The Greater Good

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“…none of the amendments included in the Bill is more contentious than the proposed removal of the prohibition against identifying accused persons charged with rape and other prescribed sexual offences prior to a committal hearing.”

Just weeks ago the Justice and Other Legislation Amendment Bill 2023 was introduced to Queensland Parliament by Attorney General and Minister for Justice and Minister for the Prevention of Domestic and Family Violence, the Honourable Yvette D’Ath.

The Bill aims to make sweeping changes to more than 30 pieces of legislation, including the Criminal Code 1899, Criminal Law (Sexual Offences) Act 1978, Legal Profession Act 2007 and the Oaths Act 1867 to name a few. But perhaps none of the amendments included in the Bill is more contentious than the proposed removal of the prohibition against identifying accused persons charged with rape and other prescribed sexual offences prior to a committal hearing.

If passed by Parliament, the intended changes, championed by the Women’s Safety and Justice Taskforce, would enable the press to freely publish full details of the identity of any person charged with a sexual offence before any court has the opportunity to adjudicate the allegations.

“The previous protections for accused rapists were based in part on the false assumptions that women maliciously make up complaints to damage reputations,” said Ms D’Ath when introducing the Bill. “These rape myths have absolutely no place in our society and our laws need to reflect this.”

Ironically, such developments come in the wake of The Australian newspaper’s front page exclusive, titled ‘Verdict first, trial later: rule of law under threat’, featuring Steven Whybrow SC, the barrister for Bruce Lehrmann.

Lehrmann, whose case was widely publicised, stood trial for allegedly raping Brittany Higgins, a Liberal Party staff member, in an office located in the ministerial wing of Parliament House in early 2019.

The trial was ultimately abandoned after a juror admitted to having accessed statistical data concerning false sexual complaints, and the charge was later dropped, when the ACT Director of Public Prosecutions publicly announced it was no longer in the public interest to proceed.

Commenting on the case, Whybrow SC remarked, “This has demonstrated, in my view, an insidious and underappreciated issue, which is this conflict, and this tension, and this slow bracket creep, between the presumption of innocence on the one hand, and ‘believe all women’ – or in a sexual assault case, ‘people don’t make anything up’ – that is undermining a presumption of innocence.”

Those comments echo the evidence he gave at the Independent Inquiry into the affair, being chaired by the Honourable Walter Sofronoff, in which Whybrow opined that Lehrmann was “convicted in the media before the trial started”.  Indeed, during the course of the Inquiry, Mr Sofronoff himself expressed concerns about the press coverage of the case – especially, at one point, by the Australian –  expressing misgivings that some of the witnesses giving evidence to the inquiry may be affected by the newspaper’s front page.

Certainly, the Lehrmann case was a media event before the charge was even laid and, for better or for worse, the impact of the extraordinarily widespread publicity was substantial. But the crucial question that must be weighed up by the Queensland parliament is, was it more or less likely to achieve justice in that case, or any other?

The press would no doubt say it’s all for the greater good, of course. The publication of salacious, even if unproven, allegations will always sell newspapers, and ramp up TV ratings. And, understandably, our politicians will always tend to feel at least a little bit beholden to the media, who at the end of the day can make or break political careers at will. But on the other side of the ledger, many lawyers would contend that no criminal complaint – sexual or otherwise – should be allowed to be published before a court has assessed that there is at least a prima facie case of guilt.

It’s a vexed question, and certainly there are potential risks and benefits both ways. But, at the end of the day, surely justice is the outcome we are ultimately all striving to achieve. Let’s hope our politicians keep that firmly in mind.

Jonathan Nyst

Director
Criminal, Traffic & Corporate Regulatory Law, Dispute Resolution & Litigation, Wills & Estates

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