As of 3 October 2023, a person charged with rape, sexual assault, attempt to commit rape and assault with intent to commit rape (a prescribed offence) can be publicly named by the media. This is except for, when identifying the accused, would identify the complainant. Typically, this will occur where the complainant and accused are closely related.
Under the previous legislation, section 7 of the Criminal Law (Sexual Offences) Act 1978 (“the Act”), prohibited the publication of the name, address, school or place of employment of an accused or any other particular which was likely to lead to the accused’s identification.
The current legislation applies to matters regardless of whether a person was charged prior to 3 October 2023.
Can the Identity of an accused be protected?
The accused or the complainant can make an application to the court for a non-publication Order (‘NPO’).
The applicant must give three business days’ notice to the court, prosecution and complainant of their intention. If the applicant is the accused, they must not personally give notice to the complainant. The notice must, be given by the prosecution.
‘Accredited media’ have a right to appear on any NPO application and the Court must take reasonable steps to notify the ‘accredited media’.
The Court must consider the following, when hearing an application:-
- The public interest;
- The significance of the principle of open justice;
- The potential to prejudice any future court proceedings;
- The wishes and / or submissions of the complainant;
- The history and context of any relationship between the complainant and the accused (including any domestic violence history);
- Special vulnerabilities of the complainant or the accused;
- Cultural considerations of the complainant or the accused;
- The potential effect of publication in a rural or remote community;
- Any other matter the court deems relevant.
It appears that the principle of open justice will remain the Court’s paramount consideration when deciding on a NPO application, with the Explanatory Speech noting that reputational damage is to be expressly excluded as a ground upon which a non-publication order can be granted. The Court may make an order for non-publication if they are satisfied on 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;
- The order is necessary to protect the safety of any person.
What happens if an accused is found not guilty or the charge is dropped?
The changes to the law do not provide for any remedy to accused persons who are ultimately found not guilty or have the charges brought against them discontinued.
Final Take Away
If you have been charged with a sexual offence, your identity is no longer protected and you should promptly seek legal advice from one of our experienced criminal solicitors.
