N11100
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO 8 OF 2023

THE STATE

V

KILA AONEKA WARI

Waigani: Berrigan J
2023: 2nd August, 19th September, 8th December
2024: 2nd April & 20th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 21(2), Cybercrime Code Act, 2016 – Defamatory Publication – Elements of offence – Meaning of “to publish” - Meaning of “defamatory material”- Whether injury required.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Section 21(2), Cybercrime Code Act, 2016 – Defamatory Publication – Defences – Distinct in nature - Burden and standard of proof applying – Whether defamatory material published was true; Whether it constituted a fair comment; Whether it was made in good faith – Whether it was for the benefit of the public – Elements and principles applying. 

On 30 May 2022 the accused posted the following words to her Facebook page during an online argument with her sister, the wife of the complainant, Wari Vele, who was the Governor of NCD in 2007 and a candidate in the upcoming National General Elections: “VEKI Construction you used us to steal from NCD na yupla yet kai kai millions mipla sign lo chq book ya!”.

Held: 

(1)	To prove the offence under s 21(2), Cybercrime Code Act the State must establish beyond reasonable doubt that the accused:

a.	intentionally; 
b.	without lawful excuse or justification (or in excess of a lawful excuse or justification, or recklessly)
c.	used an electronic system or device;
d.	to publish;
e.	defamatory material concerning another person.

(2)	“To publish” means to issue or make available to a person other than the person allegedly defamed: s 21(1), Cybercrime Code Act; see also Wyatt Gallagher Basset (PNG) Ltd v Diau (2002) PNGLR 43.

(3)	Pursuant to s 21(1), Cybercrime Code Act, “defamatory material” means:

a.	an imputation, whether directly expressed or by implication, insinuation, innuendo or irony;
b.	that concerns a person or a member of his family, whether living or dead;
c.	with the intention of:
i.	injuring the reputation of that person
ii.	the profession or trade of that person, or 
iii.	inducing others to shun, avoid, ridicule or despise that person.    

(4)	The defences under s 21(5), Cybercrime Code Act are distinct. The defences under s 21(5)(c) and (d) are governed by the common law not inconsistent with the Act: adopting PNG Aviation Services Pty Ltd & Ors v Michael Thomas Somare & Ors [1997] PNGLR 515; Wyatt Gallagher Basset (PNG) Ltd v Diau [2002] PNGLR 43.  

(5)	The burden of proof lies with the accused to prove the defences under s 21(5)(a)(b)(c), Cybercrime Code Act on the balance of probabilities: R v Edwards (1974) 59 CrAppR 213; and see SCR No 2 of 1980; Re S. 14(2) of the Summary Offences Act, 1997 [1981] PNGLR 50. 

(6)	To prove that the defamatory material constituted fair comment for the purposes of s 21(5)(c), Cybercrime Code Act: a) the statement must be on a matter of public interest; b) the statement must be a comment not an imputation of fact; c) the comment must be based on facts which are true or protected by privilege; d) the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded; e) the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: adopting Spiller & Anor v Joseph & Others [2010] UKSC; Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 applying London Artists Ltd v Littler [1969] 2 QB 375; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449; Merivale v Carson (1888) 20 QBD 275; Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171.

(7)	The principles governing qualified privilege at common law apply to the defence of good faith under s 21(5)(d), Cybercrime Code Act. The accused must first establish on the balance of probabilities that publication of the defamatory material was made on a privileged occasion and that the duty or interest relied on excused the specific publication made: PNG Aviation Services Pty Ltd v Somare [1997] PNGLR 515; Yakham v Merriam [1999] PNGLR 592. The State must then exclude the possibility that the material was published in good faith beyond reasonable doubt: s 21(7), Cybercrime Code Act. The question will be whether the accused acted honestly on reasonable grounds “believing that what was published was true and necessary for the purpose of his redress of a wrong to him or her or for the public good or interest” or whether the accused was actuated by malice such that the occasion was used for some other purpose: see Mudalige v Rabaul Shipping Ltd (2011) SC1132; Horrocks v Lowe [1975] AC 135; Clark v Molyneux (1877) 3 QBD 237; PNG Aviation Services Pty Ltd v Somare. The State must prove not only that the accused had an improper motive but that it was the dominant reason for the publication: Horrocks.

(8)	Section 21(5)(b), Cybercrime Code Act provides a complete and separate defence. To establish the defence the accused must prove that publication of the defamatory material was for the benefit of the public and that was the purpose of the accused: s 21(5)(b) and (6), Cybercrime Code Act.

(9)	The accused intentionally used an electronic device to publish defamatory material concerning another person without lawful excuse or justification. The complainant was the person referred to both by name on the face of the words accompanying the alleged defamatory material and in the context of the exchanges between the accused and the complainant’s wife and to those who were aware that the complainant was formerly governor of NCD: see Baker v Lae Printing Pty Ltd [1979] PNGLR 16. The material was defamatory. It contained an imputation that the complainant used Veki Construction to steal millions of Kina from NCD. It was intended to injure the complainant’s reputation and induce others to shun avoid, ridicule or despise him. Proof of actual damage is not required but was established.  

(10)	The accused failed to establish that the defamatory material was true for the purposes of s 21(5)(a). The defamatory material was an allegation of fact and not a comment for the purposes of s 21(5)(c): Kemsley v Foot (1952) AC 345; PNG Aviation Services Pty Ltd v Somare.  The publication was not protected by absolute privilege pursuant to s 21(9)(10), Cybercrime Code Act applying s 362E, Criminal Code. There was no privileged occasion which created an interest or duty on the part of the accused to publish the defamatory material to redress or defend her uncle, family or herself, or inform voters of matters which may properly have affected their choice, or to publish the material in the public interest. Even assuming that such a privileged occasion(s) was established the State excluded beyond reasonable doubt that the publication was made in good faith for the purpose of s 21(5)(d). The accused was actuated by malice.  Publication of the defamatory material was not in the public interest and that was not the intention of the accused for the purpose of s 21(5)(b), Cybercrime Code Act.

Conviction accordingly. 

Cases Cited:

Papua New Guinean Cases
The State v Kila Aoneka Wari (Referral to the Supreme Court pursuant to s 18, Constitution) (2024) N10706 
Re Section 21(2) of the Cybercrime Code Act 2016 (2024) SC2608
Wyatt Gallagher Basset (PNG) Ltd v Diau [2002] PNGLR 43 
Baker v Lae Printing Pty Ltd [1979] PNGLR 16
SCR No.2 of 1980; Re s.14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50
Mudalige v Rabaul Shipping Ltd (2011) SC1132
PNG Aviation Services Pty Ltd v Somare [1997] PNGLR 515
Police & State Services Savings & Loans Society v Pacific Star Ltd trading as The National (2005) N2884
PNG Aviation Services Pty Ltd v Somare [1997] PNGLR 515
Reference by the Attorney General of Papua New Guinea and Principal Legal Adviser to the National Executive Council (2021) SC2112
Yakham v Merriam [1999] PNGLR 592

Overseas Cases
David Syme & Co v Canavan [1918] 25 CLR 234
R v Edwards (1974) 59 CrAppR 213 [1975] QB 27
McPherson v Daniels (1829) 10 B&C 263
Slim v Daily Telegraph [1968] 2 QB 157 
London Artists Limited v Littler [1969] 2 All ER 193; 2 QB 375 
Spiller & Anor v Joseph & Others [2010] UKSC 
Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 
Myerson v Smith's Weekly (1923) 24 SR (NSW) 20
Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449
Merivale v Carson (1888) 20 QBD 275, 281
Gardiner v Fairfax (1942) 42 SR (NSW) 171
Kemsley v Foot (1952) AC 345
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309
Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632
Horrocks v Lowe [1975] AC 135 
Adam v Ward [1917] AC 309 
Toogood v Spyring (1834) 1 CM & R 181 
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Watt v Longsdon [1930] 1 KB 130
Roberts v Bass [2002] HCA 57
Braddock v Bevins [1948] 1 KB 580
Clark v Molyneux (1877) 3 QBD 237
Reynolds v Times Newspapers Ltd [2001] 1 AC 127
Economou v De Freitas [2018] EWCA Civ 2591

References Cited
Sections 3, 21 of the Cybercrime Code Act, 2016
Sections 362A, 362C, 362E, Criminal Code 
Sections 8, 9, 10, 11, Defamation Act
  
Counsel
L Jack, for the State 
S Javati, for the Accused

DECISION ON VERDICT 

20th November 2024

1.	BERRIGAN J: The accused is charged with one count of defamatory publication, contrary to s 21(2) of the Cybercrime Code Act, 2016, such that on 30 May 2022 she:

intentionally and without lawful excuse, used an electronic device namely a mobile phone to publish defamatory material, namely, “VEKI Construction you used us to steal from NCD na yupla yet kai kai millions mipla sign lo chq book ya!”, on social media, namely Facebook concerning Wari Vele with the intention of injuring his reputation contrary to s 21(2) of the Cybercrime Code Act. 

2.	At the time of the complainant, Wari Vele, was a candidate for the National Capital District Governor’s seat in the 2022 National General Elections. The complainant was formerly the Governor of National Capital District in 2006 and 2007. The accused and the complainant’s wife, Kila Vele, are sisters. 

3.	It was alleged that on 30 May 2022, during the campaign period, a war of words erupted between the accused and her sister on Facebook, which was seen by other users, in relation to Mr Vele’s election campaign, in which the accused posted personal insults and allegations of criminal impropriety on the part of the complainant, including in particular: “Veki Construction, you used us to steal from NCD na yupla yet kaikai millions mipla sign lo cheque book ya”.  

4.	Following the close of evidence for both parties and prior to hearing submissions on verdict, counsel for the accused indicated that he intended to raise constitutional questions for referral.  The parties were heard on that matter, and on verdict, and certain questions were referred to the Supreme Court for consideration: The State v Kila Aoneka Wari (Referral to the Supreme Court pursuant to s 18, Constitution) (2024) N10706. The Supreme Court determined that the offence is valid: Re Section 21(2) of the Cybercrime Code Act 2016 (2024) SC2608. The matter returns for verdict.

5.	The State submits that the accused deliberately published defamatory material intending to damage the reputation of the complainant as a leader, paramount chief and businessman by implying criminal conduct on his part. The accused claims defences of truth, fair comment, good faith and public benefit. No authorities were referred to by either party.

STATE CASE

6.	Kila Vele is the accused’s sister. The accused’s parents adopted her when she was a baby. She is married to the complainant. On 30 May 2022 as she and her husband were driving back from a day of campaigning, she uploaded to her Facebook account a post in support of her husband’s election campaign, which said: “Mi wari long yu”. Sometime later the accused responded in language to the effect “aren’t you tired of being a copycat”. After that the accused kept saying bad things about her husband. The accused told one of the women from Hanuabada to tell her voters not to vote for her husband. It was nothing to do with her husband. It was just a post she uploaded, and it went out of hand.  The accused has not tried to apologise to her. 

7.	Wari Vele is a 61 year old paramount chief of Hula, businessman and former politician. He started a construction business, Wari Vele Agency Limited, which conducts large and small construction projects. He was the Governor of NCD from 2006 to 2011. He contested the elections in 2022. He was driving back with his wife after a day of campaigning when she told him about the posts made by the accused. The accused said that he was a womaniser and did not care for his wife or family. He is a family man, and he loves his wife and children. The accused instructed a woman and others not to vote for him. She accused him of stealing money from NCD in relation to a company. He is a businessman. He has worked hard all his life. He has never stolen money. Her allegations injured and upset him. They affected his votes at the election. 

8.	There is no truth to her statements about Veke Construction. They tarnished his reputation and affected his business. He used to have contracts but now they say “oh you stole monies” so he does not know if he will ever get any contracts. He had good friends at NCDC who now refuse to speak to him. He is not a shareholder or a director of Veke Construction. He does not know who signed the cheque books or what she is talking about. He does not know what money she is talking about. He does not know who owns Veke Construction, but information suggests that the accused, her parents or family members own it. 

9.	People in Hanuabada told him they had seen what was said on Facebook. He used to give advice to people in the village about business but now they laugh at him and avoid him. The statements have damaged his name and reputation as a paramount chief, a leader and a businessman. 

DEFENCE CASE 

10.	Kila Aoneka Wari was employed by the complainant for 9 months whilst he was Governor of NCD. There was a cheque drawn on 28 June 2007 in the sum of K250,000 in favour of Veke Constructions, the directors of which were her late mother and the complainant’s wife’s mother. It was a family business, and the complainant took advantage of them to draw the cheque two days prior to the General Elections, which were held between 30 June and 14 July 2007. 

11.	The business did not exist until Mrs Vele and “the two old ladies” asked for payment to be drawn in the business name and most of the conduct performed was nothing in relation to the payment made. Most payment was in cash. The company was incorporated in January 2007.   

12.	The accused produced a copy of an NCDC remittance advice dated 26 June 2007 in the sum of K150,000 in respect of a cheque payable to Veki Construction for the maintenance of the fish market at Ela Beach, which her mother had in her files at the house. She also produced a bundle of documents including an application for the registration of a business name in the name of Veki Construction by Mrs Veiva Wari and Mrs Veitu Renagi.  Mrs Veiva Wari is the name of her deceased mother and the elder sister of Mrs Veitu Renagi, who is Kila Vele’s mother. At the time the company was incorporated Veiva Wari and Veitu Renagi were housewives.

13.	Being employed in the Governor’s office she was responsible as the administrative officer for registration and knows that the company was used for a payment for which the job was never done. She carried out inspections at the fish market and the job was never done. 

14.	The company was set up because after they went into office in 2006 after the bi-election Mrs Vele asked the two old ladies to incorporate the business name, but the old ladies had no capacity for doing maintenance or carpentry. Mrs Vele asked them to register the company which they did in January whilst the complainant was the Governor. So, she made the comment about stealing from NCD because her mother used to cash cheques for personal benefit and not for the purpose of the remittance which was for the maintenance of the Koki fish market. 

15.	There was only one payment. The complainant was aware of the payment. The cheque was picked up by the old ladies. She did not report it to anyone. She waited until 2022 to raise it on Facebook out of frustration with family conflicts. So, she raised it because they were on bad terms, on social media, out of frustration. It was in an argument with her sister. Basically, they were being mean to one another. 

16.	Time and again the complainant was badmouthing their uncle, Lekwa Gure, who defeated the complainant in 2017 and was also contesting the General Election, with no due respect for the family. Lekwa Gure was the brother of Veiva Wari and Veitu Renagi, so it came to the point where the complainant made a post making a mockery of her uncle’s slogan knowing full well that “Love Rigo” is her uncle’s slogan and he used “Love NCD” and that led to frustration and as a family she had to stand up and that is why in her Facebook notification she said “copycat” and that started a string of comments that led to the NCDC comments. She was provoked into making the comments. 

17.	Tau Sere was the accused’s husband until 2014. He was aware of a company called Veke Construction. One or two times he hired a van to drive the directors, Veiva Wari and Veitu Renagi to the bank and the complainant’s residence to cash cheques. 

SECTION 21(2), Cybercrime Code Act, 2016 

18.	Section 21(2) of the Cybercrime Code Act creates the offence of defamatory publication:

21 DEFAMATORY PUBLICATION

(1) For the purposes of this Section -

"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.

(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.

(3) Where the offence under Subsection (2) is committed with the knowledge that the published defamatory material is false, the offender is guilty of a crime.
Penalty:
(a) In the case of a natural person, a fine not exceeding K50,000.00 or imprisonment for a term not exceeding 25 years, or both; and
(b) In the case of a body corporate, a fine not exceeding K500,000.00.

(4) 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, or directly or indirectly threaten to publish or offer to prevent the publication of, defamatory material concerning another, for the purpose of -
(a) extorting from that other person or any other person; or
(b) inducing a person to -
(i) give or confer; or
(ii) procure or to attempt to procure,
upon or for a person, any property or benefit of any kind, is guilty of a crime.
Penalty:
(a) In the case of a natural person, a fine not exceeding K100,000.00 or imprisonment for a term not exceeding 25 years, or both; and
(b) In the case of a body corporate, a fine not exceeding K1,000,000.00.

(5) It is a defence to a charge for an offence under this section that the defamatory material published 
(a) was true; or
(b) was for the benefit of the public; or
(c) constituted a fair comment; or
(d) was made in good faith.

(6) Whether or not the publication complained of is true, or was made for the benefit of the public, or constitutes fair comment, or was made in good faith, is a question of fact.

(7) Where the defence of good faith is raised under Subsection (5)(d), the burden of proof shifts to the party alleging the absence of good faith.

(8) Where the defamatory publication consists of or relates to electronic writings, images, audio, visual or audiovisual recordings of a sexual nature or depicting sexual conduct, the defence of truth is not available to the offender notwithstanding that the published defamatory material complained of was produced with the knowledge or consent of the person defamed.

(9) The provisions of Section 362E of the Criminal Code Act (Chapter 262), relating to protection of matters of public interest, apply to this section.

(10) For the purpose of Subsection (9), "public meeting" referred to in Section 362E of the Criminal Code Act (Chapter 262) includes online discussion forums whether or not they are featured on social networking sites.

19.	To prove the offence under s 21(2), Cybercrime Code Act the State must establish beyond reasonable doubt that the accused:

a)	intentionally; 
b)	without lawful excuse or justification (or in excess of a lawful excuse or justification, or recklessly)
c)	used an electronic system or device;
d)	to publish;
e)	defamatory material concerning another person.

Used an electronic system or device 

20.	There is no dispute, and the evidence establishes beyond reasonable doubt that the accused used an electronic device, a mobile phone, as particularised, to post the subject material on the social media platform Facebook. 

To publish

21.	There is no dispute, and I am satisfied beyond reasonable doubt that the accused used an electronic device to publish the material.  

22.	Section 21, Cybercrime Code Act does not define “to publish”. Its ordinary English meaning is “prepare and issue” or “communicate”, including for instance, “communicate (a libel) to a third party”: Oxford English Dictionary.

23.	Further assistance is provided, however, from the definition of “publication” in s 21(1), which is to “make publicly available defamatory material to persons other than the defamed person and includes electronic writings, images, audio, visual or audiovisual recordings”.  This reflects the rule at common law that there must be publication of the alleged defamatory material to a third party, that is a person other than the defamed person: see Wyatt Gallagher Basset (PNG) Ltd v Diau (2002) PNGLR 43 for a detailed discussion of authorities. 

24.	In summary, to publish means to issue or make available to a person other than the person allegedly defamed.

25.	There is no dispute, and the accused admitted in her record of interview and in evidence that the subject comments, made at 8:30pm, were amongst a series of comments made by her on her Facebook account between 7:56pm and 8:38 pm on 30th May 2022, copies of which were produced by the State.

26.	I am satisfied beyond reasonable doubt that the accused published the material to persons other than the complainant. She did so through Facebook to the complainant’s wife and others who had access to the account, at least 50 by her own admission. That others had access is apparent by the fact that she directed a comment to a person, Pudding Oala (“Pass word to all HB families NOT to vote for Wari Vele. That’s all”), at one point and at another called for others to comment: “So People the wife has spoken, NCD intending candidate is well described by his wife. Would you vote someone like that. Over to the floor.”  

27.	It is not contended and nor does it matter that the accused described the group as “private”, nor whether or not she intended that those who received the information circulate it further to others, which it appears from other comments made during the exchange that she did. 

Defamatory material concerning another person

28.	I am satisfied beyond reasonable doubt that the material was defamatory. 

29.	As defined, "defamatory material" means:

a)	an imputation, whether directly expressed or by implication, insinuation, innuendo or irony;
b)	that concerns a person or a member of his family, whether living or dead;
c)	with the intention of:
i.	injuring the reputation of that person
ii.	the profession or trade of that person, or 
iii.	inducing others to shun, avoid, ridicule or despise that person.    

30.	I am satisfied beyond reasonable doubt that the material contains an imputation that the complainant used Veki Construction to steal millions from NCD.

31.	The statement imputes that Veki Construction was involved in the stealing of millions of Kina from NCD. The connection between Veki Construction and the complainant is implied by the final line of the comment which expressly refers to Wari Vele:

“Go to Morata and swim for K30, 000. there (laughing emoji; laughing emoji). VEKI Construction you used us to steal from NCD na yupla yet kai kai millions mipla sign lo chq book ya! Bai yu na Wari Vele lusave tu oh?”

32.	Moreover, the accused admits and there can be no doubt that the imputation is made against the complainant when the material is read in the context of the ongoing exchange between the accused and her sister about the complainant and his campaign, amongst other things. 

33.	In this regard the following test was quoted with approval by Wilson J in Baker v Lae Printing Pty Ltd [1979] PNGLR 16, per Isaacs J in David Syme & Co v Canavan  (1918), 25 CLR 234 at p. 238:

“The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.”

34.	It was clear in this case that the complainant was the person referred to on the face of the post and particularly so in the context of the exchanges and to those who were aware of the fact that the complainant was formerly governor of NCD.

35.	I am further satisfied beyond reasonable doubt that the statement was intended both to injure the complainant’s reputation generally and to induce others to shun, avoid, ridicule or despise him, particularly for the purpose of the upcoming election. 

36.	Defence counsel submits that the State has failed to establish that the statement was defamatory because there was no corroborating evidence to substantiate the claim that the complainant has been humiliated and rejected. 

37.	The submission regarding the need for corroboration is misconceived in general terms. Furthermore, whilst the fact or extent of injury might be relevant on sentence, s 21(2), Cybercrime Code Act does not require proof of actual damage only that an imputation is published with the intention of injuring the person’s reputation, profession or trade, or of inducing others to shun, avoid, ridicule or despise him/her.  

38.	In this case the State has, however, established that the complainant suffered injury as a result of the defamatory material. I cannot make any determinative finding about the election results and loss of business contracts, but I accept his evidence that his standing and reputation as a paramount chief, a leader and a businessman has suffered and that people now shun and avoid him. 

Intentionally 

39.	I am satisfied beyond reasonable doubt that the accused intentionally used the electronic device to publish the defamatory material concerning the complainant. Again, there is no dispute about that.

Without lawful excuse or justification, or in excess of a lawful excuse or justification  

40.	As a general rule the prosecution must prove every element of the offence charged. There is, however, a longstanding exception where legislation prohibits the doing of an act save in specified circumstances or by specified persons. In such cases the prosecution must prove beyond reasonable doubt that the accused did the act. The burden of proof then shifts to the accused to prove that he was entitled to do the prohibited act on the balance of probabilities. 

41.	In R v Edwards (1974) 59 CrAppR 213 [[1975] QB 27 Lawton LJ said on behalf of the Court (emphasis mine): 

“In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by person of specified classes or with specified qualifications or with the license or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception. 

In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment… 

Two consequences follow from the view we have taken as to the evolution and nature of this exception. First, as it comes into operation upon enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal or, as it is sometimes called, the persuasive burden of proof. It is not the evidential burden.” 
 
42.	The Criminal Code makes it clear that those principles apply by providing that: “It is a defence to a charge of an offence under this Division to prove that the defamatory publication”: a) is true… etc”. 

43.	Whilst the Cybercrime Code Act does not use that terminology, the true construction of the offence under s 21 is to prohibit the doing of the act subject to the provisos or exceptions provided. This is made further clear by reference to s 21(7) which provides that where the defence of good faith is raised, “the burden shifts to the party alleging the absence of good faith”. As will be seen below this is consistent with the common law. The fact that the provision “shifts” the burden in those circumstances is consistent with the view that the burden to prove a defence otherwise lies with the accused. That the burden lies with the accused also follows given that a defamatory statement is presumed to be false.

44.	According to the underlying law, where an accused is required to establish a defence, he must do so on the balance of probabilities:  see for instance SCR No.2 of 1980; Re s.14 (2) of the Summary Offences Act, 1977 [1981] PNGLR 50. 

DEFENCES 

45.	Section 21(5), Cybercrime Code Act provides that it is a defence to a charge for an offence under s 21 that the defamatory material published: 

(a) was true; or
(b) was for the benefit of the public; or
(c) constituted a fair comment; or
(d) was made in good faith.

46.	Whether or not the publication complained of is true, or was made for the benefit of the public, or constitutes fair comment, or was made in good faith, is a question of fact: s 21(6), Cybercrime Code Act.

47.	The defences under s 21(5)(a) to (d), Cybercrime Code Act are distinct from each other. 

48.	They also differ in some respects from those contained in both the Criminal Code and the Defamation Act, despite the fact that both were amended in 2016 at about the time the Cybercrime Code Act was enacted. Whilst reference is made to the application of the Criminal Code in s 3, Cybercrime Code Act, no reference is made to the Defamation Act. Section 3, Section 3, Cybercrime Code Act provides that the “provisions of this Act are in addition to and not in derogation of the Criminal Code Act (Chapter 262) or any other law relating to criminal matters, and where there are any inconsistencies between the provisions of this Act and the Criminal Code Act (Chapter 262) or any other law relating to criminal matters, the provisions of this Act shall apply”.  The reference to the Criminal Code Act must be intended to refer to the Criminal Code.

49.	Other than s 21(9), discussed below, the Cybercrime Code Act provides limited guidance as to the principles applying to the defences.

50.	Defamation is a tort at common law. The relevant principles governing the law were adopted into the jurisdiction by s 9 and Schedule 2.2 of the Constitution. It follows that where the Act is not specific then common law not inconsistent with the Act applies: Sheehan J in PNG Aviation Services Pty Ltd & Ors v Michael Thomas Somare & Ors N1493; and Kandakasi J Wyatt Gallagher Basset (PNG) Ltd v Diau (2002) PNGLR 43.  

Was True 

51.	Pursuant to s 21(5)(a), Cybercrime Code Act, it is a defence for the accused to prove on the balance of probabilities that the defamatory material “was true” or substantially true. Nothing more is needed. This is consistent with the common law: see McPherson v Daniels (1829) 10 B&C 263.

52.	A defamatory imputation is presumed to be false and the burden is upon the defendant on the balance of probabilities to prove that it is true or substantially true: Mudalige v Rabaul Shipping Ltd (2011) SC1132 at [37] quoting with approval Gatley on Libel and Slander:

"It is the imputation contained in the words which has to be justified, not the literal truth of the words, nor some other similar charges not contained in the words."

53.	This is to be distinguished from the defence under the Criminal Code, as amended in 2016, which provides that it is a defence to prove that the defamatory publication “is true and was made for the benefit of the public”: s 362C(a); and the Defamation Act, 2016, which provides that for its purposes, “it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication complained of should be made”: s 10. 

54.	The complainant says that he has no knowledge of the accused’s claim, is not a director or a shareholder and never issued a cheque to Veki Construction. He was not challenged in cross-examination about this or at all. Mrs Vele was not challenged about her alleged involvement or at all. 

55.	As for the accused’s evidence there are a number of issues. In general terms her evidence was contradictory and lacked detail.    

56.	Firstly, there was no evidence to establish, and the accused does not maintain that the complainant used Veki Construction to steal millions of Kina from NCD.  

57.	Whilst the accused initially said that most payment was drawn in cash at the request of the complainant’s wife and “the two old ladies” and that “most of the conduct performed was not in relation to the payment made”, she made it clear in cross-examination that she was not referring to fraudulent payments in general terms but to one particular payment and that was the cheque for K150,000, albeit she referred to it being in the sum of K250,000. 

58.	Putting aside the issue of quantum and legal technicalities, the evidence does not establish that Veki Construction was used to “steal” monies from NCD, as that term might ordinarily be understood, whether through the dishonest taking of monies or the payment of monies to Veki Construction in a conflict of interest.

59.	No-one was called to produce NCDC’s records but there is evidence that a cheque payable to Veki Construction was issued on 26 June 2007 in the sum of K150,000. There is also evidence that Veki Construction was a registered business name, albeit not a company. 

60.	The records produced by the accused show that it was registered in April 2011 by Mrs Veiva Wari and Mrs Veitu Renagi. The nature of the business is described as “building and maintenance”. That is, however, well after the alleged events of 2007.    

61.	There is, nevertheless, some evidence that the business name was in use in 2007. This comes in the form of a copy of a certificate of compliance which appears to be stamped by the Taxation Office, Department of Finance and Planning on 22 January 2007. At that time, however, the business name was used by “Wari Gure Veiva t/as Veki Construction”. 

62.	There was no evidence as to whether “Wari Gure Veiva” was the same person as “Mrs Veiva Wari”. From my limited understanding Wari Gure Veiva is possibly the name of a man but I did not hear evidence on that and will not speculate. The names are obviously similar such that there appears to be some association between them, and the address for the business – PO Box 2657 Boroko – is the same. 

63.	On its face, however, the name in whom the business was operating in 2007 is not the same as that of Veiva Wari. Veitu Renagi is not mentioned at all. This is a significant issue because, putting aside any conflict of interest, the accused’s case is that her mother and aunt had no capacity to implement the work for which the payment was made in 2007. On the evidence, however, it does not appear that they were the persons operating the business at that time. 

64.	The accused did not address this discrepancy. None of the documents were put to the complainant or his wife. They were not asked to confirm who Veiva Wari or Veitu Renagi were. There was no other evidence as to who Wari Gure Veiva, Veiva Wari, or Veitu Renagi were albeit the complainant said that he now understands that Veki Construction is owned by the accused’s family. 

65.	On that basis the evidence does establish that at the time the complainant was the Governor of NCD, and shortly before the National Election, a cheque for K150,000 was drawn in favour of Veki Construction, a business name which was associated in some way with the complainant’s wife’s family, for the maintenance of the fish market. 

66.	On one view that might be regarded as strange, and it does raise legitimate questions, but it does not prove that the accused used Veki Construction to steal monies from NCD. It is one thing to have a suspicion or to report facts or raise legitimate questions. It is quite another to publish allegations of serious criminal conduct. 

67.	The accused’s evidence to prove that the allegations were true lacked sufficient detail and weight. There was no evidence as to the process at NCDC for the approval of the payment, or when or how or by whom the monies were applied for, or when or how or by whom payment was approved or on what basis. There was no evidence to establish that the payment was not approved in accordance with the National Capital District Commission Act or normal procedures or the extent to which, if any, the complainant was involved in the approval of the payment. 

68.	The evidence given very late at the end of re-examination that the complainant was aware of the cheque because it was one of the cheques the Governor’s office was asked to follow up on lacked weight. 

69.	The evidence does not establish that the complainant received any of the monies.  Mr Sere’s evidence was vague.  

70.	The evidence does not establish that the work for which the payment was made was not performed. I appreciate that the accused’s evidence is that her mother and aunt had no capacity to do the work but as above there are real issues with the contention that they were the ones responsible at the time. 

71.	Even putting aside the issue of who was operating the business in 2007, there is insufficient evidence to establish that the work was not done. At one point the accused said that most of the conduct performed was not in relation to the payment made, which suggests that there was some performance. Later she said that she conducted inspections and “the job” was never done. It is not clear what that job was and there was no detail about when or how or why the inspections were conducted, whether they were formal inspections required by NCDC or whether she was conducting them of her own volition because she suspected the monies were not being applied for maintenance.  I don’t accept that the accused conducted any inspections. Her evidence does not make sense. 

72.	In addition, there was, given the deficiencies noted above, insufficient evidence to show that the complainant was knowingly involved in the payment of the monies to Veki Construction in a conflict of interest. 

73.	It follows that the accused has failed to establish on the balance of probabilities that the defamatory material was true or substantially true. 

Constituted a Fair Comment

74.	The defence of fair comment on a matter of public interest is a longstanding defence at common law. It protects comment not imputations of fact. 

75.	It has been described as “the bulwark of free speech in the law of defamation": per Lord Denning in Slim v Daily Telegraph [1968] 2 QB 157 and is broad in its scope. In this regard Lord Denning said in London Artists Limited v Littler [1969] 2 All E R 193 that public interest is not to be confined within narrow limits: 

“Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

76.	The defence is reflected in the Criminal Code in general terms: s 362C(1)(b) and in s 9, Defamation Act, albeit in certain prescribed circumstances.

77.	In the absence of detailed provisions like that in the Defamation Act and given the large body of law that exists at common law regarding the defence it follows that the principles at common law are intended to apply to the defence under s 21(5)(c), Cybercrime Code Act.  

78.	In Spiller & Anor v Joseph & Others [2010] UKSC Lord Phillips, with whom the Supreme Court agreed, adopted with approval the following statement by the Final Court of Appeal, per Lord Birkenhead, in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777 of the defence at common law, which whilst not binding is persuasive, particularly having regard to the common law cases from which the principles are drawn and which would apply in this jurisdiction under the common law prior to 1975: 

"First, the comment must be on a matter of public interest. Public interest is not to be confined within narrow limits today: see Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, 391.

Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26:

'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.'

Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.

Next, the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded.

Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174.”

79.	In summary, the elements of the defence at common law appear to be that: a) the statement must be on a matter of public interest; b) the statement must be a comment not an imputation of fact; c) the comment must be based on facts which are true or protected by privilege; d) the comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded; e) the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.

80.	Returning to the present case, the defamatory material cannot be regarded as comment. It is an allegation of fact, namely the use of Veki Construction to steal monies from NCD. As a fundamental principle a defamatory statement cannot be protected as fair comment if it is an allegation of fact:  Kemsley v Foot (1952) AC 345; PNG Aviation Services Pty Ltd v Somare [1997] PNGLR 515.

81.	Furthermore, and adopting the language of the High Court of Australia, the "facts on which the comment is based [must be] sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded": Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327 per Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ. “Notorious” in this context means well-known or easily ascertainable. See also Police & State Services Savings & Loans Society v Pacific Star Ltd trading as The National (2005) N2884; PNG Aviation Services v Somara, supra. 

82.	In this case neither the defamatory publication when read on its own nor with the associated comments, contain sufficient facts to enable the reader to determine whether the allegation is a fair comment. It can be accepted that readers would know that the complainant was formerly the Governor of NCD but there was no evidence to suggest that the context in which it was alleged that Veki Construction was used to steal monies from NCD would be well-known or easily ascertainable. Again, it is a bare allegation of fact. 

83.	It follows that the accused has failed to establish on the balance of probabilities that the defamatory publication constituted fair comment.

Was made in good faith

84.	Section 21(5)(d), Cybercrime Code Act provides that it is a defence if the defamatory material was made in good faith. Where the defence of good faith is raised the burden of proof shifts to the party alleging the absence of good faith: s 21(7). 

85.	“Good faith” is not defined in the Cybercrime Code Act other than by reference to s 362E, Criminal Code which applies pursuant to s 21(9), Cybercrime Code Act.  It concerns publications that are subject to “absolute protection” in certain circumstances.
 
362E ABSOLUTE PROTECTION - PETITIONS, OFFICIAL REPORTS AND MATTERS OF PUBLIC INTEREST.

(1) For the purposes of this Division -
(a) a person is not criminally liable for defamation for -
(i) presenting a petition to the Parliament of defamatory matter contained in the petition; or
(ii) publishing defamatory matter -
(A) in the course of a proceeding held before or under the authority of a Court; or
(B) in the course of an inquiry made under a law or the authority of the Head of State, acting on advice, or the Parliament; or
(C) in an official report made by him of the result of an inquiry under Subparagraph (ii)(B) where he is the person appointed to hold the inquiry; or

(b) it is lawful to publish in good faith for the information of the public -
(i) a fair report of the proceedings of the Parliament or of a Committee of the Parliament; or
(ii) a copy of, or an extract from or abstract of, a paper published by order of or under the authority of the Parliament; or
(iii) a fair report of the public proceedings of a Court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings, unless -
(A) in the case of ongoing proceedings, the publication has been prohibited by the Court, or
(B) in any case the matter published is blasphemous or obscene, or publication is prohibited by law; or
(iv) a fair report of the proceedings of an inquiry held under a law, or by or under the authority of the Head of State, acting on advice, or an extract from or abstract of, an official report made by the person by whom the inquiry was held; or
(v) a notice or report issued by or at the request of a public body; or
(vi) a fair report of the proceedings of a public meeting, so far as the matter published relates to matters of public concern.

(2) A publication is made in good faith for the information of the public if the person by whom it is made is not actuated in making it by ill-will to the person defamed or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used in the publication of news.

(3) In the case of a publication of a report of the proceedings of a public meeting in a periodical, it is evidence of want of good faith for the purposes of this Division if the proprietor, publisher or editor has been requested by the person defamed to publish in the periodical a reasonable letter or statement by way of contradiction or explanation of the defamatory matter, and has refused or neglected to publish it.".

86.	Section 362E(1)(b)(vi) does not apply in this case. Whilst on one view the posts concerned the complainant’s candidature for public office the discussions on Facebook cannot be regarded as a public meeting for that purpose in the circumstances of this case. 

87.	“Public meeting” is defined to mean a meeting lawfully held for a lawful purpose, and for: (a) the furtherance or discussion in good faith of a matter of public concern; or (b) the advocacy of the candidature of a person for a public office, whether admission to the meeting is open or restricted: see s 362A, Criminal Code, as amended by the Criminal Code (Amendment) Act, 2016. It includes online discussion forums whether or not they are featured on social networking sites: s 21(10), Cybercrime Code Act.

88.	Moreover, the publication was not a report of any such meeting for the purposes of s 362E(1)(b)(vi).  In addition, s 362E(2) must be read with s 362E(3), and putting aside the issue of ill-will and motive, the manner of the publication was not that ordinarily and fairly used in the publication of news. 

89.	In addition to the defences of truth and fair comment, the common law protected statements of fact made in privileged circumstances. In some cases the privilege was absolute as reflected in s 362E, Criminal Code. In most cases, the privilege was qualified, such that it could be defeated if the plaintiff could prove that the defendant acted with malice or in the absence of “good faith”.  

90.	There is nothing in the Cybercrime Code Act that suggest that the principles governing qualified privilege at common law are inconsistent with and should not apply when considering the defence of good faith under s 21(5)(d). As observed by Kandakasi J in Wyatt Gallagher Basset (PNG) Ltd v Diau [2002] PNGLR 43 “underlying all of these [principles] is the requirement that the publication must be made in good faith”.

91.	Those principles were outlined by Sheehan J in PNG Aviation Services Pty Ltd v Somare [1997] PNGLR 515 (emphasis mine):
“While the law of defamation is primarily concerned with the protection of the rights of individuals to their good reputation, it also provides for occasions when the publication of defamatory and untrue statements may be excused. The law recognises that persons should be allowed to speak freely on occasions when they have a duty to do so or where it is justifiable in defence of some particular interest. But the immunity from liability on those occasions does not create opportunity for unrestricted invective or abuse. The privilege is qualified. It is wholly conditional on the use of the occasion being used properly and in good faith. Lack of honest belief or improper use of the occasion renders the publisher liable for defamatory statements.
In Horrocks v Lowe [1975] AC 135 which is the definitive English decision on qualified privilege and which decision is also authoritative in Papua New Guinea, Diplock, LJ. explains this as:
“The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue.... the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”
So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. "Express malice" is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive, which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.
The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.
Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.”
92.	Those principles have been approved by the Supreme Court: Yakham v Merriam [1999] PNGLR 592 and Mudalige v Rabaul Shipping Ltd (2011) SC1132 and applied in several cases.  

93.	In summary, the common law protects a defamatory statement made on a privileged occasion where one person has an interest or a legal, social or moral duty to make the statement to the person to whom it is made and the recipient of the statement has a corresponding duty or interest to receive it: Adam v Ward [1917] AC 309 at 334 per Lord Atkinson:

“.. a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”

94.	Publications made in good faith on such occasions are privileged because they promote the “welfare of society”: (Toogood v Spyring (1834) 1 CM & R 181 at 193 per Parke B).

95.	The first task of the Court is to determine whether the accused has established on the balance of probabilities that the publication was made on a privileged occasion and that the duty or interest relied on excused not just any publication, but the specific publication made: PNG Aviation Services Pty Ltd, supra; Yakham v Merriam, supra. Per Sheehan J in PNG Aviation:

“It is for a defendant to prove that the publication was made on a protected occasion and that the duty or interest relied on by the defamation excused, not just any publication he might make but the specific publication actually made. If the occasion is privileged or protected then prima facie any defamatory statements are excused…

The fact that an occasion of qualified protection may arise does not constitute an occasion whereby a person is excused of any defamatory allegation he may choose. As stated in Clerk & Lindsell, Torts (17 edition) 21-108.

"A communication on a privileged occasion, therefore, is not necessarily a privileged communication. It is not enough to have an interest, or duty in making a communication, the interest or duty must be shown to exist in making the communication complained of."

The first task of the Court is to determine whether publication was made on such a protected occasion. This is largely a question of law, and what is actually said or the truth of it will not usually be relevant in determining whether the occasion was one of qualified protection. As stated in Pervan v The North Queensland Newspaper (ATR 1991 CCH 6946) while the truth or belief in the truth "may have an indirect bearing on the nature of the occasion ... they are not preconditions to the application of the section". Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632.

In Pervan’s case cited above, it was held that in ruling whether an occasion was protected:

"Questions of degree, public policy, propriety, moral rights and duties inevitably came into the judge’s decision. Factors such as the extent of the publication, the circumstances, including who published it, when, why and in what circumstances, and anything that assisted in indicting whether there was a relationship between the parties giving rise to a social or moral right or duty could all be relevant factors according to the particular plea under consideration."

But consideration of the facts and circumstances of publication including some which are also aspects of good faith, such as relevance or extent may also be necessary to determine if the occasion is protected.”

96.	In determining whether an occasion is privileged, regard must be had to all the circumstances: London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15. See further Watt v Longsdon [1930] 1 KB 130 referred to in Yakham v Merriam, supra.   

97.	In the event that the occasion is privileged, the publication will be protected even if it turns out to be untrue. But the privilege is qualified. It will be lost if the plaintiff, or for our purposes the State, can prove that the maker was actuated by malice. If the desire to injure was the dominant motive the privilege will be lost. If the maker did not believe the statement to be true, or if he made it recklessly, without considering or caring whether it was true or not, the privilege will be lost: Horrocks, supra.

98.	As emphasised by Lord Diplock, however, "indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality":

'In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more.'

99.	Similarly, Lord Atkinson in Adam v Ward:

"[A] person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purposes of his vindication, though in fact it was not so."

100.	As above, “broadly speaking”, malice means a desire to injure the person who is defamed. A motive, even a dominant one, of injuring a rival, “when the occasion of privilege is political debate or an electoral contest” may not of itself, however, constitute malice.  Per Gleeson CJ at [11] in Roberts v Bass [2002] HCA 57:

“Electors have an interest in receiving information and opinions concerning the merits of candidates for election.  That interest was described by Lord Greene MR, delivering the judgment of the Court of Appeal in Braddock v Bevins ([1948] 1 KB 580 at 591), as an interest "to have what is honestly believed to be the truth communicated".  The correlative duty was described as a duty to electors "to inform them honestly and without malice of any matters which may properly affect their choice in using their suffrages"…  The meaning of the word "honestly" in those statements is clear enough.  It is not to be overlooked.  However, a motive, even a dominant motive, of damaging the electoral prospects of a candidate for election may be perfectly consistent with an honest expression of opinion, or an honest assertion of fact, about the candidate.  Statements made with such a motive are the stuff of which political debate is made.  In such a context, the popular meaning of malice, which Lord Diplock said is "broadly speaking" what it means for the law relating to qualified privilege, requires refinement.  A motive of injuring a candidate by diminishing his or her prospects of election does not constitute malice; that would be repugnant to the very basis of the privilege in electoral contest.”

101.	Ultimately, the issue in any case will be whether the “the publication was made in good faith, without malice, acting honestly on reasonable grounds believing that what is published is true and necessary for the purpose of his redress of a wrong to him or her or for the public good or interest”: Mudalige v Rabaul Shipping Ltd or whether the accused was actuated by malice such that the occasion “was used for some purpose of motive foreign to the duty or interest that protects the making of the statement”: Horrocks, supra; see also Roberts v Bass, supra per Gaudron, McHugh and Gummow JJ at [62].

102.	As Cotton LJ said in Clark v Molyneux (1877) 3 QBD 237 at 249-250:

"The question is not whether the defendant has done that which other men as men of the world would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty." 

103.	The following comments of Brett LJ, Lord Esher MR in Clark v Molyneux, supra, at 247 are particularly relevant in this case:

"[I]f it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive."

104.	Finally, where the defence is fairly raised, the State must prove beyond reasonable doubt not only that the maker had an improper motive but that it was the dominant reason for the publication: Horrocks, supra.

105.	Returning to the present case, I reject the defence submissions that the accused was “provoked” in any legal sense relevant to the offence under s 21(2), Cybercrime Code Act. 

106.	In particular, having regard to all the circumstances, the accused has failed to prove the publication was made on a privileged occasion and that the duty or interest relied on excused not just any publication but the publication actually made. 

107.	In my view there was no privileged occasion which created an interest or duty on the part of the accused to publish the particular defamatory material to redress or defend her uncle, family or herself against insults or disrespect by the complainant. The evidence about the insults and disrespect was vague and went no further than general statements about family disputes and allegations that the complainant had “badmouthed” her uncle and “stolen” his slogan. There was no such interest or duty beyond her sister to others on her Facebook account about the family dispute and neither a family dispute nor “badmouthing” of her uncle or the use of his slogan created an occasion for publishing an allegation of serious criminal conduct in any event. 

108.	Whilst legitimate questions might have been asked about the payment to Veki Construction in the context of political debate it is also my view that the nature and extent of the statement and the circumstances in which it was made during the Facebook exchange cannot be regarded as an occasion of privileged political debate for the purposes of the election: see PNG Aviation above.  

109.	Regardless of whether the complainant was contesting the upcoming election, the fact that a payment was made to a business associated with the complainant’s wife’s family whilst he held the public office of Governor was a matter that the public would legitimately be interested in but again, it did not create a privileged occasion for the bare allegation of stealing. 

110.	Even if I am wrong about those findings and there was a privileged occasion, the State has excluded beyond reasonable doubt the possibility that the accused acted in good faith in publishing the defamatory material, such that it has established beyond reasonable doubt that the accused was actuated by malice.

111.	The evidence excludes the possibility that the accused acted in good faith, honestly believing on reasonable grounds that what she wrote was true and necessary for the purpose of her redress or for the public good or interest.

112.	The accused did not honestly believe that what she wrote was necessary to defend her uncle, herself or her family for the disrespect the complainant had shown in general terms, the evidence about which was not clear, or the use of the slogan in particular. The accused did not have an honest belief in the truth of the statement that the complainant used Veki Construction to steal from NCD. At most she had a suspicion about a cheque payment made on the eve of elections, a matter about which she remained silent for 15 years. The accused did not act out of a sense of duty or interest with respect to voters “to inform them honestly and without malice of any matters which may properly affect their choice in using their suffrages”: Braddock v Bevins, supra. She did not act believing that it was her duty to publish the material in the public interest. 

113.	By her own admission, the accused used the occasion not for any reason which justified it but for the gratification of her anger. That and the desire to damage the complainant’s reputation was her dominant motive. She was frustrated by the complainant’s use, during the election campaign, of a catchphrase she regarded as “belonging” to her uncle and, in general terms, by what she regarded as a lack of respect by the complainant towards her uncle and her family for reasons that were not made clear. Against that background, she was angry with her sister for posting the catch phrase and lashed out in the course of an online argument with her, in which a reading of the exchanges shows that the accused was the principal antagonist, which started at about 756 pm, and escalated until at about 830 pm when she made the statement accusing the complainant of stealing millions of Kina from NCDC without any explanation.

114.	Accordingly, the State has excluded the possibility beyond reasonable doubt that the defamatory publication was made in good faith pursuant to s 21(5)(d), Cybercrime Code Act.  

Was for the benefit of the public

115.	Pursuant to ss 21(5)(b), Cybercrime Code Act it is a defence if the defamatory publication “was for the benefit of the public”.  

116.	The defence is not available in discrete terms in the Criminal Code. Other than good faith and fair comment, it is a defence if a statement “is true and was made for the benefit of the public”: s 362C. 

117.	To establish that a publication was made “for the public good” for the purposes of s 11(1)(c) Defamation Act a defendant must show that “the publication was made for the public good and that was the purpose of the defendant”: PNG Aviation, supra, approved Yakham v Merriam noting, however, that this provision is governed by the principles applying to qualified privilege discussed above. 

118.	Bearing in mind that the defences in s 21(5), Cybercrime Code Act are distinct and that the common law defences of truth, fair comment and good faith (absolute and qualified privilege) are already reflected in the Cybercrime Code Act in s 21(5)(a), (c) and (d), it appears to me that s 21(5)(b) is intended to provide a complete and separate defence to the other defences set out in s 21(5) including that of “good faith” or qualified privilege under s 21(5)(d). That there is such a defence is not surprising given that England and other similar jurisdictions have created such standalone defences albeit with greater statutory detail.  

119.	In England this followed the case of Reynolds v Times Newspapers Ltd [2001] 1 AC 127 in which the House of Lords expanded the protection under qualified privilege for statements made in the public interest provided the defendant could show that they had met the standards of responsible journalism having regard to a non-exhaustive list of criteria on the basis that a “fair balance should be held between the freedom of expression on matters of public interest and the reputations of individuals”: Economou v De Freitas [2018] EWCA Civ 2591.

120.	The defence was replaced with a standalone defence of public interest. Nevertheless, the principles in Reynolds remain relevant in considering the statutory defence in that jurisdiction. 

121.	Reynolds represents a development in the common law in England at a time when it was no longer binding in this jurisdiction and the statutory defence in that jurisdiction is not replicated in the same terms in the Cybercrime Code Act. Ultimately, it is not necessary for the purpose of this decision to consider the extent to which, if any, the considerations outlined in that case might be relevant here. 

122.	In my view, for the defence under s 21(5)(b) to apply the accused must establish on the balance of probabilities that that publication was for the benefit of the public and that they made it for that purpose.  

123.	This follows the approach taken by PNG Aviation approved by the Supreme Court in the context of qualified privilege under s 11(1)(c), Defamation Act. It is also consistent with the language of s 21(6), Cybercrime Code Act. 

124.	It is, however, not necessary for the defence under s 21(5)(b) for the accused to prove a privileged occasion nor must the State establish malice.  

125.	Returning to the present case, the accused has failed to establish on the balance of probabilities that the defamatory material published in this case was for the benefit of the public or that she published it for that purpose.  

126.	The complainant previously held the high public office of Governor of NCD. He was running for that office again. The Facebook users, some of whom it might reasonably be inferred would have been voters in the upcoming elections, and indeed the public generally, may have been legitimately interested in and concerned to know – using Lord Denning’s language - whether the complainant was aware of Veki Construction, its association with his wife’s family, and any payments to it whilst he was Governor, especially one for K150,000 shortly prior to the 2007 election. 

127.	It was not for the benefit of the public, however, to accuse the complainant of serious criminal conduct without proper foundation. 

128.	Moreover, the accused has failed to establish on the balance of probabilities that it was her intention to publish the material for the public benefit in all the circumstances, including the language and tone used, the absence of explanation or detail provided, and the circumstances in which the publication was made, namely, in the midst of a spiteful argument with her sister. In addition, whilst it is not necessary for the State to establish malice to defeat the defence under s 21(5)(b) it has for the reasons outlined above established that and excluded the possibility that the accused published the material for the benefit of the public.  

CONCLUSION

129.	The accused is guilty of publishing defamatory material contrary to s 21(2), Cybercrime Code Act. 

 Verdict accordingly.

Public Prosecutor: Lawyers for the State	 
Javati Lawyers: Lawyers for the Accused