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JNN v Director-General, Department of Justice and Attorney General

 

[2019] QCAT 347

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JNN v Director-General, Department of Justice and Attorney General [2019] QCAT 347

PARTIES:

JNn

(applicant)

v

Director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML032-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

15 November 2019

HEARING DATE:

25 October 2019

HEARD AT:

Southport

DECISION OF:

Member McDonnell

ORDERS:

  1. The decision of the Director-General, Department of Justice and Attorney-General made on 2 January 2019 that this is an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed;
  2. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child;
  3. Accordingly, these reasons have been de-identified.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has conviction – where not categorised as serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – where applicant has charges for disqualifying offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an ‘exceptional case’ warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the Working With Children (Risk Management and Screening) Act 2000 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 353, s 354, s 360

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210

Re TAA [2006] QCST 11

TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

A Bryant

REASONS FOR DECISION

Introduction

  1. [1]
    JNN, a 65 year old man, applied for a positive notice and blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), to enable him to undertake volunteer work.
  2. [2]
    The respondent proposed to issue a negative notice so invited the applicant to make submissions about whether or not there was an exceptional case for the applicant.
  3. [3]
    Where a person has been convicted of an offence other than a serious offence, the chief executive must issue a positive notice, unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[1] The chief executive was satisfied the case was exceptional within the meaning of the WWC Act.
  4. [4]
    The respondent issued a negative notice on 2 January 2019 and the applicant seeks a review of the decision that this is an exceptional case within the meaning of s 221(2) of the WWC Act.
  5. [5]
    Section 354(1) of the WWC Act provides that a person who is not a ‘disqualified person’[2] is entitled to apply for a review of a ‘chapter 8 reviewable decision’[3] within the prescribed 28-day period.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, the respondent issued a negative notice.[5]
  6. [6]
    JNN is not a disqualified person and sought the review of the decision within the prescribed period.

The legislative framework

  1. [7]
    The Tribunal is required to decide the review in accordance with the QCAT Act and the WWC Act.[6] The purpose of the Tribunal’s review is to produce the correct and preferable decision,[7] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[8] The review is to be undertaken under the principle that the welfare and the best interests of a child are paramount.[9] On review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[10]
  2. [8]
    The object of the WWC Act is to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[11] The principles under which the WWC Act is to be administered are:
  1. (a)
    the welfare and best interests of a child are paramount;
  1. (b)
    every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[12]
  1. [9]
    It is not the intention of the WWC Act to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[13]
  2. [10]
    Section 221 of the WWC Act provides:
  1. (1)
    Subject to subsection (2), the chief executive must issue a positive notice to the person if—
  1. (a)
    the chief executive is not aware of any police information or disciplinary information about the person; or
  1. (b)
    the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
  1. (i)
    investigative information;
  1. (ii)
    disciplinary information;
  1. (iii)
    a charge for an offence other than a disqualifying offence;
  1. (iv)
    a charge for a disqualifying offence that has been dealt with other than by a conviction; or

Note for subparagraph (iv) — For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).

  1. (c)
    the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  1. (2)
    If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.
  1. [11]
    For the present purposes, a positive notice must be issued unless the Tribunal is satisfied it is an exceptional case, in which it would not be in the best interests of children for a positive notice to be issued.
  2. [12]
    The term ‘exceptional case’ is not defined in the WWC Act. Thus, what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to:

…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children.[14]

  1. [13]
    In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act, as follows:
  1. (a)
    in relation to the commission, or alleged commission, of an offence by the person—
  1. (i)
    whether it is a conviction or a charge; and
  1. (ii)
    whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  1. (iii)
    when the offence was committed or is alleged to have been committed; and
  1. (iv)
    the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  1. (v)
    in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. (b)
    any information about the person given to the chief executive under section 318 or 319;
  1. (c)
    any report about the person’s mental health given to the chief executive under section 335;
  1. (d)
    any information about the person given to the chief executive under section 337 or 338;
  1. (e)
    anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [14]
    The matters listed in s 226 are not exhaustive. Rather, s 226 ‘merely specifies certain particular matters which the [Tribunal] is obliged to consider in deciding the application.’[15]
  2. [15]
    ‘Conviction’ is defined in Schedule 7 of the WWC Act to mean ‘a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded’.
  3. [16]
    In determining whether there is an exceptional case the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved.[16] The Tribunal has a broad discretion to exercise when considering the merits in each case. Neither party bears an onus in determining whether an exceptional case exists.[17]

The material and evidence

  1. [17]
    The applicant provided the Tribunal with a bundle of documents dated 18 October 2018, including his life story and statements from his wife and 2 two of his daughters. He was given the opportunity to ask questions and to make oral submissions.
  2. [18]
    The respondent provided the Tribunal with its Reasons for Decision and attachments comprising pages BCS 1-149 and documents from the Department of Chid Safety, Youth and Women obtained pursuant to a notice to produce (NTP-1 to NTP-79). The respondent had the opportunity to cross examine JNN and his witnesses and made final oral submissions as well as handing up written submissions.
  3. [19]
    JNN’s criminal history is as follows:
    1. (a)
      On 15 April 2014 he was charged with:
      1. Unlawful sodomy – person under 18 year, child under 12 years;
      2. Three charges of indecent treatment of children under 16, child under 12 years lineal descendent/guardian/carer; and
      3. Indecent treatment of child under 16 (take photograph etc.) child under 12 years lineal descendent/guardian/carer; and
    2. (b)
      On 30 April 2012 he was convicted of breach of bail condition. No conviction was recorded.
  4. [20]
    A nolle prosequi was entered in respect of all the 15 April 2014 charges and the charges were discharged. JNN has not been convicted of any serious or disqualifying offences. However the offences, other than the breach of bail condition, are disqualifying offences.
  5. [21]
    The following background to the conduct leading to the charges was obtained by reference to the court brief[18] and material provided to the respondent by the Director of Public Prosecutions under cover of letters dated 1 August 2017 and 28 May 2019.[19] The alleged offences of concern occurred between 7 and 11 February 2012.[20] The complainant child (‘the child’), the applicant’s biological grandson, was six years old at the time of the alleged offences.[21] On occasion, the child was cared for by the applicant and ANN (the applicant’s wife) and on occasion would stay at their home overnight.[22]
  6. [22]
    From around January 2012, the child was observed by his mother and his step-father to engage in concerning sexualised behaviours, including being observed (and admitting to) frequently masturbating and touching his three year old sister in an inappropriate manner.[23] As a result of this behaviour the child’s mother took him to stay with the applicant and ANN at their home for two nights from 8 February 2012.
  7. [23]
    After this visit the child’s step-father spoke to him about his sexualised behaviour and asked him who showed him how to masturbate. The child initially stated that he was shown by a child in his class, then stated that he was shown by another male person and when told to stop lying and to tell the truth, stated it was ‘grandpa’ (referring to the applicant).[24]
  8. [24]
    The child then disclosed specific details of the alleged sexual abuse by the applicant which disclosure was consistent with the information disclosed by the child to police during the interview on 23 February 2012. In summary:
    1. (a)
      When the child stays at the applicant’s house he lays in bed with the applicant and the applicant puts his hand on the child’s penis and ‘[rolls] it around in circles’;
    1. (b)
      The child was made to touch and play with the applicant’s penis;
    2. (c)
      The applicant took photographs of the child and himself naked with a silver/grey camera;
    3. (d)
      Whilst in the garage at the applicant’s home, the chid played computer games and other ‘games’ with the applicant;
    4. (e)
      The child sat on the applicant’s lap and the applicant penetrated the child’s anus with his finger and penis;
    5. (f)
      This occurred for one or two minutes and the applicant said to the child words to the effect of ‘good job’.[25]
  9. [25]
    The applicant participated in an interview with police in relation to the allegations made by the child, on 1 March 2012.[26] He denied owning a small grey/silver camera being the description the child gave of the camera used to take the photographs. The applicant denied the allegations, however was subsequently charged with the offences listed on his criminal history.
  10. [26]
    The trial commenced on 14 April 2014. On 15 April 2015 a nolle prosequi was entered in relation to the five charges and the matters were discharged by the court. The decision to discontinue the charges was made after further information was received from the child’s step-father and the Department of Child Safety, Youth and Women, which provided further context to the child’s disclosures and indicated that the child’s step-father had been verbally and physically abusive towards him. This was considered to adversely impact the truth and reliability of the child’s evidence.[27]
  11. [27]
    An investigation in relation to the allegations was undertaken by the Department of Communities, Child Safety and Disability Services and it determined that the allegations were substantiated.[28]
  12. [28]
    On 1 March 2012 police attended the applicant’s residence to execute a search warrant, but the applicant was not home. He attended the police station later in the day and when advised of the warrant told police that there would be child pornography on his computers.[29]
  13. [29]
    The search warrant was executed and a number of computers, storage devices, cameras, computer accessories and other property was located and seized by police.[30]
  14. [30]
    In the interview with police that day the applicant said the following in respect of the alleged possession of child pornography or child exploitation material (‘CEM’):
    1. (a)
      He belonged to ‘adult groups’ on the internet and members of those groups would sometimes send CEM to him. After a while the applicant got to know what was an image of a child and what was not. If he received any CEM or anything to do with children, he ‘generally deleted them straight away’;[31]
    2. (b)
      At one time he was receiving a lot of CEM and was manually dumping the images into a folder to be deleted;[32]
    3. (c)
      He had images and adult movies on his computer which he described as ‘hard core and stuff like that’;[33]
    4. (d)
      He recalled that he had been ‘sent a lot of pictures of a girl…she’s only about fourteen but she’s …got a swimsuit on…but the way that they’ve taken the pictures are not nice’. He was in the process of deleting those images but was not sure, at the time of the interview, whether that had been deleted or not.[34]
  15. [31]
    As part of the investigation into the allegations of indecent treatment of a child police examined the applicant’s computers in an attempt to locate an indecent image of the child and the applicant. Police located over 11 million images on the applicant’s hard drives. Approximately 6 million were pornographic, both adult pornography and CEM. The folder on the applicant’s devices containing the pre-categorised CEM was titled ‘to be sorted’. The police considered that the applicant may have a plausible defence in that he had not yet sorted the material and so did not know the CEM existed as he was in the habit of downloading large amounts of pornography.[35]
  16. [32]
    Due to the large quantity of pornographic material contained on the applicant’s device, and to time constraints, police were not able to sort through or grade the material. The police officer who analysed the applicant’s devices considered it highly probable that any further CEM would also be located in the ‘to be sorted’ file and therefore the computer evidence alone would not support the successful prosecution of a charge of possessing child exploitation material.[36]
  17. [33]
    The applicant has been married for almost 45 years and has four adult children. He worked in banks until the early 1990s when he and his family moved to Queensland and bought a gymnastics business. After about 7 years running that business he sold it and trained in IT. He worked as a self-employed IT technician until his retirement. He said he was still working from home in IT in 2012. He said he has never been involved in illegal drugs and gave up alcohol in 1982.
  18. [34]
    The applicant says he is innocent of the charges and that he has maintained this position since the allegations were made. He said that his daughter had brought the child to stay with he and his wife overnight because of concerning behaviour the child had displayed towards his sister. He told the Tribunal that it was quite common for the child to stay with them for both babysitting and for discipline.
  19. [35]
    On the day in question JNN was alone with child in the garage waiting for the child’s mother to arrive to take him to school. At the child’s mother’s request the child was not allowed to use the computers on this visit, as punishment for his behaviour. He denied the behaviour described in the charges.
  20. [36]
    He said that the events described by the child could not have occurred because his weight at the time of the charges was such that he had no lap when he sat down. If a child sought to sit on his lap then they would slip off. Further, he told the Tribunal that due to the medication he was taking then and his weight his erectile function was adversely impacted. The medical report the police obtained when investigating the offences did not support that this was an effect of the medication.[37]
  21. [37]
    JNN said that the child would often get into bed with he and his wife, on his wife’s side of the bed. He said that he was never alone with the child and did not engage in the conduct described by the child. Due to health issues JNN said he would generally wear just a large t-shirt to bed so it is possible that the child saw his genitals, particularly if the child walked in while he was asleep but if he was awake he would pull the sheet up to cover himself. Today he would ensure he wore pants if a child stayed over.
  22. [38]
    While JNN told police in the interview he did not have a silver camera, police found two when executing the warrant. JNN said that one did not work with the computer equipment he had at the time and the other was his son’s camera, which he said did not have a battery or a memory card in it, and that he had forgotten about both when questioned by police.
  23. [39]
    The applicant and his wife ceased contact with the child and his mother after the allegations were made.
  24. [40]
    JNN disagreed that he had CEM on his computer saying that the police did not prove it. The applicant told the Tribunal that he disputed saying to the police at the time of the investigations that his computers ‘would’ contain CEM. He maintained that he said the computers ‘could’ contain such material and that he disputed the use of the word at the time, raising it with his solicitor, but was unable to get this statement changed.
  25. [41]
    JNN denied that any CEM was found on his computer devices but then he accepted that they could have contained CEM. He told the Tribunal that he does not dispute the police Summary of Report, which says that CEM was found on his devices.[38] He said that as a member of the ‘adult groups’ he would receive emails from other members of the groups attaching with ‘zip’ files containing photographs. Sometimes these files contained CEM. He would not look at the files straight away due to the volume of material he was receiving. If he found a single CEM photograph or he identified the sender as someone who regularly sent CEM he would delete it straight away but he would look at the ‘zip’ files later to determine the content. On reviewing the files he would extract photographs to look at.
  26. [42]
    JNN was asked in cross-examination why he had the photograph of the 14-year-old girl in a swimsuit on his computer when he was interviewed by police. He said he could not recall why he had not deleted it, saying that he did not always delete them straight away but rather as soon as he could. He continued, saying that sometimes he would keep a photograph as a reference tool so he would know in the future that he should delete any photograph containing an image of that particular girl.
  27. [43]
    He said he did not report the receipt of the CEM images to police as they could do nothing about it as the images were being sent from overseas. He said that he believed overseas members of the groups had reported it.
  28. [44]
    He said that as a member of these groups he only received images, as he was a collector, and did not send them. He then qualified this saying that if someone asked for particular image or an image of a particular model he would provide it.
  29. [45]
    The applicant could not say how much time he spent each day looking at or sorting through pornographic images at the time of the charges or over the month before the hearing. He said that it could be as little as half an hour a day or as much as two to three hours a day.
  30. [46]
    JNN did not accept that he may have become desensitised to pornography due to the volume of pornography he was viewing. He said he considered that so long as the adults consented and that they were paid it was okay. He assumed that if they were being filmed they were both consenting and paid. He viewed the images he received as art. He told the Tribunal that he might keep an image of a 16 year old girl in a swimsuit, depending upon when it was taken (saying such images taken before 2000 were classified as legal) and the composition of the picture.
  31. [47]
    JN said that when his grandchildren visited they would play games and watch YouTube videos on a computer in the garage but that the one that they used was setup so it could not access the pornography on his devices. He said that he did not access anything adult while his grandchildren were around.
  32. [48]
    JNN said that the charges shocked him. He said that with encouragement from his wife and due to the connotations of possessing such material he no longer actively collects photographs. He said that he still receives images but he could not give an estimate of the number he had received in the month before the hearing, and said that he generally deletes them.
  33. [49]
    JNN had told no one of the hearing before the Tribunal. While his wife and two of his daughters provided statements for the Tribunal, they were not aware of the hearing. He said that his wife wanted him to stop these proceedings and just get on with his life. He said that his wife thought he had discontinued these proceedings and observed that she would ‘go ballistic’ when she found out he had not. During the day JNN arranged for his daughters to be available for cross-examination but did not contact his wife due to concerns about her health.
  34. [50]
    He said that, while his wife and two of his daughters were aware of the charges, they were not aware that the police located adult pornography and CEM on his devices. They knew he had ‘girly’ pictures on his computer.
  35. [51]
    He did not provide a medical report as suggested in the compulsory conference, saying that he was not willing to speak with a psychologist.
  36. [52]
    JNN told the Tribunal that if he was successful in his application for a blue card he would be agreeable to conditions being imposed that he always have an adult with him when dealing with children. Tribunal cannot impose conditions upon a blue card.
  37. [53]
    ANN provided a statement to the Tribunal, but was not available for cross-examination. She told of the shock she experienced when she heard of the charges against her husband, saying that he has never behaved inappropriately with children. She mentioned the activities in which he had been involved with children, including sleepovers for their children’s friends and a student exchange program. She said that JNN had her total trust with children and that she supported his application for a blue card.
  38. [54]
    A daughter, RNN gave evidence. She was not aware prior to giving evidence, of the full details of the charges. She was headed overseas the day the police arrived at her parent’s house to execute the warrant so did not find out at that time. She told the Tribunal she believed, and still believes, that JNN was innocent of the charges. She said that she believed her father rather than her sister due to her sister’s long history of drug use. RNN said that in her opinion the child would have heard some of the language he used in the interview from his step-father.
  39. [55]
    She was unaware that the police found pornography on JNN’s computer although she was aware he had ‘girly pictures’ on his computer. She was also unaware of the finding advised by the Department of Communities, Child Safety and Disability Services to the respondent on 2 October 2018 that following an investigation it had determined that the applicant had sexually abused the child causing emotional harm to the child.[39] Knowing these facts did not change her opinion of or support for her father.
  40. [56]
    She recalled that during her childhood her family participated in student exchange programs and had regular sleepovers with other children at their home. She said that JNN coached and judged gymnastics and trampolining. She said no concern was ever raised about her father’s conduct, although she did not accept that her parents may not have told her of any issues raised. RNN said that she has no concerns that her parents regularly babysit her two children aged two and a half years and 10 months. RNN told the Tribunal that her husband was unaware of the charges against her father as she and her husband were not together at the time of the charges so that he has nothing to do with this. She told the Tribunal she supports her father’s blue card application.
  41. [57]
    LNN, another daughter, gave evidence. In her statement she said that ‘on being told by dad and mum of the allegations, I had no hesitation knowing that they were lies.’[40] She was unaware of the investigation or the outcome of the investigation by the Department of Child Safety. She was also unaware that CEM had been found on her father’s devices. LNN said that knowing these facts did not change her opinion of her father or her support for him as she knows her father would not do the things of which he was accused.
  42. [58]
    LNN was aware that adult pornography was found on her father’s devices. She said she had seen the ‘naked lady pictures’ on her father’s computer maybe about five years ago. Initially, she could not remember the circumstance in which she saw the pictures. In cross examination she said that her father told her he had some pictures on his computer and then showed her. They were pictures of adult women naked. In re-examination she said that she saw a picture of a naked lady on her father’s computer because her father opened an email while she was in the garage with him and it contained the picture. When further questioned about her inconsistent evidence she said that her memory on this issue was unreliable.
  43. [59]
    She said that she thought that it was inappropriate for her father to show her pornographic images but felt that her father considered that it was okay to show her. She said that he showed her because she is his daughter.
  44. [60]
    LNN said that she did not believe that her father would show one of his grandchildren pornographic images because if he did his children would not allow him to see his grandchildren again. Upon further questioning, she said that she believes he knows it is wrong to show pornography to children.
  45. [61]
    The respondent expressed concerns about the inconsistencies in the applicant’s evidence and his lack of insight both in relation to the charges and his possession of in excess of six million pornographic images including CEM. The respondent said that the applicant did not demonstrate that he understood the importance of acting protectively towards children and young people. That the applicant had exposed his adult daughter to pornography raised concerns for the respondent that a child in the applicant’s care may also be exposed to pornography or CEM and that he did not understand the importance of protecting children from material of this kind.

Consideration

  1. [62]
    In undertaking this review and determining the correct and preferable decision the welfare and the best interests of a child are paramount.[41] Unless satisfied that an exceptional case exists in which it would not be in the best interests of children to do so, the Tribunal must issue a positive notice.[42]
  2. [63]
    A blue card is transferable, allowing the holder to work in any child-related employment or conduct any child-related business regulated by the WWC Act. Thus, the Tribunal must take into account all possible work situations open to the applicant, not just the purpose for which a blue card is presently sought. Once issued a blue card is unconditional and fully transferable across all areas of regulated employment and business.
  3. [64]
    The possession of insight is recognised as an important protective factor, as noted by the former Children’s Services Tribunal in Re TAA:[43]

The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.

  1. [65]
    The Tribunal must have regard to the mandatory considerations contained in s 226 WWC Act, but is not limited to these matters. The Tribunal considers s 226 WWC Act below.
  2. [66]
    JNN has a conviction for breach of bail conditions in 2012. He was fined and no conviction was recorded.
  3. [67]
    In 2014 JNN was charged with:
    1. (e)
      Unlawful sodomy – person under 18 year, child under 12 years;
    2. (f)
      Three charges of indecent treatment of children under 16, child under 12 years lineal descendent/guardian/carer; and
    3. (g)
      Indecent treatment of child under 16 (take photograph etc.) child under 12 years lineal descendent/guardian/carer.
  4. [68]
    The charges unlawful sodomy – person under 18 year, child under 12 years and indecent treatment of children under 16, child under 12 years lineal descendent/guardian/carer are disqualifying charges under the WWC Act, indicating the seriousness of the charges. The offences are alleged to have occurred in 2012. While that is 7 years ago the charges remain significant in the assessment of the applicant‘s eligibility for a blue card.
  5. [69]
    The trial in relation to the charges commenced on 14 April 2014. A nolle prosequi was entered in relation to all the charges on 15 April 2014 as a result of new information disclosed on the morning of the trial which caused the truth and reliability of the child’s evidence to be significantly affected. The charges were dismissed. The allegations related to events which occurred while JNN was caring for the child, his grandson. The charges related directly to the applicant’s conduct with children.
  6. [70]
    Information was received from the Office of the Director of Public Prosecutions pursuant to s 318[44] and has been considered by the Tribunal. There was no material before the Tribunal pursuant to ss 319, 335, 337 or 338 of the WWC Act. Further matters relating to the alleged commission of the offences reasonably considered to be relevant are discussed below.
  7. [71]
    The charges did not result in convictions. However, charges that do not result in convictions can and must still be taken into account in the Tribunal’s consideration.[45] The circumstances do not prove JNN’s innocence, or that the allegations were false.
  8. [72]
    The Tribunal considered the relevance of charges against an applicant which did not result in conviction in Volkers v Commissioner for Children and Young People and Child Guardian[46] in which case the Members stated:

It is not this Tribunal’s function to adjudicate upon whether the Applicant is, in fact and at law, guilty or not guilty of the non conviction charges in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the Applicant may have committed previously, but with the prevention of future potential harm Chief Executive Officer, Department for Child Protections v Grinrod (No 2) (2008) WASCA 28 at paragraph 84.

  1. [73]
    As observed by the Tribunal in TNC v Chief Executive, Public Safety Business Agency:

A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight that an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.[47]

  1. [74]
    Charges of this nature are at the highest level of seriousness in the consideration of a person’s eligibility to be entrusted to provide a protective environment for children in activities regulated by the WWC Act. The alleged offending is directly child related.
  2. [75]
    The evidence in relation to the charges has not been tested. JNN maintains his innocence. The child’s disclosures were consistently given to his step-father and to the police. However, police had concerns about the truth and reliability of the child’s evidence. It is not for the Tribunal to determine JNN’s guilt or innocence in respect of the charges but to determine whether, on the balance of probabilities, an exceptional case exists. The welfare of children is the paramount consideration. In the Tribunal’s view the circumstances raise the possibility of a risk to children. The Tribunal gives some limited weight to the charges.
  3. [76]
    The Department of Communities, Child Safety and Disability Services advised the respondent on 2 October 2018 that, following an investigation, it had determined that the applicant had sexually abused the child causing emotional harm to the child.[48]
  4. [77]
    The Tribunal accepts that the charges and the single conviction for breach of bail condition are the only entries recorded on the applicant’s criminal history. However the charges are not the only matters for the Tribunal’s consideration. There is also JNN’s possession of large amounts on pornography, including CEM.
  5. [78]
    JNN’s possession of CEM is of concern to the Tribunal. He displayed limited insight into the exploitative nature and inappropriateness of CEM and demonstrated no remorse for possessing it on his devices. He did not take immediate steps to delete it and his possession suggests that he was indifferent to it.
  6. [79]
    JNN did not present as a reliable witness. His evidence was inconsistent in a number of respects. He admitted to police to having CEM on his devices,[49] but told the Tribunal ‘at no time was any child exploitation found’[50] and that the police did not prove to him that his devices contained CEM. Further, he told police and the Tribunal that he deleted CEM upon receipt or upon seeing the images. In relation to his possession of the image of the 14-year-old girl he said that either he had not deleted it yet or was keeping as a reference so that he knew next time he received an image of the girl he would know to delete it immediately.
  7. [80]
    The applicant told the Tribunal that since the charges he had changed his behaviour such that he was no longer a collector of images. This was not supported by his evidence to the Tribunal which was that he is still a member of some of the adult groups and still receives emails containing pornography.
  8. [81]
    JNN has a limited support network. The three family member’s statements relied upon by the applicant were over two years old. Up until the commencement of the hearing before the Tribunal he had not told anyone, including those witnesses, that he was attending at the Tribunal for the hearing. He told the Tribunal his wife does not support his application to the Tribunal for review of the respondent’s decision.
  9. [82]
    In the circumstances, the Tribunal has concerns about the applicant’s ability to act proactively to ensure the protection and safety of children who may be in his care.
  10. [83]
    The Tribunal affords no weight to the evidence of ANN. While in her statement she said she was supportive of her husband’s application for a blue card, JNN’s told the Tribunal she was not. She was not available for cross examination, so this was not explored. The extent of her knowledge of the charges was unknown and her statement made no reference to the adult pornography or CEM found on the applicant’s devices. Thus, the extent of her knowledge of this was also unknown to the Tribunal.
  11. [84]
    LNN’s evidence was inconsistent and it was difficult for the Tribunal to ascertain what she was saying. Certainly, she was distressed during her evidence. She seemed to the Tribunal to be a very unwilling witness. It was clear that she had seen pornography on her father’s computer although whether he showed it to her purposely or accidently, was unclear. She said that while she considered it inappropriate for her father to show her pornography, her father considered that it was okay to do so. This evidence was concerning to the Tribunal as it indicated that JNN lacked an understanding of appropriate boundaries.
  12. [85]
    RNN displayed limited insight, acting protectively towards her father. Influencing her position in this respect was that RNN disbelieved her sister.
  13. [86]
    The Court of Appeal has accepted the approach of considering relevant risk and protective matters in deciding whether a particular case is exceptional.[51]
  14. [87]
    The protective factors relevant to the applicant are:
    1. (a)
      The charges and the conviction set out above are the only matters on JNN’s criminal history;
    2. (b)
      The support of two of JNN’s daughters, with knowledge of the charges and that the applicant’s devices contained pornography, both adult and CEM; and
    3. (c)
      The daughters’ evidence of the applicant’s positive interactions with children.
  15. [88]
    The relevant risk factors are:
    1. (a)
      That the applicant was charged with five disqualifying offences under the WWC Act;
    2. (b)
      The possession of CEM on the applicant’s devices. While the applicant was not charged in relation to this material the evidence is that the applicant was knowingly in possession of CEM. He did not take steps to immediately delete the material. JNN did not report the matter to police;
    3. (c)
      The possession of a very large volume of adult pornography on his devices;
    4. (d)
      Potential for accidental exposure of children to pornography;
    5. (e)
      Approximately 6 years ago, either accidently or on purpose, he allowed an adult daughter to be exposed to pornography on his computer;
    6. (f)
      The lack of support from ANN, the applicant’s wife;
    7. (g)
      The applicant demonstrated very limited insight into the exploitative nature and inappropriateness of CEM images;
    8. (h)
      The applicant displayed no remorse for possessing CEM on his devices and demonstrated an indifferent or lax attitude to CEM;
    9. (i)
      The applicant provided inconsistent statements in relation to the charges and surrounding circumstances; and
    10. (j)
      That a blue card, if issued, is fully transferrable across all areas of regulated employment and is unconditional.
  16. [89]
    After consideration of all of the evidence, the risk and protective factors, and weighing the relevant matters in the WWC Act, the Tribunal is satisfied, on the balance of probabilities, that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. The decision of the Director-General, Department of Justice and Attorney-General under review is confirmed.

Non-publication Order

  1. [90]
    The publication of the names of the applicant, any complainants, any witnesses appearing for the applicant and any relevant child is prohibited pursuant to s 66 of the QCAT Act.
  2. [91]
    Accordingly, these reasons have been de-identified.

Footnotes

[1] WWC Act, s 221(2).

[2] WWC Act, s 169 definition.

[3] WWC Act, s 353 definition.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 33(3).

[5] WWC Act, s 353(a).

[6] QCAT Act, s 19(a).

[7] QCAT Act, s 20.

[8] QCAT Act, s 20.

[9] WWC Act, s 360.

[10] QCAT Act, s 24(1).

[11] WWC Act, s 5.

[12] WWC Act, s 6.

[13] As stated in the Commission for Children and Young People Bill Second Reading Speech: Queensland, Parliamentary Debates, Queensland Parliament Hansard, 14 November 2000, 4391 (AM Bligh).

[14] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].

[15] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, [42].

[16] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492, [30].

[17] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[18] Ex 2, BCS-18 to BCS-21.

[19] Ex 2, BCS-22 to BCS-61 and BCS-93 to BCS-149.

[20] Ex 2, Applicant’s criminal history dated 18 July 2017, BCS-16 to BCS-17, and police brief of facts, BCS-18 to BCS-21.

[21] Ex 2, Summary of record of interview between the child and a police officer on 23 February 2012, BCS-24 to BCS-25.

[22] Ex 2, Material provided by the Director of Public Prosecutions under cover of letters dated 1 August 2017 and 28 May 2019, BCS-22 to BCS-61 and BCS-93 to BCS-149.

[23] Ex 2, Statement of the child’s mother dated 5 March 2012, BCS-112 to BCS-117, Statement of the child’s step-father dated 29 February 2012, BCS-120 to BCS-125 and Summary of record of interview between the child and a police officer on 23 February 2012, BCS-24 to BCS-25.

[24] Ex 2, Statement of the child’s mother dated 5 March 2012, BCS-112 to BCS-117, Statement of the child’s step-father dated 29 February 2012, BCS-120 to BCS-125.

[25] Ex 2, Statement of the child’s mother dated 5 March 2012, BCS-112 to BCS-117, Statement of the child’s step-father dated 29 February 2012, BCS-120 to BCS-125 and Summary of record of interview between the child and a police officer on 23 February 2012, BCS-24 to BCS-25.

[26] Ex 2, Transcript of police interview with applicant on 1 March 2012.

[27] Ex 2, letter from the Department of Public Prosecutions dated 1 August 2017, BCS-22 to BCS-23 and letter from Department of Public Prosecutions dated 28 May 2019, BCS-93 to BCS94.

[28] Ex 2, BCS-62 to BCS-63.

[29] Ex 2, Statement of police officer dated 13 April 2012, BCS-101.

[30] Ex 2, Statement of police officer dated 11 May 2012, BCS-107, Statement of police officer dated 13 April 1012 BCS-101 to BCS-102, Statement of police officer dated 14 March 2012, BCS-111 and Summary of Report – Queensland Police Service, Gold Coast Crime Prevention Unit, BCS-91 to BCS-92.

[31] Ex 2, Transcript of police interview with applicant on 1 March 2012, BCS-55 to BCS-57.

[32] Ibid BCS-56.

[33] Ibid BCS-56.

[34] Ibid BCS-58.

[35] Ex 2, Summary of report – Queensland Police Service, Gold Coast Crime Prevention Unit BCS-91 to BCS-92.

[36] Ibid.

[37] Ex 2, BCS-133 to BCS-136.

[38] Ex 2, BCS-91 to BCS-92.

[39] Ex 2, BCS-62 to BCS-63.

[40] Ex 2, BCS-72.

[41] WWC Act, s 360.

[42] WWC Act, s 221(2).

[43] [2006] QCST 11, [97]. See Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87.

[44] Ex 2, BCS-22 to BCS-23 and BCS-93 to BCS-149.

[45] WWC Act, s 226.

[46] [2010] QCAT 243, [58].

[47] [2015] QCAT 489 [83].

[48] Ex 2, BCS-62 to BCS-63.

[49] Ex 2, BCS-58.

[50] Ex 1, statement of JNN dated 1 March 2019.

[51] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.

Close

Editorial Notes

  • Published Case Name:

    JNN v Director-General, Department of Justice and Attorney General

  • Shortened Case Name:

    JNN v Director-General, Department of Justice and Attorney General

  • MNC:

    [2019] QCAT 347

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    15 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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