N11456
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 399 OF 2022

BETWEEN:
THE STATE

AND:
NATHAN LAPAKIO
(No 1)

WAIGANI: WAWUN-KUVI J
2, 3 SEPTEMBER, 11, 12 & 16 DECEMBER 2024; 29 AUGUST 2025

CRIMINAL LAW- trial-cybercrime code act-whether accused intentionally published defamatory material?

CRIMINAL LAW-trial-cybercrime code act-criminal defamation-electronic evidence-admissibility-whether electronic evidence was obtained lawfully?

Cases cited
Alex v Golu [1983] PNGLR 11
Paul Paraka v The State (2024) SC2648
R v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657
Ridgeway v The Queen (1995) 184 CLR 19
State v Bure Kaman [2024] N11115
State v Kasiman (2023) N10560
State v Paraka (2022) N9568
State v Paraka [2022] PGNC 120; N9568
State v Wari [2024] PGNC 427; N11100

Counsel
A Kaipu, for the State
G Bon, for the accused
VERDICT
1.	WAWUN-KUVI, J: Sir John Pundari (Sir John) was the Minister for Finance and the sitting member for Kompiam-Ambum Electorate in Enga Province. Nathan Lapakio, the accused, was the Provincial Treasurer for Enga Province.
2.	The State charged the accused with two counts of criminal defamation under section 21(2) of the Cybercrime Code Act. The charges read:
Count 1: 	NATHAN LAPAKIO of LAIAGAM VILLAGE, KOMPIAM-AMBUN DISTRICT, ENGA PROVINCE stands charged that he at Wabag Town, Enga Province in Papua New Guinea on 18th day of March 2022, intentionally and without lawful excuse, used an electronic device namely a mobile phone to publish defamatory material posted as “Vote for Senior States Man John Thomas Pundari, 25 Years MP for Kompiam Ambum, my district, my rules, no roads-I will buy you cars, fight more-Reduce the population, low living standards-At least you can survive; 2022 National Elections” on the messaging application namely WhatsApp concerning Sir John Thomas Pundari with the intention of injuring his reputation contrary to section 21(2) of the Cybercrime Code Act.
Count 2: NATHAN LAPAKIO of LAIAGAM VILLAGE, KOMPIAM-AMBUN DISTRICT, ENGA PROVINCE, stands charged that he at Wabag Town, Enga Province in Papua New Guinea on 22nd day of March, 2022, intentionally and without lawful excuse, used an electronic device namely a mobile phone to publish defamatory material posted as, “Sir Pundari, why should you carry K4 million to Electoral Commissioner again when your first offer was rejected?? Shame on u”, on social media namely Facebook concerning Sir John Thomas Pundari with the intention of injuring his reputation contrary to section 21(2) of the Cybercrime Code Act.
3.	It is the State's allegation that on 16 March 2022, the accused, using the alias Nakau Pakepao, posted defamatory material on Facebook from his mobile phone against Sir John.
4.	He posted in a group page named Kompiam-Ambum Politics on the social media platform Facebook words “Sir Pundari, why should you carry 4 million Kina to electoral commissioner again when your first offer was rejected? Shame on u.”
5.	On the second occasion, it is alleged that on 18 March 2022, the accused intentionally posted an image akin to a campaign poster on Brother’s Club WhatsApp Messenger application group.
6.	The image was a picture of Sir John surrounded by the words “vote for senior statesman John Thomas Pundari, 25 years MP for Kompiam-Ambum. My district, my rules, no roads. I will buy you cars, fight more, reduce the population, low living standards- at least you can survive, 2022 national elections”.
7.	It is the State’s allegation that when the accused posted on Facebook and then on WhatsApp Messenger, he did so intentionally with the intention to injure Sir John’s reputation. That his actions were unlawful and in contravention of s 21(2) of the Cybercrime Code Act.
8.	In a criminal trial, the State bears the burden of proof, and it must prove its case against the accused beyond a reasonable doubt. It also has the burden of disproving any defences raised beyond a reasonable doubt.
9.	The State called four witnesses and tendered several documents exhibited as S1 to S11. The defence called the accused.
The Elements
10.	Section 21(1) defines defamatory material to mean:
 “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 an 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.”
11.	Thus, the elements of defamatory publication under s21 of the Cybercrime Code Act are:
1.	Use of an electronic system or device
2.	To make an imputation directly or by implication, insinuation, innuendo or irony concerning a person or a member of his family
3.	With a intention of [1] injuring the reputation of that person OR [2] injuring the profession or trade of that person OR [3] inducing other people to shun, avoid, ridicule or despise that person.
12.	There are serval defences to the offence under s 21(5). They are distinct defences: State v Wari [2024] PGNC 427; N11100 followed. They are that the material published was:
1.	Was true
2.	Was for the benefit of the public
3.	Constituted a fair comment
4.	Was made in good faith
13.	The establishment of any of the defences is based on the factual circumstances of each case: s 21(6) Cybercrime Code.

Count 1
14.	There is no dispute that the accused published the image on the WhatsApp Messenger application. Other than his name and phone number being depicted as the person responsible for the uploading of the image, he makes admissions in his Record of Interview and in his evidence in Court. There is no dispute that after publishing the image, the accused subsequently published an apology letter on the same group page.
15.	The accused says that he did not create the image and did not intend to defame Sir John.
16.	There is no dispute that the image and the associated imputations were defamatory. I take judicial notice that the National General Elections were to be conducted in July of 2022. As such the campaign poster image with the captions “vote for senior statesman John Thomas Pundari, 25 years MP for Kompiam-Ambum. My district, my rules, no roads. I will buy you cars, fight more, reduce the population, low living standards- at least you can survive, 2022 national elections”, was obviously designed for the purpose of tarnishing the reputation of Sir John.
17.	The accused is not being charged for creating the image and its captions. He is charged with knowingly publishing material that is defamatory with the intent of injuring the reputation of Sir John. He published it when he took it from his phone and uploaded it into a group page where other members viewed the image with the captions. It is irrelevant that he did not create the image. The question for determination is whether he published it on the WhatsApp group with the intent to injure Sir John’s reputation? 
18.	The accused does not raise any of the defences under s 21(5) of the Cybercrime Code Act. He merely states that he had no intention to defame Sir John’s reputation. The accused is not a simple person from the village. He is the provincial treasurer. He is a senior public servant. It was election time. The message was not sent to an individual but to a group which had members. These circumstances demonstrate to my mind that there was no other intention but to injure Sir John’s reputation. If he had no such intention, he would have just deleted the image instead of uploading it.
19.	From the evidence I am satisfied that the State has met its burden, and I find the accused guilty of the charge of cyber defamation under section 21(2) and return a verdict of guilty for count 1.
Count 2:
20.	The person who posted on Facebook page Kompiam-Ambum Politics was one Nakau Pakepao. Sir John and his media consultant Fraser Liu do not know a Nakau Pakepao.
21.	There was no evidence which connected the accused to Nakau Pakepao.
22.	The arresting officer Constable Peter Gaso obtained a search warrant numbered SW 210 of 2022 for the search for the accused, his vehicle, his residential address and his place of employment. The search warrant states:
“To search thoroughly Mr. Nathan Lapakio and the car he is using, search his residential area or dwelling house situated at Wapenamanda District or Town, search his workplace at the Enga Provincial Finance Managers Office, at Ipatas Centre, in Wabag.
The above areas be searched to identify any electronic devices such as mobile phones, laptops, desktop computers, USB external hard drives, flash drives and any other devices found capable of transmitting electronic information be confiscated and recouped for Police further investigation.
YOU ARE HEREBY ORDERED to search the said; Mr Nathan Lapakio and the car he is using, his residential area, dwelling house situated at Wapenamada District or Town and his workplace, the Provincial Finance Manager’s Office, at Ipatas Centre in Wabag to confiscate any electronic devices in these areas for Police investigations of a cyber-complaint been reported.
The above exhibits for evidence be seized for Police Investigation to formulate and connect the allegations of Defamation and Cyber Harassment, Contravening the PNG Cybercrime Act.”
23.	The Search warrant was issued under s 6 of the Search Act. From the preceding paragraphs of the search warrant, nothing authorised the search of the accused electronic devices. 
24.	The Search Warrant was to search for the accused person, his vehicle, his residence and his place of employment and to seize or confiscate the items found therein. That was the extent of the search warrant.
25.	The accused was later charged and as indicated by the search warrant the investigations focused on offences under the Cybercrime Code Act. Part IV of the Act provides for the procedure in search, evidence, investigation and others matters. Part IV reads:
PART IV. - PROCEDURE IN SEARCH, EVIDENCE, INVESTIGATION, ETC.
Division I. - Authorised Search and Seizure.
32. SEARCH.
(1) Where a member of the Police Force believes that there are reasonable grounds for suspecting that there is in a private place, a data or thing that may provide evidence of the commission of an offence, he may, under a warrant issued under Subsection (2), enter the private place and –
(a) search the private place; or
(b) seize any such data or thing.
(2) Where it appears to a Magistrate, by information on oath, that there are reasonable grounds for suspecting that there is, in a private place, a data or thing that may provide evidence of the commission of an offence, he may issue a warrant directing a member of the Police Force named in the warrant, or all members of the Police Force to search the private place and to seize any such data or thing and take it before a Magistrate to be dealt with according to law.
(3) A warrant under Subsection (2) must be executed by day unless, by the warrant, the Magistrate specifically authorises it to be executed by night.
(4) Any data or thing seized under Subsection (2) may be detained by a Magistrate, and when it is no longer required as evidence, it may be destroyed under an order of a Magistrate.
33. SEARCH POWERS.
(1) In addition to the powers under the Search Act (Chapter 341), where a member of the Police Force suspects, on reasonable grounds, that a thing may provide evidence of the commission of an offence, he may, in executing a warrant, exercise the following powers:
(a) operate the electronic system or device, or direct an occupant of the private place to operate the electronic system or device in order to determine whether it contains data or a thing that could be seized; or
(b) operate the electronic system or device, or direct an occupant of the private place to operate the electronic system or device to access data (including data stored on a separate storage device or data not held at the private place) or thing if the member of the Police Force believes, on reasonable grounds, that the data or thing might be data or thing that could be seized; or
(c) copy the data or thing that could be seized to a storage device and take the storage device from the place; or
(d) copy the data or thing that could be seized in documentary form and seize the produced documents; or
(e) move any electronic system or device, or thing, at the place subject of the search, to another place for examination in order to determine whether it contains data that could be seized if –
(i) it is significantly more practicable to do so having regard to the task it will take to copy the data and the availability of the technical expertise that will be required to do so; and
(ii) there are reasonable grounds to suspect that the electronic system or device, or thing contains data that could be seized; or
(f) do anything reasonably necessary to prevent loss, destruction or damage to anything connected with the offence; or
(g) use other members of the Police Force or other persons authorised under the warrant as reasonably necessary for the search.
Division 2. - Preservation of Evidence.
35. PRODUCTION ORDERS.
Where specified data or a printout is reasonably required for the purposes of an investigation or proceedings, the Court may, on application by a member of the Police Force or the Public Prosecutor, as the case may be, order –
(a) a person in control of an electronic system or device, or thing to produce specified data or a printout of such data; or
(b) an ICT Service Provider to produce information about persons who subscribe to or use its services.
36. EXPEDITED PRESERVATION.
(1) Where a member of the Police Force, has reasonable grounds to suspect that –
(a) data stored in an electronic system or device, or thing is required for the 	purpose of an investigation or proceeding; 
(b) there is a risk that the data, electronic system or device, or thing may be destroyed or rendered inaccessible,
he may, by written notice, require a person in control of the data, electronic system or device, or thing to ensure that the data specified in the notice be preserved for a period of up to 14 days.
(2) Subject to Subsection (3), the Magistrate may, upon application by the member of the Police Force, authorise an extension for a further 14 days from the expiry of the initial 14 days.
(3) An application under Subsection (2) shall be made at anytime within the initial 14 days.
(4) A person who fails to comply with a request under Subsection (1) is guilty of an offence.
   Penalty:
(a) In the case or a natural person, a fine not exceeding K10,000.00 or imprisonment for a term not exceeding 12 months, or both; and
(b) In the case of a body corporate, a fine not exceeding K100,000.00.
38. RESTRAINING ORDERS
Where the Court, on application by a member of the Police Force or the Public Prosecutor, as the case may be, is satisfied that there are sufficient grounds to believe that an electronic system or device, data or thing reasonably required for the purposes of an investigation or proceeding, is likely to be removed, destroyed, deleted or otherwise tampered with or dealt with, it may make an order restraining or preventing such removal, destruction, deletion or tampering or dealing with such electronic system or device, data or thing.
26.	In State v Bure Kaman [2024] N11115, I dealt with the issue of electronic evidence and its admissibility. Similar to the present case, police did not have a search warrant authorizing the search of the accused electronic device, namely his mobile or cellular phone.
27.	Since there were no similar cases in this jurisdiction I looked to Canada as a similar common law jurisdiction and followed the case of Federal Supreme Court ruling in R v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657. R v Vu was an appeal on admissibility of a computer and mobile phone search. There, the Supreme Court said:
“the Charter gives everyone the right to be free of unreasonable searches and seizures—seeks to strike an appropriate balance between the right to be free of state interference and the legitimate needs of law enforcement. This balance is generally achieved in two main ways. First, the police must obtain judicial authorisation for a search before they conduct it, usually in the form of a search warrant. Second, an authorised search must be conducted in a reasonable manner, ensuring that the search is no more intrusive than is reasonably necessary to achieve its objectives.  The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets.  It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer.  Computers potentially give police access to an almost unlimited universe of information that users cannot control, that they may not even be aware of, may have tried to erase, and which may not be, in any meaningful sense, located in the place of search. The numerous and striking differences between computers and traditional receptacles call for distinctive treatment under s. 8 of the Charter.  The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches...
.. The purpose of a prior authorization process is to balance the private interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs. Only a specific, prior authorization to search a computer found in the place of search ensures that the authorizing justice [court] has considered the full range of the distinctive privacy concerns raised by computer searches, and, having done so has search ensures that the authorizing justice [court] has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search.” [my insertion]
28.	 I went on to say:
“23.             This statement reflects the legislative changes in this jurisdiction. The Cybercrime Code Act provides the processes and procedures that now distinguish between receptacles and electronic devices and systems. Police are required to obtain search warrants for electronic devices and systems to obtain data and information.

24. The steps to obtain the data and information under the Cybercrime Code Act are reflected in the statements in Vu, as follows:

“......if police intend to search any computers found within a place they want to search, they must first satisfy the authorising justice [court] that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.” [my insertion]
29.	In R v Vu similarly to the present case, the search warrant did not specifically authorise the search for the electronic devices. It was incumbent on the arresting Officer Constable Peter Gaso to seize the devices and preserve their integrity while he returned to the District Court to obtain a search warrant under 33 of the Cybercrime Code Act.
30.	This was not done. Kenneth Kolo did not know the accused phone numbers and performed an unauthorised function to obtain the mobile number. After obtaining the mobile number he then inserted in the Facebook application in the accused mobile phone and pressed forgot password to enable the Administrators of Facebook to send a reset password. The reset password was then sent to the accused email which Kenneth Kolo accessed on the accused laptop computer without a search warrant. 
31.	The search of the mobile phone and the laptop computer were performed illegally. The actions of Kenneth Kolo acting on the behest of Constable Peter Gaso were illegal as it was in contravention of section 6 of the Cybercrime Code Act.
32.	Next, I need to determine if I should exclude the evidence.
33.	 Papua New Guinea applies the common law and section 57 of the Constitution to determine the admissibility of evidence. It is accepted by the courts that there is discretion to exclude or admit evidence illegally or unlawfully obtained. In Paul Paraka v The State (2024) SC2648, the Supreme Court, when upholding the ruling in State v Paraka [2022] PGNC 120; N9568, stated:

“48. Documents obtained unlawfully and in breach of an accused’s constitutional rights may nevertheless be admitted into evidence at the discretion of the court. This discretion exists under both the underlying law, specifically the common law, and the Constitution, specifically s 57(3), which allows the court to make such orders and declarations as are necessary and appropriate for the purposes of protection and enforcement of constitutional rights and freedoms. These principles of evidence have been developed and applied in PNG over a long period, commencing with the Supreme Court decision in Constitutional Reference No 1 of 1977 [1977] PNGLR 362, which has been followed in numerous subsequent cases including Alex v Golu [1983] PNGLR 117, The State v Evertius and Kundi [1985] PNGLR 109 and The State v Kasiman (2023) N10560.
Matters to consider in the exercise of the common law discretion include:
a)the nature and extent of the impropriety;
b)whether the illegality affects the cogency of the evidence; 
c)the ease with which the documents might have been obtained if the law had been complied with; 
d)the seriousness of the offence with which the accused is charged; 
e)the legislative intent of the law that provides safeguards against the infringement of the rights of the accused;
f)the degree of unfairness to the accused in admitting into evidence documents that have been unlawfully obtained;
g)whether any prejudice to the accused is outweighed by the probative value of the documents.
34.	The cases of State v Bure Kaman, The State v Kasiman (2023) N10560, State v Paraka (2022) N9568, Alex v Golu [1983] PNGLR 117, and R v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 are  similar in that police had search warrants.
35.	 However, similar to Bure Kaman and unlike State v Kasiman (2023) N10560, State v Paraka (2022) N9568, Alex v Golu [1983] PNGLR 117, and a R v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, police had no basis to suspect that the accused was the same person as the person who posted the material on Facebook. There was no evidence offered at trial as to the nexus between the two persons.
36.	 It was essentially important for the arresting officer to provide an explanation on what evidence or information led him to believe that the person on the social media post was the accused. Like Bure Kaman, the State’s allegation is that the name is fake. There is no evidence that establishes that the name is fake and that it was the accused that used the fake name, that led to a reasonable suspicion, that permitted the search of his mobile device. The police just took the opportunity when they confiscated his devices for something else and searched it for another offence.
37.	Given the circumstances, it is clear that police did not have any evidence against the accused and conducted a search of his mobile phone to identify the operators of the account to connect the accused. Instead of adhering to the investigative processes outlined in the Cybercrime Code Act, which included securing a search warrant, they went on what can only be described as an unlawful fishing expedition.
38.	 The foregoing matters demonstrate that police blatantly and deliberately ignored the accused's right to privacy and his right against self-incrimination.
39.	The cogency of the evidence has been affected. The account is alleged to be fake. No other legal or lawful means could have revealed this evidence. As stated, the only way to establish the identity of the person Nakau Pakaepoa was to follow his activities online and find a connection to a real person. After establishing the connection, then it would have been necessary to obtain search warrants. Instead, the arresting officer and the special constable hacked the account and obtain material without the court’s authorisation.
40.	The integrity of the evidence has also been called in question because of the changing of the password without authorisation and the missing exhibits.
41.	Changing the accused's password to access the Facebook application resulted in him being locked out. As said in Bure Kaman, “it is akin to breaking into someone else's home, changing the locks, and forcing them to remain outside until enough evidence is gathered.”
42.	The only connection to the account was said to be through the mobile device and the SIM card. The arresting officer has not produced the items which are now missing.
43.	In Paraka, the Court observed the High Court case of Ridgeway v The Queen (1995) 184 CLR 19, at 38, per Mason CJ, Deane, and Dawson JJ, the Court (emphasis mine):
“The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence – the public interest in maintaining the integrity of the courts and in ensuring the observance of the law and minimum standards of propriety by those entrusted with powers of law enforcement – will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or, in the case of illegal conduct, by those responsible for the institution of criminal proceedings. When assessing the effect of illegal or improper conduct, the relevance and importance of any unfairness either to a particular accused or to suspected or accused persons generally will likewise depend upon the particular circumstances. However, any unfairness to the accused is usually minor.”
44.	While the unfairness to the accused cannot be dismissed, it is important to recognize the critical public policy considerations at play. Courts must not be seen to be sanctioning illegal police conduct in evidence gathering, especially in cases where no other evidence exists. The actions of Constable Peter Gaso and Special Constable Keneth Kolou are serious. This is not a case of oversight or ignorance of the law. He has charged the accused with cyber defamation under s 21 (2) of the Cybercrime Code Act. While under the same Act, specifically ss 6 and 11, provides for the indictable offences of cyber hacking or unauthorized entry, and unlawfully remaining.  According to the facts, both he and Keneth Kolou committed these offences when they accessed the phone and remained online to gather evidence without judicial authorisation.
45.	 Finally, given the nature of the charges, public policy considerations favour the protection of an individual’s rights from arbitrary search and against self incrimination.
46.	Given the foregoing matters I must exercise my discretion to exclude the evidence of the phone number and the Facebook posts.
47.	The evidence from Internet Service Providers are inextricably linked to the illegal search of the mobile device and laptop computer which necessitates consideration of whether they should also be excluded from evidence.
48.	Like State v Popo and Bure Kaman and Alex v Golu evidence was excluded because they were obtained from the unlawful searches. Here, the evidence from the Internet Service Provider came from the unlawful and illegal search by Special Constable Keneth Kolou at the behest of Detective Gaso. There would not have been any search of the Internet Service Providers but for the unlawful and illegal actions of the police officers. It follows that the evidence of the mobile phone records is also inadmissible. The metaphor “fruit of the poisonous tree’ aptly describes the nature of the evidence.
49.	Since there is no evidence connecting the accused to the person Nakau Pakepao, I am not satisfied with the evidence that the accused used the alias Nakau Pakepao to post defamatory material. 
50.	A Verdict of Not Guilty is returned on count 2 of the indictment and the accused is discharged from that charge.
Conclusion
51.	Based on the forgoing reasons:
1.	I am satisfied that the accused knowingly published defamatory material on the Whatsapp Group Page Brother Club with the intent of injuring the reputation of Sir John Thomas Pundari and accordingly return a verdict of guilty to the charge of Cyber Defamation under s 21 (2) of the Cybercrime Code Act under count 1 of the indictment; and
2.	There is no evidence connecting the accused to the person Nathan Pakepao and accordingly return a verdict of Not Guilty to the charge of Cyber Defamation under s 21 (2) of the Cybercrime Code Act under count 2 of the indictment.
Orders
52.	The Accused having been charged with two counts of Cyber Defamation under s 21 (2) of the Criminal Code:
1.	Is found guilty of count 1.
2.	Not Guilty of count 2.
3.	The Probation Office is requested to prepare a pre-sentence report to assist the Court in sentencing before 9 September 2025
4.	The State is directed to file a Victim Impact Statement to assist the Court in sentencing before 9 September 2025.
5.	Pursuant to section 10 of the Bail Act, bail is extended.
6.	The matter shall return to Court on 9 September 2025 at 1.30 pm for submissions on sentence.

Lawyer for the State: The Acting Public Prosecutor
Lawyers for the accused: Gibson Bon Lawyers