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- Unreported Judgment
MT v Public Safety Business Agency  QCAT 83
Chief Executive Officer, Public Safety Business Agency
28 July 2015
21 April 2016
CHILDREN - BLUECARD – exceptional case – where a review sought of refusal to cancel a negative notice – where person charged but not convicted of an offence of unlawful stalking – where that offence was not categorised as serious - where magistrate saw fit to make a consent order restraining person from contact with complainant – where positive notice was cancelled and a negative notice issued – where a review of that decision was confirmed – where subsequent application to cancel negative notice and issue a positive notice was refused – where evidence of risk factors and protective factors – whether a gross breach of trust such that blue card should not issue – whether or not in the best interests of children for a negative notice to remain in place
Child Protection Act 1999 (Qld) ss 189(1)(a) and 194(1)(a)
Commissioner for Children and Young People and Child Guardian Act 2000 (Qld)
Criminal Code Act 1899 (Qld), ss 359E, 359F
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20(2) and 66
Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 221, 226(2), 237(1) and (2), 354 and 360
Burgess v Board of Teachers Registration Queensland  QDC 159
Chief Executive Officer, Department for Child Protection v Scott (No 2)  WASCA 171
Commissioner for Children and Young People and Child Guardian v FGC  QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28
Grindrod v Chief Executive Officer, Department for Community Development  WASAT 289
Re TAA  QCST 11
Volkers v Commissioner for Children and Young People and Child Guardian  QCAT 243
MT represented himself
Chief Executive Officer, Public Safety Business Agency represented by Ms K. Heath, an officer of the Public Safety Business Agency
REASONS FOR DECISION
- MT was issued with a positive notice and a blue card under the Commission for Children and Young People and Child Guardian Act 2000 on 15 May 2003. Subsequently the Queensland Police Service notified the Commission that MT’s criminal history had changed. On 26 July 2004, the Commissioner (now the Chief Executive Officer of the Public Safety Business Agency) suspended MT’s blue card and on 3 May 2005, issued a negative notice. A review hearing on 25 November 2005 confirmed the decision to issue a negative notice. MT reapplied for cancellation of the negative notice on 26 May 2014 and that was refused on 19 March 2015.
- MT has applied to the Tribunal for a review of that decision pursuant to section 236 of the Working with Children (Risk Management and Screening) Act 2000 (the Act).
- Under section 354 of the Act, the Tribunal can review a decision to refuse to issue a positive notice. The Act specifically provides that the welfare and best interests of a child are paramount.
- The Tribunal must decide the review in accordance with the Act and by way of a fresh hearing on the merits of the case.
- The Act does not define ‘exceptional case’ and phrases such as ‘exceptional case’ must be considered in the context of the legislation, the intent and purpose of that legislation and the interests of the persons whom the legislation is designed to protect. ‘Exceptional case’ is a term used in everyday language and should be applied in each case, unhampered by any special meaning or interpretation.
- Although the Act does not define ‘exceptional case’ it provides guidance as to what the Tribunal must take into account in deciding whether a case is exceptional. Section 226(2) requires the Tribunal to consider a number of matters including the criminal history of the applicant, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed and anything else about the commission of the offence which is reasonably relevant to an assessment of the applicant for child related employment.
- In considering whether an exceptional case exists, where it would not be in the best interests of children for a positive notice to be given, the Tribunal looks to the risk and protective factors arising from the evidence and whether there are exceptional circumstances. The Court of Appeal has approved that approach.
- The Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences, that an exceptional case does not exist when ordering the issue of a positive notice.
- Neither party bears the onus of proof as to whether an exceptional case exists.
- MT, who has an older brother, was born in Victoria, but spent his early years in western Queensland. His father is a church Pastor and the family moved within Queensland for his work. MT completed secondary schooling in a small far north Queensland town.
- In a gap year before commencing university studies, MT worked at a local supermarket and then went on a ten month tour with a youth group for under twenty-five year olds travelling through the eastern states promoting Christianity. He was the drummer in the youth group’s band.
- In 2003 MT commenced a Bachelor of Arts degree at university in a north Queensland city where he stayed during the week and returned to his home town on weekends. He was doing a major in an education subject which involved placement at a school and he undertook that placement at the state primary school in his home town.
- A psychologist who saw MT for the purpose of preparing a report for the original review hearing said MT described his decision to undertake teacher training as being inspired by god, like a calling, although he said MT explained that he did not wish to sound too spiritual.
- When at home for holidays and weekends, MT lived with his parents in a house adjacent to the church grounds where his father was the pastor. MT was in the habit of kicking a ball or similar games with children in the neighbourhood in the grounds in front of the church.
- A ten year old girl who had been in his placement class moved in with her family across the road from the church and was involved in games with the other children and MT. She was the complainant child with respect to a charge of stalking brought against MT.
- MT was charged with stalking the complainant child between 1 August 2003 and 5 December 2003. Ultimately, at the committal hearing in March 2005, the charge was dismissed on the basis that an element of the offence, that the complainant child apprehended or feared violence, was not present. The magistrate imposed a restraining order, consented to by MT’s representative, that MT have no contact with the child until she turned 17 (at that time a period exceeding five years).
- The Tribunal was provided with copies of the facts as contained in the QPS Court Brief, a transcript of the remarks of the magistrate at the time of dismissing the charge and making the non-contact order and redacted copies of statements by the complainant child’s mother and of the Detective Sergeant who was the officer in charge of the investigation.
- The Reasons of the review Tribunal in 2005 refer to being provided with a copy of the transcript of the committal proceedings against MT although for this review only a copy of the magistrate’s remarks at the conclusion of the proceedings was provided.
- The facts outline four ‘concerning acts’ which I will summarise.
- That on 3 December 2003, the complainant’s mother intercepted a letter from her home letterbox contained in an envelope addressed to her daughter and with an old ten cent stamp. The letter had all the tones of a letter between a boyfriend and girlfriend and was signed by MT. The mother was greatly distressed by the letter.
- That between October and November 2003 MT gave to the child a number of teddy bears which he had owned as a child.
- That one Friday night late in November 2003, the child was playing in her friend’s yard. At about 7.30pm all went quiet and the child’s mother went to the front of the home to see the child in the neighbour’s yard, being that of MT. She asked the child what was going on and was told ‘it’s a secret’. Eventually the child told her MT was hiding in the bushes pretending to be batman and every time a car went past, would duck into the bushes and hide.
- That the child had received a note over her fence attached to a tennis ball written by MT which said ‘can we talk seriously now, three claps for yes, two claps for no.’
- The facts state that the incidents when looked at in totality formed a picture of MT being infatuated with the child which culminated in the sending of the letter.
- In an audio recorded interview, no transcript of which was provided, the child:
[D]isclosed the teddy bear incidents and that the defendant had given her a hug and a kiss. She stated she felt uncomfortable by what had been happening. The complainant child was not aware of the letter as it had been intercepted by (her mother) prior to her returning home. The complainant child presented as a very bright intelligent girl.
- On 3 December 2003 CIB executed a search warrant at MT’s home and he readily admitted being the author of the letter. Police seized paper, pens, envelopes and a stamp bearing the name which had been stamped over the 10 cent stamp to give it the appearance of being posted.
Statement of Child’s Mother
- The child’s mother was a teacher’s aide who resided with her daughter and her partner. She told police she knew of MT through his placement as a student teacher at the school and saw that he lived across the road from her house. She was aware that MT played games such as brandy and football with children and thought it was great to see the whole street of children playing out the front of the church opposite her house. Her daughter went over to MT’s house on occasion and played out the front where the mother could see her. She only ever did so if she had a friend with her or there were a group of children. She told police MT would often send over one or two neighbourhood children to get her daughter to come and play.
- The mother told police she first thought something was wrong when her daughter told her MT asked her to play squash with him on Thursday afternoons. She thought this wrong because of the age difference and he had not first approached either her or her husband. She did not allow her daughter to play squash and told her it was wrong for a nineteen year old to play with a ten year old. She told police in her mind it was one thing to be playing in front of the house but completely different to be taking the child away.
- In October or November her daughter came home with some teddy bears and said ‘look what MT gave me he had these as a little boy.’ The mother told police she had then started to feel MT was ‘becoming infatuated’ with her daughter but did not want to believe this as he seemed a responsible student teacher at school. She decided to keep a closer eye on her daughter but thought she did not go to MT’s as often and could not remember her going after being given the toys. She remembered a sixteen year old boy was going over to MT’s and asked her daughter but she did not want to.
- The mother told police she recalled a Friday night in late November when she and her husband were watching her daughter and another child playing soccer out the front when about 7.30pm all went quiet. She went to the front and saw ‘them’ in the neighbours’ yard and told them to get back in their own yard. Later when she questioned her daughter about what she was doing in the neighbours’ yard she responded that ‘it’s secret’. The mother said ‘come on tell me what’s going on’ and her daughter said something along the lines of it’s ‘top secret’ before then telling her mother MT was behind the bushes pretending to be Batman and every time a car came past he would duck around the bush and hide. She told her daughter that was childish and silly and to play in the front not the back when it was dark.
- The mother told police that on 2 December 2003 her daughter had asked to go after school to a friend’s house which she described as “fortunate” as her daughter always checked the mail. Instead, the mother found an envelope in the mailbox addressed to her daughter although her name was spelt incorrectly. There was a very old stamp on the envelope which looked like it was post marked a long time ago. The envelope was sealed with sticky tape and was thick as though it contained several pages. Because “something didn’t seem right” she opened the envelope. The mother described what was written in the letter as making her feel sick.
- After speaking to the school principal and deputy principal the following day she took the letter to police.
- That evening she took her daughter to the park to speak with her privately:
During this conversation (my daughter) told me that she had received another note from MT. I said to (her) MT is in trouble with the Police as a nineteen year old playing with ten year olds isn’t right and the Police had gone to see him and he might be in trouble with the Police. Has MT ever touched you or made you feel uncomfortable in any way. (She) said ‘yes’. I asked ‘what’s happened?’ and she said ‘when he gave me those Teddy bears he picked me up and gave me a tight hug.’
I said ‘was there anything else which made you feel uncomfortable?’
She said ‘no’.
- At home later that evening she said her daughter:
[C]ame up to me and said ‘I’ve got a note from MT’…I saw the note was written on a bit of paper and said (read) ‘can we talk seriously now, three claps for yes, two claps for no.’ (She) said to me that this note had come attached to a tennis ball and that MT had thrown it over to her from his place.
Statement of Child
- The Tribunal was not provided with a copy of the transcript of the audio interview with the child. What appears to be in the form of a summary of the content of the transcript is set out in the Reasons as follows:
- She was in grade 5.
- The applicant (MT) had been playing with ten year olds and he thinks he is ten. The applicant doesn’t have any friends.
- When they moved into their house, she and her friend would always play with the applicant. Her friend came over one day and asked her if she wanted to go and play with MT [the applicant] and she responded “Yeah ok.”
- She went to play with the applicant, then went back home. When she went to play with the applicant now she would usually take a friend.
- She did not like playing with boys much.
- She gets along with the applicant well.
- Once the applicant gave her stuffed toys and gave her a big hug, where she didn’t feel comfortable.
- The stuffed toys were a seal and a teddy bear.
- She did not know why the applicant gave her the teddy bears, but she thought it may be because he didn’t use them anymore.
- The applicant gave her the stuffed toys about 2 weeks ago.
- The applicant hangs around the bigger boys at the school who were in Grade 7 and then he goes back to Grade 4 and helps out there.
- She does not usually talk to the applicant much at school.
- Once the applicant asked her to play squash with him.
- Her mum said no because the applicant should play with older kids.
- When the applicant gave her a hug she didn’t feel real comfortable, and then she just walked home. This happened at the steps of the applicant’s house.
- She described the hug as a ‘squeezy one’, like a ‘tight one.’
- Once the applicant tried to kiss her on the shoulder. The applicant always does this to her.
- If something uncomfortable happens she would tell her mum or if she is at school, the closest teacher or her Principal. She would also tell her grandma and granddad.
- She clarified in relation to feeling uncomfortable when the applicant hugged her to mean, that he just lifted her up in the air, held her there for 5 or 10 seconds. She just said thanks. She was near the applicant’s house when this happened about 4 weeks ago.
- Once the applicant went in the bushes near her house. She went over and the applicant just started talking to her and the applicant snuck over and then snuck over to [blank’s] house and then came back to her house.
- The applicant was Batman sneaking around and it happened at night at around 7.30pm to 8pm.
- The applicant’s mother clarified that it was actually 8.30pm to 9pm, on a Friday night and the girls were playing outside.
- Another night the applicant threw a ball over with a note on it.
- The note asked if she seriously wants to talk now then to send the ball back, 3 claps means no, 2 claps mean yes. This incident happened about a week ago. At this time her friend kept laughing, her friend was with her at the time and was in her class at school.
- She clarified there was a girl with her when the applicant gave her a hug.
- The applicant told her at night time that he was Batman.
- The applicant stated ‘Oh I’m batman and I sneak around at night.’
- When the applicant was in the bush, it made her feel scared, because she thought the applicant was somebody else. She now feels alright about it.
- The Reasons given by the previous Tribunal quotes some portions of the girl’s statement including after the point she was given the toys and hugged: ‘Well he gave (friend) a hug and she didn’t feel real comfortable too, so we just walked home.’ It therefore appears that there may be a more complete version of the transcript of the audio interview but I did not have it for this review.
MT’s Response to Allegations
- The Police facts outline that MT was formally interviewed at the police station in the presence of his mother and readily admitted to writing the letter. It was put to him that the letter was a love letter and although ‘heavily challenged on this aspect’ MT stated to police it was written as a letter of encouragement and nothing else.
- The Tribunal was not provided with a copy of the record of interview with MT nor was that available at the original Tribunal hearing. MT’s submissions dated 29 September 2004 made at the time of seeking an initial review of the decision are the earliest written account by MT of what occurred.
- I will summarise what he wrote from the Reasons dated 19 March 2015.
- MT wrote that the child involved was in the class in which he did his initial placement but he ‘did not have anything else to do with her at the time’.
- Later in the year the girl moved into the same street where he lived with his parents. A number of neighbourhood children ranging in age from ten to fifteen sometimes played in the grounds at the front the church. He recounted that the girl was upset at school one day, because her stepbrother had left and ‘she didn’t have many friends’. He told her to come and play with the other kids after school and to bring a friend, most of the kids being from the local catholic school. The girl would come occasionally to play. Sometimes one of the boys would go and see whether the girl and her friend wanted to come. He wrote that he would talk and involve the girl and her friend as he ‘did with all the others.’
- MT wrote that he cleaned out his room and had stuffed toys which he put in a box on the front porch to giveaway. He told the kids to take what they wanted and the girl and her friend took some. He stated they were never intended as ‘gifts in the sense that the police suggest’ and he did not treat the girl any differently from the others.
- I will reproduce the paragraph he wrote concerning the letter.
Towards the end of the year the girl told me she really ‘liked’ one of the boys in the group. I also knew she had good values (eg. She thought drinking and smoking and drugs were not good) and I wanted to encourage her to continue to hold onto those because the boy she liked thought drinking and smoking were cool. I wanted to build up her self-confidence and let her know she was a good kid with good ideals. That was my only intention but other people reading the letter have presumed I had some evil intent. I didn’t. The girl never got the letter as her mother retrieved it from the letterbox, read it and having misunderstood the intent was very upset. I understand now why it could have caused such distress. I deeply regret and am truly sorry for the incident but I was never stalking the girl.
- He sent further submissions dated 21 April 2005 in which he said the boy mentioned by him had told him the week he wrote the letter, that a party was being organized after year seven graduation for which parents were providing alcohol and he was concerned for the girl.
- He reiterated submissions he said had been sent earlier regarding the concerning acts as outlined by Police:
1) The letter was never a ‘love letter’. It was written as encouragement to the child to live up to her ideals and not be negatively influenced by others.
2) The teddy bears were not given as ‘gifts’. They were toys that were going to be thrown out and were offered to all neighbourhood children to take what they wanted before the rest were thrown out.
3) At no time did I ever advocate that any interaction between the girl and myself was ‘a secret’. The batman episode was just a silly game and conversation.
4) The neighbourhood children had devised a way of talking by clapping their hands. If they clapped so many times they expected someone to talk to them. I had been sitting in my room on the computer and could hear faint sounds and as time went on, over half an hour, the claps became louder. I had forgotten about the claps until then and sent a message over saying ‘do you seriously want to talk now?’ At no time did I intend to go over, and I sent the note because it was becoming annoying.
- When asked in oral evidence to comment on the magistrate’s comments at the conclusion of committal proceedings that his conduct according to ordinary community standards, was ‘inappropriate, worrying and bizarre’, MT said he agreed with the magistrate and added the behaviour was unprofessional given his duty of care towards the child.
- MT was asked whether his level of insight had changed since he was interviewed by police. He replied that he could see how the letter reads and understood the mother’s response but that he had no malicious or evil intent or any infatuation with the girl when he wrote the letter.
- MT was asked about the potential effect on the girl had she read the letter. He replied that:
It may have made her question previous encounters between herself and myself and put her in a position where she felt like she was being-set up for something. It could have given her a false sense of the relationship that we had at the time…I don’t think it would have been taken in the way I assumed it was to be taken in and it could have set her later years up for a lot of uncertainty about how to be treated or how…men or older men should treat children.
- MT said the letter did not come out as he meant and should have been limited to stating ‘don’t be swayed by anyone to change what you believe is good.’ When asked whether he would now write the letter at all he said ‘probably not’, then, ‘no, I wouldn’t.’
- MT said he still had no recollection of kissing the girl on the shoulder or anywhere. He did not dispute giving her a hug and that that was inappropriate.
- As regards the note attached to a ball MT said at the time he was working in his room and through his window he could see and hear a group of four or five children in the front of the adjacent yard ‘doing this clapping thing’ for around ten minutes. He said the children had devised a system of communicating by clapping and he thought they may have wanted to talk to him so he threw over a tennis ball with the note. He said he threw it to the group and not to any particular child.
- When asked what insights he had developed in the intervening years MT replied that the ‘biggest thing’ he had come to understand was that it is not an issue of him ‘being mistreated by Blue Card Services’ and that he had come to understand why he had been issued a negative notice. He said he understood:
It’s to do with the welfare of children…and I wasn’t protecting the rights of the girl…all the acts that were done …were not done in an appropriate manner…I have obviously grown up a lot since…I do have a lot of better practices and just knowledge about how to interact with children.
- I pointed out in his initiating application seeking a fresh review, filed only months before the hearing, MT had written that ‘I want the right for normal life without this constant injustice sitting over my head.’ MT said his changed in attitude by the time of hearing had come about from re-reading the entire proceedings and:
Getting more of a sense of the actual reasoning why the decisions were made and it wasn’t fully about what they thought about my character. It was more if I was able to provide children with a safe environment.
- When asked about attending ‘rehabilitation or other courses’ MT said he had done courses when working at the PCYC and within the Bachelor of Learning Management there were courses about psychology and welfare of children. He said courses that were available through his church required attendees to have a blue card, so his insight has been mostly developed through reading and his wife being a teacher.
- When asked substantive efforts he could show of learning practices to avoid a repetition of the earlier behaviour MT replied that after 2005 he had resigned himself to not having a blue card and sought work in other areas. He said his main reason for reapplying for a blue card was the ‘support and encouragement of others’ around him. He said that whilst he had not been as active as he could in attempting to regain a blue card, that just being around other families, he was ‘much more aware and in tune about how to treat children.’ He had also attended parenting courses, most recently during the preceding year which he described as ‘about growing children in a responsible way and how to treat other children in the same way.’ He said he is seeking a blue card, not to work with children but because it is a requirement of his church if he is to be more involved.
- MT said if he were today to become concerned for the welfare of a child, he would take those concerns to the parents. He thought if his own daughter were to receive such a letter he would react similarly to the child’s parents in 2003.
- MT was asked specifically how he would deal with a situation where a teenage girl in the church developed a crush on him and he replied he would seek the advice of church leaders and inform his wife ‘as she’s able to support me with these sort of things.’
- MT did not raise the incident at the time, but later during the evidence of a witness, KE, he asked about just such an example he had recently dealt with. When asked why he had not brought up the incident, being a perfect example, at the time he was asked, MT said he had put it out of his mind and only remembered while KE was giving evidence.
- When asked what he thought was the main factor in not being charged with any other offence in the intervening ten years, MT replied that it was ‘knowing that there is definitely a correct procedure in the way things are handled in regards to children and also being a father too.’
- MT said the emotional supports in his life are his wife and a group of close friends and mentors, mostly within his church, in whom he can confide.
- MT did not complete either the Bachelor of Arts or Bachelor of Learning Management nor commenced other studies. He said he had worked in retail, briefly doing building work and is currently employed as a delivery driver. He said he does not intend seeking alternative employment should he be issued a blue card.
Mental Health and Evidence of Psychologist
- MT said he had never been diagnosed with any mental health concerns or taken any medication for mental health issues. The only occasion he consulted a mental health professional was in 2005 when he saw clinical psychologist, Richard Jones, to obtain a report for the previous review hearing.
- The Tribunal was provided with a copy of Mr Jones report which made a number of conclusions as follows:
- That MT represented a very small sample of youth, being at the age of 21 a sexual virgin with no involvement with alcohol or other drugs.
- His strong Christian beliefs ‘may have contributed to some of the difficulties…giving him a perhaps unexamined naïve belief that he had responsibilities and capabilities of saving others from themselves.’
- He has an appropriate social network and is in an intimate and stable relationship with a woman his own age.
- There are no indications of clinically significant psychopathology.
- He can be safely allowed to interact with young people and has clearly learned that what was acceptable within the context of the church may not be interpreted in the same way by the population in general.
- The previous Tribunal had a number of concerns with Mr Jones’ evidence which the Tribunal found detracted from the acceptability of his views, namely that he admitted time constraints involved in his assessment, that he was not a forensic psychologist, that he had not read the letter at the time of writing his report nor discussed the content with Tim in any great detail, and that Mr Jones expressed at the hearing that it was his personal and professional opinion that MT’s motives were innocent. The Tribunal said it wondered ‘how much his personal view impinged on his professional view.’
- MT said once he became aware of the recommendation that he obtain a new psychologist report he contacted psychologists in the area but was unable to see someone who could provide such report in the required timeframe. His wife corroborated that he had made those attempts when she gave evidence.
Evidence of Other Witnesses
- AD is an elder of the church previously attended by MT and has known him for more than ten years through church and church family activities. AD was aware of MT being charged with stalking and said at the time she thought it must be an enormous mistake. She thought once the charge was dismissed that would be the end of the matter for MT.
- AD had read the letter although not the Reasons. She said she was aware of the magistrate’s comments made at the time the charge was dismissed that MT’s behaviour was ‘inappropriate, worrying and bizarre.’
- She said she thought it was MT’s ‘caring nature and innocence at the time that led to the letter being written in such a way that it could have mistakenly been seen as grooming and stalking’. She believed it was his intention to benefit the girl and encourage her to value herself and be cautious with the friends she made.
- AD noted she had had little opportunity to observe MT with children other than his own because he was careful to observe the church’s child policies and lacked a blue card. Ms Ayers said her own daughter had been involved as a school leaver with the church’s Young Adults group of which MT was also a member and never had a reason to doubt his intentions. She said she observed MT loving and caring for his own family in such a way that she would be happy for him to care for any children in her family.
- TC is a Senior Pastor at the church attended by MT the past two years.
- TC is part of a leadership team within the church, which has over three hundred churches across Queensland, responsible for child protection policies and said he is very familiar with the blue card system. His church requires all members in a leadership or teaching role to have a blue card regardless of whether they will be in contact with children.
- TC had read the letter written to the child by MT but not the Reasons document. He was aware of the magistrate dealing with the charge describing MT’s behaviour as ‘inappropriate, worrying and bizarre.’ He said he could see why a magistrate not knowing MT would come to that conclusion. If that was then an accurate description of the behaviour, he says it occurred over twelve years ago when MT was aged only nineteen. He is now a married man with children and has shown no unusual behaviour and has a clean record since.
- TC said that he had known MT’s father who was a minister in the area for a decade and worked with him and knew the family. He said knowing MT for the past two years and interacting with him directly and observing his interactions within the congregation, which includes large numbers of children, he strongly supports his being issued a blue card. He described MT as being transparent about his being refused a blue card and displaying exemplary behaviour at all times. He said the church leadership had been particular in observing MT, knowing he had been refused a blue card.
- KE is an Assistant Pastor and Youth Pastor at the church now attended by MT and has known him in that capacity and as a friend for two years. He is one of the people within his church responsible for blue card applications and for child protection policy and training.
- KE had read the letter written by MT to the child and was aware he had been charged with stalking but not of the magistrate’s comments. He had not read the Reasons document.
- KE agreed MT’s behaviour at the time was open to an interpretation as bizarre but said he had seen no concerning behaviour since knowing MT. He described MT as generous, caring, friendly, genuine, and transparent. He said his family and MT’s family were friends who spent a lot of time together where he had the opportunity to see MT interacting with his children. KE described himself as protective but has no concern with MT being with his children describing him as a ‘great role model’ to them.
- In response to a question asked by MT, KE said MT had recently contacted him about texts from a teenage girl member of the congregation. KE said MT expressed his concern because the girl had texted him asking about the details of bible study classes being conducted by MT’s wife. MT responded with information such as the time and place of the classes and then stopped when the girl kept asking for information he had already given. KE said he spoke to the girl, and thought maybe MT and his wife had also, to let her know that KT was the appropriate person to ask questions about bible study.
- HR is a Senior Pastor of the church currently attended by MT and has known MT about twenty months.
- HR said MT had advised the church at the time of joining that he did not have a blue card and the reasons for that. HR said it was his church’s policy to place a person in that position under careful observation and that had occurred with MT.
- HR said he had read the Reasons document as well as the letter MT had written and was aware of the magistrate’s comments at the time the stalking charge was dismissed. He said he had observed MT in the structured environment of the church as well as less structured occasions such as after services and had spent time in his home with his family who had also spent time in HR’s home. HR said that having over forty three years in the ministry you 'tend to get a handle on the character of people…whether they’re… a little bit dodgy…and we don’t pick up anything with this man at all.’
- LV is Creative Arts Pastor at the church MT now attends and has known him nearly two years.
- LV said she had read the Reasons document, including the letter MT wrote and was aware of the magistrate’s comments made when the stalking charge was dismissed.
- LV said MT had informed the church of his blue card status at the outset and so was placed under particular observation. She has observed him in the church environment, at family gatherings and in her own home and said he interacts with children with the very best care and diligence. He is a volunteer on the creative arts team which is attended by her own daughter.
- LV said she would not necessarily be concerned by a person telling her child ‘I love you. I care for you.’ She said there are people her family interacts with, with whom the family has had a history of interactions, who respond to her child in that way and she would not find that ‘bizarre’. She said she was not aware whether the child’s mother in 2003 had interacted much with MT so was not sure about ‘the level of trust that was there.’
- LV described as ‘mother’s intuition’ situations where other people’s interactions with her child have ‘irked’ her making her lack trust in that person and said MT has never made her feel that way.
- AM is a Youth Leader, Disability Support Worker and Personal Trainer and said she has participated and facilitated many youth camps, activities and programmes for both younger and older children in the different organisations of which she has been part. She has known MT for two years and lived for ten months in his family home during a difficult time in her own life.
- AM said she had read the Reasons document and the letter MT wrote to the ten year old girl and was aware of the magistrate’s comments at the time the charge of stalking was dismissed. She said the letter was written a long time ago when MT was young. She said in reading the latter she sees a ‘caring heart’ and MT is not a stalker, although she can see how the letter was viewed. She said MT has learned to handle situations in a more professional and appropriate manner. She said he often sought his wife’s advice.
- NA, an electrician, has known MT for nine years through church, socially, sports and bible studies.
- NA said he had read the Reasons document and the letter written to the girl and was aware of the comments made by the magistrate when the charge of stalking was dismissed.
- NA said at the end of each year, the members of the study group of which he and MT are part, write encouraging letters to each other in booklets. He said MT’s writing style in those encouraging letters is similar to the letter he wrote to the girl, which he said ‘came across pretty bad.’ He described MT writing such things as 'I am special to him and special to God’ and ‘he loves having me as a friend.’ He said his wife is in a band with MT and he has written such encouraging letters to her ‘about how she’s singing’.
- CV is a school teacher who has known MT two years having met through a colleague.
- CV said she had read the letter written by MT to the girl although not the Reasons document. She was aware he had been charged with stalking the girl and that the charge did not proceed. She was not aware of the magistrate’s comments that MT’s behaviour had been ‘inappropriate, worrying and bizarre’ but said she could understand that being said. She described some of the content of the letter as very inappropriate and said she understood MT thought so too.
- CV said she had seen MT interacting with children in the setting of school camp attended by families. She said she personally thought it a shame MT did not go on to become a teacher as he had a ‘lovely rapport with students’ and she had no problem with his interactions with children.
- ET is MT’s mother. She currently works as a retail assistant.
- ET said she had read the previous Reasons document although not the most recent. She had been in court to hear the magistrate’s comments when the stalking charge was discontinued.
- ET said her son had matured a great deal since the charge against him. She said he was immature as a nineteen year old in some ways. He had started teachers training and did not yet understand the protocols. Many people had told him he was good with kids and she thought he was probably relating to children on their own level at that time. She said the previous Tribunal hearing had turned his world upside down. It caused a shift in his thinking and for him to understand protocols better.
- ET said marriage had also matured her son and he was a wonderful father who always makes good choices as regards his family. She described herself as always proud of her son but said any mother would be proud of what he had become in the last ten years.
- ET said as a father MT has a really good balance between someone who is fun to be with but also someone who they feel safe with. She described his interactions with other children as being like any other adult.
- ET was asked whether her son hugs people a lot. She said within the family he was always the one who liked hugs and gave hugs. She said in the youth group in the town he grew up they were a supportive friendly group who always hugged each other. She said that after what he experienced, his hugging would now not extend to children or young people within a church or other environment as he is now very particular whom he hugs and she thinks would wait for an invitation.
- ET related also how the youth group to which her son belonged was a group which would encourage members to sit around and write notes saying something positive about other members which were passed around to others to add to. She said the members would also send each other notes of encouragement to say they had done well. She recalled the notes including such messages as ‘you looked like you were a bit down today and I just wanted to let you know we all love you and we care about you.’ While it was not a good idea to write to a ten year old girl who was not part of the youth group, she thought at the time, her son thought his letter to the girl was in the same vein.
- ET said as regards her son referring in the letter to the girl having a crush on him, a member of the youth group would have seen that as humorous but that the ten year old would not. ET said her son writes his children notes and that he writes her ‘lovely things in every birthday card.’ She did not think he would write to people outside the family any more.
- ET said that her son had never sought out any child in the area they lived but that children gravitated towards him. The next door neighbour at the time had two boys and was grateful that her boys looked up to MT and that he could be relied on to give them good encouragement. ET said other children followed that pattern and the ten year old girl had just been part of that group. ET said her son’s letter to the girl would have been meant as encouragement but was not appropriate.
- ET was present when her son put his ‘fluffy toys’ he was no longer wanting in a basket and told all the children in the area to help themselves. She said the girls were there but he was not offering the toys to them specifically but to all the children. He told them to take their pick as he did not want them anymore. ET said she had not seen the girls come back to say thank you when her son says he hugged them. She said none of the boys had said thank you but it would not surprise her if those girls had done so.
- ET said that her son had not spoken to her about the girl having a crush on him before the letter came to light but she recalled the teacher with whom he had done the practical saying MT had raised that previously.
- KT, a primary school teacher, has been married to MT nearly ten years having met at university. She and MT have three children together and she had a daughter by a previous relationship, now nearly thirteen.
- KT said she was very familiar with all the background to the matter and had read the Reasons documents, the letter and the magistrate’s comments.
- KT said that even before their friendship became romantic, MT told her what had taken place in relation to the stalking charge. She read the letter at some point before their marriage and took the further step of discussing what had occurred with MT’s parents. At the time her daughter was only about two years old and she felt she needed to act protectively. KT said at no point after meeting MT did he act inappropriately or cause her reason for concern. She said as someone who was sexually abused as a child up to the age of nine, she is very sensitive to the issue. She said for example MT never offered to care for her daughter and to this day remains careful to not be alone with other people’s children and ensures his own children are given privacy.
- KT said she had embarked on the relationship with MT only after much thought and after taking the opportunity to observe MT. She described him as showing more character than anyone she had met. He did not pursue a physical relationship whilst dating. She felt he was absolutely genuine.
- KT thought that should her own daughter have received a letter such as MT wrote, that her ‘alarm bell may have gone off’. She said it is different knowing a person, and what they meant to say, but she understands the girl’s mother’s concern. She said in the same position she would have pursued the issue although thinks her first step may have been to see MT and his parents. She said however, she understood the mother’s need to act protectively as she saw fit.
- Although she sees that the letter was written in a way that was alarming in some content, KT does not believe, having known her husband and spent the last twelve years with him, that he was ‘infatuated’ with the child or that he was pursuing any inappropriate contact with her.
- When asked about her husband writing letters of encouragement to people, KT said she and MT were involved in a group where at the end of the year they would write ‘encouraging books’ and people looked forward to what she and MT wrote as they both have encouraging natures. She said he writes such notes to her and to their children.
- KT has observed her husband to have matured since they met when he was aged twenty. She said his judgment has greatly improved, for example, he was a person who tended to hug people upon greeting them when a handshake was more appropriate. She described him as having an “innocence” which she herself had lost having been exposed to so much at an early age. She also explained that early in the relationship she had put in place a ground rule that if females took up an issue with MT, he was to refer them to her and she would do the same with a male. She had said to him that was to avoid people taking things the wrong way. KT thought MT’s approach may stem from having a somewhat sheltered Christian upbringing. She had observed a similar attitude in others with that background which she herself did not have.
- KT said when she first met her husband he was ‘playful’ which she found refreshing having had a more serious time experiencing motherhood at such a young age. With his maturing she had observed him to better judge when to be serious and when it was okay to have fun.
- When asked about recent incidents involving children, KT related how after receiving texts about bible study classes from a young girl, MT showed her the texts and they agreed he needed to speak to the pastor. The girl was advised that KT was the appropriate person to contact about the classes. KT said that was an example of MT not wanting to hurt the girl involved but understanding he needed to have someone else deal with her.
- KT conveyed her distress at seeing her husband’s tears and embarrassment when reading the letter he:
…shakes his head in disgust that he wrote it and didn’t see how that kind of content could be taken. I see the shame that is over him that people think him a capable paedophile. But all that cannot change that he has grown into a lovely man who loves kids living life to the fullest and only wanting the best for them.
- The Tribunal also had written statements given prior to the previous review hearing and others made more recently but without the writers attending the hearing. These referees mostly had knowledge of the charge against MT and remarked on MT’s good character and stable Christian upbringing. All supported his being able to work with children.
- The principal of the primary school where MT had done his placement, RD, as well as the teacher in whose class he had been placed, LD, both made very favourable comments regarding his character and professional work with children.
- RD wrote:
At the conclusion of the 2003 school year [MT] was accused of approaching an individual student inappropriately. Throughout the year I was never concerned or made aware of any inappropriate interactions within our school.
- LD wrote:
I am aware of the charges made against [MT]. At no time in my association with MT have I ever been concerned or in doubt of his suitability to work with children.
Submissions of Blue Card Services
- The Agency identified a number of protective factors relevant to MT including:
- He was 19 years old at the time of his concerning behaviour and is now 31 years old and married with children. His family life appears stable with his wife speaking highly of MT in his capacity as a husband and father.
- MT is actively involved in his church and a number of members of the church have attested to his good character and ability to interact appropriately with children.
- MT has been forthcoming regarding his negative blue card status and there is no evidence to suggest he has sought contact with children outside of his church’s child protection policy.
- MT has pursued alternative careers to teaching including retail.
- The Agency submitted that whilst there were protective factors there were a number of risk factors arising from the evidence.
- MT was in a position of trust and responsible to protect the complainant child from harm and promote her well-being.
- MT used his close residential proximity to commit the acts which led to the charge of unlawful stalking.
- The offending seemed to escalate in the culmination of the letter to the complainant child in which he declared his ‘infatuation’ with her. The inference can be drawn that MT was attempting to conceal his identity from others in the manner in which it had been stamped before being deposited in the child’s parents’ letterbox.
- The basis on which the Magistrate dismissed the charge was that there was not sufficient evidence of one element of the offence, that the complainant child had an apprehension of fear or violence to herself or another. The Magistrate however noted that the facts, which were not in dispute, pointed to conduct which according to ordinary community standard, was ‘inappropriate, worrying and bizarre.’ The Magistrate’s concern was reflected in the making of a non-contact order prohibiting MT from contact with the child until she was at least 17 years old. That one of the elements of the offence was not made out in no way reduces the severity of MT’s conduct.
- MT demonstrated a lack of remorse and insight in the record of interview that the intercepted letter was written in the context of a love letter.
- The child’s mother raised a further concern regarding MT’s behaviour towards the child that he had asked her to play squash ‘on Thursday afternoons’ without first seeking the parents’ permission.
- The child’s mother reported that when she had asked her daughter if MT had ever touched her or made her feel uncomfortable in any way she said yes ‘when he gave me those teddy bears he picked me up and gave me a tight hug.’
- The complainant child, in an audio recorded interview confirmed MT asked her to play squash. She stated that when MT hugged her she did not feel ‘real comfortable’. She stated that MT once tried to kiss her on the shoulder and that he ‘always does it to me.’
- The Agency submitted that a number of risk factors and issues were highlighted at the original review hearing when the Tribunal confirmed the negative notice.
- The Agency quotes from the original Tribunal decision.
[MT]’s overall presentation left something to be desired. At times he was unresponsive and evasive. He was very slow to respond to many questions of a probing sort. There were inconsistencies in his evidence. There were additions and embellishments provided by him for the first time, leading to the conclusion that he was ‘grooming’ his testimony. A number of his responses were not plausible. The Tribunal did not get a sense that he was remorseful for his behaviour. Although he wrote and said he now regarded his behaviour as inappropriate there remained a clear enough sense from [MT]’s testimony that he still did not really believe this. Overall [MT]’s performance as a witness was not convincing.
- The Agency submits that the Tribunal took the view that the report provided by the psychologist contained disadvantages that detracted from the acceptability of his views. He had not read the letter to the child prior to completing his report. He was not a forensic psychologist and expressed that in his personal and professional opinion, MT’s motives were innocent, which lead the Tribunal to wonder how much such personal views impinged on his professional views. The Agency submitted the report of the psychologist provided for the purpose of the earlier hearing should be given limited weight for the purposes of the current review hearing.
- The Agency notes that no other witnesses gave oral evidence at the earlier hearing and the Tribunal indicated that the written references were not of much assistance. The Agency submits that such references minimised MT’s behaviour and were written to promote a favourable outcome of the review. The Agency submits these earlier references should be given limited weight for the purposes of the current review hearing.
- The Agency notes the Tribunal at the earlier review hearing did not accept the innocent interpretation of the letter suggested by MT and said ‘it is more likely that this was a love letter brought about by [MT]’s increasing infatuation with H’.
- The Agency submits that while the current review hearing is a fresh consideration of the evidence, MT’s evidence in the current review hearing should be tempered by the Tribunal’s observations of his oral evidence given in the earlier review hearing.
- The Agency notes the Tribunal at the original review hearing referred to MT’s lack of concern for the effect of his behaviour on the child and the potential effect of his behaviour on her had she read the letter as intended by him and submits this reflects lack of insight and remorse, especially given his acceptance at committal proceedings of the facts before the Court.
- The Agency notes the Tribunal at the original review hearing rejected the view that MT had an innocent explanation for his behaviour and was unimpressed by his oral presentation and the explanations and responses he provided. The Agency quoted the Tribunal as being
…satisfied on the evidence that in the latter part of 2003 MT had by reason of his upbringing, education and life experiences reached an appropriate level of maturity, experience and worldliness for his age. He was not the innocent he suggests he was. There was no compelling reason to think otherwise…the more likely and certainly the more acceptable view is that there was something sinister in [MT]’s behaviour. It rings warning bells. It is alarming. The Tribunal therefore concludes that as a result of its findings, [MT] is unsuitable to work with children.
- The Agency submitted there were further risk factors upon a consideration of the further material filed in support of MT’s application.
- The Agency submitted MT’s written submissions to Blue Card Services in August 2014 continue to show a lack of insight of the acts constituting the offence with which he was charged, for example, his statement that ‘I have said and maintained since the start of this affair that the letter was meant for encouragement and that has not changed.’
- The Agency submitted that looking at the overall contents of the letter it reads as a love letter and that MT’s expression of hope in the letter, that the intended recipient takes it as a compliment to her in friendship, is difficult to accept.
- The Agency submitted that MT’s ongoing assertions that the letter was meant only as encouragement to the child to ‘stay true to herself’ are not credible given it included a reference to him being ‘flattered’ when he heard claims the child liked him and ‘saddened’ because of the age difference between them. The Agency submitted that the contents of the letter, if read by the child, would have been confusing and not in the interests of her well-being.
- The Agency submitted that MT’s assertion that he expected the letter to be read by the child’s parents at some stage and that it was not a private letter are inconsistent with the police facts, including the placing of the letter, albeit signed by MT, in an envelope which appeared to be posted. The Agency submitted that this argument that he expected the letter to be read by the child’s parents is further evidence of his lack of insight into the appropriateness of his actions.
- The Agency submitted that MT’s comments in his written submissions about returning the child’s hug and being a person who hugs people to reassure them that he cares shows an ongoing lack of insight into the appropriateness of his behaviour. The Agency noted the child told police the hug made her uncomfortable.
- The Agency submitted that in relation to the incident involving a note attached to a tennis ball, MT provided a version of events inconsistent with the accepted police facts and that the letter read as though MT was initiating communication with the complainant child.
- The Agency submitted that MT, having not challenged the fact of the child’s allegation that he kissed her shoulder, cannot now challenge the veracity of the evidence before the Court at committal. The Agency submits that while the kiss was not one of the specific acts charged by police as part of the unlawful circumstances, the Tribunal can take the surrounding circumstances into consideration for the purpose of the review.
- The Agency submitted that time is only one of the factors to be considered and the passage of time does not reduce the severity of MT’s behaviour.
- The Agency submitted that while MT’s witnesses spoke very positively of him this should be tempered because the insight needs to come from MT himself as supported by the witnesses but in this case MT has not demonstrated a requisite level of insight since the last review hearing to be given a blue card.
- The Agency submitted that evidence regarding the risk of MT reoffending has not been obtained and without a recent psychological report, there is nothing of an independent medical nature addressing his eligibility to engage in child related activities.
- The Agency submitted that while MT states he has not applied for work that involves working with children but seeks a blue card to be more fully involved with his church activities as well as his children’s sporting activities, the Tribunal must consider MT’s eligibility to work in any child-related employment or to conduct a child-related business regulated by the Act irrespective of whether he intends to engage in such activities.
- The Agency submitted MT continues to minimise his behaviour at the time of offending and to demonstrate lack of remorse and insight and a disregard for the impact of his behaviour on the child. The earlier Tribunal did not accept MT had innocent intentions and found him unsuitable to work with children. While eleven years have passed since the offending, with MT undergoing significant changes in his life, there is nothing in new material to mitigate the concerns of the earlier Tribunal. He has not attempted to gain insight into his behaviour through professional treatment, counselling or involvement with support groups.
- The Agency submitted that in oral evidence, MT initially only expressed an understanding for the concern the girl’s parents would have felt upon reading the letter and only after being questioned, expressed concern for the potential impact on the girl had she read the letter. The Agency submitted that with the benefit of having read two Reasons documents as well as the decision of the previous Tribunal hearing, and having more than a decade to reflect on his behaviour, MT should have demonstrated a greater degree of insight.
- The Agency submitted MT did not demonstrate strategies in place should a similar situation arise. Although given the opportunity to demonstrate a tangible strategy to show how his insight has progressed, MT did not in his oral evidence disclose his recent actions regarding a teenage girl member of his church, and the incident was only raised by his witness.
- The Agency submitted that MT’s behaviour involved such a gross breach of trust that he should not be issued with a blue card.
Submissions of MT
- MT acknowledged he was not able to represent himself well and that he lacked the knowledge to best prepare for the hearing. He submitted that the evidence of his witnesses was that he does not act inappropriately around children and is not a person who would harm children or deny them their right to be safe, protected and cared for.
- MT acknowledged he had not put in place procedures or education into caring for children to satisfy the Agency’s concerns but submitted he had undertaken education and mentoring and had advice as to how to engage appropriately with children and is now much more aware of what is appropriate behaviour.
- MT submitted that while he did not seek to excuse his behaviour, the child involved had not appeared uncomfortable with any of his behaviour other than the hug. As regards the letter, whilst he asserts his only intent was that which he has always maintained, he agrees if it had been read by the child, she would not have read it in the way he intended and could have been emotionally damaged.
- MT submitted that he understood the review was not about his right to hold a blue card but about the rights of children to be protected.
- I would not have reached the same conclusion as the previous Tribunal.
- I have read the letter MT wrote to the girl and disagree that it ‘had all the tones of a letter between a boyfriend and girlfriend.’ I thought it inappropriate and unprofessional, but childish and awkward rather than ‘bizarre,’ and self-important rather than ‘worrying.’ I am unable to agree that the sending of that letter together with the other incidents outlined formed ‘a picture of MT being infatuated with the child.’
- The previous Tribunal found MT to be an unconvincing witness. The Tribunal described him as ‘unresponsive and evasive’ and slow to respond to probing questions. The Tribunal found some responses implausible and concluded he was ‘grooming’ his testimony.
- At this hearing, I did not have that opinion of MT’s testimony. Whilst he was not as animated and personable, for example, as was his wife, I consider he gave honest answers which were to his best recollection.
- A difficulty for MT seems to be his insistence that he meant nothing ‘sinister’ towards the girl. While he continues to deny any sinister intent, it is suggested he is not ‘remorseful’. I find he has remorse for sending the letter and insight into the letter’s inappropriateness. I do not think he is required to capitulate to suggestions the letter was meant as a step to some inappropriate contact with the girl, in order to be considered remorseful.
- I disagree with the Agency’s assertion that the ‘facts’ as alleged by police were ‘uncontested’ by MT. Whilst he agreed incidents had occurred between himself and the child he did not agree with the sinister interpretation by the child’s mother and the police. I do not have the transcript of the committal proceedings in its entirety and therefore do not have the submissions made by MT’s representative nor MT’s statement but the Agency appears to accept that while MT agreed most of the incidents occurred, he had always denied any inappropriate intention towards the girl.
- In my view a number of incidents were taken out of context. The ‘gifting of soft toys’ was not especially to this little girl but to the neighbourhood children in general. MT’s mother, who I found to be a compelling witness, corroborates that was the case. The girl was not alone with him at that point, even on the girl’s statement, where she says her friend was with her and also was hugged by MT. Not having a transcript means it is unknown how information was elicited from this child but I would have had a number of concerns about her evidence. What does she mean in saying he ‘kissed her once on the shoulder’ but then that he ‘always does that’?
- Her mother’s statement is that she asked her daughter if MT had ‘ever touched her or made her feel uncomfortable.’ That ought to have been two separate questions. The girl has responded ‘yes’ and gone on to say that when he gave her ‘those teddy bears’ (in a different part of her evidence stated to be a ‘teddy bear and a seal’) he ‘picked me up and gave me a tight hug.’
- The mother has then said ‘Was there anything else which made you feel uncomfortable?’ which is assuming her daughter was citing the hug as an occasion he made her ‘uncomfortable’. She may have been referring to it as an occasion he ‘touched’ her.
- When being interviewed by police, the girl clarified that the hug was a ‘squeezy tight’ one so it may well be she was saying it was uncomfortable but in the way of physically uncomfortable and not in the way the adults were referring to.
- The ‘batman’ incident and the note being attached to the ball were both represented as occasions where MT was interacting in particular with this girl but MT has explained that a number of children were present on both occasions.
- In my view the fact the letter was placed in the girl’s mailbox supports MT’s contention he expected the letter may well be read by the girl’s parents. It was not at all a secret way to give her the letter.
- MT’s invitation to the girl to play squash has been added to the list of sinister acts. No one appears to have made enquiries as to other children being invited. Nor is there any suggestion MT was persistent in making the invitation.
- MT’s behaviour over a period of four months has been described as ‘ongoing and persistent.’ I cannot agree with that description, even on the facts as presented by police in bringing the charge of stalking. The behaviours comprised a one off invitation to squash, one occasion giving away old toys with a hug to the girl and her friend at that time (MT said in response to them thanking him), a game with other children at night in the dark where the girl clarified she was not frightened once she knew it was MT hiding in the bushes, the letter and a note and an inexplicable ‘kiss on the shoulder’. I do not get any sense from that series of incidents of MT being ‘infatuated.’ I would not have concluded that he was ‘grooming’ the child in the absence of other evidence.
- Both the principal of the school and the classroom teacher had made written statements to the effect they were not made aware of any concerning behaviour while MT was at the school but they did not appear at the hearing and therefore their statements were unable to be given much weight.
- I would not have had the same difficulty with the evidence of the psychologist as did the previous Tribunal. I do not think the assessment warranted the engagement of a forensic psychologist and would have been satisfied to have the psychologist be cross examined in relation to the letter at the hearing. While the psychologist reportedly said he would be concerned about a nineteen year old who had written such a letter working with children, he also at the hearing, having by then read the letter, said in his opinion, MT was suitable to work with children. For me, nothing turns on the psychologist using the expression that it was his ‘personal and professional’ opinion.
- I found Mr Jones’ written explanation very plausible as regards MT’s Christian beliefs and practices within his church groups as affecting his capacity at the time for understanding the inappropriateness of his behaviour, particularly given the evidence I heard from MT’s witnesses.
- The previous Tribunal did not accept that MT’s naivety or immaturity explained his actions but that Tribunal did not have the advantage of hearing from the witnesses available at this hearing. In particular, I found the evidence of MT’s mother and wife to be compelling. In my view, neither of these witnesses presented as seeking to show MT in a purely flattering way. They answered questions, in my view, to the very best of their recollection and honestly with regards to their son and husband.
- Several witnesses gave evidence that provided context to and detail of the practices referred to somewhat briefly in Mr Jones’ report including the writing of ‘encouraging notes’ which the general population could consider ‘bizarre.’ The previous Tribunal had only MT’s assertions of what he intended and being unimpressed with him as a witness, found his explanations implausible. I have said, I did not have that same difficulty with MT as a witness, but also I had the benefit of hearing from a number of people who were familiar with his style of Christianity.
- I have stated that in the previous Tribunal’s position I would not have made the same finding, however, I will now for the purpose of freshly reviewing this matter, assume that position was correct and confine my consideration to what has changed as regards positive and risk factors pertaining to MT.
- The Agency submitted MT does not demonstrate insight into the impact his behaviour may have had on the young girl. I consider MT has now reflected deeply on the matter. He was at the hearing able to express an understanding that the review process was not about his needs but about ensuring children are protected. He articulated that had his letter been received by the girl it may have given her a ‘false sense of the relationship’ and ‘uncertainty about how men should treat children.’
- I accept the evidence in particular of MT’s wife and mother that he has matured in the intervening years and recognises that ‘hugging’ and ‘personal notes’ are not appropriate in some circumstances.
- The example given by KE, which was corroborated by KT, of the way MT recently dealt with texts from a teenage girl, illustrates a responsible approach. The fact that MT did not cite such example when given the opportunity during his own oral evidence does not detract from his credibility. It is easy to underestimate how difficult it is for an applicant to represent him or herself in the formal and unfamiliar environment of a hearing room.
- It might have assisted the Tribunal had MT obtained a recent psychological report. Given there is no evidence that he has any mental illness or psychological impairment requiring treatment, or that such condition contributed to the previous charge against him I do not accept as submitted by the Agency that independent medical evidence addressing MT’s eligibility to work with children is a requirement. That may have been different if it was shown that a medical or psychological condition was a risk factor in MT’s case.
- MT’s witnesses, particularly his wife, gave evidence supporting that MT interacts appropriately with children and is extremely cautious in his dealings with children.
- The passage of time alone is not determinative as to whether a case is exceptional but is a relevant factor I take into account. In this case, MT had never previously been accused of any inappropriate behaviour until the single charge of stalking, which was dismissed for the reasons already outlined. Over twelve years have elapsed since the behaviour of concern, including the writing of the inappropriate letter. Over ten years have elapsed since the review by the previous Tribunal. In that time MT’s behaviour towards children has been particularly scrutinized. His now wife gave evidence that was the case when she was contemplating a relationship with MT and members of his past and current church have also said that was their approach given MT was forthcoming with them. Not one single incident of concern has been brought to light in that period of ten to twelve years, a time during which MT was in constant incidental contact with many children through being a father and stepfather to four children and involved in an active church and social life.
- The Agency cited Burgess v Board of Teacher Registration Queensland as authority for the proposition that where a gross breach of trust has occurred, a blue card should not issue, regardless of other factors such as the passage of time. Mr Burgess was convicted as a 28 year old, of two counts of carnal knowledge of a thirteen year old pupil and was also subsequently found to have been involved on various occasions in inappropriate conduct with female teachers and students. I agree with the approach of the District Court in that matter but I do not find that MT’s situation begins to approach that of Mr Burgess and reject the submission of the Agency that MT should not be issued a blue card on that basis.
- I do not consider that there are risk factors which outweigh the positive factors and I am not satisfied this is an exceptional case in which it would not be in the best interests of children to issue a blue card. Accordingly, the negative notice is set aside and a positive notice issued to MT.
Non-Publication of Identifying Information
- The Agency submitted it would be appropriate for the Tribunal to make an order prohibiting the publication of the names of any children identified in the written material and all other identifying particulars which could reasonably lead to the identification of children. The Tribunal has the power to prohibit publication of information that may identify persons appearing before the Tribunal or whom may be affected by the proceeding, including particulars which may reasonably lead to the identification of children. I am satisfied that it is not in the public interest to release identifying information regarding the applicant nor his witnesses and the principles of openness and accountability can be achieved by permitting the public access to the details of blue card matters, the decisions of the Tribunal and the reasons for the decisions.
- The decision made on 19 March 2015 to refuse to cancel the negative notice is set aside.
- A positive notice is to be issued to MT.
- The publication of this matter will occur in a de-identified manner.
Renamed the Working with Children (Risk Management and Screening) Act 2000.
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19(a), 20(2).
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167.
Ibid, s 221.
Commissioner for Children and Young People and Child Guardian v FCG  QCATA 291, at .
Ibid, at .
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492, at .
Commissioner for Children and Young People and Child Guardian v FCG  QCATA 291, at .
Commissioner for Children and Young People and Child Guardian v Storrs  QCATA 28.
Chief Executive Officer, Department for Child Protection v Scott (No 2)  WASCA 171.
Grindrod v Chief Executive Officer, Department for Community Development  WASAT 289.
Volkers v Commissioner for Children and Young People and Child Guardian  QCAT 243, at .
Grindrod v Chief Executive Officer, Department for Community Development op cit.
Criminal Code 1899 as amended, s 359E.
Ibid, s 359F.
A copy of the letter was not provided but the content is reproduced at page 4 of the Reasons.
At pages 5-6.
Mother’s own statement said it was 7.30pm.
At page 13-14.
Dated 23 September 2005.
Statement dated 25/09/2004.
Statement dated 28/09/2004.
Burgess v Board of Teacher Registration Queensland  QDC 159.
Op. cit.  QDC 159.
 Queensland Civil and Administrative 2009 s66.
- Published Case Name:
MT v Public Safety Business Agency
- Shortened Case Name:
MT v Public Safety Business Agency
 QCAT 83
21 Apr 2016