New South Wales Consolidated Acts

CRIMES ACT 1900 - SECT 529

529 Criminal defamation

(1) Common law misdemeanour of criminal libel abolished The common law misdemeanour of criminal libel remains abolished.

(2) Blasphemous, seditious or obscene libel not affected Subsection (1) does not affect the law relating to blasphemous, seditious or obscene libel.

(3) Offence of criminal defamation A person who, without lawful excuse, publishes matter defamatory of another living person (the
"victim" )--

(a) knowing the matter to be false, and

(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused,

is guilty of an offence.

: Maximum penalty--3 years imprisonment.

(4) Lawful excuse A defendant in proceedings for an offence under this section has a lawful excuse for the publication of defamatory matter about the victim if, and only if, the defendant 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 defendant.

(5) Prosecution to negative lawful excuse The prosecution 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 defendant.

(6) Functions of jury 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 judicial officer presiding, 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.

(7) DPP to consent to proceedings Proceedings in a court for an offence under this section cannot be instituted without the written consent of the Director of Public Prosecutions.

(8) Evidence of consent of DPP In those proceedings, a consent purporting to have been signed by the Director of Public Prosecutions is, without proof of the signature, evidence of that consent.

(9) Proceedings for an offence do not bar civil proceedings The commencement of criminal proceedings for an offence under this section does not prevent--

(a) the commencement of civil proceedings for defamation against the defendant in the criminal proceedings, or

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

(10) Proof of convictions for offences If the question whether or not a person committed an offence (other than offence under this section) arises in proceedings for an offence under this section, section 42 of the Defamation Act 2005 applies to the proof of the commission of that offence in the same way as it applies to such proof in civil proceedings for defamation.

(11) Interpretation In this section,
"publish" and
"defamatory" have the meanings that they have in the law of tort (as modified by the Defamation Act 2005 ) relating to defamation.