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CMH v Director General, Department of Justice and Attorney General

 

[2020] QCAT 15

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

CMH v Director General, Department of Justice and Attorney General [2020] QCAT 15

PARTIES:

CMH

 

v

 

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO:

CML106-18

MATTER TYPE:

Children matters

DELIVERED ON:

23 January 2020

HEARING DATE:

21 June 2019

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDERS:

  1. That the decision of the Director General, Department of Justice and Attorney-General dated 9 March 2018 that the Applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the tribunal’s decision that there is no exceptional case.
  2. That pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the publication of the contents of any document or thing filed in or produced to the tribunal and any evidence given to the tribunal by any witness is prohibited to the extent that it could lead to the identity of the Applicant or any member of the Applicant’s family or any non-party to the proceedings

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – a review of a decision to issue a negative notice – the Applicant was convicted of historical sexual offences against a child but acquitted of other offences – the Applicant’s appeal against his conviction was allowed – the Applicant’s convictions were set aside – a retrial was  ordered – a nolle prosequi entered – Applicant has a historical criminal history – the offence recorded on the Applicant’s historical criminal history is not a serious or a disqualifying offence – whether exceptional circumstances exist – whether risk to children sufficiently negated – whether it is in the best interests of children to issue a positive notice

EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS –          NON-PUBLICATION OF IDENTITY –– publication of identity of Applicant, witnesses and non-parties contrary to public interest

Commissioner for Children and Young People Bill 2000 (Qld)

Queensland Civil and Administrative Tribunal Act       2009 (Qld), s 17, s 18, s 19(a), s 19(c), s 20(1), s 20(2),     s 24(1), s 28, s 66, s 66(2), s 66(3)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 221(1), s 226(2),              s 226(2)(e), s 227, s 353, s 354, s 360, s 361, Schedule 2  

Working with Children (Risk Management and Screening) and Other Legislation Amendment Bill 2018 (Qld) Explanatory Notes

Briginshaw v Briginshaw (1938) 60 CLR 336

Chief Executive Officer, Department of Child Protection v Grindrod (No 2) [2008] WASCA 28

Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) WASCA 171

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

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

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

EBH v DH [2001] QDC 016

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

GKE v EUT [2014] QDC 248

Herron v The Attorney-General for New South Wales and Others (1987) 8 NSWLR 601

Kent v Wilson [2000] VSC 98

Kioa v West (1985) 159 CLR 550

Perry and Brown Patents (1930) 48 RPC 200

Petersen v Queensland Police Service – Weapons Licensing [2019] QCAT 335

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1

The King v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228

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

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

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

R Te-Kani, in-house Government Legal Officer

REASONS FOR DECISION

Introduction

  1. [1]
    CMH (‘the Applicant) applied for a positive notice and a blue card for child-related employment.  The Director General, Department of Justice and Attorney General (‘the Respondent) subsequently requested information (‘police information’) from the Queensland Police Service (‘the police’) about the Applicant.  After receiving that information, the Respondent wrote to the Applicant and requested that he provide submissions as to why he should not be issued a negative notice.  The police information showed that on three earlier occasions, the Applicant had been charged and prosecuted for offences involving the invasion of an individual’s privacy, an assault which caused bodily harm and sexual offences against a female child.
  2. [2]
    After receiving the Applicant’s submissions, the Respondent considered the information provided and assessed that the circumstances and decided that an exceptional case existed.  Consequently, a negative notice was issued to the Applicant.  The Applicant applied to the tribunal for a review of the Respondent’s decision.

The Applicant’s police information

  1. [3]
    The Respondent, in reaching a decision to issue the Applicant with a negative notice, gave serious consideration to the police information.  The Respondent relied upon the three distinct incidents contained within that information as a basis for the refusal to issue a positive notice or blue card, but primarily focused on the third entry, being the most serious of the entries.
  2. [4]
    The first entry in the information was the Applicant’s conviction in April 1991 for unlawfully entering a dwelling house.  He pleaded guilty in the Magistrates Court and was placed on a Good Behaviour Bond for 12 months with a $200 recognisance.  The complainant in that matter was the Applicant’s girlfriend.  During this time, they had an on-again, off-again relationship.  At a time when the relationship was in the off-again phase, he went to where she lived and entered her house.  She arrived home and found him inside.  She made a complaint to the police and he was charged.  He pleaded guilty at the very first opportunity and the characteristics of this offence do not define it as either a serious or a disqualifying offence as provided for in the Working with Children (Risk Management and Screening) Act 2000 (‘the Working with Children Act’).
  3. [5]
    The second entry relates to an incident in May 1991 where the Applicant was charged with two offences, including assaulting his girlfriend and unlawfully entering her house.  He contested the allegations and the matter was later heard and determined in the Magistrates Court.  During the hearing, both charges were dismissed by the court prior to the conclusion of the hearing.  Costs were awarded in favour of the Applicant. 
  4. [6]
    The third entry in the information relates to allegations of sexual offences against a child.  This is the most serious of the entries in the Applicant’s police information.  As the allegations stand, what transpired was that the Applicant was involved in coaching a junior sports team in the 1980s, and up until his arrest in December 2014 he remained actively involved in that role.  When he was arrested, he voluntarily stood down from all activities which involved him coaching or administering junior sport. 
  5. [7]
    In 1994, a female member (‘ACV’) of a sporting team coached by the Applicant made a complaint to the police.  She told the police that in 1987 when she was aged between 15 and 16, the Applicant sexually assaulted her.  After making her initial complaint, she decided not to proceed with that complaint.
  6. [8]
    In late 2013, some 19 years after she originally initiated her complaint and 26 years after the alleged offences, ACV reinvigorated her complaint.  A statement was provided to the police, and a formal investigation was undertaken into those allegations.  In December 2014, the Applicant was interviewed by police and arrested and charged with thirteen offences arising out of her allegations. 
  7. [9]
    The Applicant maintained his innocence, and the matter proceeded to a trial in the District Court.  The thirteen charges were reduced by the Office of the Director of Public Prosecutions (‘the DPP’) to an eight count indictment, with all counts on the indictment alleging that the applicant sexually assaulted ACV.  ACV gave evidence at the trial, along with three complainant witnesses.  The Applicant also gave evidence and he was cross examined. 
  8. [10]
    The first two counts on the indictment were charges of indecent dealing, which ACV said occurred while she was returning home in a bus with her sports team from another city.  She alleged that the Applicant was seated next to her and he got her to handle his exposed penis and he touched her genitals through her clothing.  The jury acquitted the Applicant of those two counts. 
  9. [11]
    Counts three and four on the indictment related to an allegation that in May 1987 the Applicant rubbed his penis against ACV.  She said that this took place inside the weights room where she trained.  The other occasion was alleged to have occurred in the Applicant’s office where he again rubbed his penis against her.  He was found guilty of those two counts.
  10. [12]
    Count five was alleged to have occurred just after ACV’s sixteenth birthday.  She said that the Applicant offered her a lift home, which she accepted.  He drove her down to the end of a street near a park.  It is there that he put her car seat down and then climbed on top of her.  Both ACV and the Applicant remained fully clothed.  After telling him that it hurt, he got off her.  The Applicant was acquitted of this count.
  11. [13]
    Count six related to allegations of an occasion at his residence sometime after ACV’s sixteenth birthday.  He is alleged to have kissed her, pulled her down to her knees, placed her on the floor and laid on top of her between her legs.  At this point he pushed his penis against her.  He was asked to stop but he kept grinding his penis against her vaginal area.  ACV was able to describe a photograph inside the Applicant’s residence as a wedding photograph of him and his wife.  In the Applicant’s evidence at the trial, he denied taking ACV to his residence.  In respect of the photograph, he said that a similar photograph was kept in his office.  He was found guilty of that count.
  12. [14]
    Count seven related to similar types of allegations as stated in the facts of count five.  Count eight referred to an allegation that he picked ACV up and carried her into a park whilst discussing having sex with her.  She resisted and told him to put her down, which he did.  He then started undoing his pants, but she ran away.  He was acquitted of both counts seven and eight.[1]
  13. [15]
    At the conclusion of the trial, the Applicant was acquitted of five counts contained in the indictment but was found guilty on the remaining three counts.  He was sentenced to a term of imprisonment for 12 months, with that sentence being wholly suspended for an operational period of 18 months. 
  14. [16]
    The Applicant lodged an appeal against his convictions.  The Court of Appeal reached a unanimous decision and set aside his convictions and ordered a retrial in respect of those three counts.  In the reasons for allowing the appeal, the Court of Appeal held that the trial judge had impermissibly undermined the appropriate warning to the jury that it was dangerous to convict the Applicant in the absence of evidence supporting ACV’s allegations. 
  15. [17]
    The Court of Appeal further held that the trial judge had erroneously identified evidence which was not capable of independently supporting the complainant’s version of events.[2]  Understandably, it would seem that there was no way to determine to what extent the misdirection by the trial judge impacted upon the guilty verdicts returned by the jury. 
  16. [18]
    In a little over four months after the Court of Appeal allowed the Applicant’s appeal and set aside his convictions, the DPP decided to enter a nolle prosequi in relation to those three counts.  This occurred after ACV advised the DPP that she did not wish to provide evidence in a trial again.[3]

The tribunal’s role

  1. [19]
    Because the Respondent made a decision to issue an applicant with a negative notice, the Working with Children Act provides that the applicant can apply to the tribunal for a review of that decision.[4]  In reviewing that decision, the tribunal must apply the principle that the welfare and best interests of children is paramount.[5]
  2. [20]
    The tribunal effectively stands in the shoes of the Respondent, who is the original decision maker, and the purpose of the review is to produce the correct and preferable decision.[6]  Because of the nature of an administrative review, the review must be a fresh hearing on the merits of the application[7] and any decision reached by the tribunal must be based on the material before it at the time of the review hearing[8] with a view of determining the Applicant’s eligibility to work with children. 
  3. [21]
    Although the tribunal has all the functions of the original decision maker,[9] their roles do differ in one aspect.  In reaching the decision to assess the Applicant’s case as being exceptional, the Respondent needed only to apply the provision of the enabling Act.[10]  In reaching the correct and preferable decision, the tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and the Working with Children Act.[11]  Because of this, a higher standard or a higher test should be applied to the tribunal’s assessment than required of the Respondent. 
  4. [22]
    The QCAT Act provides that when reaching the correct and preferable decision, the tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent that the tribunal adopts the rules, practices or procedures.  Notwithstanding that, the tribunal is still obligated to act fairly and according to the substantial merits of the case and must observe the rules of natural justice.[12]  There is a long held principle that although a tribunal is not be bound by any rules of evidence, this does not mean that all rules of evidence may be ignored as of no account.  In reaching a determination on the application of the rules of evidence applicable to the tribunals, the High Court held that rules of evidence – 

… represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and illicit truth.  No tribunal can, without grave danger of injustice, set them to one side and resort to methods of inquiry which necessarily disadvantage the opposing party.  In other words, although rules of evidence as such do not bind, every attempt must be made to administer substantial justice.[13]

  1. [23]
    Natural justice is an important ingredient in the conduct of a tribunal hearing along with fairness.  In the framework of administrative decision making framework, it is the tribunal’s duty to act fairly or to accord procedural fairness[14] and those ingredients convey a notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.[15] 
  2. [24]
    Returning to the tribunal’s role, when considering the correct and preferable decision, a discretion is provided to the tribunal to either confirm or amend the Respondent’s original decision; or set aside the Respondent’s decision and substitute that decision with its own decision; or set aside the Respondent’s decision and return the matter for consideration to the original decision maker with directions that the tribunal considers appropriate.[16]

Discussions – police information and material relied upon to assist the tribunal

  1. [25]
    In assisting the tribunal to reach the correct and preferable decision, the Respondent provided the following material –
    1. (a)
      The police information;[17]
    2. (b)
      The sentencing remarks of the District Court Judge who sentenced the Applicant;[18]
    3. (c)
      The Court of Appeal decision to set aside the Applicant’s convictions and order a retrial;[19]
    4. (d)
      The Queensland Police Court Briefs (‘QP9s’) containing the allegations made by ACV;[20]
    5. (e)
      Correspondence from the DPP to the respondent advising that ACV did not wish to provide evidence at a trial again and accordingly the DPP discontinued the charges;[21] and
    6. (f)
      The QP9s relating to the 1991 incidents involving the Applicant.[22]
  2. [26]
    The material that was not provided were the transcripts or extracts of the transcripts from the trial and any statements made by ACV and any other witness called by the DPP during the trial.  The Respondent did not call ACV or any other person to give evidence at the hearing of this application. 
  3. [27]
    In looking objectively at the Applicant’s police information and applying it to this blue card matter, a cautious approach should be adopted.  Notwithstanding the information about those three entries in the police information, a notable point is that the only conviction recorded against the Applicant arises from an incident some 28 years ago when he was subjected to a community based court order.  That offence is not a serious offence, and nor is it a disqualifying offence as provided by the Working with Children Act and the facts are distinguishable from the allegations raised by ACV.
  4. [28]
    Regarding the information about the other incident dismissed by the court, clearly the facts of that matter were determined by the court at the relevant time.  Like the other historical entry on his police information, the facts are also distinguishable from the allegations made by ACV.  During the hearing of that matter, the presiding Magistrate would have been in the best possible position to be able to assess the evidence and the credit of any witnesses, including the complainant.  The charges were dismissed.  I accept the Applicant’s evidence about what transpired in that hearing and in my view, no assessment of the allegations of that matter is necessary. 
  5. [29]
    Returning to the third entry, clearly this is a far more complex set of circumstances to reach a conclusion on.  As the facts and circumstances stand, what transpired was that the Applicant was involved in coaching junior sports teams in the 1980s, and up until his arrest in December 2014 he continued to remain actively involved as a coach and administrator for almost 30 years.  When he was arrested, he voluntarily stood down from all activities which involved him coaching or administering junior sport. 
  6. [30]
    The police had charged the Applicant with thirteen offences.  When a person is ‘charged’ it usually means that it is a formal accusation that they have allegedly committed an offence and the charge ordinarily comes about when police take control of that person following their arrest.  Apart from meaning a charge on arrest, a charge for an offence also includes an indictment. 
  7. [31]
    It seems that because of the decision of the DPP to enter a nolle prosequi and discontinue the prosecution of ACV’s allegations, the Applicant is no longer the subject to any charge or indictment.  When a careful analysis is made of the chronology of this matter, and notwithstanding that there has already been a trial in regard to ACV’s allegations, all that now remains are uncorroborated investigative information relating to three specific incidents dating back to events which occurred over three decades ago. 
  8. [32]
    At common law, the presumption of innocence is a fundamental principle and the Applicant by maintaining his innocence is doing no more than exercising his fundamental right.  However, the legislators have determined that in very limited circumstances the rights of an individual should be displaced by the desire of the community to protect children.  Therefore, there is a balancing act between the rights of an individual and the rights of children to live safely in the community.  The legislators have tipped that balance in favour of children and the infringements on the rights of an individual are considered necessary in order to uphold the entitlement for a child to be cared for in a way that protects them from harm and promotes their wellbeing.[23]
  9. [33]
    Returning to the considerations that need to be applied, the fundamental principle is that when a person has been charged, or where there is investigative information, the tribunal must have regard to the considerations described within the Working with Children Act in determining whether an exceptional case exists.[24]  Those considerations are not an exhaustive list and do not expressly or impliedly confine the tribunal to consider only the matters specified therein.  Rather, they are merely certain matters for the tribunal to particularly consider in deciding the application.[25] 

The legislative pathway – blue card system and ‘exceptional case’

  1. [34]
    The Working with Children Act is legislation which establishes a scheme requiring the development and implementation of risk management strategies and the screening of people employed in or carrying on a business which involves or interacts with children.  The purpose of the blue card system is to contribute to the creation of safe and supportive environments for children and young people when they receive services and participate in activities which are essential to their development and wellbeing.[26]     
  2. [35]
    An objective of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children in Queensland.[27]  Every child is entitled to be cared for in a way that protects them from harm and the welfare and best interests of children is paramount.[28]  Although the focus in blue card matters is on the protection of children from future harm within places of employment, the intention of the legislation is not to place additional punishment upon an applicant, thereby punishing them twice if they have acquired a police or disciplinary record.[29]
  3. [36]
    Ordinarily, the Respondent is obligated to issue a positive notice if the Respondent is not aware of any adverse police information or disciplinary information about an applicant.[30]  However, because the Respondent was aware that the Applicant had been charged with the offences previously discussed in these reasons, the Working with Children Act expressly provides that the Respondent was obligated to have regard to a number of factors when exercising the discretion as to whether the Applicant’s circumstances made it an exceptional case.[31]
  4. [37]
    The Respondent reached a conclusion about this matter because of ACV’s allegations and the jury’s guilty verdict on three of the counts on the indictment.  Notwithstanding the conclusion reached, the Respondent accepted the findings of the Court of Appeal to set aside those convictions and order a retrial because of the trial judge’s misdirections to the jury, particularly where it was dangerous to convict the Applicant on the uncorroborated testimony of ACV.  Notwithstanding that issue, the Respondent exercised its discretion to issue a negative notice because consideration was given to the material which outlined the very serious allegations of sexual abuse of ACV by the Applicant. 
  5. [38]
    The Respondent was of the view that the Applicant’s alleged offending was directly relevant to his eligibility to work in child related employment and the issuing of a blue card to him would allow him to work in situations where he was placed in a position of trust and would be responsible for the care, supervision, and overall wellbeing of children and young people.  The Respondent was also concerned that ACV’s allegations raised issues about his ability to safeguard the best interests of children and young people who may be in his care.
  6. [39]
    Returning to the issue of what is an ‘exceptional case’ and how that term applies to a blue card application, it seems that little guidance can be found in the Working with Children Act for a definition.  Although the term is not defined within the legislation it has previously been described as meaning ‘unusual, special and out of the ordinary course’.[32] 
  7. [40]
    The term has been widely written about by this jurisdiction, as well as various other jurisdictions such as the state courts of Queensland and other state courts of the Commonwealth.  In Queensland, the approach that has been adopted and endorsed is derived from the principle that it was unwise to lay down any general rule about what an exceptional case is, and discretion should be used.  Each case should be considered on its own merits and facts[33] and must be examined in the light of the legislation, the legislative intention and the interests of the parties involved.  It would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.[34] Therefore, neither party bears the onus of establishing whether an exceptional case exists, that is the tribunal’s role to reach that conclusion after it has evaluated all the available evidence before it. 
  8. [41]
    Notwithstanding that neither party bears that onus as just discussed, the tribunal must bear in mind the gravity of the consequences involved if a negative notice were to be issued or not.  Although there are no charges currently before any court, the Applicant is still the subject of investigative information.  The question that arises is, what weight should be placed upon that investigative information and the evidence provided by both parties. 
  9. [42]
    In Commissioner for Children and Young People and Child Guardian v Maher & Anor, the Queensland Court of Appeal acknowledged the Briginshaw test[35] and held that the tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[36]  The Briginshaw test, as derived from Briginshaw v Briginshaw is a detailed analysis of the standards of proof in civil and criminal matters.  The High Court held –

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be inexact proofs, indefinite testimony, or indirect inferences.[37]

  1. [43]
    Clearly the authorities suggest that the Briginshaw test established that notwithstanding that the standard of proof may not be the criminal standard of proof, when a serious allegation is made, the consequences flowing from a particular finding are considerations which affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal.[38]

The parties’ competing positions

  1. [44]
    The Respondent argued that in cases where charges have not resulted in convictions, it does not logically lead to a conclusion that there is no elevation of risk to children.  The Respondent also argues that while the Applicant was ultimately not convicted of any offences stemming from ACV’s allegations, the very nature of the allegations are particularly concerning and directly apply to the Applicant’s eligibility to hold a blue card given that he was engaged in child related employment at the time of the alleged offending.  Furthermore, the offences for which he was charged are defined as serious and disqualifying offences under the Working with Children Act.
  2. [45]
    The Respondent also relies upon the decisions reached by the tribunal in TNC v Chief Executive Officer, Public Safety Business Agency[39] (‘TNC’) and Volkers v Commission for Children and Young People and Child Guardian[40] (‘Volkers’).  In each of those two cases the allegations were said to have occurred several years earlier.
  3. [46]
    The circumstances in both TNC and Volkers are that both cases are distinguishable from this application.  Both TNC and Volkers involve matters in which there were a number of complainants, and the allegations from those complainants provided a comparable degree of corroboration to each other.  Whereas in this application, there is a single complainant with the absence of corroboration.   
  4. [47]
    In TNC, six charges were brought against him on the basis of allegations raised by three complainants.  TNC was a tennis coach.  Similar to the hearing of this matter, no direct evidence was available from the complainants at TNC’s tribunal hearing and the information provided to the tribunal had been extracted from the New South Wales police file.
  5. [48]
    In its decision, the tribunal referred to the three complainants as A, B and C.  The first matter involving complainant A took place in 1989 when she was aged 20.  It was not until 1999 that she made her complaint to police.  She alleged that on two separate occasions TNC raped her.  Those events occurred at an overnight sports camp and at a house.  On a third occasion he exposed his penis to her by pulling down his tennis shorts.  When the matter proceeded to trial in 1999, the jury acquitted TNC of all charges.[41]
  6. [49]
    The second matter involving complainant B took place between 1986 and 1988 when she was aged between 14 and 16.  She raised the allegations in 2001 and alleged that on more than six, but less than ten occasions, TNC exposed his penis to her during coaching sessions at a tennis centre, as well as at his own home.  He engaged in kissing her on the lips and asked her for sex.  The police information suggested that TNC was ‘discharged’, which is understood to mean that the charges were discontinued.[42]
  7. [50]
    The third matter involved complainant C.  She was aged about 17 at the time of the alleged offending.  She raised her allegations in 2001 and said that in 1997, she was in a car with TNC when he touched her firmly on her right breast.  On another occasion she was on a camp and was alone in her room one night when he entered her room.  He hugged her and invited her to a party in his room.  She declined the offer and he left but returned shortly afterwards where he straddled her and attempted to kiss her on the lips.  Although charged with those offences, the charges were dismissed when the prosecutor offered no evidence.[43]
  8. [51]
    There was also information placed before the tribunal that complaint C disclosed to police that she knew of other people who had been sexually assaulted by TNC during the past ten years, all of which had a similar coach/player relationship.   The police were able to confirm that allegation.[44]
  9. [52]
    The tribunal noted that three separate women made serious allegations against TNC and there were similarities in those allegations.  The tribunal was satisfied, on the balance of probabilities, that the information and circumstances relating to TNC raised the possibility of him being a risk to children.
  10. [53]
    In Volkers, he had been charged with seven historical offences which were alleged to have occurred between 1981 and 1988.  The allegations involved three separate female complainants who were aged between 12 and 15.  He had been their swimming coach.   
  11. [54]
    Volkers was determined by the tribunal on the papers with the assistance of submissions by the parties’ legal representatives.  The tribunal considered that all the complaints had a degree of similarity in the sense that the sexualised behaviour followed or was part of a massage; and more than one complainant referred to inappropriate touching whilst driving in his car.  The tribunal identified that there were potential risk factors, including that the alleged offending was not isolated because it involved a number of complainants.[45]
  12. [55]
    The tribunal reached a conclusion that the analysis and evaluation of the risk must be based on all the evidence and other material properly before the decision maker at the time that the decision was made.[46]  Having regard to the evidence and other material, the tribunal decided that there was an unacceptable risk that Volkers might cause harm to children. 
  13. [56]
    Returning to this application, the applicant’s position is that he denies that he committed any offence against ACV and that he is innocent of all the allegations.  He argued that his appeal to the Court of Appeal, and the decision reached by that court is vindication of the stance that he took to protect himself against wrongful allegations. 
  14. [57]
    The Applicant maintains that in over three decades of coaching children and young people, he was never a threat or a risk to children or young people, and neither is he a threat or risk now or in the future. 
  15. [58]
    When asked what protective strategies he would deploy to prevent a recurrence of the allegations which have been made against him, the Applicant said that the only thing that he could put in place was the same thing that he has always adopted.  That is, he does not socialise with children or young people who are part of the team that he coaches.  To find out if any of those members of his teams are having difficulties, or that he could better understand their behaviour, his strategy has always been to approach the parents of those children to discuss those issues.[47]
  16. [59]
    In support of his application and his character, the Applicant relied upon the testimony of three people which he called to give evidence at the hearing.  They were HGL, JGW and RMA.
  17. [60]
    HGL is a school teacher and has been involved in the same sporting organisation as the Applicant.  He has known the applicant for almost 32 years and for over three decades, he has experienced significant interaction with the Applicant through their mutual involvement in sport.  Although they know each other, he suggested that his association with the Applicant was restricted only to their joint involvement in the sporting organisation and their association does not involve social interaction.
  18. [61]
    Their interaction extended to when the Applicant approached him with a suggestion of starting up junior sporting teams within the organisation.  HGL said that since at least 2010, the Applicant was the coach of his own daughter’s junior under 14s sporting team.  Apart from starting that team, the Applicant was also instrumental in coaching the girls under 16 and under 18 teams. 
  19. [62]
    HGL said that in all the time that he has known the Applicant he has never seen him act inappropriately towards children or others, and nor had he been made aware of any complaint being raised by a member of the sporting organisation or any other member of the public about the Applicant.  Regarding the Applicant’s criminal charges, HGL said that because the Applicant was a well-known local sporting identity, there was a significant amount of media attention given to his court proceedings.  Despite that public scrutiny, there was never an occasion when he became aware of anyone, either a junior or senior member of the organisation, who made a complaint about the Applicant.  Nor was there any indication given by any parent or a child coached by the Applicant that he had acted inappropriately towards a team member.        
  20. [63]
    JGW is now retired and he has four adult daughters.  Similar to HGL, he has known the Applicant for over 30 years.  He became aware of the Applicant being charged with the offences because of the significant amount of publicity it received in the local newspaper and on the television.  Previously he had been the President of a sporting organisation from 1986 through to about 2009.  During that time, the Applicant was associated with that same sporting organisation as a coach of junior teams.  Like HGL, he has never been made aware of any complaint regarding the Applicant acting inappropriately towards anyone, including a child or a young person.  The Applicant had coached all of JGW’s four daughters who were all members of junior sporting teams.  When he became aware of the Applicant being charged with the offences where ACV was the complainant, he spoke to each of his daughters.  He asked each of his daughters as to whether they have any knowledge of the allegations which had been raised against the Applicant, or whether they witnessed any inappropriate behaviour by him.  They individually told JGW that they had no concerns with the Applicant, and they had no knowledge of the allegations. 
  21. [64]
    RMA has known the Applicant for about seven years.  Her daughter was a member of a sporting team and was coached by the Applicant.  Like the other witnesses for the Applicant, she indicated that she had no concerns about the Applicant interacting with her daughter and other young people as she had never witnessed any inappropriate conduct, behaviour or language by him towards her daughter, other children or anyone else

Conclusion

  1. [65]
    The purpose of the blue card system is to contribute to the creation of safe and supportive environments for children and young people when they receive services and participle in activities which are essential to their development and wellbeing.[48]
  2. [66]
    It is not for the tribunal to establish the Applicant’s guilt or innocence, that role remains the domain of another jurisdiction and the principle reached by the Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (‘Grindrod’) was on that very point.  In Grindrod, the court arrived at a position that it was not the Respondent’s function or the tribunal's function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the charges.  The tribunal’s function involves an analysis and evaluation of risk.  The arrival at the correct and preferable decision should not be concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm being at the forefront of the ultimate decision.[49]  
  3. [67]
    In reaching the correct and preferable decision, the question that arises regarding this Applicant, and what must be established on the balance of probabilities is whether or not an exceptional case exists.  It is not for the tribunal to speculate and any decision must be made on the individual merits of the case and on the material before the tribunal.  Any conclusion reached in favour of the Applicant must only be done so if the evidence sufficiently negates the possibility of him posing a risk to children in the future.
  4. [68]
    The Working with Children Act prescribes that when an assessment is undertaken of the applicant, and the discretion is exercised by the decision maker as to whether an exceptional case exists or not, there are many factors which must be considered.[50]  Those factors include anything else relating to the alleged commission of the offences against ACV that is reasonably considered relevant to that assessment.[51]  The reference of ‘anything else’ and how that relates to the alleged offences appears to allow for a wide scope of considerations.
  5. [69]
    Although the legislation does not specifically provide for consideration about an applicant’s character, or whether they are a fit and proper person to be issued with a positive notice, those definitions could easily be included when applying the term ‘anything else’.  The phrase fit and proper relates to whether or not a person is suitable, appropriate or legally eligible to undertake a particular activity and a person’s character refers to their fundamental moral qualities and represents their mannerisms, personality type, distinctive traits and their moral and ethical qualities.  It is the aggregate of those features and traits that form the individual nature of a person.[52] 
  6. [70]
    It is the applicant’s fitness and propriety to be issued with a positive notice and blue card that is under consideration.  The test arrived at in the ‘Bond Media Case’ is directly relevant to an exceptional case assessment.  The High Court held that the question whether a person is fit and proper is one of value judgment.  The seriousness of particular conduct is a matter for evaluation by the decision maker.  So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.[53]
  7. [71]
    Returning to the Applicant’s position, it can be summed up in simple terms.  For a period of about three decades he has been involved in coaching or the administration of junior sporting teams, of which some of the members have been young girls.  He has one recorded conviction dating back to 1991 arising out of an on-again, off-again relationship with his girlfriend of the time.  The penalty imposed by the Magistrate on that occasion was a Good Behaviour Bond and a $200 recognisance, which can be seen to be on the lower end of the range of penalties available.  About four weeks after that conviction, there was another incident involving the same complainant.  The charges preferred against him on that occasion were dismissed by the court and he was awarded costs.
  8. [72]
    From 1991 through to today’s date, which is a period of over 28 years, the only fault in the police information relating to the Applicant involves the uncorroborated allegations raised by ACV.  Albeit that he was convicted of three offences and acquitted of five others; he appealed those convictions and a retiral was ordered because of the misdirections given to the jury by the trial judge, particularly where it was dangerous to convict the Applicant on the uncorroborated testimony of ACV.
  9. [73]
    Some four months after the Court of Appeal set aside the convictions, the DPP decided to enter a nolle prosequi and asked for the return of the indictment.  That process was undertaken because ACV no longer desired to be involved in the legal process. Notwithstanding that step, there still remains the untested and uncorroborated allegations raised by ACV. 
  10. [74]
    The Respondent argued that although there are identifiable protective factors in favour of the Applicant, they are outweighed by the risk factors.  The Respondent also argued that although the Applicant’s convictions were set aside, it remained a fact that he was charged with the offences. Although the Applicant’s alleged behaviour in 1987 appears to be the only recorded instances of behaviour of this kind, the tribunal should place some emphasis on its previous determination that the passage of time alone does not detract from their seriousness and is not determinative of whether or not a case is an exceptional one.[54]  Whilst the tribunal accepts that argument, each case must be judged on its own merits and it is important for discretion to be exercised and each case should be considered on its own facts.[55]
  11. [75]
    The Respondent relied upon a number of authorities by way of exhibiting various principles applicable to blue card decisions and provided the tribunal with the authorities of TNC and Volkers.  The features of both of those cases are distinguishable from the Applicant’s matter.  A further distinguishing feature in the Applicant’s case is that ACV’s complaint went to a trial, of which the jury were responsible for considering the facts of the case.  The jury was also charged with reaching a decision as to whether any offence had been proved beyond a reasonable doubt and whether the Applicant was guilty or not guilty.  Of the eight charges, the Applicant was acquitted on five charges and found guilty on the remaining three.  It was the Court of Appeal that determined that the guilty verdicts of the jury should be set aside.  It was ACV’s decision that she no longer wished to participate in the legal process. 
  12. [76]
    Looking logically upon this matter, because of the decisions of the Court of Appeal and the DPP; the allegations made by ACV are returned to the status that they were prior to his arrest.  That is, no charges exist, and the allegations remain uncorroborated and untested.   
  13. [77]
    The Respondent suggests that notwithstanding the acquittal by the jury and the setting aside of the guilty verdicts, the tribunal should place significant weight on the complaint itself, along with the jury’s original guilty verdict.  The Respondent also suggested that there was an unacceptable risk of the Applicant reoffending, notwithstanding that there was no evidence to support that proposition.   
  14. [78]
    The risk of placing significant weight upon the now uncorroborated allegations raised against an individual after they have been acquitted by a jury, or after the charges were discontinued is that the decision maker is not taking into account that the members of the jury, who ultimately reached their conclusion to acquit, would have been afforded the opportunity to reach their assessment based on the evidence before the court at that time.  After all, the jury’s responsibility is to consider the facts of the case and decide who or what to believe, and they decide whether any offence has been proved beyond a reasonable doubt and whether the accused is guilty or not guilty.
  15. [79]
    In addition to that, there is the findings of the Court of Appeal.  Although actual findings of guilt or innocence were not reached in deciding that appeal, the court was clearly concerned that after being misdirected by the trial judge, the jury reached its verdict on ACV’s uncorroborated testimony.  When such a position is adopted by the Court of Appeal, caution should be exercised that any decision reached does not offend the jury acquittal verdicts and the Court of Appeal’s decision to set aside the convictions. 
  16. [80]
    In respect of the DPP choosing to discontinue the prosecution against an individual, those types of decisions are ordinarily made after careful consideration of all the available evidence.  There can be a plethora of reasons why the prosecutor would discontinue a prosecution, one of which is the complainant wishing to no longer engage in the trial process.  Notwithstanding that, the correspondence sent by the DPP to the Respondent does not specify whether any consideration was given to the Court of Appeal’s decision and nor was any comment made about the current strength of the uncorroborated evidence provided by ACV.    
  17. [81]
    Being armed with the information just discussed, a discretion exists as to whether the tribunal should accept the uncorroborated and untested version of ACV.  Caution should always be exercised if any uncorroborated and untested version is to be accepted.  After all, although ACV’s evidence has already been tested in court, that evidence has been the subject of the Applicant’s successful appeal to the Court of Appeal.  The discretion to apply the general fairness principle should be a consideration and regard must be had to the Briginshaw test that the greater the consequences flowing from a particular finding, the higher the test that should be applied.[56]
  18. [82]
    A further important issue to consider is the overall general character of the Applicant, in particular his involvement with children within his usual course of employment.  There is nothing within his employment or personal history which suggests that a similar incident has taken place before, or has taken place since, and there is no evidence to suggest that it would likely take place in the future.  Careful consideration needs to be given to the unchallenged evidence of HGL, JGW and RMA.  The tribunal was impressed by the frankness of each of those witnesses and accepts that their evidence was given in an open, honest and credible manner.  
  19. [83]
    It has already been indicated that it is not the role of the tribunal to reach a verdict of the Applicant’s innocence or guilt.  What is incumbent upon the tribunal is that a correct and preferable decision is reached taking into account the principle that the welfare and best interests of children is paramount, with the prevention of potential harm to children being at the forefront of the decision.  
  20. [84]
    Overall, having regards to this matter and applying the Briginshaw test, the issue of the Applicant’s case being an exceptional case has not been proved to the reasonable satisfaction of the tribunal.  The correct approach is to apply the general fairness discretion and not place any weight upon is now the untested and uncorroborated allegations contained within ACV’s complaint. 

Decision

  1. [85]
    Careful consideration has been given to the protective factors in favour of the Applicant, and those factors have been identified throughout these reasons.  It is noted that apart from ACV’s uncorroborated allegations, it seems that the Applicant’s character is otherwise unchallenged, and he is held in high regard by those that he associates with.   
  2. [86]
    The tribunal is satisfied, on the balance of probabilities, that those identified protective factors sufficiently negate the risks raised by the Respondent.  Having regard to all the facts, circumstances and evidence in this matter, the correct and preferable decision is that the decision of the Respondent dated 9 March 2018 that the Applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children Act should be set aside and substituted with the decision that there is no exceptional case.

Non-publication order

  1. [87]
    In proceedings before the tribunal relating to blue card matters, the authority for the tribunal to conduct the review proceedings is conferred upon it by the Working with Children Act.[57]  The QCAT Act requires that unless the enabling Act provides otherwise, the hearing of a procedure must be held in public.  The Working with Children Act expressly provides that subject to certain provisions, a review hearing conducted by the tribunal of a child related employment matter must always be held in private.[58] 
  2. [88]
    Notwithstanding those provisions, it does not appear that the Working with Children Act goes so far as making any provision for the de-identification of the parties involved.  That authority appears to have been conferred upon the tribunal under the QCAT Act which provides that in certain circumstances, the tribunal can make orders prohibiting the publication of the contents of documents or other things produced to the tribunal; or evidence given before the tribunal; or information that may enable a person who has appeared before the tribunal or is affected by a tribunal proceeding to be identified.[59] 
  3. [89]
    Therefore, it appears that in blue card proceedings there is a two-step process.  The first step is that the Working with Children Act mandates that the hearing into a review of blue card matters must be undertaken in private.[60]  However it appears that the making of a de-identification order does not automatically flow from that.  The next step involves the exercise of the tribunal’s discretion as to whether or not an order is made prohibiting the publication of material and/or evidence which would identify a party or a person who appeared in the proceedings.  It is open for either party to make an application to the tribunal for such a prohibition order, or in the alternative, the tribunal can exercise its own discretion to make that order.[61]
  4. [90]
    The making of an anonymity decision or order should not be exercised lightly, and should only be undertaken when the tribunal forms a reasonable opinion that the decision or order is necessary –
    1. (a)
      To avoid interfering with the proper administration of justice; or
    2. (b)
      To avoid endangering the physical or mental health or safety of the applicant; or
    3. (c)
      To avoid offending public decency or morality; or
    4. (d)
      To avoid the publication of confidential information or information which would be contrary to the public interest; or
    5. (e)
      For any other reason the tribunal considers is in the interests of justice.
  5. [91]
    The decision to make a de-identifying order requires consideration of the person or persons who may be affected by blue card proceedings and there are occasions when the de-identifying of parties and witnesses in these types of proceedings is necessary.  Because of the serious and personal nature of the complaints which have been made by ACV, it would not be in the interest of justice to allow the identity of ACV, the Applicant and any of the witnesses who appeared in the tribunal to be identified. 
  6. [92]
    Notwithstanding that the term ‘in the interests of justice’ is not in itself defined in the QCAT Act, there is a broad and general discretionary power conferred on the tribunal.[62]  Considering those factors that have been identified, it is in the interests of justice that the identity of the Applicant, his witnesses and the other non-parties to these proceedings should not be published. 
  7. [93]
    Therefore, pursuant to general discretionary power as provided for by section 66 of the QCAT Act, the publication of the contents of any document or thing filed in or produced to the tribunal and any evidence given to the tribunal by any witness is prohibited to the extent that it could lead to the identity of the Applicant or any member of the Applicant’s family or any non-party to the proceedings.

Footnotes

[1]  The information contained in paragraphs [6] to [17] of these reasons is outlined in greater detail in the judgment given by the Court of Appeal in respect to the Applicant’s appeal, R v [Redacted].

[2]  Court of Appeal decision of [Redacted] at [Redacted].

[3]  Referred to in the Respondent’s document BCS at page 71.

[4] Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353, 354. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18.

[5] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[8] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c).

[10] Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 221, 226, 227.

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(a).

[12] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28.

[13] The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott; (1933) 50 CLR 228, 256 per Evatt J.

[14] Kioa v West (1985) 159 CLR 550, 583-584 per Mason J.

[15] Kioa v West (1985) 159 CLR 550, 585 per Mason J.

[16] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[17]  Referred to in the Respondent’s document BCS at pages 22 – 24.

[18]  Referred to in the Respondent’s document BCS at pages 25 – 30.

[19]  Referred to in the Respondent’s document BCS at pages 31 – 38.

[20]  Referred to in the Respondent’s document BCS at pages 39 – 70.

[21]  Referred to in the Respondent’s document BCS at page 71.

[22]  Referred to in the Respondent’s document BCS at pages 108 – 111.

[23]  Referred to in the Respondent’s document BCS at page 13; Commissioner for Children and Young People Bill 2000 (Qld), page 10.

[24] Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 221, 226, 227.

[25] Commissioner for Children and Young People and Child Guardian v Maher & Anon [2004] QCA 492, [42].

[26] Working with Children (Risk Management and Screening) and Other Legislation Amendment Bill 2018, Explanatory Notes.

[27] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.

[28] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6.

[29] Commissioner for Children and Young People Bill 2000 (Qld), second reading speech, Queensland Parliament Hansard, 14 November 2000 at page 4391.

[30] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(1).

[31] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226.

[32] Kent v Wilson [2000] VSC 98, [22] referencing the Oxford English Dictionary.

[33] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34] per Philippides J endorsing the approach taken by Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 in adopting the warning of Luxmore J in Perry and Brown Patents (1930) 48 RPC 200.

[34] Kent v Wilson [2000] VSC 98, [22].

[35] Briginshaw v Briginshaw (1938) 60 CLR 336.

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

[37] Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

[38] EBH v DH [2001] QDC 016, [28]; GKE v EUT [2014] QDC 248, [36].

[39]      [2015] QCAT 489.

[40]      [2010] QCAT 243.

[41] TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [15] – [19].

[42] TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [20] – [24].

[43] TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [25] – [27].

[44] TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [28].

[45] Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, [61] – [62].

[46] Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) WASCA 171.

[47]  Transcript of Proceedings at page 1-77, lines 34 – 37.

[48] Working with Children (Risk Management and Screening) and Other Legislation Amendment Bill 2018, Explanatory Notes.

[49]  [2008] WASCA 28, [84].

[50] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2).

[51] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(e).

[52] Petersen v Queensland Police Service – Weapons Licensing [2019] QCAT 335, [30], [31].

[53] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380.

[54] FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210, [8].

[55] Kent v Wilson [2000] VSC 98; Re Perry and Brown's Patents (1930) 48 RPC 200; Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 and Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[56] Briginshaw v Briginshaw (1938) 60 CLR 336.

[57] The Working with Children (Risk Management and Screening) Act 2000 (Qld) is an ‘enabling Act’ as provided for in the Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17 and the Working with Children (Risk Management and Screening) Act 2000 (Qld), s 354.

[58] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361.

[59] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

[60] Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361 provides that the persons that are permitted to be present at a child related employment review are each party, a representative for either party, a witness whilst giving evidence, a support person for a witness and any other person allowed by the tribunal to be present.

[61] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3).

[62] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2); Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [7].

Close

Editorial Notes

  • Published Case Name:

    CMH v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    CMH v Director General, Department of Justice and Attorney General

  • MNC:

    [2020] QCAT 15

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    23 Jan 2020

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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