MIDWAY through Craig Thomson’s address to the Parliament this week I was reminded of those half a dozen or so British police shows in which the arresting officer typically says: “I am arresting you for [insert charge]. You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.”
The wording balances the right to silence against the public’s right to get villains off the streets.
More importantly it puts paid to defences concocted late in the day. An accused for months might assert he was watching TV with his grandma at the time of the offence. But when confronted with DNA evidence putting him on the spot he might suddenly claim he slipped on a banana skin at the time and the gun went off accidentally.
Well, why didn’t you tell us this at the outset, the prosecutor might reasonably ask. And jurors might reasonably raise their eyebrows and think: “Indeed, why not?”
And so it was with Craig Thomson.
When The Sydney Morning Herald first ran the story in April 2009 with evidence that Thomson’s Health Services Union credit card was used for prostitutes, Thomson’s defence was that other people had access to the card; he doubted the veracity of the documents; all HSU payments had been approved and been subject to external audit.
He sued The Sydney Morning Herald for defamation. In 2009, defamation laws were stacked hopelessly against the media.
But once a case starts they at least give the media defendant a chance to get more documentary evidence.
When it was revealed that Thomson’s driver’s licence number was noted on the credit card voucher and his signature was on it, Thomson had to revert to the equivalent of some banana-peel defences.
First, in evidence to the Fair Work Australia he said that former HSU official Jeff Jackson had repaid the union an undisclosed sum after allegations of misusing a credit card.
Then in Parliament this week he said, ‘‘There was, though, a particular threat that was made that I thought was just part of the routine threats that were constantly made in working in this environment. That was a threat by Marco Bolano in words to the effect that he would seek to ruin any political career that I sought and would set me up with a bunch of hookers.’’
That is what reminded me of the British cops’ warning: “But it may harm your defence if you do not mention when questioned something you later rely on in court.”
My conclusion is: a severely harmed defence.
Seven years after the use of the credit card and three years after The Sydney Morning Herald article, this is the first we hear of this elaborate set-up involving forged signatures and someone getting hold of Thomson’s driver’s licence number. Moreover, those doing the set-up would have had to use Thomson’s mobile phone to telephone the brothels.
Thomson has discontinued his defamation action. But the case raises an interesting hypothetical in defamation law.
What if an MP like Thomson – let’s call him Smith — had been the victim of an elaborate set-up to destroy his political career? What if The Sydney Morning Herald was also a victim in the set up and that it has ended up publishing false and defamatory material of Smith?
Since 1992 the High Court has developed some free-speech principles arising from the Constitution. The court has held that representative democracy requires informed voters and that requires the free flow of information.
Outside this political realm, ordinary defamation law generally requires you to prove the truth of the defamatory imputations that arise from your publication. So if the allegations were against, say, a sporting official and the use of a sports organisation’s credit card, The Sydney Morning Herald would lose. It, too, would be a victim of the set-up.
But the High Court has said the political field is different. It has set out some tests. The publisher must have reasonable grounds for believing the truth of the material and have an honest belief in its truth. And the publisher must behave reasonably.
If the whole lot unravels as an elaborate scam, the publisher would nonetheless escape liability.
But the publisher must behave reasonably. That must almost always require the publisher to put the allegations to the person about to be defamed, the court said.
It is similar to the classic British coppers’ warning. If the publisher puts the material to the person about to be defamed it will harm the person’s defence if they do not speak up at the time.
However convincing your case, you have to give people the chance to hang themselves. Or give them the best chance to put an innocent explanation. But it must be at the time – not years down the track at the courtroom door or on the floor of Parliament. That is not very convincing.
DOT DOT DOT
Military spending: Gosh members of the US congress come cheap. Last week, Congress passed the National Defence Authorisation Act for the 2012 fiscal year. It allows for an astonishing $643 billion in spending.
It was a massive reward to the 10 top defence contractors — Honeywell, Lockheed Martin, Boeing, General Electric, Northrop Grumman, Raytheon, General Dynamics, United Technologies, BAE Systems, and SAIC – who put a trifling $42.8 million into donations to members of Congress from January 2001 till June 2011.
The figures come from MapLight, a nonprofit, nonpartisan research organisation that reveals money’s influence on politics.
Party discipline in the US is fairly weak so it is easy for big corporations to buy off a few key members of congress (especially members of key committees) to ensure that the public interest is put well below the interests of the wealthy few.
$42.8 million over 10 years is a cheap investment given the massive returns in the defence budget.
Unfortunately, Australia get dragged into this mire because we just go unquestioningly along with whatever crazy war or mad weapons systems the US gets itself into.
From the US perspective there is no need to donate to or bribe Australian politicians when you consider what they will do all on their own unbribed.
This article was first published in The Canberra Times on Saturday 26 May 2012