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The identity of a high-profile man accused of rape in Toowoomba will remain a secret for now despite a court today denying the man a non-publication order.
Magistrate Clare Kelly, in the Toowoomba Magistrates Court, refused to grant the order, saying it had not been established that the order was necessary to protect the safety of the defendant.
"Having not been satisfied the order is necessary … I refuse the application for a non-publication order," Ms Kelly said.
But the man's legal team then advised the court they would seek a temporary stay of the order so they could lodge an application for review in another court.
The man's barrister Andrew Hoare told the court he was seeking a temporary stay of Ms Kelly's decision for the purpose of lodging an application in another court.
Magistrate Kelly agreed that a review process of her decision in another court would be useless if a stay of today's order was not granted.
The case relates to two counts of rape alleged to have occurred in Toowoomba in October 2021.
Magistrate Kelly, in her decision to refuse the non-publication order, said: "In my view the evidence relied upon doesn't establish that the order is necessary to prevent prejudice to the proper administration of justice."
In relation to submissions that the man's safety was at risk due to an increased risk of self-harm if he was identified, Magistrate Kelly said the defendant was not formerly linked to a mental health professional and was not prescribed medication.
The man was not at court for today's hard-fought legal battle, during which the Director of Public Prosecutions Nicole Friedewald submitted that the complainant in the case wanted the man identified.
"She has taken an active position on this matter and instructed my office that she does wish for the applicant to be named. It is not a case that she has taken a neutral position or that she opposes it. She is desirous of him being identified and for the non-publication order not to be made," Ms Friedewald said.
Application follows changes to Queensland's criminal law
Today's application, by the man's legal team, for a non-publication order follows changes to Queensland's Criminal Law (Sexual Offences) Act which came into effect on October 3.
The changes allow the identification of people charged with sexual offences before they are committed to trial.
Mr Hoare, submitted that if his client were identified, "there is a real existing risk of harm which will be amplified" by the publication of the applicant's identity.
The man's legal team is relying on a diagnosis of a psychologist who has been treating the man regarding his mental health.
"The diagnosis which underpins that suicidal ideation is described as severe," Mr Hoare submitted, referring to a psychologist's report which is before the court.
Rob Anderson KC, representing media organisations, including the ABC, submitted that the complainant's voice in the case was important.
"The complainant's position is not neutral, it is an active voice … the complainant wants the defendant named," Mr Anderson submitted.
"The complainant's voice is important to be heard."
Mr Anderson also submitted that the defendant's silence, in not personally testifying at today's hearing, should be taken into account.
"The applicant gives no evidence himself. He relies upon the evidence of his solicitor and his psychologist but it is unusual and unsatisfactory that the applicant would not give evidence himself," Mr Anderson told the court.
"The applicant has not said anything to your Honour directly. He has chosen to stay silent."
Mr Anderson submitted that there was no universal rule that direct evidence be led from the defendant but added: "This is precisely the case that cries out for the defendant to state his own case in his own words."
Mr Anderson further submitted that the "primacy of open justice" must be considered in this case.
He referred to the landmark "Hear her Voice" report which recommended the legal changes to allow those accused of sexual offences to be named prior to being committed to trial.
"There is now a statutory mandate to give primacy to the principles of open justice … the starting point is open justice," Mr Anderson said.
Ms Friedewald told the court that much of what she intended to submit to the court was also canvassed by Mr Anderson.
The man was charged with the two counts of rape in December 2022 and the case was first mentioned in court in January 2023.
With the law changes looming, the man's lawyers successfully sought a Supreme Court injunction on September 29 to prevent him being named pending a full hearing.
On October 5, he was granted an interim non-publication order by the Toowoomba Magistrates Court, ahead of today's full hearing of the matter.
Today's case is one of the first high-profile tests of the new legislation.
The new law brings Queensland into line with all other states except the Northern Territory and were recommended by the Women's Safety and Justice Taskforce,
The case had its genesis on December 9 last year when the man's solicitor, Rowan King, received a notice for his client to appear in the Toowoomba Magistrates Court on January 11 this year on two counts of rape.
He was charged by Toowoomba Criminal Investigation Branch detectives.
The man did not appear at court on the first occasion, prompting the Magistrate to question why he was not there, given he had been ordered to appear.
Mr King told the court that day that his client was in Tasmania and a medical report could be presented to court. He was granted bail on his own undertaking on the condition that he not contact the complainant and surrender his passport.
Only scant detail has so far been disclosed in open court about the full nature of the allegations.
The man's lawyer has however requested access to six months of data download from the complainant's mobile phone.
At the last mention of the case, on September 20, Ms Friedewald, told the court the DPP had received the phone download data requested by the defence and it amounted to "many thousands of pages".
Ms Friedewald said the prosecution was still working its way through the data and still had about 800 pages to review before disclosure to the defence.
The case is next due in the Toowoomba court on November 1.