What exactly is libel? If a statement is false and is disseminated to a third party, whether on purpose or unintentionally, it is deemed defamatory. The party who has suffered harm may file a defamation lawsuit if the publication of the said remark causes it. Defamation laws are in place in Australia to safeguard people and companies from financial harm caused by false or defamatory statements. Slander and libel are the two kinds of defamation. The later arises where the statements are in writing or are published. Slander, on the other hand, occurs where such defamatory statements are spoken or broadcasted.
Senator Sam Soapbox published the following statement about Mr. Troy Thoroughbred on his twitter account, ‘The head of Mr Ed Consulting Group, the new Government contractor, is corrupted! He has no business acumen and the only way he could have got the new horse and carriage contract is through bribery!’
There are four elements to a defamation trial. The plaintiff must prove that the defendant did make defamatory or false statements about him or her. The law is clear, defamation is not a false statement of opinion but of fact. After proving that a false or defamatory statement was made, the plaintiff has to prove that there was publication of the same statement to an unprivileged third party. This is despite doing a quick Google and discovering that Troy Thoroughbred, the Chief Executive Officer of Mister Ed Consulting, had been declared innocent after the investigation was dropped because no evidence of bribery was uncovered. Therefore, despite knowledge that his statement was false and defamatory, the senator acted recklessly and in total disregard of its falsity.
This means that despite serious doubts on how truthful his statement was, the senator chose to publish the statement on social media. Troy Thoroughbred, the Chief Executive Officer of Mister Ed Consulting, who had previously been investigated by the Australian Federal Police for attempting to bribe a Government official is not a public figure like the senator. As private citizen, Mr. Troy only needs to prove negligence on the part of the senator. The fact that the investigation was dropped and that Senator Soapbox was fully aware of that fact means that he has indeed defamed Mr. Troy. The defence of absolute privilege is not available for Sam because his statement served no purpose for the public office he holds. Rather, his statements were meant to serve as a publicity stunt seeing that it was published to a considerable following of five thousand on social media.
Has Sam committed any offence(s) under the Listening Devices Act 1992 (ACT)? Do any defences apply? (6 marks)
Under the Listening Devices Act 1992 (ACT), an individual shall not record a conversation with the intention of recording a conversation whether he or she is privy to the details of the aforementioned conversation. The exceptions for this case is where an individual listens and records the conversation unintentionally or with authority granted under law. Private conversations recorded can only be recorded lawfully if each or one party privy to it consents. The purpose of recording the conversation must not be to publish utterances to an unprivileged third party. Listening devices can overhear, monitor, listen to, and record a conversation.
According to the scenario presented, that evening, Sam goes along to a dinner hosted by Sally at the Hyatt Hotel. This was an ‘invite only’ affair, attended by only 20 people with an interest in the horse and carriage project. This event qualifies as private and only twenty people were privy to this conversation. Sam discretely placed his Smart Phone under his napkin on the table to record Sally, in case there are any great sound bites he can use as part of his pressure campaign. Obviously all the parties to this conversation have not consented to being recorded. Furthermore, there was no reasonable grounds such as protection of his interests. Rather, Sam recorded this conversation with the intention of gaining political mileage by reporting, communicating or publishing to people who were not party to the conversation.
There are several defences available for Sam in this case. He can argue that the information on Birds trial needed to be in the public domain and that he acted in public interest. Moreover, he can also argue that the intention for recording the conversation was reasonably grounded and served to protect his lawful interests. The law is clear, the use of a listening device by privileged parties is not restricted. Nevertheless, such a recording is personal and cannot be communicated to third parties. A third party, however, must have the consent of all the parties involved.
Have any offences been committed under the Jurors Act 1967 (ACT)? In your answer, discuss the possible application of two offences (6 marks)
Jurors are under strict instruction when it comes to information during a trial. For instance, their only source of reference or information on the case should come from evidence presented in the courtroom. In addition, none of the parties to the case are allowed to engage the jurors. Most importantly, jurors are required by law to keep the deliberations they hold strictly confidential during the trial period. Juror James went against this a disclosed information from deliberations. This amounts to contempt of court. Australian law allows academics to scrutinize the process. Such a privilege is only granted by a certificate of approval from the office of the Attorney General. Juror James disclosed juror deliberations on an issue before the court to a third party, Senator Soapbox. Certain forms of misconduct by jurors amount to contempt of court, others are indictable offences. It is an offence for a juror to research details of the case in the media while the matter is still before the court. Disclosing the information obtained from external forces to another juror is also an offence. Juror James committed the offence of intentionally disclosing the details of the deliberations of the case for which the case had issued a suppression order. During deliberations, jurors express opinions, make statements, advance arguments and cast votes on a matter before the court and it is an offence to intentionally disclose, obtain or solicit such information.
In conclusion, both Juror James and the senator committed an offence under Jurors Act 1967 (ACT). James intentionally disclosed that the judge had issued a suppression order to ensure Emily Bird’s right to fair trial is not prejudiced. He had come by this information during juror deliberation and disclosed the same to an unprivileged third party. The Senator, on the other hand, can be indicted for soliciting and obtaining information on duty deliberations. Because of the actions of these two, the suppression order was no longer effective and the judge had to declare a mistrial.
Part 2 - Essay Question
With reference to the fact scenario and other relevant cases, critically analyse the use of suppression orders in court proceedings and how such orders affect the principles of open justice. In your answer, discuss whether a public interest defence should be available as a defence to sub-judice contempt for individuals who breach suppression orders. (15 marks)
The Victorian Open Court Act of 2013 puts a limit on the circumstances under which a suppression order can be issued. A successfully application for a suppression order requires careful consideration of the grounds or basis, evidence, procedural steps as well as well as drafting in order to meet the threshold required by the Victorian Open Court Act (2013). There are three types of suppression orders. A procedural suppression order is issued to prohibit the publication information related to a proceeding. An applicant needs to convince or satisfy the court that at least one of the grounds set out in section 18. If the order is necessary to ensure that an individual’s right to fair trial is not prejudiced and other reasonable means are not available. Also, if the order is necessary to prevent prejudice in relation to national and international security interests. Another ground for the issue procedural suppression orders is the protection of the safety of an individual as well as to avoid undue distress brought about by a sexual offence or family violence offence. Finally, if the suppression order is necessary prevent the embarrassment or distress to minor witnesses in a criminal proceeding.
The second type of suppression order is the interim suppression order which is issued to an applicant once he or she has made an application for a procedural suppression order. A broad suppression order is usually wider in scope than the procedural suppression order. Before the court issues a procedural suppression order, it takes the necessary steps to ensure that a notice is issued to all other parties as well as the media. The applicant is then required to establish sufficient grounds for the order based on information that is both sufficient and credible. There are procedures to drafting a suppression order. Once the evidential and procedural requirements are satisfied by the applicant, the order should be drafted for a specific duration time, and should include the information being suppressed and the reasons or purpose for doing so.
The Victorian courts have attracted media scrutiny in the past for issuing too many suppression culminating accusation of undermining open justice. The concept of open justice is especially important in the digital era we live now where information can be accessed and shared in real time. Open justice is a cornerstone upon which modern liberal democracy is built upon because it is characterised by transparency and accountability. Suppression order directly affect open justice because they sensor the media. The Open Courts 2013 was meant to curb the ‘excessive’ use of suppression orders in the Victorian courts. Despite the fact there are legitimate reasons for their use, suppression orders should be grounded on a sufficient legal foundation. A suppression order should not amount to a blanket ban by going beyond what is required in the prevailing circumstances. Senator Sam Soapbox not only obtained the details of secret deliberations by jurors, but also published the same in the media despite the presence of a suppression order.
The Open Court Act 2013 sought to strike a difficult balance between fair administration of justice, the public’s right to know and an individual’s right to privacy. The judge had issued a suppression order on the case of Emily Bird to prevent the exposure of sensitive information that could derail a trial. The knowledge that the accused might have any knowledge of the existence of an ingredient that cures cancer might bring about the media scrutiny that can prejudice a trial. It is with this insight that the court issued a necessary suppression to the jury, the media and all parties in the trial. Juror James however, disclosed the reason for the issue of the order to the Senator. Fully aware that a suppression order was in effect concerning the case, Senator Soapbox ensured the publication of the details of the case in a letter to the editor of an influential Sidney newspaper. Because of the disclosure of the information surrounding the suppression order, the Senator effectively derailed the trial. Because of the senator’s blatant disobedience and disregard for the law, the judge was forced to declare a mistrial.
A public interest defence should be available as a defence to sub-judice contempt for individuals who breach suppression orders. This is a type of defence where Senator Soapbox would argue the public interest in the non-disclosure of the information in question was outweighed by the public interest in the disclosure of the same. Senator Soapbox can argue that he had the interest of the public at heart when he published the information he had obtained from Juror James. After all, finding the cure for cancer is definitely in the interest of the public. The truth of the disclosed information does not amount to a defence in a privacy like it does in a defamation case. The information disclosed by Senator Soapbox was confidential in nature. The court required a suppression order on the information surrounding the trial of Emily Bird to ensure that the trial would not be affected by the media scrutiny that would result from disclosing that one of the ingredients of her steroids had cancer healing property. Senator Soapbox was elected by his constituents to represents their interests, so he has the right to inform the public of the knowledge he had come across.
Public interest disclosure is also known as whistle blowing and occurs when one discloses information on illegal or immoral or illegitimate practices by authorities. The court wanted to treat the knowledge on cancer curing properties of some of the ingredients Emily Bird used in the steroids for her emus in secrecy. This may be necessary for the carriage of justice but it can also be argued that such information belongs in the public domain. The suppression order issued by the court required related parties not to talk the case in the media while it was still before the court. Nevertheless, the senator, in his defence can argue that the public interest from not disclosing the information was far more than that from disclosure.
Bibliography
A. Articles/ Books
Meyerson, Denise. Why Should Justice Be Seen to Be Done? Criminal Justice Ethics. Apr2015, Vol. 34 Issue 1, p64-86.
James, David V. Court diversion in perspective. Australian & New Zealand Journal of Psychiatry. Jun/Jul2006, Vol. 40 Issue 6/7, p529-538.
Nolan, James L. Freedom, social control, and the problem-solving court movement
Series: Sociology of Crime, Law and Deviance, v. 15, 2010
Cook, Catriona et al, Laying down the Law (LexisNexis Orders/service, 9th ed, 2014)
B. Case Law
Judge Woolf in R v Legal Aid
C Legislation
Australian Constitution
Open Court Act 2013
Listening Devices Act 1992 (ACT)
Defamation Act (2005)
Jurors Act 1967 (ACT).
Evidence Act 1995 (Cth)
D Other Sources
Australian Law Reform Commission, Australian Government, Uniform Evidence Law (30 July 2012)
Australian Law Reform Commission, Evidence (Interim), Report No 26 (1985)
"The Guardian view on secret courts: they undermine the rule of law: When it comes to open justice, security should not trump transparency so easily". Then Guardian. Retrieved Sep 17, 2014.
