Tickle and Giggle ruling really is no laughing matter
Satire has now become a punishable act. At least that’s one interpretation you could draw from the Federal Court decision in the matter of Tickle and Giggle.
The background to this case is that Roxanne Tickle, a transgender woman, sued Giggle for Girls and its chief executive and founder, Sally Grover, for unlawful gender identity discrimination.
Tickle was prevented by Giggle from using a social media application, known as the Giggle app. The app was marketed for communication between women. Men were not allowed to join or use the app.
The issue was whether unlawful discrimination had occurred in preventing Tickle from using the app. The judge found Tickle had been discriminated against. Both Tickle and Grover are appealing the decision. But putting the merits of the case to one side, there is a more pressing issue at play here.
In his judgment, Justice Robert Bromwich ordered Grover to pay $10,000 in damages. Part of the damages were for her response to a question while under cross-examination. During the hearing Grover was confronted with a scented candle with a caricature of Tickle and a satirical comment next to it.
Grover has stated that when shown the candle she had a completely involuntary human reaction in the highly stressed court environment, with what she described as a three-second laugh.
Justice Bromwich took a different view in his judgment and described Grover’s laughing in court as offensive and belittling, saying it had no legitimate place in the case.
Cross-examination in court is a carefully thought-out process; questions are posed for tactical benefit in an adversarial court system. That the candle was presented was no mere whim. The response by Grover was one that could’ve been anticipated.
Grover has stated she did not make the candle, she was not involved in selling the candle and had nothing to do with the candle.
For those who have given evidence in court, Grover’s claim that it was a stressful environment is entirely accurate. In my time as an experienced detective I gave evidence on many occasions and, even as a professional witness, the event was always stressful. For a lay witness, it would be even more so; people react differently when giving evidence in courts.
It’s for this very reason Queensland amended its Evidence Act last year in relation to the evidence of sexual assault victims, noting that people behave differently when giving evidence. The amendments stated that the presence or absence of emotion or distress does not mean a person is not being truthful.
Grover’s explanation, that it was funny in the context of the courtroom, was dismissed as disingenuous.
Satire is a form of humour. It deploys irony and exaggeration to critique a person or issue. Caricatures are also comic.
How we respond to humour as individuals is not absolute. Humour is subjective, each of us will respond in a different way. As US Supreme Court Justice Robert H Jackson said: “Unanimity of thought is achieved only in the graveyard.”
It could be argued that the punishment of a witness in a court matter for their response under questioning may have a chilling effect on the course of justice.
It would be extremely problematic if witnesses were fearful of being punished for how they respond in their evidence while under examination. We don’t want a justice system where witnesses second-guess the appropriate response, rather than being forthright, honest and authentic in their responses. The Australian Law Reform Commission has noted that, according to the principles of common law, a witness must give evidence in their own words to preserve the integrity of the evidence.
A perusal of the Federal Court website shows a whole page dedicated to explaining what awaits a witness during the court process. In the section on cross-examination, it tells potential witnesses to answer questions truthfully and to the best of their ability. Nowhere does it preclude or warn witnesses against spontaneous laughter or suggest that such an act might be punishable.
Witnesses are a crucial element of the justice system. They provide first-hand evidence and it is their very humanity that makes them so important. It’s fundamental that our justice system protects and encourages witnesses, not discourages them with fear of retribution.
Some may remonstrate with Mr Bumble, who in Charles Dickens’s Oliver Twist complained that “the law is an ass”. Remonstrate if you must, just don’t laugh.
Terry Goldsworthy is a criminologist and associate professor at Bond University.
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