Bills: Evidence (Reporting on Sexual Offences) Amendment Bill

Tuesday October 29, 2019

Mr BELL (Mount Gambier) (12:18): I rise to make a brief contribution to the Evidence (Reporting on Sexual Offences) Amendment Bill 2019 and indicate to the house that I will be opposing this bill. Right from the start, I want to make sure that it is very clear on the record that I have no interest whatsoever in protecting the identity of anybody found guilty of a sexual offence. In fact, I will go further and say that I think the penalties should be strengthened for anybody found guilty of a sexual offence against children or minors. However, that is a distinction that needs to be made that, once you are found guilty, there is a lifting of the current suppression orders and your name will be disclosed in the public realm.

There is a feeling that pervades this argument that without these amendments justice will not be done. The member for Badcoe gave the example of a small town not being able to know the identity of somebody who has been convicted of an offence and incarcerated for a period of time, and that certainly needs to be looked at; in fact, I would support any amendments in that space. Once somebody has been convicted, we should be looking at the reporting of those offences so that people are aware of what has occurred.

Comments were made—and I do not think they were made flippantly—that we do not want to see anybody falsely accused but that there is a price we agree to pay. I am here to say that I do not agree to pay that price because under the current system your right to know is there: it is once somebody has been found guilty of an offence. My concern with this bill is for anybody who is innocently charged with one of these crimes.

In my time as an MP I have seen four cases where people charged with a sexual offence have come to me, and in each of those four cases it did not proceed to trial or the person was found not guilty at trial. Let me tell you that in a small community like Mount Gambier, where there is a loathing—a feeling of complete disgust—of anybody who is charged with a sexual offence, all four of those people would have had their name and faces plastered all across not only local but national newspapers, later to be found not guilty or the charges were withdrawn. Not only would their lives be destroyed, and they are already significantly impacted at the moment, but my greatest fear is that on at least two occasions they would have taken their own life before it even went to trial or the charges were dismissed.

What I fear with this bill is that we are going to have trial by media. Already, we have heard lots about the media's right to report. The member for Badcoe commented that if a charge is dismissed or withdrawn then the media has an obligation to report, with the same prominence, the original accusation. Well, let me tell you, I have seen these cases before the newspapers and if you got a by-line on page 18 you would be lucky, yet you go back to the original accusation and the original story and not only is it plastered over the front page but it is page 3 and then page 5 for a period of weeks at the start.

I take the point that they should be exonerated and be on the front page and page 3 for the proceeding three weeks once they are found not guilty, but the reality is that that does not occur. The damage is already done and these people who are found innocent or the charges are withdrawn not only have their lives destroyed, and their families' lives destroyed, but they face serious obstacles going forward. They are the ones I am talking about. I think we should throw the book at anybody who is found guilty of an offence, and the media have every avenue at the moment to be able to do this. In this debate, people are very careful in identifying alleged offenders.

The problem that we have in this very difficult space of sexual offences is that it is not like murder or trafficking drugs. That accusation has been made here today—that we can present people's names and report on murder or on trafficking drugs. The big distinction I want to talk about to this house is that in cases of murder and trafficking drugs it is somewhat easier—I will not say 'easier' but 'somewhat easier'—to identify that a crime did actually occur.

In most cases of murder, not all but most, there is a body, so you can establish very quickly that a crime has occurred. It is the same with trafficking drugs: you capture somebody either in possession of drugs or in connection with the trafficking of drugs, which are seized, tested and determined to be a narcotic of a class, and you can then establish that, yes, a crime has occurred. I do not want to trivialise this because, as I have said, I have no interest in protecting anybody associated with sexual offences once they are found guilty.

However, if somebody is trafficking in white paper bags containing talcum powder, whilst these may appear to be drugs, once that substance is tested and it is found that it is not a commercial drug, a crime has not occurred. That is a very important distinction. Two of the cases people have come to see me about were historical sexual charges: in one case the alleged offending was 35 years ago and in the other case it was 20 years ago. One person was found not guilty and the other person's charge was withdrawn.

In this, there is a difficulty in establishing that the crime actually did occur. I am not here saying that it did or it did not—I have absolutely no idea. What I am saying is that on four occasions people have been charged with a sex-related offence and that charge has been dismissed or they have been found not guilty. Thank God that there was a level of protection in a smaller community because their names did not appear in court transcripts or in the paper or on the front page.

That is really important and why I am opposing this—because I just cannot get my head around 'your right to know'. I totally agree that you have a right to know: once somebody is charged and found guilty, you have every right to know. I support that 100 per cent. If legislation ever comes before this parliament to strengthen penalties for those who commit offences against children, trust me, I will be the first one standing up and saying, 'This is what we need to do.' That type of offence is disgusting and abhorrent to me.

My concern, of course, is for those who are charged but who are later deemed to be innocent. I will not pass or be part of any legislation that I believe will lead to the death of an innocent person. That is how seriously I take this. That is the consequence that I see of this legislation. It is not just me indicating this type of thought process. The Law Society of South Australia has provided a response to the Attorney-General. I read the response, and I really could not have written it any better myself—and I would be plagiarising if I tried—so I thought the most prudent thing to do was read out the response from the South Australian Law Society:

11. The Society does not support the Bill and outlines its key concerns with the proposed amendment of section 71A below…

12. The Bill will effectively remove all protections with respect to publication that apply for an accused before guilt is actually determined. A defendant's name could be published and offences reported on at any time (including before charge determination), as such, reports will be permitted before any adjudication takes place.

13. Furthermore, as a result of the Major Indictable Reform, there are lengthy adjournments for police to gather evidence and plenty of cases fall over after arrest but before committal. Police are essentially charging first and compiling evidence later, given that such lengthy adjournments are being provided to compile the preliminary brief. In the meantime, a person's life and reputation can be totally destroyed by the publication of the allegations.

14. Even where an accused is ultimately found not-guilty, there remains a serious risk that while that person may be innocent in the eyes of the law, they will forever be considered guilty (or there will be doubt as to their innocence) by the community. The proposed amendment will allow a person to be publicly named as a sex offender, before there is sufficient evidence to justify the charge.

That is certainly one of the cases that I know of as a local MP. The response continues:

15. The Society takes the view that the ability to publish such information before a case to answer is established by the Director of Public Prosecutions (DPP) places a defendant (and his/her family) at risk in the community. Suppression in this context does not just protect the accused, but their families as well, who may be the target of vigilantism and discrimination.

16. As such, the courts may continue to make orders for suppression in these circumstances and the Bill may not achieve its desired effect in practice, due to its detriment to an accused. Matters are rarely resolved in a swift or expeditious manner. It could potentially take years for guilt to be determined. There is serious likelihood, as noted above, that a person's life and reputation will be completely destroyed in this time. Hence, justifying the need for suppression.

17. The Society questions the justification for the Bill, noting that under section 71A(3) the court may, on application make a publication order that restriction on publication be varied or removed if it may assist in the investigation of an offence; or is otherwise in the public interest. Therefore, there is already sufficient public interest exemption built into the current legislation.

18. The Society further notes under the Bill, all alleged sex offenders will not be treated equally. For example, defendants who are related to the victims will still have anonymity, to protect the victims. As proposed, only the names of those who have been alleged to have committed sexual offences will be published where the victim can't be identified, or the victim's identity inferred.

The right to know

19. The principle of open justice is an important feature of the common law. However, the principle of open justice is not absolute, and limits have long been recognised by the common law, particularly where it is 'necessary to secure the proper administration of justice' or where otherwise it is in the public interest.

20. Such limits are also acknowledged in international law. The International Covenant on Civil and Political Rights provides in Article 14 (1)…

21. The default position is always that of an open justice system, but it is recognised in both Australia and in international law, that there are circumstances where suppression is necessary and appropriate. The 'right to know' is one of many rites that need to be considered to ensure the proper administration of justice.

This is what I think is the most important point:

22. The presumption of innocence underpins the criminal justice system in Australia. It applies to suspects, persons arrested and charged with criminal offences, as well as those who stand trial. However, in the court of public opinion, the presumption is becoming increasingly fragile, as many people assume that being charged or prosecuted indicates guilt.

23. The Society considers, that while any limitations on open justice should not be administered lightly, there are circumstances where the public's right to know must be balanced against the serious prejudice and detriment to an individual. As noted above, due to the nature of sexual offences there is an overwhelming negative stigma that attaches to sex offenders, particularly child sex offenders. This stigma remains even when someone is incorrectly suspected of having committed a sexual offence. Furthermore, reports in relation to a suspected offender (even when found not-guilty) are likely to be permanently available on the public record/media.

24. One must be very careful in placing too much weight behind contemporary community attitudes, to the extent that they support the 'right to know' view. Often, it is not until someone has been in the position of an innocent sex accused, or close to him/her, that they are aware of the devastating effects publication can have.

25. While the public may be interested in a matter, this is quite distinct from the matter being in the public interest.

26. The Bill presents the very real possibility of permanently destroying the person's life with the stigma of allegations, only to see charges withdrawn or them to be found not guilty. The Society considers such consequences are not in the public interest.


27. The reasons that moved Parliament to pass such laws in the past have not changed. The stigma and serious potential for detriment for a wrongly accused and his/her family still exists. The Society submits that the restrictions on reporting on sexual offences under section 71A of the Act should remain.

That is my position. We have to draw a distinction here. Once somebody is found guilty, then the right to publish in the media is there already. Justice is not denied by simply protecting the innocent and the presumption of innocence until a guilty verdict is determined or the person pleads guilty.

In terms of the length of time that somebody's identity is suppressed, to me that reflects more on the court process and the time to get an outcome than on the suppression order itself. If we could do anything in this place it would be to assist the courts to speed up the determinance, I suppose, from accused through to innocent or guilty.

It is with those words that I will be opposing this amendment. I think it is dangerous. I think it will lead to innocent people taking their own lives, and I will not be part of any bill that passes this house that has such a serious outcome for innocent people in my community.