Should There Be a Ban on Publishing the Identity of Non-Convicted Defendants?

A promising young rugby union player is facing a jury trial over allegations he exchanged sexually explicit images and engaged in sexual conduct with two underage girls.

The Office of the Director of Public Prosecutions alleges that the now 23-year old former rugby union player was aged 19 and 20 when he engaged in four counts of sexual intercourse, sexually touched and send intimate images to the girls, who were aged 14 to 15 during the relevant period of time.

The man has pleaded not guilty to all of the charges and vehemently denies the allegations. 

He is presumed to be innocent until and unless the prosecution is able to prove the offences beyond a reasonable doubt.

At trial

During the trial which is underway in Downing Centre District Court this week, pre-recorded interview of one of the complainants was played in which she alleges then 19 year-old man engaged in oral, anal and digital intercourse with her at his parents’ house in Allambie Heights on Sydney’s northern beaches when she was 14-years old.

During cross examination, the defendant’s criminal defence barrister put to the girl that the pair’s physical interaction was limited to hugs and that “nothing sexual happened in that room”. 

The girl replied “false” and maintained that sexual relations did indeed take place.

The barrister further put that her client had made clear he did not wish to take the relationship further as he “did not want to ruin his career”. The complainant said she did not recall such a conversation taking place.

It is further alleged that when aged 20 years, the defendant put his hand down the pants of a 15 year old girl while they were sitting in his car at Dee Why Beach.

The trial continues.

Mud sticks

The allegations against the young man all but destroyed his promising career as a rugby union player, tarnished his reputation amongst family, friends, former colleagues and society generally and – whether or not he is ultimately found to be not guilty – will follow him for many years to come, if not forever, with his name and image plastered all over the internet.

With the proliferation of the internet, it is no longer the case that ‘yesterday’s newspaper is today’s rubbish’. Quite the opposite. Internet reports are permanent and, sadly, news about a person being charged with a criminal offence and facing court tends to display far more prominently and remain in the minds of people far long than news of their acquittal.

And even when news of a not guilty verdict is spread far and wide, there will always be those who remain skeptical – believing the defendant may have evaded justice by having good legal representation, or finding a loophole in the law, or merely because the onus of proof in criminal cases – beyond a reasonable doubt – is too high.

But particularly in cases of a sexual nature it should be borne in mind that recent changes to sexual consent laws – including laws which require affirmative consent – as well as legal directions that must be given by judges to juries at the end of trials for sexual offences, make it far easier for defendants to be convicted. 

In fact, many believe they go way too far – running the risk of innocent people being convicted of these offences.

And of course, the publication of the names and photos of defendants without them pleading or being found guilty has the potential, for all practical intents and purposes, to subvert the presumption of innocence.

Should the details of defendants be published before they are convicted?

The crushing impact of publishing a defendant’s details before they plead guilty to, or are found guilty of, a criminal offence and thereby undermining the presumption of innocence has led to calls for this practise to be prohibited in New South Wales, at least in the context of particular damaging allegations such as those of sexual offences.

Indeed in South Australia, it is an offence for the identity of a person charged or about to be charged with a sexual offence to be published, unless the person consents to the publication.

The prohibition extends to names, addresses, images and any other information which would reasonably lead to identification, and contravening the rule comes with a maximum fine of $10,000 and criminal conviction for an individual, or a $120,000 for a corporation.

And taking it a number of steps further, several nations across the globe including Japan and a number of Scandinavian countries prohibit the publication of defendant details in any criminal case until and unless there is a conviction.

The potentially life-long devastation visited upon countless suspects who are never ultimately charged with any offence – such as the repairman who police attempted to ‘stitch up’ for William Tyrell’s murder – or are charged and subsequently acquitted, lends heavy credence to the argument that the practise of sensationalist and often unscrupulous media outlets, and any other publisher for that matter, being able to destroy the reputations and aspirations of those how are never found guilty of a suspected offence.

Indeed, implementing such a rule in our state would go some way towards slowing the curtailment of the fundamental principle that a person should be presumed innocent until and unless proven guilty.