The challenges which arise when the law tries to keep up with rapid technological developments are explored in Topic VII – Technology and the Law in Legal Studies for Queensland Vol 2. One recurring issue arising from the global nature of the internet is which courts have jurisdiction over material on the internet, that is, which courts have the right and authority to hear a case and have the law of their nation apply to it.
Several significant cases on this issue were canvassed in Legal Studies for Queensland Vol 2, including the case of Yahoo! Inc v LICRA and the Australian case of Gutnick.
A new case from England on this topic is R v Sheppard & Whittle [2010] EWCA Crim 65 Crim.
Two Englishmen wrote a pamphlet called Tales of the Holohoax which contained derogatory remarks about Jewish people and black people and set up a website which contained it and other racially inflammatory material in that was it threatening, abusive or insulting towards various racial groups. The server for the website was in California, USA. The material was available to any internet user in the world.
The two men were convicted by a jury (majority verdict 10:1) on multiple counts of possessing, publishing and distributing racially inflammatory material per the Public Order Act 1986 and sentenced to imprisonment. They appealed on the ground that the courts in England did not have jurisdiction to try the case as the material on that internet site was California, USA – the place where the web server upon which it is hosted is located. None of the material on that internet website was illegal in the United States of America. It did not constitute a criminal offence in the United States of America because it was not only not a criminal act but was specifically protected by the ‘freedom of speech’ protections guaranteed to all Americas through the First Amendment to the American Constitution
The court upheld the conviction and dismissed their appeal. The court explored what was required for a nation’s courts to have jurisdiction over internet publications. The court held that the test for jurisdiction was not based on the place of publication [“country of origin” test], nor the jurisdictions where it can be downloaded [“destination’ test] but the “substantial measure” test needed to be applied. On the facts of the case the court found that a substantial measure of the activities constituting the crime took place in England as the material was written, edited and uploaded from England, and parts of it were targeted specifically at a readership in the UK.
See: R v Sheppard & Whittle [2010] EWCA Crim 65
Kaihana Tahseen Hussain, 20, stood trial for the murder of her mother, Shaheda Yasmeen Hussain, and the attempted murder of her father, Dr Muhammad Nurual Hussain, in the family’s Gold Coast apartment on October 9, 2006. She was 17 at the time.
The case for the prosecution was centered on the father’s evidence that she attacked and stabbed them both. She blindfolded her father, telling him she had a surprise for him, before she stabbed him in the upper abdomen with a knife. She had minutes before stabbed her mother in the stomach who died from blood loss at the scene.
Crown prosecutor Michael Byrne SC told the jury the accused was angry because her parents “restricted her lifestyle” by wanting her to complete school and go on to university, rather than move to Sydney to be close to her 20-year-old lover, Ben Brady. The two talked regularly via MSN Messenger and on-line. On-line chats were read out in court in which Kaihana told Ben Brady that her mum was a ‘religious freak’, that she felt she was ‘born into the wrong family’ and hated ‘the life they are inflicting on me’.
Earlier, whilst the family was living in Adelaide, Kaihana had run away to be with him for some months. Ben Brady gave evidence that she had injuries consistent with her claim that her mother had punched her and tried to strangle her after she caught her talking to him on the phone. Because of these injuries she had taken out an AVO order against her father and mother. After intervention of a family counsellor, the police and family, she returned home. Shortly after that she had a trip with her mother to Bangladesh and the Hussains moved to the Gold Coast to “start afresh”.
She wanted to convert from her family’s Islamic faith to Christianity. This distressed both her parents. Her father said in court that “I told her [if you convert] you will not find me as your father. I was very angry.”
The case for the accused was that there was a violent argument between the three of them in the apartment. The father had had threatened to kill the daughter [in the honour killing tradition] and take his own life if she converted to Christianity. He had a knife and there was evidence from neighbours hearing Kaihana screaming: “Help, help me, They want to kill me”. This was linked in evidence to the practice of ‘honour killings’ which still occur in some parts of Bangladesh and elsewhere. In the melee he stabbed his wife. As Kaihana ran out of the apartment to seek help and safety for herself, he wounded himself in the chest so that his daughter, not him, would be blamed for the injuries/death of the wife. The first words he said to the police when they arrived on the scene is that his daughter did this.
The father was taken to hospital to be treated for his wounds. A nurse at the hospital gave evidence that he said to her that as a Muslim he needed to pray because of what he had done to his wife,
Before he would answer questions, the father wanted assurance from police that anything he told them would not be used against him. Only when he was provided with a document declaring he was not a suspect in the murder of his wife and no charges would be laid against him would be assist the police with their enquires.
DNA evidence showed the knife – the murder weapon – had only the father’s DNA on it.
The Verdict: It took the jury just one hour to reach a verdict of not guilty of any offence. As she left the court precinct some jurors even embraced her.
Issues: As the media has pointed out, there were only two people who were in the apartment when Mrs Hussain was killed. One of them was the murderer. Both have different explanations of the events. One has gone to trial and been acquitted. The other has been told by police that he was given written assurance by the police that he not a suspect and would not be investigated. Hence he could not or tried for any offence. The question is whether this amounts to a legal immunity from prosecution? A spokesperson for Director of Public Prosecutions has said it is not.
This raises the possibility that the father may be now be investigated and possibly charged for the murder. However, he has made statements and given testimony in court on the understanding this would not occur. His right to silence therefore has been compromised and the evidence he gave used against him. Does this matter? Or is getting to the truth of what happened in the apartment that day that lead to the death of Shaheda Hussain more important.
Right to silence was a “hot topic” in Legal Studies for Queensland Vol 1 Chapter 9 pp199-202.
It is also worth considering whether the police should give any such assurances to individuals when investigating a murder?
In addition, the media has reported that some evidence was not presented to the jury, including the fact Kaihana visited a website “how to kill your parents?”. This was on the ground that it would be too prejudicial.
Double jeopardy prevents Kaihana being tried again for the events that occurred on that day unless there is new and compelling evidence. For details on the amendments to the Criminal Code on double jeopardy – see •Chapter 68 Exceptions to double jeopardy rules
•s 678B –Court may order retrial for murder—fresh and compelling evidence or
•678C –Court may order retrial for 25 year offence—tainted acquittal.
In Legal Studies for Queensland Vol Two Chapter 33: Law of Cyberspace, the issues pertaining to the use of social networking sites were canvassed. In Chapter 32 Cybercrime there was also an overview of criminal offences that occur on the internet. There is a new one to add to the list – criminal defamation via Facebook. This is something all 6 million + Australian Facebook users need to keep in mind. The Adelaide man who was convicted of criminal defamation had put photos of the police-officer on the Facebook site along with offensive, incorrect and clearly defamatory comments.
The following is a blog post from IP Whiteboard – the blog of Mallesons Stephens Jaques submitted by Julia Atcherley on 30 November 2009 .
“Be careful what you write on Facebook! Adelaide teenager Christopher Cross has recently been convicted for criminal defamation after posting material about a local policeman on a Facebook site. Cross said that he “didn’t realise you could get in trouble for things on the internet ”. Pleading guilty in the Kadina Magistrates Court to criminal defamation, Cross became only the second person in South Australia ever convicted of the rarely used charge. He now has a criminal record and was sentenced to a 2 year good behaviour bond.
The message for Cross and any other users of social media is that although anyone can publish material on social media, the laws that apply to traditional media will still apply. Social media is published in real time and the posts are often permanent.“
For information on what amounts to defamation see Legal Studies for Queensland Vol One, Chapter 18.
The Lord Chief Justice of the United Kingdom believes that the “jury system is threatened by the internet generation, who are so used to getting their information in text they won’t be able to grapple with the oral traditions of the court.” He says that in 15 years’ time the way information is delivered to juries will have to be rethought and jury members will have to be given evidence via computer.
A woman who is is being tried for the murder of her partner googled the internet to search “pre-meditated + murder + penalties” shortly before he was found strangled in a lounge chair in their home west of Brisbane. This is relevant inofrmation to establishing whether she had the required intention to kill or do GBH – the mental element required under s302 QCC.
This was reported in the Brisbane News at http://www.brisbanetimes.com.au/national/grandmother-googled-murder-penalties-before-expartners-death-court-20091125-jqzy.html?sms_ss=email
For information on murder see: Legal Studies for Queensland Vol 1 7:3 pp131-134.
At the State Legal Educators Conference on Thursday 30 July, Peter Black gave a presentation titled The Challenge of User-generated and Peer-produced Networks, Content & Culture. You can watch a video of that presentation here:
In the US, a Colorado judge recently approved the use of Twitter, as well as live-blogging, inside the courtroom to cover an infant-abuse trial:
Prosecutors and defense attorneys wanted bloggers silenced in the courtroom next week, but a Boulder judge ordered Monday that cell phones and computers won’t be banned from the child-abuse trial of Alex Midyette, the Boulder Daily Camera reports. The attorneys argued that live-blogging and Tweeting the sensational case could tip witnesses to proceedings before they testified, thus impeding a fair trial. “I think there are other manageable options and less restrictive options than shutting down the flow of information during the trial,” Boulder District Judge Lael Montgomery said.
Last week, when the attorneys filed the joint motion to keep bloggers out of the courtroom, a Kansas journalist who has pioneered new media trial coverage cried foul. “Courts are supposed to be public and this is just another way of creating public access,” Wichita Eagle reporter Ron Sylvester wrote in an e-mail to the Colorado Independent. In addition to a Tweeting trial coverage, Sylvester maintains a blog, What the Judge Ate for Breakfast, with further insight into the local courts.
“[R]eporting through live blogging is simply text descriptions, just as newspapers have been reporting on the courts for ages,” Sylvester wrote. “When I use Twitter to cover trials, there’s really very little difference in what I do with social media than what I write for the next day’s newspaper.”
Montgomery agreed in her ruling Monday, ordering witnesses to refrain from reading about the testimony of other witnesses. “The court believes that is a more appropriate way to proceed than shutting off the reporting at the front end,” the Longmont Times-Call reported.
Before you get too excited about this ruling, I cannot see this ruling taking place in Australia. The principle of open justice in Australia is very different from the US, and my feeling is that the courts here would be more likely to grant TV or radio access than Twitter or live-blogging in Australian courts – and I can’t see TV cameras or microphones being regularly allowed into Australian courts any time soon.
Ben Kremer (who blogs at Lawfont) has created an iPhone and iPod Touch application that contains the text of the Australian Constitution. You can download the free application at the iTunes Store here.