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State v Otto [2025] PGNC 447; N11587 (17 November 2025)

N11587

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) NO 47 OF 2025

THE STATE

V

JOHN OTTO

WAIGANI: BERRIGAN J
23, 24 OCTOBER, 17 NOVEMBER 2025

CRIMINAL LAW – PRACTICE AND PROCEDURE – VERDICT – Section 517(b) of the Criminal Code – Conspiring to cause injury to the reputation of another by falsely accusing them of attempted murder – Elements of offence – Whether there was any such conspiracy - Not Guilty.

Cases cited
Banaso v The State (2022) SC2302
Roland Tom v The State (2019) SC1833
State v Veraga (2005) N2849

Counsel
A Kaipu, for the State
D Kayok, for the accused

DECISION ON VERDICT

1. BERRIGAN J: The accused, John Otto, is charged with conspiring with Alphonse Willlie to cause injury to the reputation of Peter Samghy by falsely accusing Peter Samghy of attempting to murder him, contrary to s. 517(b) of the Criminal Code.
   
2. The complainant Peter Samghy is a police prosecutor with the rank of Sergeant and attached to the Police Prosecutions Section, Boroko Metro Command.
   
3. It is alleged that sometime in 2019 a portion of land at Bushwara settlement was given to the complainant by a Michael Foxcy of the Behori Clan, the customary landowners, to settle on. Around the same time the accused John Otto used to garden on the land. In 2023 the complainant fenced the land and told the accused to stop gardening on it, but he did not do so. On 25 February 2024 between 9am and 10am the complainant and his family went to the block in a tipper truck with a load of timber. The tipper truck was driven by Tom Pis Kapo. The accused was gardening about 25 metres away. The accused saw them and called out: “hey yupla lukim garden blo me na draiv” (you people see my garden and drive). The complainant replied: “yu mas wanpla dog olsem na yu no harim tok lo noken moa wokim garden” (you must be a dog that is why you do not listen to not make garden here anymore). The accused started walking towards them with a long bush-knife but stopped when Tom Kapo shouted at him telling him to turn around and not come closer. At the same time Kapo drew out his licensed pistol and cocked it to warn the accused and prevent him from doing any harm to them. The accused retreated. Two weeks later the accused told Alphonse Willie who also had a dispute over the land at Bushwara about the incident and they agreed to falsely accuse the complainant of attempted murder. Alphonse Willie wrote a letter to the Gordons Police Station Commander, copying the OIC of IIU, Boroko Police Station and Minor CID, Gordons Police Station, alleging that the complainant attempted to shoot the accused, John Otto.
   

Findings of fact

4. There is no dispute that there was a long-running dispute or disputes over the land. The complainant says he was given the land by one customary landowner. The accused says that he was given it by another customary landowner who allowed him and others to build makeshift but not permanent houses there after they were removed from the city. It appears that Alphonse Willie claims that he was awarded the land by the Land Dispute Committee on 11 November 2023.
   
5. There is some dispute about what happened on 25 February 2024. The complainant says that after the exchange of words he was unloading the timbers with his 10 and 16 year old children when the accused walked towards them aggressively with a bush knife until at 15 metres Mr Kapo told him not to come any further. The accused continued coming towards them until Mr Kapo removed a pistol from his waistband, pointed it into the air, cocked it and told the accused not to come any closer.
   
6. Mr Kapo says that the accused continued to walk towards them and as he came to about 10 to 15 metres away, he told him to stop. When the accused continued walking, he ran and got a pistol from his bag in the driver’s seat and pointed it up into the air and shouted at him to go back, which he did.
   
7. The accused says he was holding a bush knife because he was gardening and he went and told the complainant that he was wrong. The Tari man came out and got his pistol and pointed it at his head, so he removed his cap and told him to shoot him.
   
8. Putting aside the differing versions for a moment, soon after the event, the accused told Alphonse Willie that “this Tari man tried to shoot him” or “wanted to shoot him”. He used that language interchangeably to describe what happened and what he told both police and Alphonse Willie.
   
9. I further find that the accused also reported to Gordons Police Station that the Tari man wanted to shoot him and got an OB number. The accused was consistent in his evidence about that and in his record of interview. The State did not produce a copy of the report. Given that he did not know the Tari man’s name but did know the complainant’s name the accused must have referred to the fact that the Tari man was with the complainant. Nevertheless, I accept his evidence that he reported that it was the Tari man who tried to shoot him. That matter has not been investigated, and the accused seems to naively believe that is because he does not have a phone on which the police could contact him.
   
10. The accused also told Alphonse Willie once he had reported the matter to police.
    
11. At some stage after the report was made by the accused to Gordons Police Station some police officers went up to his house at Bushwara and threatened him with sticks but did not physically assault him. The accused’s evidence about what happened and whether the complainant was there at the time and gave him his phone to speak to the landowner who sold him the land was unclear and was not put to the complainant. In fairness I will disregard it.
    
12. At some stage before 28 March 2024 an envelope containing a letter purportedly from Alphonse Willie addressed to the Station Commander, Gordons Police Station, and copied to the Police Commissioner, Commander IIU (apparently a reference to the Internal Affairs Directorate) and Chief Secretary was found by the complainant at his desk.
    
13. The letter is the basis upon which the charge is brought. The letter’s subject states: “Police action: CID & IIU Investigation 1. Breaching mediation orders 11/11/23 by Peter Simgi, Police Prosecution 2. Attempt Murder: Gun point at John Otto Peter Simgi or agent”.
    
14. Putting aside issues of authenticity, on its face the letter is written by Willie. Of the five handwritten pages all but three paragraphs are concerned with Willie’s own claim to the land and dispute with the complainant. On the second issue it says:
    

15. In response the complainant wrote a letter to Mr Willie on 28 March 2024. In addition to responding to the alleged breach of mediation orders he strongly denied the allegation about the gun and put Willie on notice that once the investigation into him had finished he intended to pursue Willie for defamation.
    
16. In or about November 2024 the accused went to Gordon’s Police Station to visit a relative who was in the lock up. By the complainant’s own admission when he saw the accused he immediately directed another police officer, Ronny Wamel, to arrest the accused, which he did.
    
17. Despite arresting him, the accused was not interviewed until 17 April 2025, several months after an information was laid at the District Court on 25 November 2024. Moreover, the interview was conducted just seven days before the accused was committed to the National Court on 24 April 2025. It was impermissible for police to interview him at that late stage.
    
18. In the meantime, the accused has been in custody for at least a year since November 2024.
    
19. Alphonse Willie has been charged and is before the District Court.
    
20. The complainant has built his house on the land at Bushwara.
    

Section 517(b) - Conspiracy to ruin the reputation of another person

21. Section 517(b) of the Criminal Code provides that a person who conspires with another to cause any injury to the person or reputation of a person is guilty of a misdemeanour for which the maximum penalty is imprisonment for a term not exceeding three years.
    
22. In this case the State must establish beyond reasonable doubt that the accused:
    
    1. conspired with another
    2. to cause any injury to the (person or) reputation of the person.
       

Conspiracy

23. The principles governing conspiracy are well established: see Banaso v The State (2022) SC2302; Roland Tom v The State (2019) SC1833; State v Veraga (2005) N2849.
    
24. The State has failed to establish beyond reasonable doubt that the accused conspired with Alphonse Willie to make a false report to damage the reputation of the complainant by accusing him of attempted murder.
    
25. There is nothing strange about the fact that the accused told Alphonse Willie what happened on 24 February 2024. Alphonse Willie is a big man from Chimbu. He is a former Member of Parliament. He is a well-educated community leader in Bushwara and “everyone goes and sees him”. The accused is an unsophisticated illiterate man from Chimbu who has never been to school. Of course, he told the local leader who was also arguing with the complainant about the land what happened.
    
26. As a person going to a settlement area where there is an ongoing dispute with people from another province over land, with his wife and young children, when he himself has a disability and is unable to use one hand, I find it difficult to believe that the complainant did not know that Mr Kapo had a gun with him. As a police officer he probably should have known that the person he was taking to his block was armed but that is not really to the point.
    
27. The accused had a bush knife because he was gardening. Nevertheless, the accused was angry and aggressive as he walked towards the complainant, and did not stop when told to, and it was in that context that the incident occurred.
    
28. I don’t think in all the circumstances it was unreasonable for Mr Kapo to retrieve his weapon and point it into the air in warning.
    
29. Nevertheless, from the accused’s perspective he was threatened with the gun and given that Mr Kapo either withdrew the gun from his waist or from a bag and was moving it and yelling at the accused it may well have been pointing at the accused at some point before it was pointed in the air and cocked.
    
30. More importantly, the State has failed to show that the accused told anyone that the complainant attempted to murder him.
    
31. The accused is a simple man, and he struck me as an honest witness. It was necessary to explain what was happening in the proceedings to him several times to ensure he understood. He says he is 40 years old, but he told police he was 40 years old a year ago. I must say he seems older than 40. He is hard of hearing. He does not seem to appreciate that he has been in custody much longer than six months. When asked whether he was interviewed by police he said they took his story and then put him in Bomana. But it is quite clear that he was in Bomana long before any proper interview in April.
    
32. He was very open about speaking to Mr Willie before speaking to police and he could not be moved on what he told police and what he told Mr Willie and as far as he is concerned the Tari man pointed the gun at him and wanted to shoot him.
    
33. It seems to me that he was upset about being threatened with a gun on what he regards as his land, and he tried in his own way to get some assistance from the police by reporting the Tari man albeit he does not seem to appreciate or take any responsibility for his own role in what happened.
    
34. Critically, putting aside whether Mr Willie’s letter is false or misleading, the State has failed to establish that the accused knew anything about Mr Willie’s letter.
    
35. In all the circumstances the State have failed to establish beyond reasonable doubt that the accused conspired with another person to damage the complainant’s reputation by false accusing him of attempted murder.
    
36. The accused is acquitted.

__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the accused: Public Solicitor