Lehrmann v Queensland Police Service

Link copied
Case Copied 31 min read

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. 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. The applicant applies for a judicial review of the decision of the Magistrate to refuse his application.

    The parties to the judicial review application

  3. The first respondent to this proceeding is the Queensland…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Lehrmann v Queensland Police Service and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] QSC 238
Decision Date

CaseChat Overview and Summary

The case of Lehrmann v Queensland Police Service concerns an application for judicial review brought by the applicant against a decision of a magistrate who refused to make a non-publication order under the Criminal Law (Sexual Offences) Act 1978 (Qld). The legal issues the court was required to decide included whether the magistrate's decision was a decision of an administrative character to which Part 3 of the Judicial Review Act 1991 (Qld) applied and whether the magistrate erred in deciding the application and, if so, whether any error was amenable to judicial review.

The court found that the magistrate's decision was not administrative in nature and therefore not subject to judicial review. The court further found that the magistrate had not erred in her decision and that any error was not amenable to judicial review. The court rejected the applicant's argument that the magistrate had failed to consider Dr Brown's evidence and had taken into account irrelevant considerations. The court found that the magistrate had considered Dr Brown's evidence and had not taken into account irrelevant considerations. The court also rejected the applicant's argument that the decision was unreasonable in the legal sense. The court found that the magistrate's decision was not so unreasonable that no reasonable magistrate could have reached it.

The court dismissed the application for judicial review and made no orders.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ground 1 is not established. Ground 2 – alleged failure to consider Dr Brown’s evidence 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. 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 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. The Magistrate did not find that the applicant contributed to the risk of harm. 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. Ground 3(a) misunderstands or misconstrues the Magistrate’s reasons. 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. 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. Ground 3 is not established. Ground 4 – legal unreasonableness 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.

Decision

Reasons for decision

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 –(i)the primacy of the principle of open justice; (ii)the public interest;(iii)any submissions made or views expressed by or on behalf of the complainant about the application; (iv)any special vulnerabilities of the complainant or the defendant;(v)any cultural considerations relating to the complainant or the defendant; (vi)the potential effect of publication in a rural or remote community; (vii)the potential to prejudice any future court proceedings;(viii)the history and context of any relationship between the complainant and the defendant (including, for example, any domestic violence history); (ix)any other matter the court considers relevant.”Overview of the Magistrate’s decision 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. 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. 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 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”. 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. 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.

Ratio Decidendi

Legal Principle Established

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 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. The Magistrate did not find that the applicant contributed to the risk of harm. 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. Ground 3(a) misunderstands or misconstrues the Magistrate’s reasons. 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. 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. Ground 3 is not established. Ground 4 – legal unreasonableness 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. 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.