N9653

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR(FC) 211 OF 2021

STATE

V

PATRICK WANARIU

Waigani: Wawun-Kuvi, AJ
2022:   13th & 24th May, 2nd &7th June

CRIMINAL LAW-TRIAL-Cyber Harassment, section 23(1)(a)(i) Cybercrime Code Act 2016-Whether accused initiated communication with the complainant?

The accused was charged with cyber harassment under section 23(1)(a)(i) of the Cybercrime Code Act 2016. It was alleged that the accused on two separate occasions sent messages to the complainant which harassed and caused her emotional distress. The accused denied that he sent the messages and stated that his account was accessed and used by the complainant during the relevant period.

Held:

1.	The elements of cyber harassment under section 23(1)(i)(a) 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)
(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.

see also State v Dominic Aku Jason (No 1) [2022] N9637.
2.	There was no evidence called by the State and very little evidence was presented to explain the purported transcripts of the alleged messages exhibited as “S2”. I therefore cannot be satisfied that “S2” are transcripts of messages between the accused and the complainant.  I am not satisfied, whose account was depicted. Whist the documents may show that messages were sent, they do not reveal conclusively who sent the messages.

3.	Considering the accused defence and without any explanation, I find that the documents exhibited as “S2” have very little weight.

4.	The complaint to police was delayed for almost 1 year 6 months. There was no evidence by the State to explain the delay.

5.	After the relationship ended in 2019, the complainant has caused the accused to be removed off the payroll, filed a child and spousal maintenance claim where there was no cause of action and had the accused arrested for allegations that go back almost 2 years. 

6.	The evidence demonstrates ill motive behind this proceeding.

7.	The evidence overall does not permit me to find beyond a reasonable doubt that messages were sent by the accused to the complainant in July and October of 2019 or 2020.

8.	 A verdict of not guilty is returned.

Cases Cited

State v Dominic Aku Jason (No 1) [2022] N9637

Reference

Cybercrime Code Act 2016

Counsel

Ms S Suwae, for the State
Mr Jeffery Kolowe, for the Defence

VERDICT

7th June, 2022
1.	WAWUN-KUVI, AJ:  Patrick Wanariu (the accused) and Melisha Saya (the complainant) were once in a relationship. A relationship that did not last more than a year, but the fallout has continued for almost three years. 

2.	The State has charged the accused that:

Count 1:	“…….between 4th July 2020 and 31st July 2020 at Tari, Hela Province in Papua New Guinea, did intentionally and without lawful excuse use an electronic device namely a mobile phone connected to the internet with the aid of electronic writings on social media namely Facebook, to initiate communication with a person namely MELISHA SAYA directly for the purpose of harassing the said MELISHA SAYA…..”
Count 2: “….between 1st October 2020 and 31st October 2020 at Tari, Hela Province in Papua New Guinea, did intentionally and without lawful excuse use an electronic device namely a mobile phone connected to the internet with the aid of electronic writings on social media namely Facebook, to initiate communication with a person namely MELISHA SAYA directly for the purpose of harassing the said MELISHA SAYA….”

3.	The charges are of cyber harassment under section 23 (1)(a)(i) of the Cybercrime Code Act 2016.

4.	To the charges the accused has pleaded not guilty. The accused does not deny that he was in a relationship with the complainant from March 2019 to October 2019. He admits that he was angry after he was informed that the complainant was going out drinking and was bringing men home. A home that he says he was paying rentals for. He admits that he called the complainant through his mobile phone and swore or used insulting language at her. He denies sending messages to her through Facebook Messenger.

5.	The State called only the complainant.

6.	The accused gave evidence on his own defence.

ALLEGATIONS

7.	The complainant was the de facto partner of the accused.

8.	The accused had an account on the social media site Facebook under the name Patrick Malusun. The complainant also had an account under the name Mickey Sly Freddy Saya.

9.	Between the 1st day of July 2020 and the 31st of July 2020 the accused intentionally and without lawful excuse initated communication with the complainant in the following words, “Kan pamuk Karim barsted pikinini (sic) blo u na go kuap raun, go asshole Han barsted (sic).”

10.	On the second occasion, between 1st October 2020 and 31st October 2020 the accused again intentionally and without lawful excuse, initiated communication with the complainant in the following words, “Ass kan go pamuk meri yah, ol kuapim kuapim lo m stap yah.kan blo dog blo u, pamuk kan nabout ya.”

11.	The State says the messages harassed the complainant and caused her emotional distress. 

ELEMENTS OF THE OFFENCE

12.	In State v Dominic Aku Jason (No 1) [2022] N9637, I identified the elements of cyber harassment under section 23(1)(i)(a) to be as follows:

(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.

BURDEN OF PROOF

13.	The State bears the burden of proving its case beyond a reasonable doubt and disproving any defences properly raised beyond a reasonable doubt.

UNDISPUTED FACTS

14.	It is not disputed that:

•	The accused and the complainant were in a relationship.
•	The accused and the complainant met in March 2019.
•	In June 2019, the accused left for his posting to Tari. The complainant remained in Port Moresby.
•	In October 2019, he called the complainant and insulted her.
•	In 2020, the complainant filed a case of child and spousal maintenance against the accused.
•	In 2020, the accused left his post in Tari and returned to Port Moresby to attend to the maintenance case.
•	On 11th January 2021, the accused was arrested and charged for the present offences.
•	On 13 April 2021, the magistrate dismissed the maintenance claim against the accused stating that the complainant was not his wife under the definition of the Lukautim Pikinini Act and her child was not the child of the accused within the definition of the Act.
ISSUE

15.	 Whether the accused sent messages to the complainant?

FINDINGS OF FACT

16.	Before proceeding onto my findings in relation to the facts I state here that there is no principle in law that requires me as a trier of fact to believe or disbelieve the whole of a witness evidence. Instead, I may believe none, part or all of the witness evidence and may attach different weight to different parts of the witness evidence. 

17.	The accused is a police officer with the rank of Constable. He is from Lemieng Village, Aitape Lumi District, West Sepik Province. On record he is based at Tari Police Station in the Hela Province. He obtained a leave of absence to attend to a spousal and child maintenance case filed against him in 2020. The case was filed by the complainant. 

18.	Melisha Saya, the complainant, is presently 24 years old. She is from East Sepik Province. She works with Exxon Mobil. On 31 January 2019, she gave birth to her son. In March 2019, she met the accused in a club in Port Moresby. Soon after she moved in with him at the Bomana Police College transit accommodation.

19.	 In June 2019, the accused obtained his posting and left for Tari in Hela Province. The complainant and her child went to live at a rented accommodation at 9 Mile, National Capital District.
20.	Sometime between September and October of 2019, the accused became upset with the complainant. She says she does not know the reasons. The accused says that it was because the babysitter informed him that the complainant was going out consuming alcohol and bringing men home. He was angry because he had paid for the airfares of the babysitter and her child so that the complainant could go back to work. Additionally, he was paying for the rental accommodation. Whatever the reasons for his anger, he does not dispute that he called the complainant and used profanities against her.

21.	This is where the dispute arises. 

22.	The complainant states that the accused sent insulting messages to her on what was termed as “Facebook Messenger” under his account Patrick Malusun.

23.	The accused on the other hand, says that he did not send the messages to the complainant. That the complainant sent those messages herself in an endeavor to have him removed from the police force. That she had access to his password and account. 

24.	The State did not call any witness to explain nor was there any evidence led from the complainant as to the difference between Facebook Messenger as opposed to the social media site Facebook which was charged in the indictment. Nor was it explained by evidence how Facebook Messenger operates. 

25.	There was no explanation provided for “S2” which the State alleges was the transcripts of the messages.  

26.	The police did not obtain the complainant’s mobile phone and generate “S2”. Instead, it was the complainant who took a screen shot. She described screen shot as her pressing certain buttons on her phone which causes the phone to take a photograph of the screen. She then took her phone to another location where it was printed. Then she gave it to the police. 

27.	 “S2” comprises of two documents. There was no explanation whether the documents were a continuing thread of messages or were captions of different time periods. There was no explanation of the speech bubbles and the time and date stamps. There is no year depicted in the documents. This was crucial because the State charged that the offences occurred in 2020 and the complainant stated that it was ongoing since 2019. 

28.	There was very little explanation as to what is meant when the document depicts the name “Patrick Malusun” and shows, “active now” under the name. There is nothing in the documents exhibited as “S2” that states the complainant’s name Melisha Saya or her pseudonym Mickey Freddy Saya. The State simply tendered the documents exhibited as “S2” and left it for the Court to interpret. 

29.	These matters are relevant when the accused defence is that he did not send the messages. A defence that was available to the State in the Record of Interview (ROI) exhibited as “S1”, where the accused stated that the account under his name was accessed and used by the complainant.

30.	In the modern age of technology, it can be safely inferred that with the correct password, any person can have access to another’s devices and social media accounts.

31.	There was no evidence called by the State and very little evidence was presented to explain the purported transcripts of the alleged messages exhibited as “S2”. I therefore cannot be satisfied that “S2” are transcripts of messages between the accused and the complainant.  I am not satisfied, whose account was depicted. Whist the documents may show that messages were sent, they do not reveal conclusively who sent the messages.

32.	Considering the accused defence and without any explanation, I find that the documents exhibited as “S2” have very little weight.

33.	Considering the accused defence and without any explanation, I find that the documents have very little weight.

34.	With very little weight being placed on “S2”, the question left for the Court to decide is who should be believed? The answer to this question will also result in the answer to the question, did the accused send messages to the complainant? 

35.	I find that the accused was genuine in his answers. He gave straight forward answers and admitted that he did swear at or insulted or used profanities against the complainant in October of 2019. But that was only through a voice call as opposed to sending written messages via Facebook. He explained in his ROI that the allegations were fabricated because the complainant was seeking revenge after learning that her maintenance claim was not in her favor.

36.	The complainant on the other hand starts from describing a painful relationship where the accused was promiscuous and violent to later stating that she did not have any problems with the accused. She maintained in examination in chief that she had no ill feeling towards him but in her cross examination it was obvious she bore a lot of animosity towards him. 

37.	The evidence supports that the accused moved on with his life following the argument in October 2019. The complainant on the other hand filed a spousal and child maintenance case in 2020. The nature of a claim for maintenance is that the defendant in the proceedings has deserted the complainant and child. This supports the accused case that he had ended the relationship and moved on with his life in 2020. The eventual ruling in that case demonstrates that the complainant filed a case without a cause of action. She was neither the accused wife nor was her child the accused child. A fact that was known by both parties at the outset of their relationship.

38.	Before that claim was dismissed, the accused was arrested for this offence. The Court Order from the Family Court exhibited as “D1” shows that the case was dismissed on 13 April 2021.The ROI confirms that the accused was arrested and charged on 11th January 2021.
 
39.	The relevance of the events leading to the accused being in Court today is important when viewed against the alleged date of offending.

40.	The State charged that the messages were sent in 2020. The complainant states in her evidence that it was in 2019. If the messages were sent in July of 2019, that it would mean that, it took the complainant almost 1 year 6 months to report the matter to police. The question then is, if the complainant was harassed and emotionally distressed, why did she wait so long and only placed the complaint to police in 2021. It was not as if the accused was still in Tari. He was already in Port Moresby defending a maintenance case that she filed since 2020. There was no explanation from the evidence of the State as to the delay. 

41.	Whilst the complainant says that she had no ill feelings, the history of the matter demonstrates otherwise. 

42.	The evidence by the accused which I accept is that since he ended the relationship in October of 2019, the complainant has been the person harassing him.  All aspects of which have not been challenged in cross examination or not discredited. I accept that:

•	he was put off the payroll for 12 months up until 2020 because of the complainant. He was resolving this issue whilst attending to the Family Court case.
•	In 2020, he then left his posting in Tari to defend a case in which the complainant did not have a cause of action. He had obtained leave from his superior to be in Port Moresby.
•	Three months before the decision of the Family Court, he was arrested for allegations that stemmed from almost 2 years prior.
•	He could not return to his posting in Tari because of his arrest.

43.	I accept that there is ill motive behind this proceeding.

44.	The evidence overall does not permit me to find beyond a reasonable doubt that messages were sent by the accused to the complainant in July and October of 2019 or 2020.

45.	 A verdict of not guilty is returned.

Orders

46.	The Orders of the Court are as follows:

1.Verdict of not guilty returned.
2. Accused acquitted.
3. Accused discharged of the Indictment 13th May 2022.
4. Bail is refunded.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender