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Lehrmann v Queensland Police Service[2023] QSC 238

Reported at (2023) 17 QR 154

Lehrmann v Queensland Police Service[2023] QSC 238

Reported at (2023) 17 QR 154

SUPREME COURT OF QUEENSLAND

CITATION:

Lehrmann v Queensland Police Service & Ors [2023] QSC 238

PARTIES:

BRUCE EMERY LEHRMANN

(applicant)

v

QUEENSLAND POLICE SERVICE

(first respondent)

AND

NATIONWIDE NEWS PTY LTD

(second respondent)

AND

NEWS LIFE MEDIA PTY LTD

(third respondent)

AND

QUEENSLAND NEWSPAPERS PTY LTD

(fourth respondent)

AND

NINE NETWORK AUSTRALIA PTY LTD

(fifth respondent)

AND

FAIRFAX MEDIA PUBLICATIONS PTY LTD

(sixth respondent)

AND

NETWORK TEN PTY LTD

(seventh respondent)

AND

AUSTRALIAN BROADCASTING CORPORATION

(eighth respondent)

AND

GNM AUSTRALIA PTY LTD

(ninth respondent)

AND

MAGISTRATE CLARE KELLY

(tenth respondent)

FILE NO:

13271 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

26 October 2023

DELIVERED AT:

Brisbane

HEARING DATE:

26 October 2023

JUDGE:

Applegarth J

ORDER:

The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where a magistrate refused to make a non-publication order under the Criminal Law (Sexual Offences) Act 1978 (Qld) – whether the decision was a decision of an administrative character to which Part 3 of the Judicial Review Act 1991 (Qld) applies – whether the magistrate erred in deciding the application and, if so, whether any error was amenable to judicial review

Criminal Law (Sexual Offences) Act 1978 (Qld), ss 3, 7, 7(2), 7A, 7B, 7C, 7C(3)

Judicial Review Act 1991 (Qld), ss 4, 20(2)(e), 23(g), Part 3, Part 5

AB v CD (2019) 364 ALR 202, cited

AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046, cited

Atherton v Eaton [2019] 3 Qd R 404; [2019] QSC 66, cited

Buck v Bavone (1976) 135 CLR 110, cited

Cooper v Herald & Weekly Times Pty Ltd [2013] VSC 589, cited

Dupois v Magistrate Previtera & Anor [2023] QSC 82, cited

Graves v Duroux [2014] QSC 198, cited

Lamb v Moss (1983) 49 ALR 533, cited

Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339, cited

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, cited

Mosquera v Coates and Fagan [2017] QSC 134, cited 

R v Bjelke-Petersen; ex parte Plunkett [1978] Qd R 305, cited

COUNSEL:

A Hoare for the applicant

M D Nicolson for the first respondent

R J Anderson KC and J M Goldie for the second to ninth respondents

SOLICITORS:

RK Law for the applicant

QPS Legal Division for the first respondent

Thomson Geer Lawyers for the second to ninth respondents

  1. [1]
    The applicant is the defendant in committal proceedings before the Magistrates Court at Toowoomba.  He applied to that court for a non-publication order pursuant to s 7 of the Criminal Law (Sexual Offences) Act 1978 (Qld).  The Magistrate declined to make such an order.
  2. [2]
    The applicant applies for a judicial review of the decision of the Magistrate to refuse his application.

The parties to the judicial review application

  1. [3]
    The first respondent to this proceeding is the Queensland Police Service.  The second to ninth respondents are media entities that participated in the hearing before the Magistrate.  The Magistrate is the tenth respondent.  She adopted the conventional role of abiding by the order of this Court and was granted leave to not appear.

The grounds for the judicial review application

  1. [4]
    The applicant contends that the Magistrate:
  1. erred in law by failing to apply the “calculus of risk” test in considering whether the order was necessary to protect the safety of any person, being the applicant;
  1. failed to take into account a relevant consideration, namely the evidence of a psychologist that there was an unacceptable risk of harm to the applicant if the order was not made;
  1. took into account extraneous or irrelevant matters in refusing the order, including:
  1. a.
    that the applicant had contributed to his risk of harm by:
  1. not being formally linked in with a mental health professional;
  2. not being prescribed medication in relation to his mental health issues.
  1. b.
    that the conduct of the applicant in conducting interviews with media organisations in June and August of 2023 was inconsistent with a risk of harm.
  1. [5]
    He further contends that a “necessary corollary” of these three matters is that the decision was unreasonable.  He obtained leave to amend to include the ground of review in s 20(2)(e) and s 23(g) of the Judicial Review Act 1991 (Qld) that the decision was “an exercise of a power that is so unreasonable that no reasonable person could so exercise the power”.

Issues

  1. [6]
    The principal issues in this proceeding are:
    • What judicial review jurisdiction of this Court is sought to be invoked?
    • Do the matters raised by the applicant involve grounds to invoke that jurisdiction?
    • Are any of those grounds established?
    • If so, what relief should be granted?

The nature of judicial review

  1. [7]
    The law does not provide a right of appeal against a Magistrate’s decision to make or to decline to make a non-publication order.  A judicial review proceeding is not an appeal. 
  2. [8]
    Part 3 of the JRA provides for judicial review of certain administrative decisions made under an enactment.  They relate to administrative decisions (which include a decision to commit a defendant to stand trial), not judicial decisions. 
  3. [9]
    Part 5 of the JRA preserves the jurisdiction to grant judicial review of the kind that formerly might have been obtained by a writ of certiorari or other prerogative writs.  The limitations in obtaining a prerogative order to correct alleged errors of fact or law by a Magistrate conducting an examination of witnesses or in other proceedings to which the prerogative writs once applied are well-established.[1]
  4. [10]
    In simple terms, the JRA does not make the Supreme Court a merits review tribunal.

The legislative scheme for a non-publication order

  1. [11]
    Amendments to the Criminal Law (Sexual Offences) Act 1978 commenced operation on 3 October 2023.  They include s 7 which applies if a defendant is charged with a “prescribed sexual offence”.  Under s 7(2) an “eligible person”[2] may apply to a Magistrates Court for a non-publication order prohibiting the publication, before the defendant is committed for trial or sentence or sentenced on the charge, of “identifying matter”[3] relating to the defendant.
  2. [12]
    Sections 7 and 7A detail the process for giving notice of an application and for notifications to accredited media entities.
  3. [13]
    Section 7B empowers the Magistrates Court to make a non-publication order if satisfied of at least one of three grounds.  It provides:

“7BGrounds for non-publication order

The court may make a non-publication order if satisfied of one or more of the following grounds –

  1. the order is necessary to prevent prejudice to the proper administration of justice;
  1. the order is necessary to prevent undue hardship or distress to a complainant or witness in relation to the charge;
  1. the order is necessary to protect the safety of any person.”
  1. [14]
    Section 7C governs the procedure for the hearing of an application for a non‑publication order and the making of a non-publication order.  Section 7C(3)(a) provides that in hearing the application the Court “may receive and take into account evidence of any kind that it considers credible or trustworthy in the circumstances”.  Section 7C(3)(b) states that in hearing the application the Court:

“must consider the following –

  1. the primacy of the principle of open justice;
  1. the public interest;
  1. any submissions made or views expressed by or on behalf of the complainant about the application;
  1. any special vulnerabilities of the complainant or the defendant;
  1. any cultural considerations relating to the complainant or the defendant;
  1. the potential effect of publication in a rural or remote community;
  1. the potential to prejudice any future court proceedings;
  1. the history and context of any relationship between the complainant and the defendant (including, for example, any domestic violence history);
  1. any other matter the court considers relevant.”

Overview of the Magistrate’s decision

  1. [15]
    The application for a non-publication order sought to invoke the grounds in s 7B(a) and (c).  The Magistrate received the evidence and heard submissions.  She adjourned to consider the matter and gave detailed oral reasons in relation to both matters.
  2. [16]
    It is unnecessary to consider her reasons for not being satisfied that a non-publication order was “necessary to prevent prejudice to the proper administration of justice”.  This is because the application for judicial review relates to her consideration of the applicant’s argument that a non-publication order was “necessary to protect the safety of any person”, namely the applicant.
  3. [17]
    To better understand the applicant’s judicial review grounds it is necessary to summarise certain evidence and submissions that the Magistrate considered.

The submissions and material before the Magistrate

  1. [18]
    Before the Magistrates Court, counsel for the applicant submitted that on the material before it there was “a real existing risk of harm which will be amplified by the publication of the applicant’s identifying particulars”.
  2. [19]
    In response, counsel for the prosecution and for the media entities noted the unsatisfactory nature of the applicant’s evidence in support of the submission that a non-publication order was “necessary” to protect the safety of the applicant.  The applicant gave no evidence, but relied on an affidavit from his solicitor and a psychologist’s report.
  3. [20]
    The applicant’s submissions centred upon the evidence of Dr Brown.  Parts of Dr Brown’s report related to the applicant’s depressed mood and suicidal ideation in February 2021, when allegations of a sexual offence in Canberra were publicised.  Dr Brown saw the applicant frequently for the first six months and then, on average, monthly between October 2021 and the conclusion of his trial in December 2022.  Dr Brown continued to provide “some support” in 2023.  The applicant’s symptoms of Adjustment Disorder with Depressed Mood were said to have persisted for more than two years since the “triggering event” when allegations of sexual assault aired in the media in February 2021.  The applicant relocated interstate.  In early 2023 Dr Brown spoke to the applicant about the need to seek proper health and mental health care in his new location.
  4. [21]
    Dr Brown reported that the applicant had reached out to him in 2023 on a number of occasions for crisis support in times where he was struggling to cope with his ongoing situation.  The applicant was said to have expressed “feelings of hopelessness and helplessness, combined with … insecure housing and financial strain” that caused Dr Brown to be concerned that the applicant “remains a high risk to himself under the pressures he is facing, and to allow him to be identified in the current matter may result in dire consequences”.
  5. [22]
    The applicant’s solicitor’s affidavit devoted five paragraphs to the applicant’s mental state between 15 February 2021, when an item ran on the television program The Project, and 2 March 2021. 
  6. [23]
    The only evidence given by the solicitor on information and belief about the applicant’s current state of mental health was paragraph 9 of Mr King’s affidavit, which stated:

“Bruce Lehrmann has told me that these proceedings, the frequency of the publications, and the potential naming of him prior to the committal hearing have weighed heavily on him and it is affecting his mental health including feeling hopeless, and suicidal”.

  1. [24]
    The applicant’s solicitor’s affidavit did not address the circumstances under which the applicant came to participate in television interviews between June and August 2023, or the applicant’s mental state at the time of the interviews.
  2. [25]
    The material before the Magistrate included an affidavit filed by a solicitor acting for the media entities.  It included links to and transcripts of media interviews given by the applicant.  Two were broadcast on Channel 7’s Spotlight program on 4 June and 16 August 2023.  The third was on Sky News on 14 August 2023 and had been recorded that afternoon.  The Channel 7 interviews were recorded within a week before they broadcast.  Counsel for the media entities referred to parts of the media interviews in which the applicant said that he was suicidal for “a little while there in the start of 2021”.  He described an episode in March 2021 as one of his lowest points, but also a turning point.
  3. [26]
    The material also referred to three defamation proceedings that the applicant had commenced against media outlets.
  4. [27]
    On Channel 7’s Spotlight program on 4 June 2023, the applicant stated “Let’s light some fires” and later said “Everything needs to be out there, in the open, so people can assess this for what it is”.
  5. [28]
    Counsel for the prosecution submitted to the Magistrate that there was an incongruity between the applicant’s public presentation and what was said about him by the psychologist, Dr Brown.   
  6. [29]
    As for the applicant’s commencement of defamation proceedings and recent media interviews, Dr Brown’s report stated that these “should not be misconstrued as demonstrating his full recovery, or that his mental health is of no real concern; to the contrary, these actions taken by Bruce to step forward and tell his story and to take legal action have taken significant effort and strength on his part, often costing him greatly in psychological terms, leading to periods of severe depression following particular stress points”. 
  7. [30]
    Dr Brown requested the Court to consider “the potential harmful and psychological effects of Bruce being identified in this present matter, and how this might significantly jeopardise his psychological wellbeing and safety”.  A reignited “media frenzy” was said to be likely to seriously exacerbate his depressive symptoms, and present “a real potential for increasing his risk of suicide”.
  8. [31]
    The prosecution submitted that the Court should not give weight to Dr Brown’s opinions about the applicant’s “legal action and recent media interviews” because the assertions were not explained.
  9. [32]
    Its submissions highlighted a number of matters from Dr Brown’s report, including the fact that:
    1. Dr Brown is not currently treating the applicant with any regularity; and
    2. Dr Brown’s report was silent on whether the applicant was currently prescribed medication to treat his Adjustment Disorder with Depressed Mood.
  10. [33]
    The fact that the applicant had participated in televised interviews since June 2023 also was relied upon to call into question Dr Brown’s assertion that since June 2023 Dr Brown had been concerned about a deterioration in the applicant’s mental state in response to the matter being before the Magistrates Court and the prospect of his identity being made public.
  11. [34]
    Submissions by the media entities similarly questioned how the suggested state of the applicant’s mental health since June 2023 could be reconciled with his participation in recent media interviews and his presentation on them.  They also pointed to his issuing defamation proceedings which he knew would be high‑profile and ventilate the allegations in relation to Ms Higgins again.
  12. [35]
    Overall, counsel for the respondents relied upon what was submitted to the Magistrate to be a contrast between the applicant’s public position, as he presented in the media interviews, and Dr Brown’s description of him after June 2023.  They submitted that the evidence provided by the applicant was not sufficient to establish that a non‑publication order was “necessary” to protect the safety of the applicant.   
  13. [36]
    Oral submissions by the applicant’s counsel responded to contentions that the applicant had himself failed to give evidence.  Counsel submitted that the application had to be prepared with efficiency and haste, and there could be no sensible submission that, if the applicant had sworn an affidavit, he would have sworn something different to what his solicitor swore on information and belief. 
  14. [37]
    Counsel for the applicant submitted that it was not for the Magistrate to dispute Dr Brown’s diagnosis based on a comparison with the applicant’s presentation in the media.
  15. [38]
    Counsel also emphasised that the applicant’s apprehension was that reporting of his identity in connection with the present matter would result in the type of reporting that led to the suicidal ideation that occurred in 2021. 
  16. [39]
    The parties’ submissions before the Magistrate on questions of law were not controversial.  The applicant’s counsel acknowledged that the requirement of “necessity” had to be satisfied before an order could be made.  He accepted that embarrassment, inconvenience, loss of reputation or a belief that an order is necessary is insufficient. 
  17. [40]
    Reference was made to AB v CD[4] in which Nettle J observed that the criterion “is not one of necessity to prevent harm to a person but of necessity to protect the safety of a person”.  Nettle J also observed:

“… because the idea of safety invariably entails the assessment of risk, it should be regarded as sufficient to satisfy the test of ‘necessary to protect the safety of any person’ that, upon the evidence, the court is satisfied of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable’.”

  1. [41]
    The parties further accepted that a necessity to protect the safety of a person does not depend solely on the risk of suicide and that the likelihood of harm to mental health, falling short of risk of suicide, may, in an appropriate case, be sufficient to justify an order.
  2. [42]
    The statutory provision was submitted to require consideration of “the nature, imminence, and degree of the likelihood of harm to occur to the relevant person”.[5]
  3. [43]
    To decide that an order is “necessary to protect the safety of any person” the Court is required to consider the matters listed in s 7C(3)(b), including the primacy of the principle of open justice, the public interest and any special vulnerabilities of the defendant.
  4. [44]
    These principles were not in contest in the parties’ submissions to the Magistrate.  Instead, the applicant’s submissions emphasised his vulnerability, while the respondents’ submissions emphasised the limitations on the applicant’s evidence in that regard and considerations of open justice.
  5. [45]
    The media entities relied upon Cooper v Herald & Weekly Times Pty Ltd,[6] in which the Court found that the applicant in that case was suffering from a severe illness and that there was a risk of self-harm that may be exacerbated by publicity.  However, the applicant was receiving expert care and treatment with protective measures being put in place.  In those circumstances, the Court was not satisfied that a non-publication order was necessary to ensure that the physical safety of the applicant was not endangered.  The media defendants submitted that Dr Brown’s report demonstrated that the applicant was supported by his psychologist, had reached out to him on a number of occasions in 2023, and that his treatment was ongoing.  The situation was said to be comparable to that in Cooper’s case such that the Court could not be satisfied that a non-publication order was “necessary to ensure the safety of the applicant”.

The Magistrate’s reasons

  1. [46]
    The Magistrate’s reasons referred to the matters in Mr King’s affidavit and in Dr Brown’s report dated 10 October 2023.
  2. [47]
    The reasons identified that the issue raised by the applicant concerned “the nature, degree and consequences” of the risk of self-harming through suicide crystalising and being “catastrophic and unacceptable”.  The Magistrate also identified the point that “the imminence of the risk” was difficult to precisely gauge, but there was a background of suicidal ideation that is directly referable to media reporting.
  3. [48]
    Contrary to ground 2 of the application for judicial review, the Magistrate considered Dr Brown’s report and quoted from it.  The Magistrate acknowledged the vulnerability of the applicant and the matters set out in Dr Brown’s report.  She noted that the applicant, despite being encouraged by Dr Brown to engage with a mental health professional located near him, had not done so.  Instead, he accessed Dr Brown in crisis situations.  The Magistrate also observed that it was not apparent that the applicant had been prescribed any medication to assist him with his mental health condition or, at least, it was not mentioned in Dr Brown’s report.  A previous hospitalisation occurred over two years earlier.
  4. [49]
    The Magistrate noted that the applicant had engaged with media organisations, thereby actively placing himself in public view.  She expressed the opinion that this was “inconsistent with the contention that the media pursuit has been relentless”.  The matter had been before the Toowoomba Magistrates Court at various mentions after 11 January 2023.  The television interviews between June and August 2023 occurred when the applicant was aware of the current proceedings.  The applicant was also pursuing defamation proceedings at the same time.
  5. [50]
    Ultimately, the Magistrate concluded that the evidence relied upon by the applicant did not establish that “the order is necessary to protect the safety of the defendant”.
  6. [51]
    The alternative element relied upon under s 7(3)(a) was not satisfied and therefore the application for a non-publication order was refused.

Jurisdiction

  1. [52]
    The applicant submits that there are three types of judicial review that are open in this case:
    1. an application for a statutory order of review under Part 3 of the JRA;
    2. an application for a prerogative order of review under Part 5 of the JRA; and
    3. an originating application for declaratory or injunctive relief for jurisdictional error under this Court’s supervisory jurisdiction over inferior courts and tribunals.
  2. [53]
    The applicant submits that the application may proceed as an application for a statutory order of review.  He submits that the decision to refuse the application for a non-publication order is a decision to which the JRA applies because it is a decision of “an administrative character” made under an enactment.[7] 
  3. [54]
    The exercise of the statutory power under s 7 of the Criminal Law (Sexual Offences) Act 1978 is submitted to be materially identical to the function of a Magistrate in exercising a power under the Justices Act 1886 (Qld) in a committal proceeding.  An analogy is sought to be drawn with procedural decisions in the course of a committal proceeding, such as a decision refusing leave to cross-examine a witness on a committal which have proceeded by way of a statutory order of review.[8] 
  4. [55]
    It is unnecessary for me to resolve the issue of whether the decision to refuse to make a non‑publication order is of an administrative character and therefore one to which the JRA applies.  If it is not, then the proceeding for a prerogative order in the nature of the relief or remedy available by way of a writ of certiorari would need to be by way of an application for review under Part 5, and would need to establish that the decision was affected by a jurisdictional error.
  5. [56]
    For reasons that will follow, I conclude that the applicant’s grounds for judicial review are not established.  This means he is not entitled to an order for judicial review either under Part 3 of the JRA (statutory orders of review), under Part 5 of the JRA (prerogative orders and injunctions), or under the Court’s supervisory jurisdiction.  Therefore, it is unnecessary for me to decide whether the challenged decision is of “an administrative character” so as to be subject to an application for a statutory order of review under Part 3.
  6. [57]
    I shall make, however, some observations on the issue.  The authorities establish that a decision by a Magistrate to commit a defendant to stand trial is an administrative decision to which the JRA applies.[9]  As noted, some procedural decisions of a Magistrate in the course of conducting a committal might also be thought to have the same character.  However, the fact that a decision to commit is of an administrative, rather than judicial, character does not necessarily mean that every decision associated with a committal proceeding is of an administrative character. 
  7. [58]
    Attention is required to be given to the nature of the decision and its connection to the administrative decision to commit.  For example, a decision to not allow leave to cross-examine or to not allow further cross-examination may be an exercise that in a practical way brings the committal to a conclusion and leads to a decision to commit.  It also would be conduct engaged in for the purpose of making a decision whether to commit or not.[10] 
  8. [59]
    A recent decision of this Court, Dupois v Magistrate Previtera & Anor,[11] addressed a judicial review application of certain decisions made in the course of a committal proceeding.  The QPS correctly conceded that the Magistrate’s decision to refuse an application to cross-examine and a decision to commit the applicant for trial were administrative in character and therefore open to judicial review.[12]  Crowley J also considered the function of a Magistrate to hear and determine an application for directions under s 83A(5AA) of the Justices Act is administrative in character.  Crowley J observed:[13]

“It is either part of, or closely connected or ancillary to, the administrative function performed by a magistrate conducting a committal hearing.”

  1. [60]
    In my view, a decision to grant or decline to grant a non-publication order under s 7B of the 1978 Act does not have a close connection with a decision to commit.  It does not bear upon the evidence that may be sufficient to persuade or not persuade the Magistrate to commit.  It is not part of the administrative function performed by a Magistrate in conducting a committal hearing.  An application under s 7 may pre‑date the conduct of, or preparation for, a committal hearing.  Section 7 applies once a defendant is charged with a prescribed sexual offence.  A decision to grant or decline to grant a non-publication order is not ancillary to the administrative function of deciding whether or not to commit, or the conduct of procedures under the Justices Act in connection with the giving of evidence at a committal hearing.
  2. [61]
    In the context of the discretion to not grant judicial review because of the potential to fragment criminal proceedings, the applicant’s written submissions stated:

“Although the application for a non-publication order under the CLSOA may be made as an adjunct to the committal process, it is not a part of the committal process.”

They contrasted it with an application for the examination of witnesses under s 110B of the Justices Act, the latter being an example of an application that would be part of the committal process.  Yet the submission that an application for a non-publication order is not part of the committal process is a good reason why a decision on that application should not be necessarily characterised like a decision to commit, namely as an administrative decision.

  1. [62]
    In any event, a decision under s 7B of the 1978 Act may be said to have the character of a judicial determination of rights.  It finally determines the right of an eligible person to apply for a non-publication order and determines other rights, including the prima facie right of citizens and the media to report open court proceedings.  It has the character of a binding decision that adjudicates upon the rights of the parties.  The decision is reached by application of a judicial method.[14]  
  2. [63]
    I conclude that there are strong grounds to conclude that a decision to grant or refuse an application for a non‑publication order under the Act is a decision of a judicial rather than an administrative character. 
  3. [64]
    If that is so, then the applicant’s case must be that the decision is affected by a jurisdictional error.  Much water (or judicial and academic ink) has flowed under the “jurisdictional error” bridge since Mr Plunkett contributed to jurisprudence in this area in 1978.[15]  The High Court, especially in the field of immigration law, has explained the meaning of “jurisdictional error”.  State Courts, in a variety of judicial review proceedings, have explained what is meant by a jurisdictional error, including in cases involving adjudications.  Not every error of law by a court is a “jurisdictional error” or an error on the face of the record for the purpose of a remedy in the nature of certiorari.
  4. [65]
    Part 3 of the JRA has some broader grounds for a statutory order of review than a prerogative order of review for jurisdictional error.  For example, under Part 3 the decision may involve an error of law, whether or not the error appears on the record of a decision.[16]  Nevertheless, judicial review in its different forms, including an application for a statutory order of review, is not the vehicle for correction of alleged factual errors.  It is not a ground of judicial review that the decision‑maker placed insufficient weight on a relevant consideration or erred in finding that there was sufficient or insufficient evidence to support a certain finding. 
  5. [66]
    Judicial review is fundamentally different from an appeal in which a party may seek to persuade an appellate court that the decision-maker erred in making a finding of fact.
  6. [67]
    Egregious errors in fact-finding may be open to challenge on the ground that an exercise of power “is so unreasonable that no reasonable person could so exercise the power”.[17]  However, judicial review under Part 3 of the JRA on this ground and judicial review for jurisdictional error on the grounds of “legal unreasonableness” set an extremely high bar.[18] 
  7. [68]
    It is an especially demanding standard where the challenge is to a decision-maker’s state of satisfaction or lack of satisfaction about a matter that concerns evaluation and weighing of competing considerations.  In Li French CJ stated:[19]

“The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.” 

In the same case Gageler J, citing Buck v Bavone,[20] remarked on the inability of a court effectively to review:[21]

“… a state of satisfaction forming a pre-condition to an exercise of a statutory power or performance of a statutory duty ‘where the matter of which the [repository] is required to be satisfied is a matter of opinion or policy or taste’.”

  1. [69]
    Unless the facts would compel any reasonable decision-maker to decide the matter only one way, it will be difficult to conclude that a decision that is supported by an available view of the evidence and assessments of evidentiary weight is so unreasonable that no reasonable person could make it.

The first ground of judicial review – alleged error in law by failing to apply the “calculus of risk” test

  1. [70]
    As noted, the parties before the Magistrate accepted that s 7B(c) required the applicant to satisfy the Court that a non-publication order was necessary to protect the person’s safety, and this required the Court to consider “the nature, imminence, and degree of likelihood of harm occurring to the relevant person”.  These words were drawn from authorities on comparable sections.[22] 
  2. [71]
    The applicant uses the shorthand phrase “calculus of risk” to reflect these kinds of considerations.  He contends that the Magistrate erred in law by failing to apply the “calculus of risk” test.
  3. [72]
    No such error is apparent from the Magistrate’s reasons.  In fact, the Magistrate recognised the considerations in question and dealt with a submission that the nature, degree and consequences of the identified risk, together with “the imminence of the risk”, needed to be considered.  She certainly did not suggest that a different test to the one accepted by the parties applied.  For example, she did not suggest that the applicant had the onus of proving that it was more probable than not that he would engage in self-harm if a non-publication order were declined.
  4. [73]
    The Magistrate considered evidence about the nature, imminence and degree of likelihood of the identified harm and, having assessed the evidence, was not satisfied that an order was “necessary” to protect the safety of the applicant.
  5. [74]
    Ground 1 is not established. 

Ground 2 – alleged failure to consider Dr Brown’s evidence

  1. [75]
    Ground 2 of the application for a statutory order of review alleges that the Magistrate failed to take into account the evidence of Dr Brown that there was an unacceptable risk of harm to the applicant if an order was not made.
  2. [76]
    This ground is not developed in the applicant’s written submissions and is without merit.  The Magistrate considered Dr Brown’s evidence.

Ground 3 – allegedly taking into account an irrelevant consideration

  1. [77]
    Ground 3(a) suggests that the Magistrate took into account that the applicant “had contributed to his risk of harm” by not being formally linked in with a mental health professional and not being prescribed medication in relation to his mental health.
  2. [78]
    The Magistrate did not find that the applicant contributed to the risk of harm.
  3. [79]
    Instead, she dealt with evidence and submissions about the applicant’s engagement with mental health professionals and the absence of evidence that he was prescribed medication to treat his mental health issues.  This included the fact that he had not engaged with a local doctor or other health professional for support and to supplement the support he obtained from Dr Brown.  These facts were relevant to an assessment of the nature and extent of the applicant’s current mental health and therefore the degree of likelihood of harm if an order was not made.
  4. [80]
    Ground 3(a) misunderstands or misconstrues the Magistrate’s reasons.
  5. [81]
    As for ground 3(b), contrary to what it alleges, the Magistrate did not say that the applicant’s conduct of media interviews in June and August 2023 was inconsistent with a risk of harm.  She said it was “inconsistent with the contention that the media pursuit has been relentless”.  This was a relevant observation.  Rather than lower his public profile and retreat from the media spotlight, the applicant chose for whatever reason to appear more than once on national television and revisit events that had triggered his mental illness in early 2021.  He seemingly felt well enough to engage with sections of the national media, and to deal with any resulting further coverage he received from the media outlets he appeared on and other media that followed up on his high-profile appearances.
  6. [82]
    The applicant’s conduct of media interviews in June and August 2023 was not irrelevant to an evaluation of the views and assertions in Dr Brown’s report and, more generally, to a consideration of the applicant’s state of mental health after June and the risk of harm that the Magistrate was required to consider.
  7. [83]
    Ground 3 is not established. 

Ground 4 – legal unreasonableness

  1. [84]
    By amendment, the application for a statutory order of review alleged that the decision was unreasonable in the legal sense, namely that it was so unreasonable that no reasonable Magistrate could have reached it.  The applicant submits that a necessary corollary of the matters that I have already addressed is that the decision was unreasonable in the sense used in judicial review proceedings.  I have dealt with those matters.  They are not established.  I will address some remaining aspects of the applicant’s submissions on unreasonableness.
  2. [85]
    Those submissions accept that the focus of judicial review concerns the legality and not the merits of a decision.  A challenge on the grounds of unreasonableness does not entail a review of the merits.  Simply put, a decision is not an unreasonable decision in the context of judicial review because a review court disagrees with it, or because many other decision-makers may reasonably have reached a different decision.  A decision may be characterised as unreasonable where it lacks an evident and intelligible justification.  This entails some scrutiny of the factual material and submissions that the decision-maker was required to consider. 
  3. [86]
    The applicant relies on Dr Brown’s opinion that the risk of harm had increased since June 2023 and within the previous month.  The applicant submits that the Magistrate was obliged to act on the expert evidence of Dr Brown in assessing the risk of harm to the applicant, as it was the only evidence of the applicant’s risk at the time of the application.  The identified risk is submitted to have post-dated the media interviews in which the applicant engaged. 
  4. [87]
    The expert evidence of Dr Brown is said to have been displaced by other material without an intelligible justification, making the decision unreasonable.
  5. [88]
    The Magistrate did not disregard or reject Dr Brown’s opinion.  She was required, in the light of the parties’ submissions, to consider what weight to give to different parts of his report and to balance Dr Brown’s opinion against other matters that she was required to consider by operation of s 7C(3).
  6. [89]
    Dr Brown’s statement in paragraph 4 of the second page of his report about the applicant’s legal action and recent media interviews was more in the nature of an assertion than a reasoned, expert opinion.  To the extent Dr Brown asserted things about the applicant’s decision to take legal action and participate in media interviews, there was no evidence from the applicant concerning those matters or his state of mental health when he participated in the various media interviews.
  7. [90]
    The media entities relied upon copies and transcripts of those interviews and Dr Brown’s report anticipated these matters being an issue.  Neither the applicant nor his solicitor (on information and belief) addressed those matters.  For instance, the applicant did not give any evidence that his mental health was precarious at the time he gave the interviews.  The interviews were given at a time when amendments to the 1978 Act were pending.  The legislation was the product of a public law reform process and was introduced into the Parliament on 25 May 2023.  The applicant must have appreciated that, once the legislation commenced, his identity would be revealed publicly, unless he made and succeeded upon the kind of applications which he has recently made. 
  8. [91]
    The prosecution and the media defendants made submissions to the Magistrate about the difficulty in reconciling the picture painted in Dr Brown’s report concerning the applicant’s presentation since June with his presentation in media interviews.  This was relevant to an assessment of the weight that should be given to Dr Brown’s report.  For example, the applicant did not give evidence in an affidavit or through his solicitor’s affidavit that his presentation in the media interviews prior to 16 August 2023 involved him putting on a brave face at a time when his mental health had deteriorated in response to the prospect of his identity in the committal proceeding being made public. 
  9. [92]
    The Magistrate was entitled to assess the evidence on the basis that, despite the applicant’s potential naming in the committal proceeding and other matters having weighed heavily upon him and affected his mental health, he was able to muster the fortitude to appear on nationally‑broadcast television programs, expecting that there would be a media and public reaction to his television appearances.
  1. [93]
    As noted, the applicant submits that the Magistrate was obliged to act on Dr Brown’s report in assessing the risk of harm to the applicant, as it was the only evidence of the applicant’s risk at the time of the application.
  2. [94]
    A risk of harm is assessed at the time of the application based on evidence that is available at that time.  An applicant’s circumstances close to the time of the application may be more informative than those in the distant past.  The evidence is not limited, however, to a snapshot.  Relevant risks may be assessed in the light of past events and informed predictions.[23] 
  3. [95]
    The parties accepted that evidence of the applicant’s presentation on television in recent months, his active prosecution of pending defamation cases, and his seeking or not seeking professional treatment and support during 2023 was relevant evidence.  Dr Brown’s report addressed these matters.
  4. [96]
    All the relevant evidence was to be considered by the Magistrate, not just Dr Brown’s report, in assessing risks and, ultimately, deciding whether she had the state of satisfaction required by s 7B(c).  She was entitled to have regard to all of the evidence in deciding what weight to give to Dr Brown’s report.  She was not obliged to give equal weight to all parts of his report.  She was entitled to consider whether other evidence detracted from or supported certain things contained in that report. 
  1. [97]
    Dr Brown asked the Magistrate to consider the potential harmful psychological effects of the applicant being identified and how this “might significantly jeopardise his psychological wellbeing and safety”.  The Magistrate did so.  This included considering the fact that the applicant continued to engage with Dr Brown as required, apparently had not sought or obtained medication to treat his psychological state, and did not engage with a local general practitioner to obtain a referral for counselling and treatment to supplement the support that the applicant obtained through consultations with Dr Brown.
  2. [98]
    Dr Brown’s report, coupled with paragraph 9 of the applicant’s solicitor’s affidavit, did not compel the Magistrate to make an order under s 7B(c).  The applicant’s submissions on legal unreasonableness are to the effect that Dr Brown’s report and paragraph 9 of the solicitor’s affidavit inevitably would satisfy any reasonable decision-maker that an order was “necessary” to protect the safety of the applicant, and do so notwithstanding matters that the Court was required to consider under s 7C(3) that favoured the application being refused.
  3. [99]
    The committal proceedings, publications in relation to them, and the potential naming of the applicant prior to the conclusion of the committal proceeding, were said to have weighed heavily on him and affected his mental health.  This unfortunate effect on his mental health permitted, but did not compel, a finding of necessity. 
  4. [100]
    The Magistrate was entitled to take into account a submission from the media entities that any person accused of a serious crime can be expected to suffer a degree of mental harm by reason of the stress of being involved in the court process.  Having assessed the evidence, the Magistrate was not satisfied that an order was necessary to protect the safety of the applicant.  The evidence included the presentation of the applicant in media interviews, and the fact that he made no mention in them of being in a poor psychological state for reasons he did not wish to disclose to the public.  Instead, he presented to the public, for reasons that neither he, his solicitor nor his psychologist adequately explained to the Magistrate, as someone who was keen to litigate pending defamation cases and “light some fires”.
  5. [101]
    The Magistrate’s decision did not lack an intelligible justification.  The justification was that the demanding requirement of being satisfied that the order is “necessary” was not established by sufficiently persuasive evidence to support that conclusion.  Some of the matters that needed to be considered under s 7C(3)(b) did not favour that conclusion.  In reaching an evaluation of risk, regard might be had to the fact that the applicant was seeking and obtaining support from his psychologist, Dr Brown.  In the circumstances, it was open to a reasonable decision-maker to not be satisfied that the non-publication order was necessary to protect the safety of the applicant.
  6. [102]
    The applicant has not established that the decision of the Magistrate was unreasonable in the legal sense or so unreasonable that no reasonable Magistrate could have made that decision.

Conclusion

  1. [103]
    The applicant has not established a ground for judicial review.
  2. [104]
    The application is dismissed.      

Footnotes

[1]R v Bjelke-Petersen; ex parte Plunkett [1978] Qd R 305 at 311-312.

[2]Which means in relation to a charge of a prescribed sexual offence, the complainant, the defendant or the prosecution. 

[3]Defined in s 3 of the Act.

[4](2019) 364 ALR 202 at [15] (“AB v CD”).

[5]Citing AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [56]-[58].

[6][2013] VSC 589.

[7]JRA s 4.

[8]Atherton v Eaton [2019] 3 Qd R 404; [2019] QSC 66 (“Atherton”); Mosquera v Coates and Fagan [2017] QSC 134 at [26] (“Mosquera”). 

[9]Lamb v Moss (1983) 49 ALR 533 in the context of federal law’s judicial review legislation and Graves v Duroux [2014] QSC 198 at [3]-[4] concerning the JRA.

[10]See the observations of Holmes CJ in Mosquera at [31] and Atherton.

[11][2023] QSC 82 (“Dupois”).

[12]Dupois at [64]-[65].

[13]Dupois at [67].

[14]Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339 at [11].

[15]R v Bjelke-Petersen; ex parte Plunkett [1978] Qd R 305.

[16]JRA s 20(2)(f).

[17]JRA s 20(2)(e), s 23(g).

[18]See generally Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”).

[19]At 351 [30].

[20](1976) 135 CLR 110 at 118-119.

[21]Li at 377 [112].

[22]AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at [56]-[58] in relation to s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).  See also AB v CD (2019) 364 ALR 202 at 206 [15] in which Nettle J referred to the Court having to be satisfied “of the existence of a possibility of harm of such gravity and likelihood that, without the order sought, the risk of prejudice to the safety of the person would range above the level that can reasonably be regarded as acceptable”.

[23]If a prediction is falsified by subsequent events, there is scope under s 7E for the court to review a non‑publication order. 

Close

Editorial Notes

  • Published Case Name:

    Lehrmann v Queensland Police Service & Ors

  • Shortened Case Name:

    Lehrmann v Queensland Police Service

  • Reported Citation:

    (2023) 17 QR 154

  • MNC:

    [2023] QSC 238

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    26 Oct 2023

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AB (a Pseudonym) v R (No 3) (2019) 97 NSWLR 1046
3 citations
Jump To
Cite 1 - (2019) 97 NSWLR 1046
Cite 2 - (2019) 97 NSWLR 1046
Cite 3 - (2019) 97 NSWLR 1046
AB V CD (2019) 364 ALR 202
3 citations
Jump To
Cite 1 - (2019) 364 ALR 202
Cite 2 - (2019) 364 ALR 202
Cite 3 - (2019) 364 ALR 202
Atherton v Madsen[2019] 3 Qd R 404; [2019] QSC 66
4 citations
Jump To
Cite 1 - [2019] QSC 66
Cite 2 - [2019] QSC 66
Cite 3 - [2019] 3 Qd R 404
Cite 4 - [2019] 3 Qd R 404
Buck v Bavone (1976) 135 CLR 110
2 citations
Jump To
Cite 1 - (1976) 135 CLR 110
Cite 2 - (1976) 135 CLR 110
Cooper v Herald & Weekly Times Pty Ltd [2013] VSC 589
2 citations
Jump To
Cite 1 - [2013] VSC 589
Cite 2 - [2013] VSC 589
Dupois v Magistrate Previtera [2023] QSC 82
2 citations
Jump To
Cite 1 - [2023] QSC 82
Cite 2 - [2023] QSC 82
Graves v Duroux [2014] QSC 198
2 citations
Jump To
Cite 1 - [2014] QSC 198
Cite 2 - [2014] QSC 198
Lamb v Moss (1983) 49 ALR 533
2 citations
Jump To
Cite 1 - (1983) 49 ALR 533
Cite 2 - (1983) 49 ALR 533
Medical Board of Australia v Judge Horneman-Wren [2013] QSC 339
2 citations
Jump To
Cite 1 - [2013] QSC 339
Cite 2 - [2013] QSC 339
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Mosquera v Coates [2017] QSC 134
2 citations
Jump To
Cite 1 - [2017] QSC 134
Cite 2 - [2017] QSC 134
R v Bjelke-Petersen; ex parte Plunkett [1978] Qd R 305
3 citations
Jump To
Cite 1 - [1978] Qd R 305
Cite 2 - [1978] Qd R 305
Cite 3 - [1978] Qd R 305

Cases Citing

Case NameFull CitationFrequency
Non-publication and Suppression Orders (2025) 2 QLJ 119 2 citations
Queensland College of Teachers v Teeney [2023] QCAT 5292 citations
1

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