Western Australian Current Acts

DEFAMATION ACT 2005 - SCHEDULE 4

[s. 47]

1 .         Section 53 repealed

                Section 53 is repealed.

2 .         Chapter XXXV replaced

                Chapter XXXV is repealed and the following Chapter is inserted instead —

“

Chapter XXXV — Criminal defamation

345.         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 and is liable to imprisonment for 3 years.

        Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.

        (2)         In proceedings for an offence under this section the accused person 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 person 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 person.

        (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 person.

        (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;

            (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.

”.