EVIDENCE ACT 1906 - SECT 36C
EVIDENCE ACT 1906 - SECT 36C
36C . Names of complainants not to be published
(1) Subject to
subsections (5) and (6) after a person is accused of a sexual offence no
matter likely to lead members of the public to identify the complainant and,
in the case of a complainant who is attending a school, no matter likely to
lead members of the public to identify the school which the complainant
attends, in relation to that accusation shall be published in a written
publication available to the public or be broadcast, except by leave of the
court which has or may have jurisdiction to try the person accused for that
offence.
(2) If any matter is
published or broadcast in contravention of subsection (1), the following
persons, namely —
(a) in
the case of a publication in a newspaper or periodical, any proprietor, any
editor and any publisher of the newspaper or periodical; and
(b) in
the case of any other publication, the person who publishes it; and
(c) in
the case of a broadcast, any body corporate which transmits or provides the
programme in which the broadcast is made and any person having functions in
relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an
offence and liable on summary conviction to a fine of, in the case of an
individual, $5 000 or, in the case of a body corporate, $25 000.
(3) For the purposes
of this section a person is accused of a sexual offence if —
(a) the
person is charged in a prosecution notice or an indictment with committing a
sexual offence; or
(b) the
person appears before a court charged with a sexual offence; or
(c) a
court before which the person is appearing commits him for trial on a new
charge alleging a sexual offence,
and references in this
section to an accusation alleging a sexual offence shall be construed
accordingly.
(4) In this section
—
broadcast means a broadcast by wireless telegraphy
of a sound or visual images intended for general reception, and cognate
expressions shall be construed accordingly;
complainant , in relation to a person accused of a
sexual offence or an accusation alleging a sexual offence, means the person
against whom the offence is alleged to have been committed; and
written publication includes a film, a sound track
and any other record in permanent form but does not include an indictment or
other document prepared for use in particular legal proceedings.
(5) Nothing in this
section prohibits the publication or broadcasting, in consequence of an
accusation alleging a sexual offence, of matter consisting only of a report of
legal proceedings other than —
(a)
proceedings at, or intended to lead to, or on an appeal arising out of, a
trial at which the accused is charged with that offence; or
(b)
proceedings under the High Risk Serious Offenders Act 2020 relating to the
accused.
(6A) The giving of
leave under this section does not affect the operation of subsection (1) at
any time before the leave is given.
(6) Nothing in this
section prohibits the publication or broadcasting of matter identifying a
complainant if —
(a)
prior to the publication or broadcasting that complainant authorised in
writing the publication or broadcasting of the matter; and
(b) at
the time the complainant authorised the publication or broadcasting, he or she
was at least 18 years old and was not a person who, because of mental
impairment (as defined in The Criminal Code ), is incapable of making
reasonable judgments in respect of the publication or broadcasting of such
matters,
proof of which lies on
the publisher or broadcaster.
[Section 36C inserted: No. 145 of 1976 s. 6;
amended: No 74 of 1985 s. 16; No. 14 of 1992 s. 13; No. 71 of 2000 s. 9; No.
59 of 2004 s. 89; No. 84 of 2004 s. 41 and 80; No. 17 of 2016 s. 48; No. 29 of
2020 s. 121.]