Reporting on crime and court cases: suspects, accused people, complainants and contempt

Crime stories carry two sets of legal risk. Defamation law asks what a report conveyed about the person named and whether the publisher can defend it. Contempt law and a patchwork of identification statutes ask whether the publication was permitted at all, whatever its accuracy. Both bind social media users as fully as newsrooms.

Three levels of criminal imputation

Courts read an allegation of criminal conduct at one of three levels: guilt, reasonable grounds to suspect, or grounds to investigate. The level conveyed is decided by the ordinary reasonable reader’s impression of the whole publication, not by the publisher’s intention.

In Mirror Newspapers Ltd v Harrison the High Court held that a report that a person has been arrested and charged is not, by itself, capable of conveying guilt, because the ordinary reader knows a charge is an accusation to be tried; it can, however, convey that the police suspected the person on reasonable cause.¹ In Favell v Queensland Newspapers Pty Ltd the Court applied Lord Devlin’s warning in Lewis v Daily Telegraph Ltd that loose talk about suspicion can easily convey that the suspicion is well founded: a bare statement that someone is under investigation may not impute guilt, but an account laced with suspicious circumstances may.²

The level matters because justification requires proof that the imputation conveyed is substantially true.³ A guilt imputation requires proof, on the balance of probabilities, that the person committed the offence; a pending charge or police media release will not do. A reasonable suspicion imputation requires proof of primary facts that objectively gave reasonable grounds for suspicion; the suspicion of police or others is not enough.¹⁹ The grounds to investigate level is the easiest to prove but the hardest to hold, because colourful detail pushes the reader up a level. A publisher reporting only an investigation should say so plainly, attribute the allegation and record the response.

Reporting arrests and charges

Harrison gives publishers a baseline. An accurate report that a named adult was arrested, charged with a specified offence and is to appear in court conveys suspicion with reasonable cause, which the charge usually supports.¹ Risk enters through the trimmings: a headline that treats the charge as a finding, a caption without the word alleged, or the prosecution case without the defence response. Using the words of the charge, attributing allegations to police, recording the plea and reporting the outcome keep a report at a provable level.

A post that a neighbour “was arrested for dealing drugs” publishes the Harrison imputation and requires proof of the arrest and its grounds; a post that the neighbour “is a drug dealer” moves to the guilt level and requires proof of dealing.

The fair report defence and its limits

Section 29 of the Defamation Act 2005 protects a fair report of proceedings of public concern, including public proceedings of any court or arbitral tribunal, parliamentary proceedings and public inquiries. The defence fails only if the plaintiff proves the report was not published honestly for the information of the public or the advancement of education, and a later publisher of a fair copy, summary or extract of a protected report is also protected unless it knew or ought to have known the original was unfair.⁴ Committal proceedings are court proceedings for the purposes of s 29, because the Act’s definition of an Australian court includes a court conducting committals.⁵

In Rogers v Nationwide News Pty Ltd the High Court explained that open justice is served by protecting fair and accurate reports so that readers see a substantially correct record of what happened in court, accepting that an innocent person may for a time suffer under an unfounded charge rather than have justice administered in secret.⁶ The same rationale sets the limits. Matter is not a report merely because it repeats information obtained from proceedings; it must have the character of a report. In Rogers the sting came from what the journalist added to the judge’s reasons, and the defence failed.⁶

Three consequences follow. The defence covers what happened in court, not what was said on the courthouse steps, at a press conference or in a party’s social media post; those statements need their own defence. A report must be fair as a whole, so recounting the prosecution opening while omitting the cross examination that undermined it, or reporting an allegation and never its withdrawal, may be unfair although every sentence is accurate. And a report of a judgment must reflect the judgment actually given, not a paraphrase that drifts into a more serious finding.⁶

Sub judice contempt

In James v Robinson the High Court held that criminal proceedings are pending once a person has been arrested and charged, and that a publication cannot be punished as sub judice contempt unless a court is seised of the matter when it is published; police activity and an imminent charge are not enough.⁷ Before charge the restraints are defamation and the identification statutes; after charge, contempt becomes the dominant risk.

The test was restated in Hinch v Attorney-General (Vic): a publication is contempt if, as a matter of practical reality, it has a real and definite tendency to prejudice pending proceedings, weighing free discussion against the administration of justice. Mr Hinch was convicted over broadcasts about a priest awaiting trial on child sexual offences that disclosed the priest’s prior convictions and asserted the broadcaster’s own view of the case.⁸ The publications most likely to offend assert or assume guilt, disclose prior convictions or other inadmissible material, publish a confession or an identification where identity is in issue, or interview witnesses about their evidence while a jury trial is pending. A fair and accurate report of open court proceedings is not contempt unless a suppression order applies.

Contempt requires neither an intention to prejudice nor untruth; truth is a complete answer in defamation and no answer in contempt. The risk of contempt continues until the proceedings, including any retrial, are finally determined.

Identifying sexual offence complainants

Every Australian jurisdiction prohibits publishing material likely to identify a sexual offence complainant, but the provisions, consent exceptions and penalties differ.

Queensland’s position changed on 3 October 2023 under the Justice and Other Legislation Amendment Act 2023. Section 6 still prohibits a report of an examination of witnesses or a trial from revealing a complainant’s name, address, school, workplace or other identifying particular unless the court orders otherwise. Section 10 prohibits identifying a complainant outside a court report at any time, but it is now a defence to prove that, before publication, the complainant authorised it in writing and was at least 18 with capacity.⁹

The Victorian provision applies before, during and after any proceeding, and the permission exceptions are defences the publisher must prove, including compliance with any limits the victim set.¹¹ In New South Wales the prohibition continues after the proceedings end and lapses only on the complainant’s death.¹⁰

Identifying accused people

The general rule is that an adult can be named once charged, subject to any suppression order. Sexual offence cases are the exception.

Until 3 October 2023, Queensland prohibited identifying a person charged with rape, attempted rape, assault with intent to rape or sexual assault until committal for trial or sentence. The 2023 Act replaced that blanket rule with a discretionary scheme. Under s 7 the complainant, the defendant or the prosecution may apply to a Magistrates Court for a non publication order covering the period before committal or sentence. Under s 7B the order may be made only if necessary to prevent prejudice to the administration of justice, to prevent undue hardship or distress to a complainant or witness, or to protect a person’s safety.⁹ Absent an order, an adult accused of a prescribed sexual offence in Queensland can now be named from charge.⁹ Naming the accused must not, however, reveal the complainant’s identity.

South Australia retains a short automatic restriction: a person who has been or is about to be charged with a sexual offence must not be identified before the conclusion of the first court appearance on the charge, unless the accused consents.¹² New South Wales and Victoria have no automatic restriction for adult accused persons and rely on suppression orders.

Children in criminal proceedings

In Queensland s 301 of the Youth Justice Act 1992 makes it an offence to publish information that identifies a child, or is likely to lead to identification of a child, as a child dealt with under that Act, unless a court order permits publication or the chief executive gives written authority on safety grounds.¹³ In New South Wales s 15A of the Children (Criminal Proceedings) Act 1987 prohibits publishing a person’s name in a way that connects the person with criminal proceedings if the person was a child when the offence was committed, whether as accused, witness or sibling of a child victim. The prohibition continues after the proceedings end and after the person turns 18 or dies. The exceptions are narrow: a sentencing court may authorise naming a person convicted of a serious children’s indictable offence, and a person aged 16 or over may consent in the presence of a lawyer of their choosing.¹⁴

Suppression and non publication orders

Courts can also make case specific orders. In New South Wales the Court Suppression and Non-publication Orders Act 2010 lets a court prohibit publication of information identifying a party, witness or associated person, or of evidence, where necessary to prevent prejudice to the administration of justice, protect a person’s safety, avoid undue distress or embarrassment to a party or witness in sexual offence proceedings, or on two other grounds. Open justice is a primary objective, an order may apply anywhere in Australia, and reckless contravention is an offence punishable by imprisonment as well as a contempt.¹⁵ Victoria’s Open Courts Act 2013 has a similar scheme, with grounds in s 18 and an offence in s 23.¹⁶ Queensland has no general statute; orders restricting publication are made under specific provisions or the courts’ inherent or implied powers and enforced through contempt.²⁰ An order binds everyone who knows of it, including members of the public who repost.

After acquittal or withdrawal

An acquittal or withdrawal of charges does not create a defamation claim against those who reported the charge accurately. The report conveyed a suspicion that was reasonably founded, a basis the charge itself supported, and a fair report of what occurred in court remains protected whatever the outcome.^{1 4} What changes is the risk in further publication: a later piece that recounts the allegation without the acquittal may convey a fresh, unsupportable imputation.

Two other rules affect old reports. Under the single publication rule, the one year limitation period for an online article runs from first upload and is not restarted by continued availability or a substantially similar republication by the same publisher, unless the manner of the later publication is materially different, for example through renewed prominence.¹⁷ And Australia has no right to be forgotten: there is no general entitlement to have a truthful, lawful report removed or de indexed with the passage of time. South Australia alone requires a publisher who identified an accused before the result was known to publish a non conviction result with reasonable prominence.¹⁸ Elsewhere the practical remedies for an acquitted person are a request to update the archive, a correction where the original report was inaccurate, and a concerns notice where a once accurate report has since become misleading.

Social media users and bloggers

Nothing here turns on whether the publisher is a media organisation. Every rule above applies to a post, comment or video as it does to a broadcast, and several statutes define publication to include dissemination by the internet or any means.^{10 14} A user who comments on a pending trial, names a complainant or reposts a suppressed name faces the same prosecutions and claims as a newspaper.

Differences between jurisdictions

The defamation principles here are uniform. Sections 25 and 29 use New South Wales numbering, shared by Queensland, Victoria, Tasmania and South Australia. The ACT and Northern Territory have equivalents under different numbers. Western Australia has the same defences but not the 2021 reforms, including the single publication rule.¹⁷

Everything else differs. Complainant protections sit in different Acts with different consent ages and rules for children.^{9 10 11 12} Pre committal anonymity for accused persons in sexual cases has been replaced in Queensland by case by case orders, continues in South Australia only until the end of the first court appearance, and does not exist in New South Wales or Victoria.^{9 12} Children’s identities are protected under youth justice legislation with varying exceptions.^{13 14} Suppression order statutes exist in New South Wales and Victoria; Queensland relies on specific provisions and inherent powers.^{15 16} Online publication occurs in every jurisdiction where the material is accessed, so the strictest applicable rule is the safe one.

Getting advice

Both a person named in a crime report and a publisher planning or defending such a report need to know which level of imputation was conveyed, whether the fair report defence covers the whole publication, and whether any contempt or identification rule was engaged. Those questions are fact specific and the statutes change often, so advice on the particular publication and jurisdiction is worthwhile before publishing and before sending or answering a concerns notice.