High-profile man charged with rape to continue fight to remain anonymous

A high-profile man charged with rape could learn if his bid to stay anonymous is successful as soon as this afternoon with Justice Peter Applegarth retiring to consider his verdict.

Lawyers for a high-profile man charged with rape will continue the fight for him to remain anonymous. File picture

A high-profile man charged with rape today continued his fight to remain anonymous with a hearing scheduled in the Brisbane Supreme Court.

The man, who is facing two charges of rape alleged to have been committed against a woman he met on a night out in Toowoomba, has not been able to be identified since he was charged in December last year.

New Queensland legislation that came into effect on October 3 allowing the identification of defendants charged with prescribed sexual offences before they have been committed to trial would have allowed the man to be named.

However he has secured a series of interim orders suppressing his identity while he seeks an ongoing non-publication order that would delay him inevitably being named upon him either being committed to trial, sentenced, or if the charges were dropped.

On Friday October 13, Magistrate Clare Kelly dismissed the man’s application for a non-publication order after a hearing in the Toowoomba Magistrates Court.

During that hearing, his defence barrister Andrew Hoare submitted there was a “grave risk” the man may attempt to take his own life if he was identified.

He also argued the identification of the man could also risk a fair trial with the widespread media coverage that would inevitably flow from him being named.

But Magistrate Kelly dismissed the man’s application, saying she was not satisfied the evidence established that an order was necessary to ensure the proper administration of justice or that it was necessary to protect the safety of a person, namely the defendant.

The man’s non-publication order is being opposed by the Director of Public Prosecutions and media entities including The Courier-Mail.

Barrister Rob Anderson KC, for the media, argued in the Toowoomba hearing that under the new legislation, granting the man’s application would be an “extraordinary decision” to depart from the interests of open justice.

He said the complainant had expressed her wishes to the DPP that the defendant be named.

“The complainant’s position is not neutral, it’s an active voice,” he said.

“The complainant wants the defendant to be named and that is a position your honour must in accordance with the legislation take into account.”

After Magistrate Kelly delivered her decision, the man’s lawyers secured a further interim suppression order to allow them time to appeal the matter in a superior court.

In a hearing before Justice Peter Applegarth on Thursday, Mr Hoare said the application for judicial review was brought on a number of grounds, including that the magistrate’s decision involved an error of law because the wrong test was applied in assessing the risk of harm to the defendant.

He also submitted that the magistrate erred in placing weight on “irrelevant” considerations, including his decision not to engage in formal mental health support or take medication.

“The appropriate remedy for the applicant, should he be successful in the application, is for the decision to be quashed and it be remitted to be heard according to law,” Mr Hoare said.

The man’s lawyers had argued in the earlier magistrates court hearing that the order should be granted on two grounds, including that it was necessary to prevent prejudice to the proper administration of justice.

They also argued the order was necessary to protect the safety of the defendant whom they submitted would be at risk of self-harm or suicide if he was identified as being charged with rape.

Mr Hoare argued in the Supreme Court that once “necessity” had been established in relation to the second ground regarding an order being required to protect the safety of a person, such an order must be made.

“So the fact there have been points in the past where he has availed himself of a psychologist is a relevant fact, that’s conceded,” he said.

“The irrelevant fact which is said to have crystallised in this case was that there was a decision not to avail himself of medication and a formal connection with a health treatment plan and that’s how it was framed, now that is the error.”

Justice Applegarth noted that the existence of suicidal ideation was “not necessarily sufficient to establish the level of unacceptable risk that makes a non-publication order necessary”.

“ … I dare say many people who are facing the criminal justice system have suicidal ideations,” Justice Applegarth said.

Mr Hoare conceded that point but said that statement alone was not the threshold.

“ … it is an assessment of, in this case, a forensic psychologist who has treated him in the past in respect of suicidal ideation and he in his professional opinion has grave concerns,” he said.

“It’s those things which accumulate to that point.”

Barrister Michael Nicolson, acting for the Queensland Police Service, and barrister Rob Anderson KC, appearing for the media entities, opposed the orders sought by the applicant.

Mr Anderson submitted the magistrate had applied the tests necessary and considered all of the relevant information in making her decision.

Justice Applegarth has retired to consider his decision which could be handed down as soon as Thursday afternoon.