The State v Kila Aoneka Wari

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 02 April 2024
• Neutral Citation: N10706
• Citation: N10706, 2024-04-02
• Counsel: Ms L Jack, for the State,Mr S Javati, for the Accused
• Docket Number: CR (FC) NO 8 OF 2023
• Hearing Date: 02 April 2024
• Court: National Court

N10706

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO 8 OF 2023

The State

v.

Kila Aoneka Wari

Waigani: Berrigan J

2024: 2^nd April

CONSTITUTIONAL LAW — S 18, CONSTITUTION — Jurisdiction of Supreme Court as to questions relating to interpretation or application of provisions of constitutional laws — Referral by the National Court of questions to Supreme Court — Section 46, Freedom of Expression and Publication — Section 21(2), Cybercrime Code Act.

An accused person was committed to stand trial at the National Court on one charge of defamatory publication, contrary to s 21(2) of the Cybercrime Code Act, 2016, for which the maximum penalty in the case of a natural person is a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years or both. At trial it was established that certain statements were made by the accused on a public social media platform in relation to the complainant, who is her brother-in-law and was a candidate in the National General Election at the time. The State alleges that the accused deliberately posted defamatory material which was false and intended to damage the reputation of the complainant as a leader, paramount chief and businessman. The accused claims defences of truth, public benefit, fair comment and good faith. Counsel for the accused contends that questions concerning the interpretation and application of ss 41, 46 and 51 of the Constitution have arisen requiring determination by the Supreme Court. The State submits no such questions arise.

Held:

(1) Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court such that where any question relating to the interpretation or application of any provision of a Constitutional law arises before the National Court it is required pursuant to s 18(2) of the Constitution to refer the matter to the Supreme Court, except where the question is trivial, vexatious or irrelevant: Public Prosecutor v Nahau Rooney (No 1) [1979] PNGLR 403; Somare v Manek (2011) SC1118.

(2) Questions of Constitutional interpretation and application have arisen in these proceedings with respect to s 46 of the Constitution, namely: (a) whether s21(2) of the Cybercrime Code Act regulates or restricts the right of freedom of expression and publication under s 46 of the Constitution; (b) if so, whether s 21(2) of the Cybercrime Code Act complies with the requirements of s 38 of the Constitution; and c) whether s 21(2) of the Cybercrime Code Act is invalid for being inconsistent with s 46 of the Constitution.

(3) No such questions arise with respect to ss 41 and 51 of the Constitution.

(4) The questions arising with respect to s 46 of the Constitution are not trivial, vexatious or irrelevant. The questions are not irrelevant. The questions are not unnecessary. The questions have not been finally and authoritatively interpreted and applied by the Supreme Court before. No other provision of the Constitution or any other constitutional law gives the National Court jurisdiction to interpret and apply s 46 of the Constitution to s 21(2) of the Cybercrime Code Act.

(5) The Court is obliged to refer the questions to the Supreme Court.

(6) The verdict in the criminal proceedings is reserved pending determination by the Supreme Court of the questions referred: SCR No 2 of 1981; Re Section 19(1)(f) of the Criminal Code [1982] PNGLR 150 applied.

Cases Cited

Public Prosecutor v Nahau Rooney (No 1) [1979] PNGLR 403

Somare v Manek (2011) SC1118

O'Neill v Ombudsman Commission of Papua New Guinea (2014) N5828

O'Neill v Ombudsman Commission of Papua New Guinea (2015) N5857

O'Neill v Kaluwin (2015) N5843

Lupari v Somare (2008) SC930

Raz v Matane [1985] PNGLR 495

Patterson Lowa v Wapule Akipe & Ors [1992] PNGLR 399

SCR No 1 of 1986; Re Vagrancy Act [1988–89] PNGLR 1

Cory v Blythe [1976] PNGLR 274

The State v Kosi and Ors (1981) N306

Hetura Paz Development v Niugini Nius P/L [1982] PNGLR 250

The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1

In the Matter of Section 18(1) of the Constitution and in the Matter of Bill Skate MP (2001) SC678

Commissioner of Correctional Services [1982] PNGLR 405

SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379

Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60

Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479

Haiveta v Wingti (No 1) [1994] PNGLR 160

Isaac Lupari v Sir Michael Somare (2008) N3476

Alois Kingsley Golu v Regett Marum (2013) N5104

SCR No 2 of 1981; Re Section 19(1)(f) of the Criminal Code [1982] PNGLR 150

Jacquline Okuta & Anor v Attorney General & 2 Ors [2017]

Belpietro v Italy (2013)

Mika v Greece (2013)

Maripori v Finland (2013)

Konaté v. Burkina Faso, No. 004/2013

References Cited

Section 18, 38, 39, 46, 51 of the Constitution.

Section 1, 21, 22, 23 of the Cybercrime Code Act, 2016

Section 25 of the Defamation Act, 1962

Section 362E of the Criminal Code

Section 3 of the Criminal Code (Amendment) Act, 2016

Section 4 of the Defamation (Amendment) Act, 2016

Coroners and Justice Act, 2009 (UK)

Section 365 Criminal Code, Queensland

Section 10, Wrongs Act, Victoria

Section 204, Criminal Code, Northern Territory

Section 298, Criminal Code, Canada

Counsel

Ms L Jack, for the State

Mr S Javati, for the Accused

Public Prosecutor: Lawyers for the State

Javati Lawyers: Lawyers for the Accused

DECISION PURSUANT TO SECTION 18(2) OF THE CONSTITUTION

2^nd April 2024

1. Berrigan J: Kila Aoneka Wari, an accused person before the National Court, seeks to have questions relating to the interpretation or application of a constitutional law referred to the Supreme Court pursuant to s 18(2) of the Constitution.

2. The accused was committed to stand trial at the National Court on one charge of defamatory publication, contrary to s 21(2) of the Cybercrime Code Act, 2016, for which the maximum penalty, in the case of a natural person, is a fine not exceeding K25,000 or a term of imprisonment not exceeding 15 years or both.

3. A trial proceeded at which the evidence established that the complainant, Wari Vele, was a candidate for the National Capital District Governor's seat in the 2022 National General Elections. The complainant was formerly the Governor of National Capital District in 2006 and 2007. The complainant is the accused's brother-in-law, such that the complainant is married to his wife, Kila Vele. The accused and Kila Vele are sisters. The accused was a supporter of another person, her uncle, who was a rival candidate in the election. The accused was formerly employed by the complainant when he was the Governor of NCD. On 30 May 2022 a war of words erupted between the accused and her sister on a public Facebook account in relation to Mr Vele's election campaign, during which the accused said “Veki Construction, you used us to steal from NCD na yupla yet kaikai millions mipla sign lo cheque book ya”. It is the State's case that the accused deliberately posted defamatory material which was false and intended to damage the reputation of the complainant as a leader, paramount chief and businessman by implying criminal conduct on his part. The accused claims defences of truth, public benefit, fair comment and good faith.

4. Following the close of evidence for both parties and prior to hearing submissions on verdict, counsel for the accused indicated that he intended to raise constitutional questions for referral. The parties were heard on that matter, and on verdict, which has been reserved pending this decision.

Section 18 of the Constitution

5. Section 18 of the Constitution provides:

18. Original interpretative jurisdiction of the Supreme Court.

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

6. Section 18(1) of the Constitution confers exclusive jurisdiction on the Supreme Court such that where any question relating to the interpretation or application of any provision of a constitutional law arises before the National Court, it is required pursuant to s 18(2) of the Constitution to refer the matter to the Supreme Court, except where the question is trivial, vexatious or irrelevant: Public Prosecutor v Nahau Rooney (No 1) [1979] PNGLR 403; Somare v Manek (2011) SC1118 at [92]; O'Neill v Ombudsman Commission of Papua New Guinea (2014) N5828 at [50] to [53]; O'Neill v Ombudsman Commission of Papua New Guinea (2015) N5857 at [23] to [30]; and O'Neill v Kaluwin (2015) N5843 at [22].

7. A question may be referred pursuant to s 18(2) only where: (a) there is an issue as to the interpretation or application of a provision of a constitutional law; (b) the question is not trivial, vexatious or irrelevant; (c) the Supreme Court has not previously finally and authoritatively interpreted and applied the particular constitutional provision; and (d) no other provision of the Constitution or any other constitutional law give the National Court jurisdiction to interpret and apply the Constitutional law: Lupari v Somare (2008) SC930 at [13]; see also Raz v Matane [1985] PNGLR 495.

8. It is therefore necessary to ask: (a) have questions relating to the interpretation or application of a provision of a constitutional law arisen in these proceedings?; (b) if yes, should those questions be referred to the Supreme Court?; and (c) if yes, how should the questions be framed?

HAVE QUESTIONS RELATING TO THE INTERPRETATION OR APPLICATION OF PROVISIONS OF A CONSTITUTIONAL LAW ARISEN?

Submissions

9. Defence...