Browsing by Author "Buist-Catherwood, Emily"

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Forced Marriage: A Crime Against Humanity?
(Te Herenga Waka—Victoria University of Wellington, 2011) Buist-Catherwood, Emily
This author argues that forced marriage should be expressly recognised as a crime against humanity. The crime of forced marriage involves the forced imposition of marital status without a victim’s genuine consent, and is prevalent particularly in times of conflict. Victims suffer a severe deprivation of liberty, and often endure further traumatic experiences within the relationship such as sexual violence and forced labour. Consideration is given to whether forced marriage is distinct from other enumerated crimes against humanity in the Rome Statute, such as enslavement, sexual slavery, rape and forced pregnancy. The author asserts that there is a gap at international criminal law that must be addressed to sufficiently recognise the totality of the conduct involved in a forced marriage. Further arguments are advanced in favour of the recognition of forced marriage as a crime against humanity, with a distinction drawn between forced marriages and arranged marriages. Consideration is also given to whether forced marriage constitutes a crime at customary international law. Specific elements of the crime against humanity of forced marriage are proposed, with reference to the findings of the Special Court of Sierra Leone. The author considers where the crime would best fit at international criminal law, and argues for the express recognition of forced marriage as a crime against humanity in the Rome Statute of the International Criminal Court. Recognition of forced marriage as a crime against humanity will ensure the prosecution of the perpetrators of forced marriage, and will give proper judicial recognition to the suffering of the victims.
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Simunovich and the Defence of Truth
(Te Herenga Waka—Victoria University of Wellington, 2010) Buist-Catherwood, Emily
The Supreme Court judgment in APN New Zealand Ltd v Simunovich Fisheries Ltd and Ors (Simunovich) was a significant defamation law ruling that determined the necessary pleading and evidential requirements to prove a defence of truth. In the biggest defamation claim in New Zealand’s legal history, Simunovich Fisheries claimed it was defamed by media allegations of corruption in the fishing industry. This essay will analyse and assess Simunovich with a focus on its treatment of the defence of truth for a defamation claim. The defence of honest opinion was also discussed in the case, but is outside the scope of this study. Simunovich rules on the requirements for the establishment of a successful defence of truth, and clarifies issues relating to the form of pleadings necessary for the defence in light of the statutory and common law requirements. The Court needed to consider the implications of the common law repetition and conduct rules, and synthesise these principles with the requirements in the Defamation Act 1992 and the Evidence Act 2006. Significantly, Simunovich states that third party statements are inadmissible as evidence for a defence of truth, if such statements cannot be independently proven to be true. Potential particulars and admissible evidence are thus further limited by the case, even if the evidence comes from an objectively reliable source. This essay argues that the Simunovich ruling is too restrictive where a defamatory meaning of reasonable grounds to suspect guilt is pleaded, rather than an allegation of actual guilt. Objectively reliable third party statements, such as those made by the judiciary, may be highly relevant factors in proving the existence of true grounds for suspicion, and should not be excluded as evidence for the defence of truth. The future implications of the ruling in Simunovich for media publishers will also be discussed. Simunovich places a high burden on the media, requiring them to be able to prove the truth of a story that may be defamatory by verifying any third party sources they rely on. This constraint could be desirable as it gives added protection to a defamed plaintiff and will dissuade the media from publishing unreliable stories. However, it will now be harder for defendants to succeed with a defence of truth. It is debatable whether or not the Simunovich ruling is a justifiable restriction on the rights of publishers to freedom of expression. Given that the defence was already considered difficult to establish, Simunovich will lead the media to self-impose further restrictions on what they publish to avoid proceedings where they may fail to make out a defence of truth. The ruling in Simunovich on the establishment of a defence of truth is likely to have considerable repercussions on media reporting. These effects will be especially significant in New Zealand where there is only a limited defence of qualified privilege, unlike in the United Kingdom where a wider defence based on responsible journalism is available. This essay recommends that the rule in Simunovich on third party statements be amended by inserting a specific provision into the Defamation Act 1992 allowing for an evidential exception. Third party particulars should be admissible in support of a defence of truth to a defamation claim alleging reasonable grounds for suspicion, where the statements come from an objectively reliable source.