and other electronic devices given that it was posted on a public forum. 

44.	I am therefore satisfied that the post was indirectly received by James Marape but he was the intended target of the post.

Whether the State has proved all the elements of the offence?
45.	The only element in dispute is whether the accused posted the message with an intent to threat James Marape.

46.	The accused stated in his confessional statement, that he was under family pressure. This explanation is both illogical and incredible. The target of one’s anger or frustration would be the family member concerned and not the Prime Minster of Papua New Guinea. This reason is rejected.

47.	I find that the accused initiated the post on the social networking site Facebook using a mobile phone, that he did so intentionally, that there was no lawful excuse or justification. That he did so for the purpose of threatening James Marape.

48.	The social networking site Facebook functioned as a platform for the accused and others to post their views in support of Peter O’Neil. However, the accused used it to initiate a verbal threat towards the Prime Minster James Marape. The post generated comments from other users of the site and went viral. Whilst the Constitution protects the freedom of speech, this is not the conduct and speech that society is required to tolerate. 

49.	It is unjustifiable in any democratic society to use a public forum to post threats to kill or take the life of another person. Whether it is intended to be carried out or not is immaterial because, the very nature of the post causes the subject to be under distress.

50.	It is clear from the evidence, that the post caused other users to be concerned. It was not only brought to the attention of the Prime Minster but also to the police commissioner. For the post to be escalated to that level indicated that there were real concerns for the life and safety of the Prime Minister. The Prime Minister himself was concerned for his and his family’s safety.

51.	For those reasons, I am satisfied beyond a reasonable doubt that the accused committed the offence of cyber harassment. 

52.	A verdict of guilty is returned.

Orders:

53.	The Orders of the Court are:

1.	A Verdict of Guilty is returned.

2.	The accused is convicted of the charge of Cyber Harassment under section 23(1)(a)(i) of the Cybercrime Code Act 2016.

3.	The Offender is remanded.
________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence