Publication of identity of defendants to certain sexual offences no longer prohibited.


The Criminal Law (Sexual Offences) Act 1978 (Qld) was amended effective 3 October 2023 such that it no longer prohibits the publication of the identity of defendants to certain sexual offences.


Overview of the changes


Prior to the amendments being made, there was a prohibition in Queensland on the identification of an adult defendant charged with certain sexual offences prior to the finalisation of committal proceedings. The sexual offences to which the provision applied were rape, attempt to commit rape, assault with intent to commit rape and sexual assault.


The new amendments to this legislation have removed this prohibition and put in place a process by which defendants can apply to the Magistrates Court for a non-publication order prohibiting the publication.


The application process


There is a prescribed process for this application, including giving three clear business days’ notice of the intention to make the application to both the court and any other eligible person. The court must also notify “each accredited media agency” so that they can appear and be heard on the application.


The procedure regarding making the application has been outlined in a Magistrates Court Practice Direction 4 of 2023.


The court may make a non-publication order where an adult defendant is charged with a prescribed sexual offence if satisfied of one or more of the following grounds:


(i)         the order is necessary to prevent prejudice to the proper administration of justice;

(ii)        the order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge;

(iii)       the order is necessary to protect the safety of any person.


In hearing the application, the court may receive and take into account evidence of any kind it considered credible or trustworthy, and must consider the following:-


(i)         the primacy of the principle of open justice;

(ii)        the public interest;

(iii)       any submissions made or views expressed by or on behalf of the complainant about the application;

(iv)       any special vulnerabilities of the complainant or the defendant;

(v)        any cultural considerations relating to the complainant or the defendant;

(vi)       the potential effect of publication in a rural or remote community;

(vii)      the potential to prejudice any future court proceedings;

(viii)     the history and context of any relationship between the complainant and the defendant (including, for example, any domestic violence history);

(ix)       any other matter the court considers relevant.


Potential consequences


Parliament has made clear that the possibility of reputational damage to a defendant is not in itself sufficient grounds for a non-publication order.


Furthermore, making the application may itself incentivise the media to publish a report revealing the defendant’s identity in relation to the charges. This is because they would have been advised of the application by the court and had the opportunity to be heard on the application in court. This is exacerbated if the court rules that they are not prohibited from publication of the defendant’s identity.


In those circumstances, adult defendants should be extremely cautious in deciding whether to make an application for non-publication and ensure to receive legal advice on the issue. This is especially the case where there has been little to no media attention on a defendant’s charges.


Protection by proxy?


There are other prohibitions in place that may, by proxy, protect a defendant’s identity. For example:


  • Child complainants cannot be identified under the Child Protection Act 1999 (Qld). If identification of the defendant could identify the child complainant, then the identification of the defendant is also prohibited.


  • Complainants to sexual offences cannot be identified unless a court orders otherwise. If identification of the defendant could identify the complainant and there is no court order permitting publication of the complainant’s identity, then the identification of the defendant is also prohibited.


How ROG can help you


Our team has significant experience in criminal matters of this nature. Contact us on our website or call (07) 3034 0000 for a free case appraisal.