Yesterday, the highly publicised ‘Skype scandal’ within the Australian Defence Force Academy yielded a guilty verdict against two cadets accused of broadcasting otherwise consensual sex on Skype without the knowledge of one of the participants. However, a rare split High Court decision on a constitutional point from earlier this year — Monis v Queen; Droudis v Queen [2013] HCA 4 — discussed by Professor Adrienne Stone on this blog in April, looms over part of the verdict.

The common charge against both cadets was a federal offence of ‘using a carriage service’ (i.e. the internet) in an ‘offensive’ way.  As Adrienne explains in her post, the High Court was evenly divided last February on whether a similar offence relating to using a ‘postal service’ was invalid under the implied constitutional freedom of political expression. The split decision effectively defers the constitutional question to be resolved by a future High Court. To succeed in challenging their verdict on this ground, the cadets do not have to make the unlikely argument that Skyping images of sex is constitutionally protected. Rather, it is enough to argue, as Monis and Droudis did about their confronting letters to dead soldiers’ relatives, that such offences are wholly unconstitutional because of the potential burdens they place on everyone’s ability to communicate over the internet about politics.

It is by no means inevitable that this case will reach the High Court. One of the cadets, who participated in the consensual sex, was also convicted of indecency, which doesn’t raise the freedom of expression point. The cadets may choose to appeal on non-constitutional grounds, or to not appeal at all. And the High Court might resolve the constitutional quandary in the meantime. However, at least in the short term, the ‘knife edge’ outcome on free speech in Monis (as Adrienne termed it) is one of many factors that may deny closure to the victim in this case, and the Australian defence force more generally, when it comes to the Skype scandal.