Rehabilitation of offenders – use and disclosure of criminal histories: the effect of Dupois v Queensland Television Limited

“The appellant claims to be an 'International Recording Artist, TV Host and World Peace Ambassador'. The respondents claim that he is a criminal and a conman.”

So begins Justice Applegarth’s judgment in Dupois v Queensland Television Ltd & Ors [2016] QCA 182, a recent case that highlights the ambiguity inherent in interpreting s 3(2)(b) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (the Act).

Section 3(2)(b) of the Act outlines when a ‘rehabilitation period’ is applicable in relation to past criminal convictions. When convictions are subject to a rehabilitation period it means that once this period has expired the offender is generally not required to disclose the existence of the convictions. It also means, in most circumstances, that other persons are prohibited from disclosing or taking account of those convictions. This has practical implications for decision-makers, as well as government officers generally.

A rehabilitation period is capable of running on a conviction where the offender is ordered to serve a period of imprisonment not exceeding 30 months in custody (including ordered by way of default), whether or not in the event the offender is required to actually serve any part of that period in custody. Dupois v Queensland Television Ltd discusses the interpretation of section 3(2)(b) of the Act.

Briefly, the facts of Dupois v Queensland Television Ltd are that Mr Dupois (also known as Mr Gant) was the subject of an A Current Affair segment which aired on 24 January 2012. The segment alleged, among other things, that Mr Dupois had prior convictions for fraud. As it happened, on 30 July 1999 Mr Dupois had been convicted and sentenced for three years' imprisonment, suspended after six months with an operational period of three years in respect of multiple charges relating to dishonesty.

One of the arguments placed before the court by Mr Dupois was that A Current Affair was not entitled to disclose these convictions in its broadcast. It was Mr Dupois’s argument that as he had been only been ordered to serve six months actual custody of a three-year sentence of imprisonment, his charges were capable of being subject to a rehabilitation period and, as such, the rehabilitation period had expired.

The presiding members of the Court of Appeal were split in their approach to the interpretation of s (3)(2)(b) of the Act. Justice Applegarth, with whom Justice Gotterson agreed, was of the view that the correct interpretation of s (3)(2)(b) was that it applied to actual time ordered to be served at the time of the sentence, including time ordered to be served by way of default.1 President McMurdo, on the other hand, was of the view that s 3(2)(b) only operates if the head sentence is thirty months or less, regardless of whether the sentence included a set parole date or was wholly or partially suspended.2 As suggested by the schism on the bench, both President McMurdo and Justice Gotterson were of the view that it would be helpful for the legislature to clarify its intentions in terms of s (3)(2)(b) of the Act.3

While this discussion was not critical to determine the appeal, it does provide guidance about how the courts will likely approach this provision.

The effect of this decision is that when a government department is in receipt of a criminal history or is asked to disclose a criminal history and is obliged to consider this legislation, the department should look at the actual time ordered to be spent in custody at the time of sentence. If the history discloses that actual custodial time at the time of sentence was less than thirty months, then a rehabilitation period may apply.

If there is any doubt about the application of the Act, such as whether there are prohibitions on the disclosure or use of past criminal convictions, Crown Law can assist and provide advice to ensure officers comply with their legislative obligations.

1 Dupois v Queensland Television Ltd & Ors [2016] QCA 182 at [54] per Applegarth J.
2 Dupois v Queensland Television Ltd & Ors [2016] QCA 182 at [5]-[6] per McMurdo P.
3 Dupois v Queensland Television Ltd & Ors [2016] QCA 182 at [6] per McMurdo P, [9] per Gotterson JA.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 29 July 2016

Author: Natalie Morrison