Re BZY[2024] QMHC 1

HER HONOUR:   By notice of reference filed the 16^th of August 2013, Legal Aid Queensland referred to this Court the mental condition of BZY at the time of the alleged offence of possessing child exploitation material on the 25^th of July 2011.  There was no dispute that he was not suffering unsoundness of mind at the time of the alleged offence.  An issue that needed to be determined was whether the defendant was fit for trial.  On the 12^th of September 2014, the Court ultimately found that BZY was fit for trial and consequently, the matter was returned back to the criminal justice system for it to be determined.  

A judgment was published in this matter in the Mental Health Court with the citation being [redacted].  That is referred to in my submissions as [redacted], and this judgment set out the Court’s reasons.  I note that the applicant’s reference at that point in time was made under the now-repealed Mental Health Act 2000 (Qld) where relevantly, section 413 of that Act provides that the hearings of references are open to public.  A similar provision subsists within the Mental Health Act 2016 (Qld) (the Act) where both Acts refer to hearings of references in relation to minors as an exception to the general position that hearings of references are open to the public.  Neither Act contains provisions regarding the publication of written decisions or how they might be made available, and equally, the practice directions of the Mental Health Court do not address this issue.

BZY has made an application to this Court for the [redacted], the judgment, to be removed from publication as it does not have any current or ongoing precedent or record value, and in the alternative, should this Court find that there is precedent or record value, then [redacted] should be anonymised.  BZY pleaded guilty to these offences and was sentenced to probation with no conviction being recorded.  I note that in the sentencing remarks by the sentencing Judge, his Honour Judge Koppenol, he stated:

“In the exercise of my discretion, no conviction is recorded.  I am giving you a chance today, [BZY].  You don’t get many chances in life, but this is yours, so you have to do the right thing now for the period of probation and put this behind you and get on with your life.”

BZY wrote to the Court a letter which sets out his concerns, and he also provided extensive written submissions.  He states that he last wrote to his Honour Justice Boddice, who made the decision in [redacted] back in 2014.  He states that he wrote to Justice Boddice regarding this matter on the 7^th of June 2018 to exercise his Honour’s judicial discretion to either remove the decision from publication or anonymise its contents. 

And in response to that request, Justice Boddice refused the request and determined that there was nothing contained in the judgment or circumstances to warrant removing the decision from publication or to anonymise its contents.  BZY accepted and respected that determination. 

However, he has now reagitated the issue once more.  He states that by inputting his name, BZY, or its other forms, into a search engine returns results that places the Supreme Court Library of Queensland hyperlink PDF copy of the decision high up in the search.  And without doubt, he states, that the result is not buried and remains in prominent view. 

And he states that this poses a real risk of ongoing exposure given current and prospective clients routinely Google the names of recommended lawyers as well as professionals’ businesses generally.  I should add that since being sentenced for these offences – and I think since his letter to Justice Boddice in 2018 – he has qualified as a lawyer and has been admitted as a legal practitioner. 

He states that his circumstances have changed considerably since Justice Boddice considered the matter back in 2018.  And he believes it requires reconsideration.  He sets out what he regards as the serious impediments to employment as a solicitor a publication of the decision that is posing to him and that whilst he has always suspected accessibility of the decision has impacted his job applications. 

On the 19^th of March 2024, this was definitively confirmed when his employment at a solicitors’ firm as a workplace relations and safety lawyer was terminated.  He set out the termination letter that relied on probationary termination which did not state a reason for the dismissal. 

However, he was informed during the dismissal meeting that the solicitors’ firm considered the optics of the decision’s publication were severe and would jeopardise current and prospective client relations, as well as the business reputation generally.  The solicitors’ firm said that it was particularly so given many of his clients who work educational facilities such as private schools with children. 

BZY, in a reasonable way, states that he does understand and sympathises with the solicitors’ firm’s concerns and he acknowledges that it is understandable that any law firm or business would harbour such concerns for its reputation regardless of the composition of its client base. 

It is a fundamental principle of justice system that court proceedings are heard in public.  As Rogers in Nationwide News Pty Ltd [2003] 216 CLR 327 stated, the underlying policy is that it is in the public interest that there should be an open administration of justice, and a court should only depart from this principle where adherence to it would frustrate either the administration of justice or there is being some other public interest protected by statutory provisions modifying its application, or where it is necessary to secure the proper administration of justice.

The source of a court’s power to limit the application of the principle of open justice can derive from either express statutory provisions or from any inherent jurisdiction in the case of state Supreme Courts, or implied powers in the case of a statutory court.  The parties disagree whether the removal or anonymisation of the reasonings would be a judicial or administrative act.  The applicant and the Director’s Office regard it as an administrative act, where the Office of the Chief Psychiatrist regards it as a judicial act.

I have had consideration of all of the material that has been placed before me, and in my view, the publication of reasons by a court is a judicial function.  The delivery of those reasons by a court is part of the proceedings of that court and they are reasons themselves, and those reasons are then made available for examination by others.  That is, the court makes the part of its public proceedings compromised by the reasons available for inspection of the public, and that can occur in a variety of ways.  It can occur when hard copies are presented to persons that are present in court, or you can make copies of the reasons, then they can be available on court websites, and as the Office of the Chief Psychiatrist notes, each of those is likely to involve administrative acts.

But the current circumstances that I am dealing with is that this matter was conducted in open court, reasons were delivered in open court and those reasons are available for inspection on the court website.  Access to the court file in the registry is restricted and its inspection requires the grant of leave and I am satisfied that in all of the circumstances it is likely that a request to remove or anonymise the reasons invokes the Court’s judicial power to restrict the publication of all or part of its proceedings to the public.

As I have said, no party contends that I do not have the power to remove or anonymise the reasons.  I note that neither the Director’s Office or the Office of the Chief Psychiatrist takes a position in respect of the application but they helpfully have provided written submissions that set out the legislative framework and common law principles.  The legislative scheme of the Act evidences a distinction between on one hand the protection of the rights of privacy and confidential information for a person subject to the Act and on the other hand the treatment of information relating to the Court’s hearings and determination of references made to it in relation to the mental state of persons charged with serious offences.

There are some proceedings before this Court which are generally not open to the public.  They relate to detention reviews and appeals against decisions of the Mental Health Review Tribunal each involving persons subject to involuntary treatment under the Act and the exercise of rights of review or appeal.  As I said, these hearings are generally not open to the public which is subject to the Court’s power to order that the hearing or part of the hearing be open to the public.  However, such an order may only be made if the Court is satisfied the person subject to the proceedings has agreed to the order and that the order will not result in serious harm to the person’s health or risk and safety of anyone else.

Publications of either report of such a proceeding, or of information which may identify a party to the proceedings is an offence and a Court may grant leave for publication but only upon the Court being satisfied that specific matters including those relating to particular risk and the public interest are established.  In relation to the proceedings that are open to the public, in contrast, the hearings of a reference by the Court is generally open to the public and that would be subject to the Court’s power to order that a hearing or part of a hearing not be open to the public.  However, such an order may only be made if the Court is satisfied it is in the interests of justice.

The publication of reports or proceedings or the Court’s decision in the proceedings are restricted only to the extent necessary to allow for the finalisation of any associated appeal or criminal trial to occur prior to publication.  And the Court may also give leave for the report to be published.  Those restrictions on publication do not prevent the disclosure of information disclosed in the hearings of a Court.  Absent a clear legislative intention, courts have power to control their own proceedings. 

In the context of the Mental Health Court, such a power may also be implied by the provisions governing the Court in particular from the jurisdictional provisions particularly section 639 which sets out the jurisdiction of the Court.  And then 640 gives this Court general powers which states:

“Without limiting the powers conferred on it under this or another Act, the Mental Health Court may do all things necessary or convenient to be done for the exercise of its jurisdiction.”

In this matter, as the submissions that have been made by the Office of the Chief Psychiatrist states:

“If the Court considers that restriction of the publication of proceedings requires an exercise of judicial power the source of that power appears to be section 693 of the Act…”

Which states that:

“(1) The hearing of a proceeding for a reference is open to the public unless the Mental Health Court, by order, directs that the hearing or part of the hearing not be open to the public.

(2) However, the court may make an order directing that the hearing or part of the hearing not be open to the public only if the court is satisfied it is in the interests of justice.”

Alternatively, the source of power to restrict the publication of proceedings conducted in an open court may be implied to the extent necessary for its exercise and that is with reference to Hogan v Hinch (2011) 243 CLR 506.  In whatever case it is, this Court’s determination involves consideration of whether the exercise of the power is in the interests of justice.  I have referred to the principle of open justice and the importance of this principle is such that no unnecessary restriction upon public access to proceedings is permissible.  Different degrees of restriction may be imposed depending on the particular circumstances of the exercise of the power to restrict access to proceedings including for example the anonymisation of a witness’s identifying particulars.

I note in J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10, was a case which considered the issue of whether a party to proceedings should not be publicly named.  At page 5 of the judgment the plurality noted the following considerations would seem to have application to the present matter.  Where the Court stated:

“Even so, information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other “collateral disadvantage”, to use the expression adopted in R v. Tait.”

In J v L & A Services, the judgment then went to state later on this:

“It is common for sensitive issues to be litigated and for information which is extremely personal or confidential to be disclosed.  It is of obvious concern that such a paramount principle as the requirement of open justice should not be whittled away on a case by case basis according to individual judges’ subjective views of the merits or demerits of the claims to privacy of individual litigants.”

Accordingly, the Director’s Office submits that the decision to prioritise a person’s privacy in a particular case would not be made lightly as doing so is contrary to the principles of open justice.  Counsel for the Director’s Office notes:

“It is not to say the decision cannot be made but rather a decision to do so should only be made in circumstances where there are strong factors which outweigh the legislative presumption. 

If a decision is reached that the competing favours [sic] favour protection of the applicant’s privacy the next issue would be is how that aim should be achieved.” 

As I have stated, the applicant seeks a removal of the decision in its entirety and suggests that anonymisation of the decision may not be sufficient.  In R v Dempsey (No. 3) [2017] QSC 338 Justice Applegarth observed that:

“Pseudonym orders restrict the disclosure of the identity of a witness or party, but allow the court to remain open and the proceedings to be reported.  The use of pseudonym orders is therefore considered a minimal incursion on the principle of open justice in a case where a witness reasonably fears death, injury, unnecessary loss of liberty or some other evil.”

In a District Court matter of Rowley & Ors v Dell’Osa & Anor [2024] QDC 30, his Honour Judge Byrne KC DCJ at paragraph 14 referred to his Honour Justice Applegarth’s observations and noted that a greater need must be demonstrated in order for a judgment to be supressed as opposed to anonymisation of the judgment. 

However, his Honour also noted that what the Court of Appeal found in MBR v Parker [2012] QCA 271 was this when he added the: 

“…lesser threshold for anonymisation does not mean that such an order will be easily obtained.  The interests of justice must “so clearly favour anonymisation”, not merely be preferable or convenient.”

Measures such as anonymisation of proceedings may therefore represent a less of an incursion on the principle of open justice than removal of a decision entirely.  However, the interests of justice must still clearly favour that course and not be merely preferable or convenient. 

As I have stated, generally, suppression of information merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm or other collateral disadvantage will be insufficient to withhold information from the public.  And a substantial concern underpinning this principle is the risk of erosion of the fundamental requirement of open justice if it were not so. 

These general provisions appear congruent with the scheme of the Act which provides for increased protection of rights to privacy and confidentially of the health information for those subject to involuntary treatment under the Act and a higher emphasis on the public interest in such protections.  And in contrast, the provision relating to proceedings for references represents far less of a legislative incursion to the principle of open justice. 

The counsel for the Office of the Chief Psychiatrist’s view is that the Court would require reasonably compelling factors to be satisfied that it would be in the interests of justice to supress or anonymise the judgment of the Court in [redacted].  In the absence of legislative intention, the policy considerations at common law strongly favour the requirement the Court be conducted in an open manner, and that legislative intent in the Act does not appear to favour suppression or anonymisation.

I have considered all of this in coming to my decision.  I have considered the competing factors that I must, and in my view, they do favour the protection of the applicant’s privacy.  And in my view, there are circumstances where there are strong factors which do outweigh the principle of open justice.  I have not come to the decision lightly, but for the following reasons which I regard as, cumulatively as compelling factors.  First, the judgment is nearly 10 years old.  Second, it has no precedent value.  Third, as the reasons set out, he was found not of unsound mind and fit for trial.  And in coming to its conclusion, there were significant personal details of BZY that were set out in the reasons.

The matter – because he was found not of unsound mind and fit for trial – was returned to the criminal justice system.  And in the criminal justice system, BZY was sentenced to probation where no conviction was recorded.  And pursuant to section 12 subsection (3) subsection (b) of the Penalties and Sentences Act 1992 (Qld) (the Penalties and Sentences Act) in Queensland, the presumption is that the conviction must not be entered into any records except for the matters that are set out in the records of the court before which the offender was convicted, and in the offender’s criminal history but only for the purposes of section 4(b).  There is section 3A of section 12 of the Penalties and Sentences Act that says:

“Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority, or legal representative.”

The position is, then, the details of his criminal matters are prohibited from being published, but the Mental Health Court reasons are published where the outcome was that it was returned to the criminal justice system.  And to this end, though, I do note Ms Aylward’s point of view that if there was a journalist in the back of the court at his criminal sentence, which was conducted in open court, that that journalist could report on the matter, and that would not be in breach of section 12. 

In this matter, I have taken into account also that BZY has, since the judgment, has finished a law degree and has been admitted as a legal practitioner, and indeed, this process was completed following the decision of Justice Boddice back in 2018, and it is, I think, to be taken on notice that such a decision would have detrimental effects on his employment prospects.

I have considered whether the judgment should be anonymised.  However, to do so properly and to protect his privacy would infect and neuter the reasons to the extent that they are meaningless, as there is so much personal information included in the reasons that BZY would be linked to the reasons based on the unique facts of the decision.  Accordingly, in this application, I will allow the judgment to be taken down from the Court. 

Okay.  And then, I suppose, we should have an argument about whether these matters should be published.  I have not given a reason – they will not be published automatically on the website unless I decide to do so.  Not too sure it is the right vehicle at this point in time, so – anyone has got any – and if they were, I would obviously have to anonymise them in accordance with my decision.  Ms Morgan, do you have a view whether I should publish it?

MS MORGAN:  Your Honour, I might take some instructions on that.  The issues that preliminarily arise when your Honour has raised that is this one – this decision may indeed have some precedential value as it being the first decision we are aware of where your Honour has exercised the power to take down a judgment.  It certainly would need to be anonymised if your Honour ‑ ‑ ‑

HER HONOUR:  Yes.

MS MORGAN:  ‑ ‑ ‑ was minded to do so, but ‑ ‑ ‑

HER HONOUR:  Yes.  The parties can come back to ‑ ‑ ‑

MS MORGAN:  ‑ ‑ ‑ might take some ‑ ‑ ‑

HER HONOUR:  ‑ ‑ ‑ me in relation to that.

MS MORGAN:  ‑ ‑ ‑ instructions.   Thank you, your Honour.

HER HONOUR:  Okay.  Okay.  Okay.  Thank you, BZY. 

APPLICANT:  Thank you, your Honour.