Criminal Law

By Carley Hitchins


Open Justice is a fundamental concept in our legal system – but should it cut both ways?

The current law in Tasmania and the Northern Territory prohibits the publication of information likely to identify the complainant in sexual offences cases, even with their consent.

The law was originally intended encourage victims to report offences committed against them and to protect them from the harm identification may cause, by respecting their privacy. However, in the wake of the #metoo movement, victims of these crimes argue they are having their right to be heard, silenced. While this well-intentioned law is obviously outdated, any reform needs to strike the appropriate balance between protecting victims of sexual assault and the paramount public interest in open justice.

Whilst open justice and transparency is a fundamental feature of the Australian system of justice, where does the appropriate balance strike against the personal protections of wrongfully convicted persons, whose names are dragged through the mud in proceedings of this nature? As we all know, mud sticks.

Ensuring transparency within the justice system by having open Court proceedings comes at a high price– the embarrassment, humiliation, social stigma and employment consequences suffered by those who become involved in litigation unwillingly or by choice.

Even in circumstances where a person’s innocence becomes manifestly clear – the damage may have already been done, especially where the allegations are particularly abhorrent.

In every jurisdiction in Australia, juvenile defendant’s identities are protected from being published, save for Northern Territory, although there are exceptions there too. There are, however, little protections in the ACT for adult defendants, aside from defamation and court ordered suppression orders.

In Queensland, those charged with prescribed sexual offences are protected from having identifying details published until they are committed for trial or sentence. The fact that the identity of those wrongly convicted whose alleged conduct does not fall within the meaning of ‘prescribed sexual offence’ will inevitably cause detrimental and irreparable damage, even if the defendant is acquitted. The Northern Territory and South Australia offer similar limited protections.

It seems inherently unfair that those whose allegation of sexual assault are proven to be unfounded are protected from media exposure, yet a person charged with the offence, even if later acquitted, has to run the gauntlet of media attention and negative public opinion. Surely, what’s good for the goose is good for the gander.