Let’s tear off the gag

Tasmanian legislation to allow sexual assault complainants to be identified fails to do the job properly, writes Gina McWilliams

Ensuring the right to a fair trial is unquestionably a noble and important intention. As reported in the Mercury, that right was one of the key considerations during the development of Evidence Amendment Bill 2020 (“Gag laws not strong enough,” March 6).

Once passed, the Bill will allow Tasmanian complainants in sexual assault cases to consent to being identified but any resulting report cannot be lawfully published until after all of the criminal proceedings concerning the relevant offences have concluded.

If the Bill is intended to safeguard fair trials then it would seem a safe inference that the delay in identifying a complainant must have some role to perform in protecting that right.

Except that’s entirely wrong. Getting to this conclusion is a little dry but bear with me because it does involve a ghost train.

There is nothing about the identity of the alleged victim of crime that presents any inherent risk to a fair trial.

If that were the case then the restraint on identifying a complainant wouldn’t stop at sexual offence cases.

Laws would be required prohibiting the identification of complainants in other assault cases, robbery victims, people who have been defrauded or even the dead in murder or manslaughter cases. Plainly that is not the case. What is important to protect the administration of justice is what the complainant wants to say — either for themselves or in the media — before they give their evidence as a witness in court.

This part of sub judice law goes a long way back but one of the most notable cases didn’t technically involve a crime at all.

In June 1979, a fire broke out at the Ghost Train at Luna Park in Sydney killing seven people, six of them children 13 years of age or younger.

A Coroner’s inquiry was called and a number of witnesses were summoned to give evidence.

On the fourth day of the inquiry, a witness told the Coroner that when he and his friend rolled out of the Ghost Train flames were already all around him and they both shouted a warning to the ride’s attendant.

The witness testified that despite repeating his warning, the attendant took his foot off the car he was holding in place at the time sending two boys into the ride to their deaths.

At the time this evidence was given, the attendant had not been summoned to testify but he had given police a statement and it was reasonable to presume his evidence would be required.

A Daily Telegraph reporter managed to track down the attendant’s home address and paid him a visit. The attendant’s version of events given to the reporter — and published in the newspaper the next day — denied sending the two boys to their deaths.

In fact, said the attendant, he had to wrestle with one child and tear him away from the car to stop him joining his friends.

The attendant also told the reporter he had kept the cars moving through the burning building because that was proper procedure and if everyone had stayed in their cars, no one would have died.

That may seem innocuous to some.

The attendant was clearly upset that the evidence had suggested he may have been responsible for causing two young people to die and he merely gave the reporter an explanation as to why that wasn’t so.

The problem was because the attendant gave The Daily Telegraph his evidence before giving it to the Coroner, he was bound to that version of events.

Anything he may later have told the inquiry that differed from the newspaper report would have exposed the attendant to cross-examination.

Also, having read what the attendant had told the reporter, other witnesses who hadn’t given their evidence consciously or not might have changed their own testimony.

Some might have found the attendant’s comments to be so forceful that they decided earlier witnesses must be wrong or foolish, altering their evidence accordingly.

Other witnesses — now knowing the attendant’s version of events — might feel he had been belittled by the evidence the Coroner had already heard and fearing they might be thought of the same way, changed their tune.

Either way, the identity of attendant Albert Bessell, aka Steve Moody, had nothing to do with the legal problem: the fact that he gave The Daily Telegraph a rundown of the facts before he gave them in evidence is where the issue lies.

The law as it currently stands doesn’t stop a sexual assault complainant walking into the offices of the Mercury and telling a reporter their story before the trial is over.

Even if the law were to be amended to allow such a person to consent to being identified at any time of their choosing, that still wouldn’t allow the Mercury to publish details that should come out in evidence until the trial is done.

All unfettered consent will do is give the small number of sexual assault complainants who want to be identified the dignity of having their names attached to accounts of their own lives throughout the court process.

More importantly, where appropriate, it will let survivors stand on the steps of the courthouse on the day a conviction is secured and tell the world they won.

THE LAW AS IT CURRENTLY STANDS DOESN’T STOP A SEXUAL ASSAULT COMPLAINANT WALKING INTO THE OFFICES OF THE MERCURY AND TELLING A REPORTER THEIR STORY BEFORE THE TRIAL IS OVER