SCHEDULE 4 - Consequential Amendments

Section 49

Criminal Code Act 1924

1.    Chapter XXIII of Part V is repealed and the following Chapter is substituted:

Chapter XXIII - Criminal defamation

196.     Criminal defamation

(1)  A person who, without lawful excuse, publishes matter defamatory of another living person (the " victim " ) –

(a) knowing the matter to be false or without having regard to whether the matter is true or false; and

(b) intending to cause serious harm to the victim or any other person or without having regard to whether such harm is caused –

is guilty of a crime.

Charge:  Defamation.

(2)  In proceedings for an offence under this section, the accused has a lawful excuse for the publication of defamatory matter about the victim if, and only if, subsection (3) applies.

(3)  This subsection applies if the accused would, having regard only to the circumstances happening before or at the time of the publication, have had a defence for the publication if the victim had brought civil proceedings for defamation against the accused.

(4)  The prosecutor bears the onus of negativing the existence of a lawful excuse if, and only if, evidence directed to establishing the excuse is first adduced by or on behalf of the accused.

(5)  On a trial before a jury for an offence under this section –

(a) the question of whether the matter complained of is capable of bearing a defamatory meaning is a question for determination by the judge; and

(b) the question of whether the matter complained of does bear a defamatory meaning is a question for the jury; and

(c) the jury may give a general verdict of guilty or not guilty on the issues as a whole.

(6)  A prosecution under this section must not be commenced without the consent of the Director of Public Prosecutions.

(7)  In this section –

publish and " defamatory " have the meanings that those terms have in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.

197.     Proceedings for an offence do not bar civil proceedings

The commencement of criminal proceedings for an offence under section 196(1) does not prevent –

(a) the commencement of civil proceedings for defamation against the accused; or

(b) the determination of the civil proceedings pending the determination of the criminal proceedings.

Justices Act 1959

1.    Section 37A(1) is amended by omitting " section 13 of the Defamation Act 1957 " and substituting "the Defamation Act 2005 " .