N11740

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR(FC) 426 OF 2024

THE STATE

AND 

LORRAINE GENE
GOROKA: WAWUN-KUVI J
18, 19 & 23 FEBRUARY 2026    
              
CRIMINAL PRACTICE AND PROCEDURE –TRIAL-CYBERCRIME CODE- Cybercrime Code Act 2016, s 21(2)-Whether the accused the words were defamatory? Whether the accused intended to defame the complainant or whether she intended to caused others to shun or ridicule her?

The complainant was in a relationship with a Mori Kimisopa. Mori Kimisopa after getting of the plane went to the accused home. The accused then posted on her Facebook page the following statement “Samting blo ples yah(MBNM)mipla ting mipla lusim ples na kam yah nogat plssss nau tasol Balus land na yhupla callim name Blo mipla ol innocent Meri na Kam plss inap nau Meri bloupla aste tsol Karim pikinini yha! Nogut mipla mekim na tret buruk”. The State alleges that the words were defamatory of the complainant.
Held:
1.	The statement was not directed at the complainant.
2.	There were no translation of the words and no evidence as to the meaning of the words and how they are to be taken to be defamatory of the complainant.
3.	The accused explanation that the words were an expression of frustration is accepted.
4.	Section 48 of the Cybercrime Code Act 2016 provides for the summary prosecution in the District Court. It is recommended that the Public Prosecutor utilise this provision to avoid the National Court being inundated with similar cases.
Cases cited
SCR No 2 of 1980; Re s 14 of the Summary Offences Act, 1977 [1981 PNGLR 50
State v Wari [2024] N11100

Counsel

L Maru and L Pitpit for the State
V Move for the accused
					
VERDICT

1.	WAWUN-KUVI  J: This case concerns a charge of criminal defamation under s 21 (2) of the Cybercrime Code Act 2016 (Cybercrime Code). The indictment reads:

“........on the 26th day of August 2023, intentionally and without lawful excuse, used an electronic device, namely a mobile phone, to publish defamatory material posted as “Samting blo ples yah(MBNM)mipla ting mipla lusim ples na kam yah nogat plssss nau tasol Balus land na yhupla callim name Blo mipla ol innocent Meri na Kam plss inap nau Meri bloupla aste tsol Karim pikinini yha! Nogut mipla mekim na tret buruk” on the social media application, namely Facebook, concerning Susie Kaupa with the intention of injuring her reputation and to cause other persons to shun and ridicule Susie Kaupa.”

2.	The States allegation is that the Susie Kaupa, the complainant was in a relationship with a Mori Kimisopa. In March 2023, the accused informed her friend that Mori Kimisopa was bothering her and that her friend should tell the complainant to talk to him. At the time the complainant was 4 months in her pregnancy. Following this conversation the accused and the complainant met. The complainant requested for the call logs or messages as proof. It is alleged that the accused denied any affair and did not produce the logs and messages. After this meeting, several messages were exchanged between the women. It is alleged that the complainant then blocked the accused on her Facebook messenger application but remained ‘friends’ with her on Facebook. On 7 August 2023, the complainant gave birth to her baby. Then on 26 August her partner travelled to Port Moresby on a private trip. At around 10 pm the same day the accused then posted “Samting blo ples yah(MBNM)mipla ting mipla lusim ples na kam yah nogat plssss nau tasol Balus land na yhupla callim name Blo mipla ol innocent Meri na Kam plss inap nau Meri bloupla aste tsol Karim pikinini yha! Nogut mipla mekim na tret buruk”. The complainant then saw the posts and was devasted. She called her partner who explained that he went to see the accused uncle to help him. The complainant was emotionally affected by the post and report the matter to police. The State alleges that the accused posted the remarks with an intention to injure the reputation of the complainant and to cause others to shun and ridicule her.
3.	It is incontrovertible that Lorraine Gene (accused) published on the internet, namely the social media platform Facebook the statement. She specifically posted on her page, not to the broader public.
4.	The question is whether the statements are defamatory of the complainant and, if so, whether the accused can establish any of the defences under s 21 (5)(a)(b) and (d) of the Cybercrime Code.
The Law
5.	The offence of Defamatory Publication under s 21(2) of the Cybercrime Code reads as follows:
“(2) A person who, intentionally and without lawful excuse of 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.”
6.	Section 21(1) defines defamatory material to mean:
“an imputation whether directly expressed or by imputation, insinuation, innuendo or irony, that concerns a person or a member of his family, whether living or dead, with an intention of (i) injuring that reputation of that person; or (ii) injuring the profession or trade of that person; or (iii) inducing other people to shun, avoid, ridicule or depise that person.”
7.	Thus, the elements of defamatory publication under s 21 are:
1.	use of an electronic system or device
2.	to make an imputation directly or by imputation, insinuation, innuendo or irony that concerns a person or a member of his family
3.	with the intention to injure a person's reputation, profession, or to induce others to shun, avoid, ridicule, or despise that person.
8.	There are several defences under s 21(5). They are distinct: State v Wari [2024] N11100 followed. They are the material published:
1.	Was true
2.	Was for the benefit of the public
3.	Constituted a fair comment
4.	Was made in good faith
9.	Each defence must be assessed according to the facts of the case: s 21(6) of the Cybercrime Code. 
10.	The accused is required to establish any one of these defences on a balance of probabilities. The State then bears the burden of disproving the defence beyond a reasonable doubt: see State v Wari (2024) (supra) following SCR No 2 of 1980; Re s 14 of the Summary Offences Act, 1977 [1981 PNGLR 50.
Application of the Law to the Facts
11.	The State, in its allegations, did not direct this Court to the imputations alleged to be defamatory. The words were in Tok Pisin and were not translated.
12.	This position also flowed into the trial. The primary focus of the State’s attention was on the feelings of the complainant.
13.	The complainant is not a credible witness. She tried to portray a loving, faithful relationship and claimed the words hurt or defamed her. However, her own words, presented by the State, contradict this picture. She said in a message to the accused:
“Even though I am fully aware that yu sa entertainim em na walkabout wantim em lo night raun as if em brother blo yu.
I did my best to be patient with both of you and Mori by bringing the both of you together involving all our families, so we can all get this over and done with. I certainly don’t have time to sit down and that what y’all have been doing to each other during the night at the street and on fb....Guys will be guys Ive know very well who Mori Joel Kimisopa is for almost a decade even way before I had this baby, so be my guess if you wanna entertain his ass and be one of his many side chicks. I’ll go to bed soundly at night not giving 2 shits whoever his screwing when his drunk. Oz at the end of the day he’ll still come running back Home to me his wife and child.”
14.	Her own words show she is unconcerned about her partner’s infidelity, provided he returns home.
15.	The accused gave clear, consistent, and credible evidence. Both her account and the State’s evidence confirm she tried to inform the complainant about her partner’s infidelity. She cooperated fully, meeting with the couple and showing restraint by not disclosing damaging texts, out of concern for the complainant’s wellbeing. When police contacted her regarding the complainant’s complaint, she willingly travelled at her own expense to Goroka and patiently waited in Goroka for police instructions for over three months. These actions strongly indicate good character.
16.	These facts are highly relevant to whether the words were truly defamatory and whether the accused intended to cause the complainant to be shunned, avoided, ridiculed, or despised.
17.	As indicated earlier, the words alleged to have been used were in Tok Pisin. It is not the role of the Court to interpret the words and then infer the meaning. It is the State's role. 
18.	Having said this, the evidence shows that the statement was posted in relation to Mori Kimisopa’s visit to Games Barracks in Port Moresby, where the accused was residing at the time.
19.	The evidence revealed that the abbreviation “MBNM” stands for Man Blo Narapla Meri, or “Man belonging to another woman” confirming that the post was to a man and not a woman. 
20.	The statement expressed the accused's frustration at Mori Kimisopa's arrival at her home.  She explained that she had purposely left Goroka for Port Moresby to get away from him and was frustrated to see him at her uncle's residence and equally frustrated by his behaviour.
21.	The question is perhaps were those words directed at the complainant. That is, was it intended for her to read and be upset, or to invite others to comment and ridicule her?
22.	The State did not provide any reliable evidence that the post was meant for the complainant to read or that the accused had intended to post the statement to invite comments. It attempted to rely on the complainant's hearsay evidence that the accused had sent an audio message to a Lorraine Iko. The audio message was not produced, and Lorraine Iko was not called, although listed as a witness.
23.	In any event, the unanswered question is still how the post is said to defame the complainant's reputation or cause others to shun and ridicule her.
24.	The complainant said others commented and attempted to recall the comments because she did not give the comments to the police.
25.	The accused said her friends commented, but she can't recall the exact words because it was a while ago in 2023.
26.	Without the comments, I can not assume what was said. They could have been commenting about Mori Kimisopa or just responding in support of the accused. I do not know.
27.	As said the post or statement was about Mori Kimisopa and posted on the accused’s own page. The State failed to show how these words defamed the complainant. The complainant knew of her partner's infidelity and demonstrated indifference. No evidence was provided to explain how the words harmed her reputation. There is no transcript or screenshot of comments to show intent to ridicule or shun her. Importantly, intention is an essential element of the offence. The facts show the accused acted out of personal frustration, not malice. Any reasonable person would be equally frustrated in her situation. Expressing frustration online does not prove intent to defame. The Constitution still guarantees freedom of expression.
28.	Finally, while the State charged that she posted from Goroka, the evidence from both the State and the accused showed that she was in Port Moresby.
29.	For the foregoing reasons, a verdict of not guilty is returned.
30.	On a final note, s 48 of the Cybercrime Code Act 2016 provides for summary prosecution in the District Court. It is recommended that the Public Prosecutor utilise this provision to avoid the National Court being inundated with similar cases.
Orders
31.	The Orders of the Court are as follows:
1.	The accused, having been charged with one count of Cyber Defamation under s 21(2) of the Cybercrime Code Act, is acquitted and is discharged from the indictment.
2.	The CR(FC) file is closed, and any bail file in this matter is also closed.
3.	Bail and any paid sureties are refunded.

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