439Offence of criminal defamation

439 Offence of criminal defamation (1) A person must not publish 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. Maximum penalty: 300 penalty units, imprisonment for 3 years or (2) Subsection (1) does not apply to 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. Note Under the Criminal Code, s 58 (3) a defendant who wishes to rely on this exception has an evidential burden in relation to the matter. (3) On a trial before a jury for an offence against 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. (4) A proceeding for an offence against this section must not be begun without the written consent of the director of public prosecutions. (5) However, a person may be arrested for, charged with, or remanded in custody or on bail in relation to, an offence against this section before the consent has been given. (6) The commencement of criminal proceedings for an offence against 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. (7) In this section, publish and defamatory have the meanings that they have in the law of tort (as modified by the Civil Law (Wrongs) Act 2002) relating to defamation. harm—see the Civil Law (Wrongs) Act 2002, section 40.