Key word in Lehrmann rape case decision

Bruce Lehrmann has lost a major legal battle to keep his identity in a high profile rape case protected, with a court judgment revealing such an order was not necessary to protect his safety.

Mr Lehrmann’s identity as the high profile man can be revealed after a Supreme Court judicial review and non-publication order was dismissed on Thursday.

Police charged the former parliamentary staffer with two counts of rape earlier this year.

It is alleged they stem from an incident in Toowoomba back in October 2021.

He has not entered a plea to the charges.

Earlier this month a magistrate ordered a non-publication order protecting his identity be revoked but his legal team appealed to the Supreme Court, seeking that decision be quashed.

Media companies, including News Corp Australia, opposed the order continuing.

Due to laws in Queensland that initially prevented the identification of people charged with prescribed sexual offences, including rape, Mr Lehrmann’s identity could not be revealed when he first faced court in January this year.

That protection was revoked earlier this month after the Queensland state government changed parts of the legislation.

However, before the changes took effect, the man’s lawyers successfully applied to the Supreme Court for a non-publication order allowing their client to remain protected.

On October 12, this order was revoked in Toowoomba Magistrates Court, with the man’s lawyers signalling they would appeal the decision immediately after.

At the time, the court was told the high profile man was at a “substantial” risk of self-harming should his identity be published.

But Supreme Court Justice Peter Applegarth said Mr Lehrmann had not established a non-publication order was necessary to protect his mental health, with his evidence failing to “compel” the Magistrate it should remain in place.

“The evidence before the Magistrate included evidence that the potential naming of the applicant prior to the conclusion of the committal proceeding weighed heavily on him and had affected his mental health,” Justice Applegarth said in his judgment.

“This unfortunate effect on his mental health permitted, but did not compel, a finding that a non-publication order was necessary to protect the applicant’s safety.”

Media companies had pointed to prominent interviews Mr Lehrmann conducted with Channel 7’s Spotlight and Sky News Australia.

It was submitted on behalf of the media entities there was an “incongruity between the applicant’s public presentation and what was said about him by the psychologist.”

Justice Applegarth found the magistrate did consider the evidence from the psychologist in her initial decision.

“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 said in his judgment.

“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.

Justice Applegarth said Mr Lehrmann had not established the magistrate’s decision was unreasonable in the legal sense “or so unreasonable that no reasonable magistrate could have made that decision”.

During a judicial review on Thursday, the man’s defence barrister Andrew Hoare told Brisbane Supreme Court court the magistrate’s decision should be quashed and the non-publication order continued.

He said if his client was to be identified, he would be at an increased risk of “catastrophic” self harm.

Mr Hoare said the sitting Magistrate made an error in determining his client had chosen not to seek medication or see a psychologist.

“The risk is greater if there is not that support in place (or) engagement with health professionals,” he said.

“The use of the term ‘That is his choice’ imports a type of obligation on the applicant.”

The court was told a forensic psychologist held “grave concerns” for the high-profile man’s mental health.

But Rob Anderson KC, appearing for the media entities, questioned the likelihood of harm to the applicant.

“There is no error of law,” Mr Anderson said of the magistrate’s decision.

Justice Applegarth noted any decision regarding non-publication orders would not advance or halt the conduct of any future committal hearing.

He said the degree of risk needed to be considered.

“The focus of the hearing seems to be what can one make of the state of the defendant’s psychology at the moment and what effective measures are available to him to reduce the identified risk,” he said.