Information that could identify a victim of a sexual offence is considered restricted information under Victorian law. The rationale for this has been to protect privacy and anonymity of victim-survivors and ensure that publicity is not a barrier to sexual offences being reported. However, this had the consequence that it was an offence for victims who published their own identities without first obtaining a court order.
Amendments under the Act
Recent changes enacted under the Judicial Proceedings Reports Amendment Act 2021 ('JPRA') provide victim-survivors with more decision-making power in giving third parties (such as media organisations) tailored permission to publish their details. The legislation creates a defence where it can be proven, on the balance of probabilities, that the publication was done with permission of the victim to publish particulars and the publication was in accordance with any limits set by the victim.1
The reforms that passed on 15 December 2021 allow any person with sufficient interest to apply in writing by completing an application for permission to publish details which are otherwise prohibited by the Judicial Proceedings Reports Act 1958 ('JPRA') to the relevant court. The Court must consider the victim's views and must be satisfied it is in the public interest to give permission for publication.
The amendments also clarify that an offence applies to publication of any matter that is likely to lead to the identification of a person against whom a sexual offence is alleged,2 before court proceedings have begun, during proceedings and once proceedings have completed-regardless of the outcome of those proceedings.
Deceased victim-survivors
For deceased victim-survivors, the amendments allow any person to publish identifying details without committing an offence. This means that a victim-survivor who has not waived the protection of anonymity in their lifetime would have that right automatically evaporate upon their death.
The amendments acknowledge the need for the protection of the identity of deceased victims through the victim privacy order scheme which restricts and protects the identifying details in appropriate cases.
Victim Privacy Orders
Where someone wants to protect the identity of a deceased victim before criminal proceedings have commenced, they would need to apply for a privacy order. As of 15 October 2021, a person with sufficient interest can apply for a Victim Privacy Order in respect of a deceased sexual offence victim.
The court has to be satisfied of a high threshold - that the Victim Privacy Order is necessary to avoid 'undue distress' to the applicant; and the circumstances make it necessary to displace relevant public interests. The views (if any) of the victim-survivor expressed during their lifetime must be taken into account.
Interim privacy orders can be made in urgent situations where the victim has passed away and family and friends want ongoing privacy protection for the victim's identity.
A breach of a victim privacy order comes with a maximum penalty of four months imprisonment and/or fine of 20 penalty units for an individual and 50 penalty units for a body corporate.
What does this mean for an accused person?
Offender views are disregarded, meaning the Court must not consider views of an accused person in considering the making of a victim privacy order. As an accused, regardless of whether you are a family member or close to the deceased victim, you are expressly prohibited from applying or getting someone else to do so on your behalf.
The offence/alleged offence must have come to the attention of police for an application to be made following the death of a sexual offence victim. Previously, the Act in seeking to protect the victim's identity may not have published the offender's identity as it would lead to disclosure of the victim's identity. It means that offender's identities are now more readily disclosed in cases of intra-familial offending.
If you are charged with an offence, or are convicted of an offence, you are unable to object to publication. The changes attempt to strike a balance between the interests of open justice, free media reporting and right to freedom of expression with the fair trial rights of an accused.
It is too early to tell whether this balance has been appropriately struck, particularly in situations where matters are pending.
The availability of suppression orders for an accused under the Open Courts Act 2013 (Vic) when criminal proceedings are on foot is designed to address any prejudice to the right of fair trial of the accused through the law of sub-judice contempt.
Liability for contempt will start when an arrest or charge is made and will continue until the verdict is delivered or the proceeding otherwise ends. The Supreme Court and County Court also have powers to make take-down orders to limit harm caused by a breach of a restriction on publication to ensure a fair proceeding.3
Following the Victorian Law Reform Commission's Contempt of Court Report, recommendations have been made to change the current position that a person will be guilty of sub-judice contempt if they publish material that has a 'real and definite tendency' to prejudice legal proceedings.4
The VLRC recommends that a person ought to be liable if the publication is prejudicial to pending legal proceedings and there is substantial risk that jurors or witnesses will become aware of it and read it during the proceeding.5
While this reform has not yet been introduced and there is much
to consider before it is codified, it may go some way to address
the proliferation of harm caused by breaches of restrictions on
publication.
Footnotes
1 Judicial Proceedings Reports Act 1958 (Vic) s4(1BB).
2 Judicial Proceedings Reports Act 1958 (Vic) s4(1)(A).
3 Open Courts Act 2013 (Vic) s 25; DPP (Cth) v Brady [2015] VSC 246 [75], (2015) 252 A Crim R 50; News Digital Media Pty Ltd v Mokbel [2010] VSCA 51, (2010) 30 VR 248 [63]-[67].
4 John Fairfax & Sons Pty Ltd v McRae (1995) 93 CLR 351, 372.
5 Victorian Law Reform Commission, 'Contempt of Court' (Report, 2020) rec 77 xxix.
