By: Georgie Austin, Zoë Burchill

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

 

At a glance

  • In late October 2023, former liberal staffer Bruce Lehrmann failed in his bid to obtain a non-publication order over his identity as a defendant in criminal proceedings for charges of rape.
  • This article examines the decision of Justice Peter Applegarth of the Supreme Court of Queensland and provides the key takeaways with respect to the review of decisions to either grant or decline non-publication orders.
  • The decision of Justice Applegarth provides helpful guidance on the interplay between the new Criminal Law (Sexual Offences) Act 1978 (Qld) amendments and the Judicial Review Act 1991 (Qld).

 

 

Background

In January 2023, Lehrmann was charged with two counts of rape alleged to have occurred in Toowoomba in October 2021. At the time, the law in Queensland restricted the identification of individuals charged with sexual offences until they were committed for trial. Accordingly, while a media statement was issued by Queensland Police with respect to the charges, they were attributed to a “high profile man” and did not name Lehrmann.

In September 2023, the Queensland Government passed the Justice and Other Legislation Amendment Bill 2023, which removed the relevant restrictions contained in the Criminal Law (Sexual Offences) Act 1978 (CLSO Act). This meant that individuals charged with sexual offences were to be treated the same as individuals charged with any other offence, and details about their identity could now be published, except where this would or could lead to the identification of the complainant.

Once the law came into effect on 3 October 2023, Lehrmann made an application for a non-publication order pursuant to section 7 of the CLSO Act. Lehrmann submitted that there was a “real existing risk of harm which [would] be amplified by the publication of [his] identifying particulars”. In response, the prosecution, and various media entities including Network Ten and the ABC, highlighted the unsatisfactory nature of the evidence presented by Lehrmann, which consisted only of an affidavit from his solicitor and a psychologist’s report.

On 13 October 2023, Magistrate Kelly rejected Lehrmann’s application, finding the evidence relied upon by Lehrmann did not establish that a non-publication order was necessary to protect his safety. Lehrmann subsequently applied for a judicial review of the decision, on the grounds that Magistrate Kelly:

  • erred in law by failing to apply the “calculus of risk” test in considering whether the order was necessary to protect his safety
  • failed to take into account a relevant consideration, namely the evidence of a psychologist that there was an unacceptable risk of harm to him if the order was not made, and
  • took into account extraneous or irrelevant matters in refusing the order, including that he had contributed to his risk of harm by not being formally linked to a mental health professional and not being prescribed medication, and that his conduct in participating in various media interviews during the relevant period was inconsistent with a risk of harm.

 

Administrative or judicial decision?

At the outset, Justice Peter Applegarth of the Supreme Court of Queensland emphasised that the law does not provide a right of appeal against a Magistrate’s decision to grant or decline to make a non-publication order, rather, an application for judicial review must be made (as was done in this case). His Honour then sought to draw a distinction between two different types of decisions set out in the Judicial Review Act 1991 (Qld) (Judicial Review Act), namely administrative and judicial decisions.

Justice Applegarth observed that, while a decision by a Magistrate to commit a defendant to stand trial has been established as an administrative decision to which the Judicial Review Act applies1, this does not necessarily mean that every procedural decision associated with a committal proceeding is also of administrative character. His Honour noted that attention is required to be given to the nature of each decision and its connection to the overarching decision to commit, providing the example of a decision to refuse an application to cross-examine as an exercise that “in a practical way brings the committal to a conclusion and leads to a decision to commit”.

Justice Applegarth was of the view that a decision to grant or decline a non-publication order under section 7(b) of the CSLO Act does not have a close connection with a decision to commit. His Honour observed that a decision of this nature does not bear upon the evidence that may be sufficient to persuade or not persuade the Magistrate to commit, nor it is part of the administrative function performed by a Magistrate in conducing a committal hearing. This is highlighted by the fact that an application under section 7 can pre-date the conduct of, or preparation for, a committal hearing.

Conversely, Justice Applegarth opined that a decision under section 7(b) may be said to have the character of a judicial determination of rights, as it is reached by the application of judicial method and has the character of a binding decision that adjudicates upon the rights of parties. His Honour explained that a decision of this nature finally determines the right of an eligible person to apply for a non-publication order and also determines other rights, including the prima facie rights of citizens and the media to report on open court proceedings. For these reasons, His Honour concluded that there were strong grounds to categorise Magistrate Kelly’s decision as a decision of judicial rather than administrative character.

 

Jurisdictional error

To seek a review of a judicial decision, an applicant must establish that the decision is affected by jurisdictional error. Justice Applegarth was at pains to emphasise that this type of review is not a vehicle for correction of alleged factual errors, nor will it be sufficient to show that a decision-maker placed insufficient weight on a relevant consideration or erred in a finding that there was sufficient or insufficient evidence to support a finding.

Instead, an applicant must demonstrate that a decision was unreasonable in the legal sense, namely that it was so unreasonable that no reasonable Magistrate could have reached it2. His Honour observed this to be an extremely high bar. A decision will not be deemed unreasonable because a review court disagrees with it, or because any other decision makers may reasonably have reached a different conclusion, it must lack evident and intelligible justification.

Justice Applegarth observed no such error in Magistrate Kelly’s application of the “calculus of risk” test in the first instance. His Honour confirmed that Magistrate Kelly considered evidence about the nature, imminence, and degree of likelihood of identified harm to Lehrmann and having assessed the evidence, was not satisfied that an order was necessary to protect his safety. Similarly, his Honour also confirmed that Magistrate Kelly had considered the evidence of Lehrmann’s psychologist and that this ground of appeal was without merit.

Justice Applegarth also rejected Lehrmann’s contention that Magistrate Kelly took into account extraneous and irrelevant matters when refusing to grant a non-publication order. His Honour confirmed that Lehrmann’s failure to link in with a mental health professional and to be prescribed with medications were relevant to an assessment of the nature and extent of Lehrmann’s current mental health and therefore the degree of likelihood of harm if an order was not made. Lehrmann’s participation in media interviews was also a relevant consideration as:

Rather than lower his public profile and retreat from the media spotlight, [Lehrmann] 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 media outlets he appeared on and other media that followed up on his high-profile appearances3.

Ultimately Justice Applegarth found that, in the circumstances, it was open for a reasonable decision-maker to not be satisfied that the non-publication order was necessary to protect the safety of Lehrmann. His Honour therefore found that Lehrmann had not established a ground for judicial review and dismissed the application.

 

Key takeaways

The decision of Justice Applegarth provides guidance on the interplay between the new CLSO Act amendments and the Judicial Review Act, clarifying that:

  • there is no automatic right of appeal with respect to a Magistrate’s decision to grant or decline to make a non-publication order, instead, an application for judicial review must be made
  • a decision by a Magistrate to grant or decline to make a non-publication order pursuant to section 7 of the CLSO Act is likely to be categorised as a judicial decision rather than an administrative one
  • where a judicial decision has been made, an applicant will need to establish that the Magistrate’s decision to either grant or decline to make a non-publication order was affected by jurisdictional error, and
  • to establish jurisdictional error, an applicant must show that the original decision was so unreasonable that no reasonable Magistrate could have reached it, which is an incredibly high bar.

The decision signals a clear shift in the attitude towards non-publication orders in Queensland. Only rare and exceptional circumstances will now lead to a Court overturning a Magistrate’s decision, upholding the legislature’s preparedness for those accused of sexual offences to be publicly identified prior to conviction. Whether this high bar dissuades legal practitioners and applicants from seeking judicial review is a matter to be seen.

[1] Graves v Duroux [2014] QSC 198 at [3]-[4].

[2] Judicial Review Act 1991 (Qld) s 20(2)(e), s 23(g); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

[3] Paragraph [81].