N11744
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR (FC) 186 of 2024

THE STATE

V

MARY KELEPE

WAIGANI: BERRIGAN J
13 MARCH 2026

CRIMINAL LAW – PRACTICE AND PROCEDURE – CYBER HARASSMENT - Section 23(1)(c)(i) of the Cybercrime Code Act – Elements of offence – Meaning of “for the purpose of harassing” – Meaning of “for the purpose of causing emotional distress” – Not guilty. 

The accused was charged with two counts of cyber harassment contrary to s23(1)(c)(i) of the Cybercrime Code Act.

The State alleged that the accused intentionally and without lawful excuse used an electronic device namely a mobile phone to participate in communication directly with Gabriella Kalimet: “mi laik toktok lo Jeffrey wok lo NAC. Ino all asskan nambaut” for the purpose of harassing or causing emotional distress. Furthermore, that later the same day, the accused intentionally and without lawful excuse used an electronic device namely a mobile phone to participate in communication directly with Jeffrey Simewa: “Jeffrey Miroi Simewa ples pig nogat brain!” for the purpose of harassing or causing emotional distress.

Held:

(1)	Section 23(1) of the Cybercrime Code Act creates the offence (or various offences) of cyber harassment.
(2)	The elements of the offence of cyber harassment under s 23(1)(c)(i) are that the accused:
a.	intentionally and without lawful excuse or justification or in excess of a lawful excuse or justification or recklessly;
b.	uses an electronic system or device;
c.	to initiate, facilitate or participate in; 
d.	any communication, online discussion or posts regarding another person;
e.	directly or indirectly with the person harassed;
f.	for the purpose of coercing, intimidating, threatening, harassing, stalking, or causing emotional distress in respect of that person.

(3)	The person who is the subject of the communication need not be the same person as the person harassed.
(4)	“For the purpose of harassing” means for the purpose of intimidating, threatening, frightening or distressing. The conduct must be serious. It must be designed or intended to distress or intimidate. It is not enough to show an intention to annoy, irritate or simply offend.  
(5)	“For the purpose of causing emotional distress” means for the purpose of causing severe or intense emotional suffering or distress. 
(6)	On Count 1, the State failed to establish that the accused intended to harass or cause emotional distress to Gabriella by her communication.  
(7)	On Count 2, the State failed to establish that the accused intended to harass or cause emotional distress to Jeffrey by her communication. 

Verdicts accordingly.

Cases cited

Nil

Counsel

D Aruru for The State
D Kayok for the accused

DECISION ON VERDICT

1.	BERRIGAN J: The accused is charged with two counts of cyber harassment contrary to s 23(1)(c)(i) of the Cybercrime Code Act.

2.	It is alleged that on 2 August 2023 the accused intentionally and without lawful excuse used an electronic device namely a mobile phone to participate in communication directly with Gabriella Kalimet: “mi laik toktok lo Jeffrey wok lo NAC. Ino all asskan nambaut” for the purpose of harassing or causing emotional distress.

3.	Furthermore, that later the same day, the accused intentionally and without lawful excuse used an electronic device namely a mobile phone to participate in communication directly with Jeffrey Simewa: “Jeffrey Miroi Simewa ples pig nogat brain!” for the purpose of harassing or causing emotional distress.

Findings of fact
4.	At about 5:30 pm on 2 August 2023 the accused, using the Facebook account in her name “Ethel Marie Kelepe”, sent a direct message to Jeffrey Simewa’s Facebook account saying “oi”, or hey/hello. About an hour later, Jeffrey Simewa’s wife, Gabriella Kalimet, who was using Jeffrey’s phone saw the message and responded: “Ye”; “You are?, to which Ethel responded: “Ethel”. In response Gabriella said: “So”; “Do I know you”; “U mas 1pla wild taro ya”. 

5.	The State failed to provide any translation of the “wild taro” phrase or lead evidence from Gabriella as to what she meant by it or why she responded in that manner. 

6.	Gabriella was an unimpressive witness. When it was put to her in cross-examination that the comment in the PNG context would mean “a bad thing”, she failed to answer. When she was asked again what she meant she failed to answer the question directly. She said it had plenty of meanings in the PNG context. Eventually she said that from what she knows it refers to “a random person seeking attention from someone they do not know, to lure them, or something like that”. 

7.	Gabriella initially said that she and Jeffrey were driving home together and when she asked him who Ethel was he told her that he did not know her. A few moments later she contradicted herself and said that Jeffrey told her that he usually buys duty free from Ethel but does not know her personally. I reject her evidence that Ethel delayed responding to the question of who she was. That is not borne out by the transcript of messages. It was only in response to my questions that Gabriella reluctantly agreed that she deliberately insulted Ethel because she was suspicious that she was in a relationship with her husband. 

8.	Sometime after being called a wild taro Ethel replied: “Mi like toktok lo Jeffrey wok lo NAC. Ino all asskan nambaut”. Again, no translation was provided in the alleged facts or through the State’s witnesses of this phrase. If the State is going to bring charges based on the fact that the language is in the nature of harassment or intended to cause emotional distress then it cannot be coy about leading evidence of its meaning both literal and contextual, including its social and cultural meaning, if relevant. The phrase was translated as follows: “I want to speak to Jeffrey who works at NAC and not any ass-cunt”. 

9.	Contrary to Gabriella’s evidence, Jeffrey said he was not aware of the exchange between his wife and Ethel whilst they were driving home. He was driving and his wife did not mention it. It was only later, after he got home, freshened up, then checked his phone that he saw that Ethel had screenshot the image of his Facebook name and the exchange with his wife: “you are”, “Ethel” and “So; Do I know you?; U mas I pla wild taro ya”, and shared it on her Facebook page. 

10.	Jeffrey then posted on Ethel’s page: “U long2x or?? Please inap u rausim disla post”, to which Ethel responded “Jeffrey Miroi Simewa ples pig nogat Brain!” Another person, Yolz Maris, then made a comment. Jeffrey said that all the comments were to finish, it was “deformation of character”, to which Ethel responded: “Na hau u faul me”? 

11.	Jeffrey and Ethel then exchanged a series of direct messages during which Jeffrey tried to explain that it was his wife who sent the wild taro message and repeatedly asked for it to be taken down. It appears, however, that at least initially, Ethel did not believe that she was speaking to Jeffrey but his wife, even when Jeffrey told her to remove the post or he will come to her house: “Kam; Prove it! Askm man Blo u em stap yet lo NAC? Or Nogat?”. When Jeffrey asked her what she wanted, what her problem was, Ethel told him to “fuck off”, she wanted to speak to Jeffrey about work. Later she seemed to realise that she was speaking to Jeffrey. She posted the job advertisement that she wanted to ask him about and said: “na wife Blo u tok wild taro lo me”, to which Jeffrey again asked her to remove the post. 

12.	Jeffrey says that he then drove to Ethel’s house at 5 Mile and spoke to her and her husband and asked her to remove the post but that she told him to go back and speak to his wife. He went to the police station at 7 Mile at about 9 pm. The night duty officers went to her house and told her to attend the station the next day. 

13.	Ethel gave evidence in her own defence. I accept her evidence, which was straightforward and in keeping with common sense and logic. She made reasonable concessions. 

14.	Ethel saw a Facebook post from NAC advertising a job and so she messaged Jeffrey. I accept her evidence that to call someone a wild taro in the PNG context means to call that person a prostitute from the road. She knew Jeffrey would not say that and she had no intention of luring him. She was offended. It was also funny. How could someone call her a wild taro? So she copied it, posted it and tagged two others, Yoland and Jeffrey, both of whom knew Jeffrey personally. Jeffrey then commented “are you long long” and that upset her. She did not know at that stage that it was Jeffrey who was communicating with her. She did call Jeffrey a pig without a brain. She knew it was Jeffrey’s wife who called her a wild taro. She was not trying to harass his wife. She did not want to talk to anyone but Jeffrey. She admitted she wanted to harass Jeffrey when she called him a pig. She was upset by his comment about her being “long long” or crazy and having mental issues. She called him a place pig because she was annoyed about being called a wild taro and long long when she had no bad intentions. 

15.	I accept her evidence that she removed the post after the last online exchange with him. The State failed to lead any evidence to show otherwise. I accept her evidence that Jeffrey came screaming into her house and yelled at her in front of her family and neighbours. I accept her evidence that he left and came back with a white van and kicked the gate and took the gate lock and told her she must come down to the police station the next day. 

16.	After presenting herself to police the following day at 10 am Ethel was kept in the cell overnight after being charged and released on bail for K3000 – which it must be observed is more than what is required in some murder cases.

17.	So, let’s get this straight. Ethel sent a harmless message to Jeffrey on Facebook and was called a wild taro in reply. She then expressed her frustration about wanting to speak to Jeffrey and not anyone else in very vulgar terms. She posted Gabriella’s insult to Jeffrey and tagged two others. Instead of trying to calm things down Jeffrey called her crazy, in response to which she said he was a pig with no brains. Both of them goaded one another until Ethel realised she was speaking to Jeffrey and removed the post. Jeffrey drove over to Ethel’s house, screamed at her and her family, left and came back with police who stormed Ethel’s house late at night. Ethel was then charged and spent one night in custody and the last few years going through the criminal system. 

Section 23(1)(c)(i) of the Cybercrime Code Act – Cyber Harassment

18.	Section 23(1) of the Cybercrime Code Act creates the offence (or various offences) of cyber harassment which attracts a maximum of up to seven years of imprisonment and prohibition from accessing and using ICTs or electronic systems or devices for the term of imprisonment plus an additional two years. 

19.	It is a serious and much needed offence to prohibit online bullying and harassment.

20.	Where the offence results in psychological harm or physical injury, or where it results in death the maximum increases to 10 years and life, respectively, with the possibility of prohibition in each case: s 23(2) and (3) of the Act. 

23 (1) 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 whether or not it is connected to the internet (with or without the aid of electronic writings, images, audio, visual or audiovisual recordings, or the exchange of messages) to -
(a) initiate; or
(b) facilitate; or
(c) participate in,
any communication or online discussion or posts regarding another person, directly or indirectly (with or without any exchange of messages or electronic writings, images, audio, visual or audiovisual recordings) with the person harassed, for the purpose of -
(i) coercing, intimidating, threatening, harassing, stalking, or causing emotional distress; or
(ii) supporting such repeated acts under Subparagraph (i),
in respect of that person, is guilty of a misdemeanour.

Penalty:
(a) In the case of a child offender, subject to the Juvenile Justice Act 2014 -
(i) detention for a term not exceeding three years; or
(ii) prohibition from accessing and using ICTs or electronic system or devices for the term of detention imposed plus an additional two years; or
(iii) both Subparagraphs (i) and (ii); and
(b) In the case of an adult offender -
(i) imprisonment for a term not exceeding seven years; or
(ii) prohibition from accessing and using ICTs or electronic system or devices for the term of imprisonment imposed plus an additional two years; or
(iii) both Subparagraphs (i) and (ii).

21.	The elements of the offence of cyber harassment under s 23(1)(c)(i) are that the accused:

(a)	intentionally and without lawful excuse or justification or in excess of a lawful excuse or justification or recklessly;
(b)	uses an electronic system or device;
(c)	to initiate, facilitate or participate in; 
(d)	any communication, online discussion or posts regarding another person;
(e)	directly or indirectly with the person harassed;
(f)	for the purpose of coercing, intimidating, threatening, harassing, stalking, or causing emotional distress in respect of that person.

22.	It is clear from the terms of s 23(1) that the person who is the subject of the communication need not be the same person as the “person harassed”. 

23.	For instance, if a person sent a communication to a mother about her child for the purpose of threatening the mother then the communication would be “regarding” the child, whilst the “person harassed” would be the mother.

24.	The State is reminded that it must include each of the elements of the offence in the indictment and particularise them clearly either in the indictment or in the alleged facts.  It appears that the State is alleging that the person harassed in Count 1 was Gabriella Kalimet and in Count 2 was Jeffrey Simewa. 

25.	The State made no attempt, despite being directed to do so, to provide any authorities as to the meaning of “harass” or “emotional distress” either in this jurisdiction in civil cases or in cybercrime legislation in similar jurisdictions. Having done so myself caution must be exercised when considering overseas authorities given specific legislative definitions not present in our act.

26.	It is neither necessary nor appropriate to define in absolute terms what is required to establish “for the purpose of … harassing”. What is required will depend on the circumstances of the particular case and it is likely that the definition or the principles applying will develop as more cases come before the Court. 

27.	As a starting point, however, the Oxford Learner’s Dictionary defines “to harass” as “to annoy or worry someone by putting pressure on them, or by saying or doing unpleasant things to them. It often involves repeated, unwanted actions that create an intimidating, hostile, or offensive environment, such as in cases of sexual or workplace harassment.” The Mirriam Webster Dictionary says that it means “to cause mental or emotional suffering through unwanted contact, threats, or offensive language”. 

28.	It follows that “for the purpose of harassing” means for the purpose of intimidating, threatening, frightening or distressing. 

29.	Typically, harassment involves a course of conduct or repeated acts. The Act does not expressly provide for that, however, and in my view it may be possible for one communication to be intended to harass depending on its nature or the context in which it is made.

30.	Critically, the conduct must be serious. It must be designed or intended to distress or intimidate. It is not enough to show an intention to annoy, irritate or simply offend.   

31.	As for “emotional distress” it might ordinarily be defined as “a feeling of great worry or unhappiness; great suffering”: Oxford Learner’s Dictionary.

32.	Accordingly, “for the purpose of causing emotional distress” means for the purpose of causing severe or intense emotional suffering. 

Count 1  

33.	There is no dispute and the evidence establishes that Ethel used an electronic device to communicate directly with Gabriella regarding Gabriella, whom she referred to as “any ass-kan”. She knew, or at least assumed, it was Jeffrey’s wife even if she did not know Gabriella’s name. 

34.	The State have failed to establish beyond reasonable doubt that Ethel intended to harass or cause emotional distress to Gabriella by her statement that she wanted to speak to Jeffrey and no other “ass-kan”. 

35.	Sure, it was vulgar and she intended to offend Gabriella but she did not intend to cause her emotional distress and there was nothing about the single message that demonstrated an intention to harass Gabriella, a person whom prior to Gabriella’s response Ethel had no intention of speaking to at all. 

36.	The thrust of Ethel’s message was to lash out inappropriately in frustration at the person who assumed that she was trying to seduce her husband when all she wanted to do was speak to him about a job advertisement. That is she called Gabriella a highly offensive slang term for someone who is behaving in a manner that is mean, rude, annoying or contemptible, or in other words something like: I want to speak to Jeffrey not any other foolish person. 

37.	Of course, sending an offensive message or calling someone by an offensive term could be intended to harass or cause emotional distress depending on the circumstances but that is not the case here.

Count 2

38.	As for Count 2, Jeffrey said she was crazy and she said he was stupid. That is not harassment nor does it demonstrate an intention to cause emotional distress. That is name calling by two adults who should know better.

39.	The count is also misconceived because it is clear that at the time that she made that statement Ethel thought she was still talking to his wife. As for the fact that Ethel admitted that she wanted to “harass” Jeffrey, or perhaps Gabriella if that was who she thought she was talking to, that is beside the point. The State had to prove the intention as required at law.

Conclusion

40.	What a complete waste of time, money and valuable resources. Neither the accused nor the complainants conducted themselves in an appropriate manner but is this really what Papua New Guineans want scarce public monies spent on? Surely, police had more important things to do at 9 pm at night. As for the Public Prosecutor’s Office it failed to consider the legal requirements of the offence provision let alone the public interest in the matter. 

41.	The accused is found not guilty and acquitted of the alleged offences in Counts 1 and 2. 

42.	Her bail monies will be immediately refunded to her.

Verdicts accordingly. 
___________________________________________________________
Lawyer for the State: Public Prosecutor			
Lawyer for the accused:   Public Solicitor