Gaso v Lapakio [2022] PGDC 105; DC9010 (12 September 2022)

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[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COMMITTAL PROCEEDINGS: -Charge- Defamatory Publication -Section 21(2) of the Cyber Crime Code Act. Contemplation on the acceptability of evidence to install whether Prosecution delivered prima facie evidence convention to the elements of the accusation.

PRACTICE AND PROCESS: Suitable responsibility for prima facie case-assessment of evidence to withstand the allegation of defamatory publication–Eyewitness announcements. Defendant denied the allegation- Defendant argued that he did not post the comments on Facebook.

Overseas Cases cited:
Nivrutti v State of Maharashtra and Pooja Nivrutti 2020
References

Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40
Cyber Crime Code Act

Police Prosecutor: Chris Iga For the Informant
Gibson Bonn Lawyers: Gibson Bon For the Defendant

NII, Puri. Paul. Magistrate. Deliberation under Section 95 of the District Court Act 1963, after the party's urgings are restrained. Defense habitually challenged police evidence as it is deficient to commit him. Defendant says the comments posted were genuine. Police Prosecutor Chris Iga briefly objected to the defense arguments. Submissions were dignified and therefore in the resultant entrances are the court’s decision.

(2) A person who, intentionally and without lawful excuse or justification, or in excess of a lawful cause or justification, recklessly, uses an electronic system or device to public defamatory material concerning another person, is guilty of a crime.

a) In the case of a natural person, a fine not exceeding, a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years, or both; and

(1)[1]Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division”.

.....“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....

No	Name	Particulars	Statements
1	Sir John Thomas Pundari	Complainant	Witness says on 18^th March 2022, at around 10pm, his public relationship officer and media officer Mr Feaser Liu informed him that there was a post made against him by the defendant in a private whatsapp group called brothers club. Witness says upon his request Mr Fraser Liu took a snapshot of the post and forwarded it to him through his Watsap. Witness says upon receipt of the post he noted that the post contains graphic images including a photo of himself with certain defamatory publications to the effect of “ Vote of senior statesman John Thomas Pundari, 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 election”. Witness says he was greatly offended by the defendant’s comments on the whatsapp group. Witness says on 24^th March 2022, the defendant apologized to him through a letter about the Watsap comments. The Complainant moreover says on 22^nd March 2022, at around 8pm, his Public Relations and Media Officer again told him that there was another post on facebook made against him by a person named Nakau Pakepao and was allegedly posted on the Kompiam Ambum political page. The Comments posted were *“Sir Pundari, why should you carry K4 million to the electoral commissioner again when your first offer was rejected? Shame on you.”* Witness says upon his request Mr Fraser Liu took a snapshot of the post and sent it to him on his whatsapp. The Complainant says the comments were totally false and he found it highly scandalous, slanderous and defamatory. Witness says as a citizen, he was greatly offended since the post was calculated to injure his reputation. Witness says he suspects the comments were made by the defendant under the false FB name.
2	Fraser Liu	Public Relations and Media Officer-	Witness says on 18^th March 2022 he saw a comment on warsap group ‘brothers’ carrying an image of the Complainant and words to the effect as “Vote of senior statesman John Thomas Pundari, 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 election”. Witness says since the comments and the image depicted the Complainant in a negative way, he quickly shared the comments and image to the Complainant. This witness says the comments were posted by the Defendant using phone number 71493428. This witness says the post was shared by many FB users on other forums thereby tarnished the Complainant’s reputation. This witness moreover says on 22^nd March 2022, he logged onto his FB account and assessed the Kompiam Ambum political page and noted several descriptive posts and one such post was allegedly posted by a person named “Nakau Pakepao” to the effect as *“Sir Pundari, why should you carry K4 million to electoral commissioner again when you first offer was rejected? Shame on you.”* Witness says immediately after viewing the post he shared the post with the Complainant. Witness says there were other reactive comments and defamatory posts by other FB users which were character assassinating on the Complainant.
3	Kenneth Kolou	Cyber Crime ICT Officer @Police Headquarters-NCD	Witness says the accused was arrested on 2^nd April 2022 at Wapanamande in Enga province. Witness says the accused was arrested and charged for two counts of defamatory publications, however, for the first count Defendant has written a letter of apology to the Complainant and posted on whatsapp group “Brothers club” on 24^th March 2022. Witness says defendant had admitted to the first count of defamatory publication by saying he wrote an apology letter. Witness says the second count of defamatory publication was posted by a person named “Nakau Pakepao”. Witness says he did an investigation into the allegation and found out that the name “Nakao Pakepao” has two email addresses as his recovery emails if he forgot his password and one of the email address was [email protected] Witness says a search with digicel revealed that phone Number +675 70472378 is owned by the defendant and is listed as a back-up phone for the FB account Nakau Pakepao. Witness says from his investigations he has revealed that the accused owned phone number +675 70472378 and the accused email address is [email protected]. Witness hence finally says the accused is the author of the facebook page Nakau Pakepao and owner of the phone number +675 70472378 whose recovery email address was [email protected] and says defendant was the one who used the fake account Nakau Pakepao to post the defamatory publications against the complainant.
4	Lison Salle	Police officer	This witness says he was the one who arrested the defendant. Witness says the phone number that shared the defamatory publication is +67570472378 and this number is connected or linked to the fake Facebook account “Pakau Pakepao”. Witness says the fake facebook name of Nakau Pakepao was created using email addresses akem07@gmailcom and [email protected]. Witness moreover says these email addresses were used as recovery email address for the face account.
5	Peter Gaso	CID Police detective	Witness says he was part of the police team that investigated the allegations against the defendant. Witness says the defendant was subsequently arrested and charged for the offences.
6	Steven Philipo	Police Officer	He says he was part of the policemen who were involved in the arrest and charge of the defendant against the charge.
7	Charles Wanako, Paul Uragen, Mr Elaine Auo, Chadrek Guldi, Kenneth Golou and Lison Salle	Witness	These are people including Lawyers and policemen who were initially involved in the search warrant with digicel to identify and link the telephone number to the accused and also the policemen who were tasked with the investigations that thus led to the arrest and laying of the 2 count of charges.

“Vote of senior statesman John Thomas Pundari, 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 election”.

“Sir Pundari, why should you carry K4 million to the electoral commissioner again when your first offer was rejected? Shame on you.”

a) In the case of a natural person, a fine not exceeding, a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years, or both; and

“WhatsApp calls are end- to-end encrypted so WhatsApp and third parties can't listen to them. It also claims that nobody in between, not even WhatsApp, can read these messages. These messages are secured with lock and only the recipient and sender have special key needed to unlock and read them....

....... Therefore, WhatsApp cannot be a public place if messages are exchanged on personal accounts of two persons........ If these messages had been posted on WhatsApp Group, in that case the same could have been called as public place because all the members of the group, will have access to those messages....... The court then went on to state that ....”It is not the prosecution case that the alleged obscene messages were posted on WhatsApp Group of which the petitioner and the respondent and the others are members”.

“Sir Pundari, why should you carry K4 million to electoral commissioner again when your first offer was rejected? Shame on you.”

“A search warrant would permit a police officer to excess someone’s Facebook and email accounts. By common practice most people have excess to their Facebook accounts by either using their email address or phone numbers to log on. The warrant would then empower police investigators to log onto the Defendant’s electronic devices and confirm he is the owner of the two fake accounts.”

Gibson Bon Lawyers For the defendant
Police Prosecutor For the State

[1]Section 95(1) amended by No. 31 of 1980, s4.

[i] Cyber Crime Code Act
[ii] Supra
[iii] Supra
[iv] Supra
[v] Supra
[vi] Supra
[vii] Supra
[viii] Supra

Papua New Guinea District Court

Gaso v Lapakio [2022] PGDC 105; DC9010 (12 September 2022)