DC7043

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS COMMITTAL JURISDICTION)
CB.NO.------/2020-

STATE
V
DESMAH FAIK

Waigani: Gary Unjo
Cyber Crime Law ---Defendant charged on two counts of defamatory publication --Indictable Offence--- District Court----Practice and Procedure ---Prima facie evidence a requirement –--not particularized to expose  publication made directly to that person—-bundling of persons under the same publication improper --- not all letters in publication captured in the charge ---- not all publication made been arraigned as the result of not pleaded in the charge---charges are flawed and defective—Defendant discharge from the charge. 

Cases Cited
Jacob Sanga Kumbu v Dr Nicholas (2012), N4746
Mathew Damaru v Geoffrey Vaki (2015), N6858
Herman Joseph Leahy (2008), N3570
Appearances:
Prosecutor: Mr. Chris Iga 
Counsel: Mr. Feareka of Luther’s Lawyers 
G. Unjo: Introduction.
1.	The defendant is before court on one count of publishing defamatory remarks contrary to section 21 (2) of the Cybercrime Code Act. She was arrested on the 4th February 2020 and was arraigned on her elected language English, and understood the reason of being in court. The matter was further adjourned from time to time to allow police to compiled evidence. The police evidence was filed and served on the defendant and submission was allowed and is before the courts determination on the evidence.
Background Facts
2.	The defendant is 45 years of old from Kaghul Village Yanguru/Sausia, East Sepik Province. She is self-employed and resides in Port Moresby. It is alleged that on the 29th January 2020, the defendant created a fake Facebook account under the name styled as Desmah Kiliawi Warana Faiparik and sent to another fake face book account styled as Japs Manix, alleging to be the nick name of Grace Warie, the small sister of the ESP Member’s (MP’s) Wife, Miriam Isifu’s to send defamatory publication. The publication captures in the charge as:
“She is not intelligent enough—a totally dump wife---your sister, an ESP MP’s wife needs a brain reconstruction immediately ---“
“Oh yes, they both are. That’s all they know, worry about their Chiviesihk and nothing constructive to support their political husband. —“
3.	The defendant indirectly sent the publication through the nick name of Grace Warie intended for Miriam Isifu, the wife of the ESP MPs wife who she had an affair with him prior becoming the members of parliament.
4.	There are other publications that is not captured in the charge, but in the sworn statements been sent under the nick name of Grace Waire which states as follows:
1.	This female who used a fake account Japs Manixz has a small sister who is married to a politician and yet does not even know how to run a business or contest an election, she has always been a horse rider on his back to earn as a wife.
2.	My advice to you Japs Manixz …. Your sister an ESP MP’s wife needs a brain reconstruction immediately so she can intellectually support her Politician Husband, debate intellectually representing women in her husband’s political electorate.
3.	You should assist your big sister; the politician’s wife gets university degree to help her Politician husband do some intelligent work for women groups for that electorate. Right now she looks like a dressing table for Politician Husband and she is only beside him for stage plays on public display---nothing more.
5 	These publications were sent with malicious intent and defamatory in nature and criminal complaint was laid to the police to have the defendant and arrested and charged under the Cyber Crime Act.
Issue 
6.	The issue is whether there is sufficient evidence to commit the defendant to stand the trails on the charge of defamation under the Cyber Crime Act
Law
21.	Defamatory publication.
.	  (1)	For the purposes of this Section —
7.	“publication" means using an electronic system or device to make publicly available defamatory material to persons other than the defamed person and includes electronic writings, images, audio, visual or audiovisual recordings;
8"	defamatory material" means an imputation, whether directly expressed or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with the intention of —
(i)	injuring the reputation of that person; or
(ii)	injuring the profession or trade of that person; or
(iii)	inducing other people to shun, avoid, ridicule or despise that person.
(2)	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 to publish defamatory material concerning another person, is guilty of a crime. `
Penalty: 
(a) 	In the case of a natural person, a fine not exceeding K25,000.00 or a term of imprisonment not exceeding 15 years, or both; and
(b)	In the case of a body corporate, a fine not exceeding K100,000.00.
Evidence
9.	There are six people giving evidence and two of which are police officers that corroborated and interviewed the defendant. The principle witnesses of the state Miriam Isifu says, she was showed the content of the defamatory publication published through her small sister Grace Waire’s under her nick name Japs Manix from the face book account name as Desmanh Kilawi Waranaka Faiparik.The publications published reads:
“She is not intelligent enough—a totally dump wife---your sister, an ESP MP’s wife needs a brain reconstruction immediately ---“
“Oh yes, they both are. That’s all they know, worry about their Chiviesihk and nothing constructive to support their political husband. —“
10.	There were also other defamatory publications which reads:
” This female who used a fake account Japs Manixz has a small sister who is married to a politician and yet does not even know how to run a business or contest an election, she has always been a horse rider on his back to earn as a wife.”
“My advice to you Japs Manixz …. Your sister an ESP MP’s wife needs a brain reconstruction immediately so she can intellectually support her Politician Husband, debate intellectually representing women in her husband’s political electorate.”
“You should assist your big sister; the politician’s wife gets university degree to help her Politician husband do some intelligent work for women groups for that electorate. Right now she looks like a dressing table for Politician Husband and she is only beside him for stage plays on public display---nothing more.”
11.	The defendant had an affair with her husband before he became a Member of Parliament, and this infers her to belief that such publications were made by the defendant and no one else. The witness Grace Warie says, the defamatory publications were sent to her under the nick name Manixz Japs was made to her sister big sister and her husband the ESP Member of Parliament and showed them to her big sister, Miriam Isifu.She has a printed the publications and annexed them as evidence. Kevin Isifu says, he is also affected by the publication. He admits the defendant was formally his girlfriend and such post is believed to be posted by the defendant. Constable Lazarus Ikamata interviewed the defendant. In the record of interview, the defendant deny the publication made to anyone of them.
Ruling on Evidence 
12.	The prosecution had filed evidence to assist the court to form an opinion on the evidence to determine whether the evidence is premafacie to commit the defendant to stand trial. They have filed statement of witnesses from three people and the material evidence, such as prints of the publication and the photograph and the record of interview, to build a premafacie case. The essence of these evidence is that; the letters and content of the publication must conform to the type of publication prescribed under S21(1) (i) or (ii) or (iii) to substantiate the charge for which the defendant is before the court.
13.	The defendant denies publishing the publication made under the name Jap Manixz to be inferred to be meant for Miriam Isifu, the wife of the Member of Parliament. 
14.	Before, I determine on the above evidence, as to whether the publication by the defendant is defamatory under the Cyber Crime Act, it is essential to discuss its characteristics and elements that constitute a publication defamatory.   
15.	The Cyber Crime Act defines defamatory material and publication under ss21 (1) as 
"publication" means using an electronic system or device to make publicly available defamatory material to persons other than the defamed person and includes electronic writings, images, audio, visual or audiovisual recordings;
"defamatory material" means an imputation, whether directly expressed or by implication, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with the intention of —
(i)	injuring the reputation of that person; or
(ii)	injuring the profession or trade of that person; or
(iii)	inducing other people to shun, avoid, ridicule or despise that person.
16.	The is no difference in the definition of defamation under S8 of the Defamatory Act and S21 of the Cyber Crime Act. The former attracts an action for civil damages and the latter is a legal breach and constitute a crime of which attracts a penalty of a fine or imprisonment or both, but goes further to say that, anything published to shun, avoid, ridicule or despise another is a defamatory publication. 
17.	The publication comes under the Cyber Crime Act, when one uses the electronic devices or internet service such as computer internet services or mobile phones, email, twitter, mobile text or face book etc.as a medium of communication. This law intend to protect the personal integrity and reputation of a person, apart from other protection required under the same law.
18	Within the spheres of the defamatory laws, the courts are obligated to determine the full content and letters of the publication to determine whether the statement is a false statement of fact, that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade or is a statement of fact or merely an offensive based on opinion that are not defamatory.
19.	It is a defense, if the publication in substance is a fact or a fair publication on the matter of public interest, that is an opinion which any person could honestly hold, based on facts known at the time, or the words were published innocently by a person who was not the author, editor or publisher of the statement, who took reasonable care in relation to its publication, and s/he did not know and had no reason to believe, that what s/he did caused or contributed to the publication of a defamatory statement, and an offer of amend is accepted. It will constitute a defense, if the offer was made as soon as practicable after the publisher received notice that the words in the publication might be defamatory.

20.	In establishing the facts and distinguishing the form of publication that constitutes defamatory, I now intend to look at the letters and content of the publication and assess whether the publication is defamatory. In doing so, have searched to find some case laws directly related to such matters, but was unable to find one.

21	It not an easy task to distinguish from what is been published is an opinion, true or a false statement, particularly when publication is a mixture of the types. However, the letter and structure of the publication is of some guidance to determinate whether the publication is defamatory in nature. This requirement requires the prosecution to analysis the letter and content of the publication to distinguish which of the publication falls within the meaning of section 22 (1) (i), (ii) or (ii) of the Cyber Crime Act and lay charges accordingly.

22.	There are two charges been laid on the defendant under section 21 (2) of the Cyber Crime Act and to determine whether the letter or the content of the publication is defamatory, I further intend to look at each charge and how it is drafted. The evidence be determined on its lettering and content of the publication. It must be distinguished well as to determine whether the publication is of an opinion or a false statement made to shun, avoid, ridicule or despise another person. This puts me in a position to deal with each of the charges to determine whether the letters in the publication quoted on the charge is defamatory. The first charge reads:   
 
Did intentionally and without lawful excuse used electronic devise to wit a Mobile Phone to publish a defamatory post under the name Desmah Kiliawi Waranaka Faikparik stating “She is not intelligent enough—a total dump wife—your sister, an ESP MP’S wife needs a brain construction immediately” via Facebook account wall namely Desmah Kiliawi Waranaka Faiparik concerning another person namely Miriam Isifu and Grace Warie injuring their reputation.
23. 	What is the problem with this charge? In my first observation, there is nothing said about Grace Warie.In accordance with the definition under s 22(1) of the Cyber Crime Act, the publication material is defamatory, if it injures the person’s reputation or injuring the professional or trade of that person or inducing other people to shun, avoid, ridicule, harass or despise that person. Within its definition, the content of the publication must be done with malicious intent. However, to what extend such publication had affected the complainant and or how would the reasonable person reading the publication think the same? Were they been irritated and deeply troubled and uneasy by the publication? This feel of irritation, troublesome and uneasiness must affect the one the publication was directed to. The same feel or the shared feel of his/her companion does not amount to defamatory to that other person, as the publication is not directed to him or her. Therefore, the one Grace Warie is wrongly named in this charge. The bundling of the two persons into one charge where the publication is made reference to one person only, in my view, makes the charge defective.
24.	This further draws me to the ask, how this defective be corrected? This defect was not corrected at the first place by way of an application and having in mind, this court does not have the inherent powers to act judicially to correct the mistake on its own to put it to perspective. Within the limits of this court, the charge is defective and flawed.
In Jacob Sanga Kumbu –vs—Dr. Nicholas (2012) N4746 His Honor Justice Canning’s in paragraph 23 say” Ms Lari, for the first and second defendants, submitted that if the charge were found to be defective, this is of no consequence as the plaintiff did not raise the defects with the Student Disciplinary Committee. I reject this submission for two reasons. First it is the duty of the Committee to ensure that it has jurisdiction in a matter referred to it (Denis Donohoe v Ombudsman Commission [1985] PNGLR 348). One of the prerequisites to a disciplinary tribunal being seized of jurisdiction is that the charge it is asked to determine is clear and lawful, not ambiguous and defective. That duty was not discharged. Secondly, the plaintiff did argue that there were defects in the charge in his appeal to the Appeal Committee but the argument was ignored. I conclude that there were four errors of law that rendered the charge defective and a nullity.
25.	The second charge is drafted as:
Did intentional and without lawful excuse used an electronic device to wit a Mobile Phone to publish a defamatory post under the name Desmah Kiliawi Waranaka Faiparik stating ---‘’Oh yes they both are. That s all they know, worry about their chiviesihk and nothing constructive to support their politician husband’’---vis Facebook account wall namely Desmah Kiliawi Waranaka Faiparik concerning another person namely Miriam Isifu and Garce Warie, injuring their reputation.
26.	In my glance on the both charges, the charge does not include other publication that drew the comments in the manner the charge is drafted. It is important to state the date and time of the publication. It is also important to capture all the letters of the publication in the charge to enable the accused to appreciate and understand the reason of coming to court on arraignment. Failure would constitute the charge void and defective, hence in my view is a breach of S37(4)(b) of the Constitution. The 37(4)(b) of the Constitution which reads:
37.	Protection of the law.
(4)    A person charged with an offence—
 	(b)   shall be informed promptly in a language which he understands, and in detail, of the nature of the offence with which he is charged
That is why the courts are obligated to read the charges at the time of the arraignment to the accused in the language he elects for communication. 
27.	His Honors Justice Kiriwom say in State ---vs----Herman Joseph Leahy (2008) N3570, This failure quite rightly prompted defence contention that the application for amendment was not factually supported and the onus was on the State to properly table evidentiary material before the court to ask for that relief.  In support of this proposition Counsel referred to The State v Saul Ogerem [2004] N2780 where Lay J whilst acquitting the accused after recalling and quashing his earlier acceptance of the accused’s guilty plea based on inaccurate legal advice of counsel on the basis that the charge in the indictment was badly pleaded by not setting out the elements of the offence charged and not put to the accused on arraignment and no application was made to amend the indictment before the arraignment. When defense counsel’s assistance was drawn to the possible injustice abound strangely enough supported the correctness of the plea of guilty and requested amendment to the charge to conform to the brief facts given for arraignment. He was supported by the prosecuting counsel. The court rejected the submissions of counsel. His Honour said:
“Although no amendment has been sought, any variance, omission or insertion would be for the purpose of turning a nullity into an effective indictment on which the Defendant could be properly convicted. Therefore, it is impossible to say that the variance, omission or insertion would not be material to the merits of the case.” 
28.	Further, the naming of the two person in one charge would also amount to a poor drafting. The publication must be particularized as each letter and content does not mean the same to another person. The publication of the both would be appropriately made out separately, spelling out the letters that alleges, is defamatory to each one of them. The prosecution had failed to separates the charges to clearly spell out which of the publication or letter was directed to which of them. Therefore, the charges are incapable of making two liable under buddle single charge. 
In Mathew Damaru –vs—Geoffrey Vaki (2015) N 6858 his honor Injia, then Chief Justice says ‘ Unlike a criminal offence that is prescribed under a written law, the precise nature and scope of criminal offence commonly known as contempt of court is incapable of precise definition. It is for this reason that the Court dealing with contempt applies a high standard of scrutiny at different stages of the trial proceedings, to ensure that the Charge (s) is stated in clear and concise terms with sufficient particulars of the charge and that the evidence produced support the Charge. The most appropriate time in the stage of the proceedings when this task is more effectively performed is at the time the charge is presented and before the accused is arraigned. A defendant should not be required to take the stand and arraigned on a charge until the charge documents have passed the scrutiny.  Ambiguities and duplicitous statements of the charge are not permitted.  Statement of the charge in the alternative are not allowed. If ambiguities and duplicitous or alternate pleadings were to escape the scrutiny in the early stages of the trial, there is a general discretion in the court to conduct the scrutiny at any stage of the trial proceedings and strike down those offensive pleadings and reject any evidence led in support of them.
29.	Therefore, in the circumstances above, the charges against the defendant are defective and flawed and could not be sustained against the defendant.