Changes To Queensland Law Regarding The Publication (And Non-Publication) Of Names Of Defendants Charged With Sexual Offences
The Justice and Other Legislation Amendment Act 2023 is dramatically changing the law that applies to the publication of the names of people charged with certain types of sexual offences. The legislation will take effect from 3 October 2023.
Section 7 of the Criminal Law (Sexual Offences) Act 1978, deals with the naming of individuals accused of “prescribed sexual offences”.
The Queensland government is seeking to reshape the way the Court system deals with sexual allegations in a way that will affect both defendants and complainants. Under the changes, people accused of sexual offences will be publicly identified unless they are granted a non-publication order.
The amendments bring Queensland in line with all other states except the Northern Territory.
The Current Situation Regarding the Publication of Defendant’s Names
Historically it was seen to be crucial that individuals accused of prescribed sexual offences be given the protection of anonymity from the moment they were charged until their case was formally committed to stand trial. This is an important step in the criminal justice process as before a person is committed for trial, a Magistrate must determine whether a prima facie case exists.
Essentially the Magistrate has to determine whether the prosecution has produced sufficient evidence for the allegations to proceed to trial or sentence.
Previously, if there was found to be a case against the defendant at the committal hearing, they were committed for trial and their identity could then be revealed.
Loss of Automatic Protection for Defendants
Under the amended legislation, the identity of the accused can be revealed to the public even before a court is asked to decide whether there is sufficient evidence for the defendant to be committed for trial. This means news outlets are entitled to report on the matter and potentially expose the accused to public scrutiny, affecting their reputation and personal life.
Accused persons will need to be prepared for the possibility of their identity becoming known from the moment they are charged.
Implications for the Legal System
Police will need to be mindful when taking a report of an alleged prescribed sexual offence, that the allegation is not vexatious or malicious before a decision is made to charge a person, knowing the person’s identity will be made public.
The legal system in Queensland will need to navigate the delicate balance between protecting the rights of the accused and ensuring transparency and accountability.
This shift in approach could lead to complex legal arguments and challenges as both sides seek to protect their interests.
Under the proposed changes, an eligible person (a complainant, the defendant, or the prosecution) can apply to a Magistrates Court for a non-publication order prohibiting the publication, before the defendant is committed for trial or sentence or sentenced on the charge, of identifying matter relating to the defendant.
These applications for non-publication orders can be made with the help of a lawyer.
The applicant must give 3 business days’ notice of their intention to make the application to the court and each other eligible person. Upon receiving the notice, the court will hear the application. During the application, the court will also allow the following persons to appear and make submissions on the application:
- the applicant;
- an eligible person in relation to the charge to which the application relates;
- an accredited media entity;
- any other person whom the court considers has sufficient interest in the question of whether the order should be made.
In determining whether or not to grant the order, the court must take into account any or all of the below:
- the primacy of the principle of open justice;
- the public interest;
- any submissions made or views expressed by or on behalf of the complainant about the application;
- any special vulnerabilities of the complainant or the defendant;
- any cultural considerations relating to the complainant or the defendant;
- the potential effect of publication in a rural or remote community;
- the potential to prejudice any future court proceedings;
- the history and context of any relationship between the complainant and the defendant (including, for example, any domestic violence history);
- any other matter the court considers relevant.
After hearing submissions from all parties, the court may make a non-publication order if it is satisfied of one or more of the following grounds:
- the order is necessary to prevent prejudice to the proper administration of justice;
- the order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge; and
- the order is necessary to protect the safety of any person.
It is currently an offence to contravene a non-publication order. This provision remains in the new amendments.
The introduction of the Justice and Other Legislation Amendment Act 2023 and its changes to the Criminal Law (Sexual Offences) Act 1978 marks a significant shift in the way Queensland handles cases involving prescribed sexual offences.
Lawyers helping people to apply for non-publication orders will need to move swiftly to seek this protection.
You can view the Justice and Other Legislation Amendment Act 2023 here.
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