The Delicate Balance of Justice

New laws took effect in Queensland, which remove the prohibition on publication of the identity of people charged with sexual offences prior to their committal for trial or sentence.

On 3 October 2023, new laws took effect in Queensland, which remove the prohibition on publication of the identity of people charged with sexual offences prior to their committal for trial or sentence. The move has been praised by movements such as #MeToo and #LetHerSpeak for empowering ‘victim-survivors’ to share their stories if they so choose. However, it has left many lawyers with serious concern over the impact such laws may have on an accused person’s right to a fair trial, and the administration of justice generally.

Inaccurate, scandalous, or speculative journalism, and ill-informed social media commentary, has the potential to jeopardise the fairness of a pending criminal trial, especially a trial by jury, and contemporary social rhetoric around allegations of sexual assault potentially exacerbate such risks. Whilst the modern cultural shift towards ‘believing victim-survivors,’ virtually unquestioningly, has undoubtedly noble intent, it creates a potentially dangerous climate in which untested, unverified, and ultimately unproven allegations may be met with unwavering public sympathy and support.

The new laws, which follow recommendations made by the Women’s Safety and Justice Taskforce, provide that persons charged with prescribed sexual offences – including rape and sexual assault, will be treated the same as individuals charged with any other criminal offence, with details about their identity able to be published, except in circumstances where such publication would tend to lead to the identification of the complainant. To balance concerns expressed by Legal Aid Queensland (“LAQ”) and the Queensland Law Society (“QLS”) regarding the potential impact of such publication on an accused person’s right to a fair trial, the new laws provide that a complainant, accused person, or the Prosecution, can apply to a Court for a non-publication order. The Court may make such an order if it is satisfied the order is necessary to (a) prevent prejudice to the proper administration of justice, (b) prevent undue hardship or distress to a complainant or witness; or (c) to protect the safety of any person.

Despite the new laws commencing less than two months ago, Queensland Courts have already heard and determined a number of such applications for non-publication orders, with varying degrees of success.

The most high-profile such application to date was brought by Bruce Lehrmann, the former Liberal Party staffer who was the centre of a previous media frenzy following his infamous 2021 prosecution, relating to an allegation of rape made by Brittany Higgins. The earlier prosecution was ultimately discontinued by the Crown, and resulted in Lehrmann commencing defamation proceedings against Network 10, Lisa Wilkinson, and the ABC, based on their respective coverage of the allegations.

Lehrmann, who has since been charged with two unrelated counts of rape in respect of a different complainant, applied for a non-publication in the Magistrates Court at Toowoomba, on the primary basis that he had “a real existing risk of harm, which [would] be amplified by the publication of [his] identifying particulars” in the current matter.  In doing so, his lawyers relied heavily on a medico-legal report prepared by his treating psychologist that he suffered from a Depressed Mood triggered by the media reporting on his earlier prosecution, and argued his public identification in the current prosecution may result in “dire consequences.” The Prosecution and various media entities opposed the application, and pointed to Lehrmann’s participation in media interviews and his decision to commence defamation proceedings, “which he knew would be high-profile and ventilate the allegations in relation to Ms Higgins again,” as reasons why the publication of his identifying particulars would not pose a risk to his safety.

The presiding Magistrate concluded that the evidence relied upon by Lehrmann did not establish that an order was necessary to protect his safety, in circumstances where he had not been prescribed any medication for his mental health, and had “actively placed himself in public view,” by engaging with media organisations in his defamation proceedings.

Lehrmann promptly applied for a judicial review of the Magistrate’s decision. However, on 26 October 2023, Supreme Court Justice Peter Applegarth found that the Magistrate had not erred in her interpretation of the relevant provisions, and that, whilst the potential naming of Lehrmann prior to the conclusion of committal proceedings into the charges resulted in an “unfortunate effect on his mental health,…[it] did not compel a finding of necessity,” as required under the act. 

Conversely, a non-publication order was granted in the Magistrates Court at Richlands on 30 October 2023, upon an application made by a female contestant in a reality television program that aired on Channel 7 in September and early October 2023. The applicant had been charged with 37 offences including indecent treatment of children, rape, sexual assault, assault occasioning bodily harm and torture, allegedly committed against her now adult daughters and grandchildren between 2005 and 2023. In granting the order, the presiding Magistrate placed significant weight on the applicant’s need for safety and protection as well as her ‘special vulnerabilities,’ in circumstances where “unchallenged evidence” from her psychologist made “abundantly clear” that she was “at risk of making a life ending decision if confronted with any more adverse reporting in her case.” The presiding Magistrate further concluded that the risks to the applicant’s safety were exacerbated by the nature of the reporting and social commentary on the case to date, some of which he described as “appalling and dehumanising” and “made by people who know nothing about the evidence nor have any regard for the presumption of innocence.”

It is difficult to predict what weight any individual Court may place on the various competing considerations at play in such applications. However, it is vital that notions of open justice, victim empowerment, and crime prevention, be delicately balanced against an accused person’s right to a fair trial, personal safety and privacy, if we are to avoid unjust or undesirable consequences.

Alex Somers, Gold Coast and Brisbane Criminal Lawyer

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