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- Unreported Judgment
JB v Chief Executive Officer, Public Safety Business Agency  QCAT 322
Chief Executive Officer, Public Safety Business Agency
3 November 2015; 10 May 2016;
19 August 2016
I declare that JB’s case is not an exceptional case under s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) and a positive notice should issue.
GENERAL ADMINISTRATION REVIEW – BLUE CARD – EXCEPTIONAL CASE – where charge for sexual assault – where justice mediation conducted – where Nolle Prosequi entered and matter discontinued – whether exceptional case in all the circumstances
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 66
Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 30, 221, 226, 353, 360
Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492
In the Marriage of Sandrik (1991) 104 FLR 394
Kent v Wilson  VSC 98
Volkers v Commissioner for Children and Young People and Child Guardian  QCAT 243
Laidlow v Queensland Building Services  QCAT 70
JB represented by Mr David Adolphe
Ms Natalie Taylor, In-House Legal Officer appeared for the Public Safety Business Agency
REASONS FOR DECISION
- JB is a pilot who trains people to fly small aircraft. He enjoyed teaching students who were in high school in particular. This career has been stalled in Queensland with a decision by the Public Safety Business Agency (‘the Agency’) to issue him with a negative notice. This means he does not have a Blue Card to allow him to work with children in Queensland.
- JB has gained new employment of a similar nature in the Northern Territory. He still wants a Blue Card as the new company has plans of expansion, which may bring JB back to Queensland and into the role of flight instructor to people under the age of 18 years old.
- The Chief Executive Officer of the Agency had determined that a charge for sexual assault was sufficient to issue the negative notice in this case. The charge did not proceed to a trial as the matter was settled between JB and the complainant through Justice Mediation. JB's case was seen by the Agency as exceptional and that it would not be in the best interests of children for him to hold a Blue Card.
- JB challenged this decision by seeking a review in the Tribunal.
- The paramount consideration in an employment screening decision is a child's entitlement to be cared for in a way that protects the child from harm and promotes the child's wellbeing.
- The decision under review is whether JB's case is an exceptional case such that the presumption prescribed in s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’) is displaced. On the basis of the police information the statutory presumption is that a positive issue should be issued to JB. To issue JB with a positive notice I must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an exceptional case does not exist.
- The Tribunal must have regard to the factors set out in s 226 of the WWC Act where a person has been charged with, or convicted of, an offence. JB's criminal history consists of a conviction for stealing in 2007 and a charge of sexual assault in 2014. The second charge is that JB approached a woman from behind while at a nightclub and he put his hand up her skirt and stroked her vagina. On 3 September 2015 the prosecuting authority entered a nolle prosequi and JB was discharged.
- On 1 October 2015 the Agency was advised by the Office of the Director of Public Prosecutions of the following:
"After presenting an indictment in the Brisbane District Court on 23 April 2015, the applicant and the complainant agreed for the matter to be referred to Justice Mediation. Ultimately, Justice Mediation was successful. On 14 August 2015 our office was advised that the applicant had fully complied with the terms of the Justice Mediation Agreement. Therefore, our Office entered a Nolle Prosequi on 3 September 2015 and the matter was discontinued".
- The Court of Appeal in Queensland endorsed the approach of identifying and balancing the relevant risk and protective factors arising from the circumstances of a particular case and this is the approach I will take in my determination.
JB's Life Story
- JB was born in Brisbane and has an older paternal brother, SB, and a sister. His younger brother had committed suicide in 2012. His parents separated when he was 14 years old. This was a difficult time for him and he resided with his father while his sister resided with their mother. To JB, this separation was amicable and he believes he had a privileged upbringing, attending a private school and he had a number of friends, many with whom he remains in contact. He has regular contact with his parents who have repartnered, as well as his siblings. He considers he has a close relationship with his paternal brother.
- JB started training to pilot planes when he was 18 years old. He worked a number of part time positions while in training. At the time of the alleged offence, he was employed as a flight instructor, including instructing young people between the ages of 15 – 17 years old for which he held a Blue Card.
Why JB considers this is not an exceptional case - the protective factors
- JB is adamant that he did not offend. He had gone to the nightclub in the early hours of the morning with his brother and friends after a birthday dinner. In the first QCAT hearing, without legal representation, he submitted that it never happened, he had not been on a dance floor and that he had not met the complainant. At the adjourned hearing, with legal representation, he stated he had been intoxicated and could not remember. It had been ‘an error’ when he stated he had not been on the dance floor. In JB’s affidavit of 5 May 2016, he stated that he vaguely remembers speaking to two women in the nightclub, with no recollection of what they talked about or any of the events, which followed that evening. His next memory was being woken in the morning by flatmates with the police there investigating the allegation of the sexual assault. He was still affected by alcohol and very emotional. In this state, he was very apologetic to police for anything he may have done. JB was not able to admit to having done anything as he had no recollection of the events.
- In JB’s affidavit sworn 5 May 2015, he stated:
"…(he) is shocked and upset by the allegation made against (him) concerning the offence. (He is) very remorseful for having drunk alcohol to such excess allowing (himself) to become so intoxicated in a public place. Such conduct is out of character for (him)".
- There is a nil alcohol limit on flight instructors and he is required to undertake psychological testing on an annual basis. The results of the tests are held by the Civil Aviation Authority and JB states he has never received a negative result in these tests concerning his psychological suitability to fly and perform his job.
- A medical certificate from Dr McArthur outlines that JB does not drink, smoke or engage in drug use and is ‘eminently suitable to work with young people in any given situation’. The doctor considers him to be ‘a very happy well-mannered young man’.
- Ms Prendergaast is a clinical psychologist, with expertise in working with forensic clients in the mental health area. She has also conducted assessments relating to harm to children having worked for Evolve. This involves determining risk relating to people with criminal histories. JB completed three measures of clinical psychopathology with a view to gaining additional objective information in relation to his current functioning and prospects, and alcohol use namely the Personality Assessment Inventory (PAI), the Depression, Anxiety and Stress Scale (DASS_21) and the Alcohol Use disorders Identification Test (AUDIT).
- She viewed the closed-circuit television (‘CCTV’) footage and noted that:
"The contact is less than one second in contrast to the complainant’s recollection of four to five seconds; that the complainant did not sight the person to have allegedly committed the assault, rather that when she turned she sighted (JB) passing by and remembered him from previously speaking with him that night. It is noted that the witness did not observe the assault".
- Ms Prendergaast’s report is comprehensive and she found, following her assessments, that JB is a low risk of reoffending, being no evidence to indicate that JB would pose a risk to children, or females under the age of 18 years. The SVR-20 was used to determine the future risk that JB may pose in relation to recidivism and JB was in the range of ‘low risk’. Therefore, he is considered to present with a low risk of re-offending. The AUDIT found JB scored in the ‘low risk’ range of alcohol dependence or misuse. She notes his role required ongoing alcohol use monitoring with random alcohol testing every two weeks. He does not have a pre-existing vulnerability to a psychological disorder nor present with any negative mood symptomatology.
- For Ms Prendergaast, the PAI self-report results could be due to defensiveness of the test taker not that the results mean the person is being untruthful. If there were other offences and a disclosure of an anti-social upbringing, then the results of the Validity Scales in the PAI may present a person in a more unfavourable light. However, such results should not be taken in isolation to other information. Her role is to ask questions to check the validity of test results.
- Risk factors in her oral evidence included consideration of whether a person had an anti-social background, mental health issues, and a history of violent relationships, use of pornography, frequent binge drinking and consumption and a sexual relationship less than one year. These factors were not evident in JB’s case.
- SB is fifteen years older than his brother and from the first marriage of their father. He returns from Sydney to the Gold Coast and Brisbane 2-3 times per year to see family. They have becomes more like friends now. He stated both had too many drinks on the night in question. He guided his brother through the dance floor because JB was unsteady on his feet from intoxication. He never saw his brother, JB, put his hand up the complainant’s skirt; there was no time to commit the offence; he was holding his brother around the arms as they were walking so he would have not been able to commit the alleged offence. He recalls a woman turning to him and asking ‘was that someone in your group?’ whom he later found out was the complainant. He ‘did not know what the person was talking about, when or even who she was referring to and continued walking and generally (excusing themselves) through the crowd.’
- The evidence of Shannon Merrick, scientist in the DNA Unit of the Queensland Health Forensic and Scientific Services, outlines that a DNA sample obtained from the complainant's underwear contained DNA from two contributors, one being the complainant. His report states, ‘(JB) can be excluded as a contributor to this mixed DNA profile’, based on statistical analysis and the assumption of two contributors.
Why the Agency considers this is an exceptional case - the risk factors
- The Chief Executive of the Agency does not believe JB should have a Blue Card for the following reasons:
- The alleged offence of sexual assault is defined as a serious offence under the WWC Act. The complainant's allegation, that JB had put his hand up her skirt from behind, are supported by the immediacy of her complaint, which she raised with JB's brother, security staff and police.
- The police brief shows JB sought to directly or indirectly apologise to the complainant. This offer of apology goes some way to substantiating the allegation.
- By engaging in justice mediation, participant defendants are expected to accept responsibility for their behaviour and to acknowledge the impact that it had on the complainant. JB's participation is inconsistent with his submission of denying any responsibility for the alleged offence.
- The CCTV footage shows JB was the closest person to the complainant at the relevant time of the alleged offence. He is seen dipping his shoulder downwards towards her lower body, possibly in an effort to escape his brother's grasp. The complainant immediately talks to her friend and then she leaves the dance floor in the direction of JB.
- JB's close proximity would have required very minimal movement on his part in order to assault her, and movement consistent with this allegation is visible on the CCTV footage. The complainant's behaviour following the alleged offence, that is complaining to police, submitting clothing for DNA testing, and undergoing cross-examination at a committal hearing, is consistent with a genuine and unwavering belief that JB committed the offence against her.
- The alleged offence had an immediate impact on the complainant. The consequences of such offending are well documented and would have had an ongoing adverse psychological and or emotional effect on the victim.
- The Magistrate at the committal hearing formed the view that there was enough evidence to proceed to a trial. However, the prosecution agreed to the defence proposal of justice mediation. The Magistrate's comments that it was ‘not a strong case’ (transcript of committal proceedings page 24, line 25) were made in the context of criminal proceedings where the burden of proof is beyond reasonable doubt. There is a lower standard of proof in tribunal reviews that is the balance of probabilities.
- A myriad of inconsistencies are apparent in JB’s evidence.
- JB's evidence by affidavit dated 5 May 2016 and at the oral hearing on 10 May 2016 is that he cannot recall the incident nor much of the night due to his intoxication. If the Tribunal accepts his evidence then the Tribunal must at least be concerned that the applicant may have committed the offence and that he is not in a position to dispute it.
- Minimal weight should be given to witnesses. Dr McArthur and Shannon Merrick did not give oral evidence and their written evidence could not be texted by cross-examination. Mr Merrick’s findings are qualified in that he stated:
"The absence of a DNA profile from a touched surface does not necessarily mean that that person has not come into contact with it, as it is possible for a person to come into contact with a surface without a detectable amount of their DNA being transferred or recovered".
- Ms Pendergaast did not have all of the materials, with apparent discrepancies in what JB disclosed to her about recent relationships. His veracity and reliability is questionable when he stated he had a one year long relationship in 2015. However in oral evidence he states he was in a short term relationship.
- Ms Pendergaast’s report noted indicators within the Validity Scales of the PAI fell:
"… outside of the normal range, suggesting (JB) may not have answered in a completely forthright manner …and the nature of his responses might lead to a somewhat inaccurate impression of (JB). In particular he appears motivated to portray himself as being exceptionally free of common shortcomings to which most individuals will admit. As a result, he will be quite reluctant to admit to minor faults, perhaps not even willing to admit to faults himself".
- Such a result on the Validity Scales appear to be reflective of the inconsistent and misleading state of JB’s evidence.
- The Tribunal is not required to reach a definitive conclusion on the guilt or innocence of the Applicant in relation to the allegation, rather the Tribunal should conduct an analysis and evaluation of risk.
The Tribunal’s view – is JB’s case exceptional
- While JB does not bear an onus of proof, he does have an ‘evidentiary burden’ to present to support his application so that the Tribunal can make the correct and preferable decision. It took a number of attempts for JB to meet this requirement with adjourned hearings and a number of directions from the Tribunal for him to provide relevant information. Finally, with the assistance of legal representation several months into the review process, the review process concluded. That said, and in weighing up all of the evidence before me, I have formed the view that JB’s case is not exceptional. The protective factors outweigh the risk factors in my view. I am satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an exceptional case does not exist.
- I have viewed the CCTV footage, heard oral evidence, read all of the affidavits and reports submitted and considered the submissions of the Agency’s representatives. The Agency does not believe JB’s assertion of innocence. He did not impress in the hearing process. Differing information was presented by him in the two hearings and in documentation presented by him. The Agency sees JB as unreliable and inconsistent. The Agency considers that JB’s offer of apology when with police and engaging in Justice Mediation is inconsistent with his submission of denying any responsibility for the alleged offence.
- However, other evidence provided did impress. Dr Prendergaast is an experienced psychologist who has worked in the area of risk and harm to children. She conducted comprehensive testing to find JB of low risk. She was cross-examined by the Agency comprehensively and stood by her findings. For her, the tests did not pick up any stressors and she considered her clinical interview more important, while the PAI was a self-report on how people function overall. She opined all of the tests and her clinical interview needed to be considered together and not in isolation. That said, she also considered other factors (such as a history of violent relationships, other criminal charges, mental health issues, an anti-social upbringing) that go to ongoing risk of offending of such a nature and JB did not fit the profile.
- I am not satisfied, as asserted by the Agency, that the report on the DNA evidence by Mr Merrick should be given minimal weight. While Mr Merrick did acknowledge a person can come into contact with a surface without a detectable amount of their DNA being recovered, he was clear that JB was excluded as a contributor to the mixed DNA profile as there was evidence of two DNA samples, one being the complainant and another person, and not JB. This evidence must be considered along with the other factors canvassed by myself.
- JB’s paternal brother confirmed that they had both been drinking heavily and the CCTV footage confirms that he guided his brother through the crowd to leave the nightclub. I cannot be satisfied that the gesture of JB dropping his shoulder, while being clearly physically supported by his brother when near the complainant on the CCTV footage, means that he assaulted her.
- It am also not satisfied that I could determine that JB may have committed the alleged sexual assault as he is not in a position to refute it due to him being too intoxicated, as asserted by the Agency.
- The circumstances of the evening leading to JB being charged have been dealt with through a court process and Justice Mediation. It is not for me to go behind the outcomes of these processes to determine guilt or innocence. I must rely on the evidence before me and consider the legislation and case law that guides review decision making relating to Blue cards.
- JB does not have a history of criminal intent of this nature, he has not been charged with further offences, and he does not fit the risk profile as determined by an experienced clinical psychologist who undertook comprehensive testing, interviewing and analysis. His job requires regular testing for alcohol use and psychological fitness. I am not satisfied that the risk factors outweigh the protective factors as asserted by the Agency. Thus, this is not an exceptional case in which it would not be in the best interests of children for a positive notice to issue. I am satisfied that the correct and preferable decision is that JB’s case is not an exceptional case.
- I have considered the submissions of the parties relating to de-identification of these reasons. The charge was dealt with through Justice Mediation and that is a confidential process between JB and the complainant. I am satisfied that it would be contrary to the public interest for the identity of the complainant and JB to be disclosed, or any other information which may identify them.
- Under s 66 of the QCAT Act, I have the power to prohibit publication of information that may identify persons affected by this proceeding. Publication of these reasons will occur, albeit in a de-identified format.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19(c) (‘QCAT Act’).
 Ibid s 20.
 WWC Act ss 6, 360.
 Ibid s 353.
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492 citing with authority the test prescribed in Briginshaw v Briginshaw Anor (1938) 60 CLR 336.
 In the Marriage of Sandrik (1991) 104 FLR 394 at 300-400.
 Kent v Wilson  VSC 98 per Hedigan J at .
 Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
 Affidavit JB sworn 5 May 2015 at .
 Affidavit of JB sworn 5 may 2016 at .
 Nicole Prendergaast, Assessment Report, 9 May 2016 at 3.
 Affidavit of SB sworn 6 May 2016 at .
 Ibid at .
 Statement of Shannon Merrick sworn 26 May 2014 at .
 Statement of Shannon Merrick sworn 26 May 2016 at .
 Volkers v Commissioner for Children and Young People and Child Guardian  QCAT 243 at .
 Laidlow v Queensland Building Services  QCAT 70 at .
- Published Case Name:
JB v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
JB v Chief Executive Officer, Public Safety Business Agency
 QCAT 322
19 Aug 2016