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Namia v Fisher [2022] PGDC 28; DC8039 (15 March 2022)

DC8039

Papua New Guinea

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

NCC NO 1103 OF 2021

BETWEEN:

LINETH NAMIA
[Informant]

AND:

LIAN FISHER
[Defendant]

Waigani: Paul Puri Nii

15^th March 2022

COMMITTAL PROCEEDINGS: -Charge- Cyber Harassment -Section 23(4) of the Cyber Crime Code Act. Contemplation on the admissibility of evidence to induct whether Prosecution delivered prima facie evidence meeting the elements of Cyber Harassment. Evidence is insufficient-Information dismissed.

PRACTICE AND PROCESS: Applicable obligation for prima facie case- meeting the elements of the cyber harassment–witness statements. Defendant admitted to the allegation but denied it was not cyber harassment- Defendant sent messages but denied it was cyber harassment.

PNG Cases cited:

Police v Koka [2021] PGDC 53; DC6010
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
Milali v Paraka [2021] PGDC 152; DC7007 (27 October 2021)

Overseas cases cited:

Overseas Cases cited:
Nil

References

Legislation

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

Counsels

Police Prosecutor: Joseph Sangam For the Informant
Public Solicitor: Junior Fish Unua For the Defendant

COMMITTAL DECISION

15^th March 2022

INTRODUCTION

NII, P. Paul Magistrate. Decision pursuant to Section 95 of the District Court Act 1963, after party’s opinions are dignified. Accused denied that the word said does not amount to blasphemy but a mere word used to emphasize the word “shut up” or giving more weight to it. Defense objected it was a swearing word which constitutes the offence of Cyber harassment. Submissions on evidence were restrained and consequently in the ensuing looks is the court’s ruling.

FACTS

1. Defendant is identified as aged 30 years and from Kundiawa in the Simbu Province of PNG whom police allege that was having an affair with Complainant’s husband and thus the Complainant enquired about the Defendant’s involvement with her husband which led to the accused sending the complainant messages on her phone words to the effect which was described by police as attracted the offence of Cyber Harassment. Police allege that on 27^th July 2021, Defendant sent the following words to the complainant by using her phone:
   

“Y are you so desperate about my money, hahaha shame on you, go work money na kaikai, stick to your lane woman and don’t involve in something that does not belong to you. That is my money so shut the fuck up and mind your own business... you must be a shareholder to Kalis hire right? Hahaha stop talking about my money.”

2. A complaint against the Defendant was lodged to the police by the Complainant and thus on 13^th August 2021, Defendant was arrested and charged under Section 23(4) of the Cybercrime Code Act.
   

CHARGE

3. Defendant is arrested and charged under Section 23(4) of the Cyber Crime Code Act and Defendant’s charge is demonstrated in the resulting mode:
   

“23. Cyber Harassment.

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 whether or not it is connected to the internet (with or without the aid of electronic writings, images, audio, audio visual recordings) to-

A) Authorise, facilitate or enable; or

B) Write, post or effect; or

C) Entertain, encourage or participate in,

the posting of commentary, whether or not it is directed at anyone in particular, using or connoting profanity or obscenity, or language or imagery that is vulgar or otherwise unacceptable or which grossly offends against accepted standards or public decency to any person reading such post or commentary.

ISSUE

4. The investigation of satisfactoriness of evidence is relevant in the committal jurisdiction; whether evidence is reasonable to commit the Defendant.
   

THE LAW

6. Jurisdiction of the Committal court under the District Court Act.

“95. Court to consider whether prima facie case.

(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”.

ELEMENTS OF THE CHARGE

5. The court in Milali v Paraka [2021] PGDC 152; DC7007, executed the philosophies in Police v Medako [2021] PGDC 54; DC6011, that Prosecution evidence must justify the elements of the charge of Cyber Harassment against the accused.
   

Elements of Defamatory Publication - (Section 23(4) of Cyber Crime Code Act)

Sec 23(4)

a) A person who, intentionally and without lawful excuse or

b) justification, or in excess of a lawful excuse or justification, or

c) recklessly, uses an electronic system or device whether or

d) not it is connected to the internet

e) (with or without the aid of electronic writings, images, audio, audio visual recordings) to

f) -Authorise, facilitate or enable; or Write, post or effect; or

g) Entertain, encourage or participate in,

h) the posting of commentary, whether or

i) not it is directed at anyone in particular, using or

j) connoting profanity or obscenity, or language or

k) imagery that is vulgar or otherwise unacceptable or

l) which grossly offends against accepted standards or

m) Public decency to any person reading such post or commentary.

EVIDENCE

6. The guideline in Police v Koka [2021] PGDC 53; DC6010, is fitting in this examination. The court in the above matter unmistakably states that only evidence shall either affirm or discredit any allegation. In addition to the above, I have repeated a few streaks below which I echo necessary in the deliberation.....
   

.....“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” ....

7. Having established the above the court shall now proceed to assess state evidence contained in the police file.
   

PROSECUTION CASE

8. Prosecution case in Police file is summarized below:
   

DEFENSE CASE

Inefficiency of evidence

9. Firstly, the defendant through his Lawyer has pointed out to the court that the Record of Interview was not conducted.
   
10. Secondly, Defendant’s argument is on the word “shut the fuck up”. Defendant says the word was used in a colloquial context in telling the Complainant to shut up or not to mind the Defendant’s business. Defendant further argues that the context in which the word was used was not intended to cause offence or insult.
    

CONSIDERATION OF EVIDENCE

11. Evidence shows Defendant and Complainant exchanged text messages after an issue of marital affairs between the Defendant and the Complainant’s husband. Evidence shows it was during that communication Defendant sent a long text message to the Complainant containing the words “Shut the Fuck up” which the Complainant treated as an issue under the Cyber Crime Code Act for the offence of Cyber Harassment. The question is does the words “Shut the Fuck up” attracts Cyber Harassment under Section 23(4) of the Cyber Crime Code Act?
    

RULING ON EVIDENCE

12. Firstly, I have read through the police hand-up-brief and noted that the ROI is not in the file. The Constitution under Section 42(2) provides for the liberty of an accused person that a person who is arrested or detained shall be informed promptly in a language that he/she understands of the reasons of his arrest or detention and of any charge against him/her.
    
13. Section 42(2) constitutional requirement is administered to the accused through the Record of Interview. It is through the ROI the Defendant is informed of the reason for his/her arrest and the charge. If the ROI was not conducted, then the accused’s liberty under Section 42(2) was breached. Therefore, in my assessment, I’ve noted the ROI was not conducted and thus it renders the whole police file to be incompetent.
    
14. Secondly, there is no issue about Defendant not sending the text messages however, the issue is Defendant maintains she did not mean to offend the Complainant. I have read the words carefully and noted that the words “shut the fuck up” was part of a long sentence Defendant sent to the Complainant.
    
15. The New Zealand Law dictionary defines Cyber Harassment as a repeated, unsolicited, hostile behavior by a person through cyber space with an intent to terrify, intimidate, humiliate, threaten, harass or stalk someone. When blending the definition with the subject charge under Section 23(4) of the Cyber Crime Code Act, I am obligated to believe that the words “shut the fuck up” was part of a sentence that was sent to the victim by the Defendant. The words were not sent separately on their own as it shows or in isolation but part of a long sentence. For example, a modifying verb influences the verb and an adjective describes the noun. These two words, if used in a sentence, are not to change the meaning of that sentence or paragraph but to give more effect to the meaning.
    
16. The words “shut the fuck up” are in-between the sentence “That is my money so shut the fuck up and mind your own business”. Since the words were not sent in isolation or separately, the words were sent to give meaning and effect to the preceding and succeeding sentence. Given the circumstance, the words were used in a slang context by telling the Defendant to shut up. Therefore, the words “fuck up” gives effect to the words “shut up” and thus there is no direct harassment nor expletive/swearword/profanity in the words used. Thus, evidence is lacking to sustain the elements of Cyber Harassment under Section 23(4) of the Cyber Crime Code Act.
    

CONCLUSION

17. Consequently, it is my ruling under Section 95(2) of the DCA that evidence is insufficient to make a case against the Defendant for the offence of Cyber Harassment under Section 23(4) of the Cyber Crime Code Act, based on the following grounds:
    

a) There is no ROI in the police thus contravening Defendant’s rights under Section 42(2) of the Constitution; and

b) Evidence does not appropriately satisfy the elements of the offence of Cyber Harassment.

ORDERS

18. My Final Orders
    
    1. Evidence is insufficient to commit the Defendant.
       
    2. Information then under inquiry carrying the charge of Cyber Harassment under Section 23(4) of the Cyber Crime Code Act is dismissed.
       
    100. Defendant’s bail be refunded.
         

Public Solicitor For the defendant
Police Prosecutor For the State

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