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SAM v Director General, Department of Justice and Attorney General

 

[2020] QCAT 243

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SAM v Director General, Department of Justice and Attorney General [2020] QCAT 243

PARTIES:

SAM

(applicant)

 

v

 

DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL

(respondent)

APPLICATION NO:

CML001-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

20 January 2020

HEARING DATE:

13 September 2019

HEARD AT:

Mackay

DECISION OF:

Member Pennell, presiding

Member Cooper

ORDERS:

  1. That the decision of the Director General, Department of Justice and Attorney-General dated 1 November 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 – review of a decision to issue a negative notice – the Applicant was charged with three historical sex offences against a child – Applicant defended the allegations – District Court trial – Applicant acquitted by a jury of all three charges – the Applicant has a historical criminal history – the offence recorded on the Applicant’s historical criminal history is not a serious or disqualifying offence – whether exceptional circumstances exist – whether the potential risk to children is 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)

Criminal Code Act 1899 (Qld), s 208, s 210     

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2), s 24(1), s 28, s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(c), s 28(4)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 221(1),         s 226, s 353, s 354, s 360, Schedule 4, Schedule 5

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 for Child Protection v Grindrod (No 2) [2008] WASCA 28

Commissioner for Children and Young People and Child Guardian v Maher & Anor [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

Kent v Wilson [2000] VSC 98

Kioa v West (1985) 159 CLR 550

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

Re Perry and Brown's Patents (1930) 48 RPC 200

Shi v The Migration Agents Registration Authority (2008) 235 CLR 286

The King v The War Pensions Entitlement Appeal Tribunal and Another; 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:

A Bryant, in-house Government Legal Officer

REASONS FOR DECISION

Introduction

  1. [1]
    On 18 June 2018, the Director General, Department of Justice and Attorney General (‘the Respondent’) received an application from SAM (‘the Applicant’).  He was seeking to be issued with a positive notice and a blue card so that he could gain employment in the area of disability services.  When the application was received, the Respondent undertook a criminal history check with the police, which subsequently showed that the Applicant had three concerning entries. 
  2. [2]
    After receiving the police information, the Respondent wrote to the Applicant and provided him with a copy of that information.[1]  An invitation was then extended to him to make submissions about the concerning entries and he was also asked to provide an explanation as to why a negative notice should not be issued.  He subsequently provided his submissions and explanations; however, it was the Respondent’s assessment that it was not in the best interests of children for the Applicant to be a holder of a positive notice and a blue card.  The Respondent then issued a negative notice to him and the Applicant seeks a review of that decision.

The police information

  1. [3]
    The Applicant’s police information contained three entries on his criminal history, broken up into two distinct matters.  Notwithstanding that the first matter related to offences which are historical in nature, the offences themselves are defined within the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’) as disqualifying offences.  The offence which constitutes the second matter is a charge of wilful damage. 
  2. [4]
    The first matter involved the Applicant being arrested and charged on 21 May 2014 with three charges of indecently dealing with MCV, who was a male child under the age of 14.[2]  He was additionally charged with a further charge of carnal knowledge against the order of nature (‘sodomy’) of MCV.[3]  The offences were alleged to have occurred sometime within a two-year period between April 1987 and May 1989.  At the relevant time of the alleged offences, MCV was aged about eight to nine years of age, and the Applicant was aged between 15 and 17 years of age.
  3. [5]
    On 3 October 2014, the Applicant was committed for trial in the District Court on those previously mentioned charges.  The Office of the Director of Public Prosecutions (‘the DPP’) later presented an indictment to the District Court[4] charging him with one count of indecently dealing with MCV and one count of sodomising him.
  4. [6]
    Because of a latent ambiguity in the indictment, the DPP entered a nolle prosequi at the start of the Applicant’s District Court trial.[5]  The DPP then presented a fresh indictment charging the Applicant with two counts of indecently dealing with MCV and one count of sodomising him.  When arraigned, he pleaded not guilty to all counts.  At the conclusion of the trial, the jury returned a verdict of not guilty on all counts and the Applicant was discharged.
  5. [7]
    The circumstances of the offences are that MCV, although aged eight to nine years of age at the time of the alleged offending, he was aged 34 when he made his complaint.  The first allegation related to the Applicant and an unknown male person performing a sexual act in front of MCV.  The Applicant is also alleged to have put his penis into MCV’s mouth and anus. 
  6. [8]
    It is not controversial, and the Applicant does not deny that sometime after the offences were alleged to have occurred, MCV and his family relocated interstate to Western Australia.  The Applicant, still a child himself at that time, travelled with MCV and his family. Nor is it controversial that MCV and his family were well known to the Applicant and from time to time the Applicant had been used by MCV’s parents as a babysitter for MCV and his siblings. 
  7. [9]
    When the Applicant relocated and moved in with MCV and his family, he lived with them for a number of months before moving to Geraldton for work.  Shortly after, he returned to Queensland.  Since that time, he has had no contact with MCV or his family.
  8. [10]
    The second matter in the police information relates to an incident which occurred after the Applicant and his partner had been out to dinner celebrating his birthday.  The Applicant had consumed a significant amount of alcohol and on the way home in a taxi, he became upset which caused the taxi driver to stop.  The Applicant and his partner were asked to remove themselves from the taxi.  When he exited the taxi, he kicked and damaged a door of the taxi.  A complaint was made to the police.  The Applicant was interviewed, and he made full admissions to the offence.  He told the police that he lashed out because he was upset with other issues that he was dealing with at that time. The police charged him with damaging the taxi and he later pleaded guilty to that offence.  He was fined and ordered to pay restitution for the damage he caused.  No conviction was recorded.  The Tribunal notes that this incident took place a short time before his trial in the District Court.  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 MCV.  It is also noted that the offence does not appear to have been committed in the course of the Applicant’s employment and the particulars of the incident do not suggest that the offence involved children or that it was committed in the presence of children. 
  9. [11]
    To assist the Tribunal, the Respondent provided a significant amount of material, which included –
    1. (a)
      The police information (National Police Check Results Report);[6]
    2. (b)
      The Queensland Police Court Briefs (‘QP9s’) containing the allegations made by MCV;[7]
    3. (c)
      The ‘police brief’ containing statements from various police officers, MCV and other witnesses;[8] and
    4. (d)
      The QP9 relating to the second matter involving the Applicant damaging a taxi.[9]
  10. [12]
    An objective examination needs to be undertaken of the Applicant’s police information when applying it to this blue card matter.  Clearly, the facts of that matter were considered by the jury at that relevant time and given the result of the trial, caution is required when an analysis of the facts is undertaken. 

The tribunal’s role

  1. [13]
    Because the Applicant decided to review the Respondent’s decision to issue him with a negative notice,[10] the tribunal now effectively stands in the shoes of the Respondent.  In undertaking that role, the tribunal must apply the principle that the welfare and best interests of children is paramount[11] and the review must be a fresh hearing on the merits of the application.[12]  Any decision reached by the tribunal must be based on the material before it at the time of the review hearing[13] with a view of determining the Applicant’s eligibility to work with children.
  2. [14]
    A known fact is that the Applicant was charged, tried and then acquitted of allegations that he committed sex offences against MCV and undeniably, the DPP could not prove, beyond a reasonable doubt, that the Applicant committed the offences.  The tribunal’s function is distinct from that of the jury or the court’s role in his trial and it is not for the tribunal to adjudicate upon whether the Applicant may or may not have committed those offences.  But rather, it is for the tribunal to apply the principle that the welfare and best interests of children is paramount, and the prevention of potential harm to children being at the forefront when it reaches its correct and preferable decision.[14]
  3. [15]
    Overall, there is a discretion afforded to the tribunal when undertaking its role in review proceedings.  It is open for the tribunal to either confirm or amend the Respondent’s original decision; or set aside the Respondent’s original 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.[15]

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

  1. [16]
    The Working with Children Act establishes a scheme that requires 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 this scheme is to create a safe and supportive environment for children and young people when they are receiving services and participating in activities which are essential to their development and wellbeing.[16]     
  2. [17]
    An objective of the legislation is to promote and protect the rights, interests and wellbeing of children in Queensland.[17]  Every child is entitled to be cared for in a way that protects them from harm.  Their welfare and best interests are paramount[18] and the focus in blue card matters is on the protection of children from future harm within places of employment. Notwithstanding that, it is not the intention of the legislation to punish someone twice if they have acquired a police or disciplinary record.[19]
  3. [18]
    In assessing any applicant, ordinarily the Respondent is obligated to issue a positive notice if the Respondent is not aware of any police information or disciplinary information about that applicant.[20]  However, because the Respondent became aware that the Applicant had previously been charged with an offence, the Working with Children Act expressly provides an obligation upon the Respondent to consider a number of factors within the circumstances of that information.  In exercising a discretion as to whether the Applicant’s case is exceptional, the Respondent is to consider those factors.[21]
  4. [19]
    In coming to an understanding of the term ‘exceptional case’ and how that term applies to a review of a blue card decision, it seems that no guidance can be found in the Working with Children Act for a clear definition of the term.  Although not defined in the legislation, the term has been the discussion of this tribunal as well as other jurisdictions such as the state courts of Queensland and other state courts of the Commonwealth. 
  5. [20]
    Previously, a consensus was reached that the term meant ‘unusual, special and out of the ordinary course’.[22]  The facts of any individual case must be examined in light of the legislation, the legislative intention and the interests of the parties involved.  Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.[23]  This principle followed on from an earlier observation that it would be most unwise to lay down any general rule about what an exceptional case is.  Discretion should be used, and each case should be considered on its own facts.[24]  The position arrived at by the courts and tribunals in Queensland is that there is no general rule of what the term means, it is a case by case approach and each case should be judged on its own set of individual facts and this should only be undertaken after evaluating all the available evidence.[25]

Rules of evidence – onus of proof

  1. [21]
    The Working with Children Act provides that if the Respondent is satisfied that an exceptional case exists, then discretion can be exercised to issue an applicant with a negative notice.  In review hearings for blue card matters, neither party bears the onus of determining whether an exceptional case exists or not.  That responsibility lies with the tribunal after it has evaluated all the available evidence.[26]
  1. [22]
    The tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record.[27]  It may inform itself in any way it considers appropriate,[28] and may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.[29]  However, in doing all of that, the Tribunal must observe the rules of natural justice.[30] 
  2. [23]
    Natural justice, along with procedural fairness are important ingredients to the tribunal’s function in blue card matters.  Natural justice and procedural fairness are to be linked. The expression procedural fairness conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.[31]  In the context of administrative decision making it is more appropriate to speak of a duty for the tribunal to act fairly or to accord procedural fairness.[32] 
  3. [24]
    Returning to the application of the rules of evidence, although the tribunal is not bound by any rules of evidence, this does not ordinarily mean that all rules of evidence may be ignored and the tribunal should act according to substantial justice and the merits of the case.  In The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott, the High Court held in regard to the rules of evidence that –   

…..they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and 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.[33]  

  1. [25]
    In undertaking an evaluation of all the facts in this matter, there is one primary area for assessment for the tribunal, and that is, although the jury acquitted the Applicant of the disqualifying offences, he had been charged with those offences.  The question for the tribunal is what weight should now be placed upon MCV’s allegations and the evidence provided by the parties.  In Commissioner for Children and Young People and Child Guardian v Maher & Anor,[34] (‘Maher’s case’) the Court observed the Briginshaw test[35] and said 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] 
  2. [26]
    The Briginshaw test was derived from a detailed analysis about the development of the standards of proof in criminal and civil matters, noting that the civil standard was depending on the reasonable satisfaction of the tribunal.  That analysis observed –   

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]

The nature of the issue necessarily affects the process by which reasonable satisfaction is attained.  When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ….  But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.[38] 

  1. [27]
    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.[39]

The parties’ competing cases

  1. [28]
    In rejecting the Applicant’s application, the Respondent emphasised that the veracity and the consistency of the allegations made by MCV are important ingredients to be considered in this matter.  The Respondent argued that the overall strength of the allegations still raised significant concerns about the possibility of the Applicant posing a risk to children.  The Respondent also argued that notwithstanding that the jury had acquitted the Applicant of disqualifying offences, the overriding risk factors far outweigh the protective factors because he had allegedly committed offences against a child of a young age.  The Respondent went on to say that sexual deviancy is considered to be directly relevant to the assessment of a person’s eligibility for child related employment, as it raises significant concerns about their ability to judge appropriate behaviour, respect and maintain personal and physical boundaries and prioritise the wellbeing of others over their own urges.[40] 
  2. [29]
    In support of that proposition, the Applicant argued that Parliament had 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.[41]
  1. [30]
    Although the Applicant’s alleged offending occurred over 32 years ago, the evidence shows no other charges or convictions recorded on his criminal history, with the exception of him damaging a taxi.  Notwithstanding the passage of time, the clear intention of the legislation is that the historical charges preferred against the Applicant remain significant in any assessment of his eligibility to hold a blue card.[42]    Whilst the tribunal agrees with that comment, what should be read in conjunction with that principle is that discretion must be exercised and each case must be judged on its own merits and facts.[43]
  1. [31]
    As already indicated, the Respondent urged the tribunal to consider the consistency in the allegations raised by MCV, which was maintained over a considerable period of time including making disclosures to a psychologist, his parents and his partner.  The Respondent argued that given that the allegations of the Applicant’s inappropriate sexual behaviour was on more than one occasion, the Applicant’s engagement in child related employment would be contrary to the best interests of children and young people who may be placed in his care.[44]
  2. [32]
    The Respondent further argued that the issuing of a negative notice to the Respondent was necessary because he has not demonstrated that he had engaged in any particular strategies to alleviate those concerns held about him when he is interacting with children or young people. The Respondent went on to argue that without references or other supporting material, the Respondent was unable to gain insight into the Applicant’s interaction with children in recent times which could be relied upon to mitigate the risk factors raised by the evidence in this matter.[45]
  3. [33]
    On the other hand, the Respondent acknowledged that the Applicant had been acquitted by the jury of those historical allegations. The Respondent also acknowledged that at the time of the alleged offending the Applicant was still a child[46] and over the past 32 years, his character was unblemished, albeit for a wilful damage conviction. 
  4. [34]
    In support of the argument that an exceptional case existed, the Respondent  relied upon the tribunal’s earlier findings in TNC v Chief Executive Officer, Public Safety Business Agency[47] (‘TNC’) and Volkers v Commission for Children and Young People and Child Guardian[48] (‘Volkers’).  Like the allegations which led to the Applicant being charged, both matters of TNC and Volkers involved historical allegations.  
  5. [35]
    TNC and Volkers are cases which are distinguishable from this application.  Both of those cases relate to allegations raised by a number of complainants.  The allegations from the individual complainants provided in each case were similar and corroborated each other.  Whereas in this application, the allegations raised against the Applicant are not corroborated and come from a single complainant.   
  6. [36]
    TNC faced six charges arising from allegations made by three separate complainants alleged to have been committed between 1986 and 1997.  The female complainants were aged 20, 17 and 16, being much older than MCV.  TNC was their tennis coach and the allegations involved rape and sexual assaults.  In respect to the allegations from the 20 year old complainant, he was acquitted by a jury, and was ‘discharged’ of the allegations raised by the 17 year old complainant.  The charges arising from the youngest complainant were discontinued and no evidence was offered.[49]  It was observed by the tribunal in TNC that three separate women made serious allegations against him, with similarities existing in those allegations.  The tribunal was satisfied, on the balance of probabilities, that he was a risk to children.
  7. [37]
    Volkers was a swimming coach and he had been charged with seven historical offences which were alleged to have occurred between 1981 and 1988.  As with TNC, there were three female complainants, all aged between 12 and 15.  Identified by the tribunal was a degree of similarity between the allegations raised by each complainant and it was determined that there were potential risk factors involved.  Volkers was considered to be an unacceptable risk in that he might cause harm to children. 
  8. [38]
    The Respondent submitted that in cases where charges have not resulted in convictions, as in this matter, it does not logically lead to a conclusion that there is no elevation of risk to children.  The Respondent went on to urge the tribunal to consider that when making an assessment of the risk associated with the Applicant, consideration should be given to the evidence supporting the charges and the totality of that evidence.[50] 
  9. [39]
    The Respondent asked the tribunal to consider that at the time that the alleged offences took place, the Applicant was the babysitter for MCV, and therefore was in a position of trust.  That trust was violated and MCV was exploited for the Applicant’s sexual gratification. The Respondent says that there was a power imbalance and MCV was vulnerable because of his young age and the disparity of the ages between the Applicant and MCV.[51]
  10. [40]
    Ultimately the Respondent reached a conclusion that the Applicant’s case was an exceptional case and the risk factors outweighed the protective factors because the Applicant did not demonstrate that he had engaged in any protective factors when interacting with children or young people.  The Respondent went on to say that there was no known insight into the Applicant’s interaction with children in recent times which could be relied upon which mitigated the risk factors. 
  11. [41]
    The Applicant told the tribunal that he made the application for a review of the Respondent’s decision because it affected his chances of employment in aged care.  His desire is to work in the disability sector, however the negative notice prevented that.  
  12. [42]
    He does not dispute the allegation that in the 1980s he lived beside MCV and his family. He said that he would have been aged about 16 when that family moved in next door.  Nor does he dispute that from time to time, usually on a Friday evening, he was used by MCV’s parents as a babysitter for MCV and his siblings.  His role was to look after the children while the parents went to bingo between 5:00pm through to 9:00pm.  The children had already eaten their dinner and had been bathed prior to him arriving at their house.  He denied ever staying overnight and sleeping at MCV’s house.
  13. [43]
    The Applicant confirmed that he moved to Perth with MCV’s family and boarded with them for about six months before he moved to Geraldton for work.  He was still only a young teenager at that time and after spending some time in Geraldton, he got home sick and relocated back to Queensland.  When he returned, he lost contact with MCV and his family.  The next time he heard anything about MCV is when he was questioned about the allegations. 
  14. [44]
    In discussing the allegations raised by MCV and his trial, the Applicant maintained that he was innocent of the allegations.  He said that the only evidence relied upon by the prosecutor in his trial was given by MCV and his parents.[52]  
  15. [45]
    In respect to the entry on his police history relating to him damaging the taxi, he said that he was remorseful for what had occurred.  The offence was alcohol related and clearly out of character.[53]  It was a very stressful time for him, and the incident occurred during the period leading up to his trial.  He and his partner had been out for dinner and on the way home he became upset.  He recognised that he had a ‘brain snap’ and behaved inappropriately.  It was clear from the Applicant’s evidence that he regretted his actions on that occasion.
  16. [46]
    The Applicant and his partner have been together in a committed relationship for 30 years.  He left his previous employment of 24 years to study at university.  He now holds the qualifications of Certificate III in Aged Care, Certificate III in Dementia Care and Certificate III in Palliative Care. 
  17. [47]
    In support of his application, the Applicant relied upon the evidence of KNG and MJJ.  KNG is the Applicant’s partner.  He corroborated the Applicant’s evidence about their relationship.  KNG has enjoyed a long career and has been working with the same employer for 38 years.  He learnt of the allegations against the Applicant when the police spoke to the Applicant and arrested him.  He is fully supportive of the Applicant’s application and he added that on many occasions he has seen the Applicant interact with children who are part of their extended family, as well as children belonging to friends.  At no time has there been any concern about the Applicant’s interaction with, or behaviour towards children.    
  18. [48]
    MJJ also gave evidence for the Applicant.  She has known him for about 20 years.  She has three grandchildren, with two of the children attending late primary school and early high school.  On several occasions, the Applicant had collected the grandchildren from school, and they remained in his care until they were collected by MJJ or other family members.  She added that there is a close bond between the Applicant and the children and they refer to him as their uncle.

Conclusion

  1. [49]
    When the Tribunal steps into the shoes of the original decision-maker, it must have regard to the best and most current information available.[54]  The correct and preferable decision must be made on the merits of the case as at the date of the hearing.  In this matter, the current information or material provided to the tribunal to assist with the making of the correct and preferable decision did not include the transcripts or any extracts of the transcripts from the trial.  Nor were any of witnesses called by the Respondent to support or corroborate the statements contained within the police brief of evidence.  Because the tribunal’s decision can only be made on the material or evidence at the time of the hearing, it is unknown whether the lack of that additional material or evidence would have impacted upon the decision made.
  2. [50]
    The Respondent asked the tribunal to place significant weight on the contents of the documents contained within the police brief.  The Respondent went on to say that the material indicates that MCV’s allegations have been consistent over a period of approximately 20 years when he made those disclosures to various people.  The Respondent also relied upon a document purported to be a report relating to MCV being counselled in 1990.  In that document there is a comment suggesting that MCV had disclosed that he was sexually abused by a male babysitter.  
  3. [51]
    In TNC, the tribunal’s position was 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.  In relying upon that point, the Respondent argued that notwithstanding the verdict of the jury to acquit the Applicant, a significant amount of weight should be placed upon the uncorroborated documentary evidence contained within the police information.  The risk of adopting that argument is that it appears to offend the position arrived by the court in Maher’s case and the test arrived at in  Briginshaw in that that discretion must be exercised and each case must be judged on its own merits and facts and 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.
  4. [52]
    To accept the untested statements contained within the police information denied natural justice to the Applicant and deprived him of an opportunity to test that evidence.  One of the risks identified in this matter is contained within the document completed by a clinical and educational psychologist after MCV was counselled.  The author’s name has been redacted and therefore that person is unidentifiable.  The report was compiled almost a month after MCV was interviewed and it is unknown what methods were used by the author to compile the report and there were no accompanying or corroborating notes attached to that report.  The author was not even called to give evidence at the Applicant’s trial.  The Respondent’s position is that the report was completed by a competent professional and significant weight should accompany that report.  If that argument were to be accepted, then it is appropriate for natural justice to be afforded to the Applicant.  He should have been given the opportunity to test the veracity of that evidence and cross-examine that professional witnesses. 
  5. [53]
    Although a discretion exists as to whether the tribunal should accept the material just referred to, because of the greater consequences involved in this matter, caution should always be exercised.  Notwithstanding the legislative intention that a child’s right to be protected from harm is superior to the rights of the Applicant, this matter takes it beyond that proposition because of the acquittal verdicts by the jury.  Although the evidentiary test which applied to the jury is of the higher standard than that required in this matter, the application of the Briginshaw test and the test in The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott requires that the tribunal,[55] although not bound by any rules of evidence, to act according to substantial justice and the merits of the case.[56]  The greater the consequences flowing from a particular finding, the higher the test that should be applied.
  6. [54]
    To assist the tribunal in reaching the correct and preferable decision, assistance can be found in the overall general character of the Applicant.  There is nothing within his employment or personal history which suggests that a similar incident has taken place before, or that it would likely take place in the future.  The allegations are not only historical in that they occurred 32 years ago, but they were also alleged to have been committed when the Applicant himself was still a child.[57] 
  7. [55]
    The Applicant proclaims his innocence and he argued that his position is vindicated by the jury acquitting him of all the charges.  A fundamental principle of the law is that a person is presumed innocent until proven otherwise and by maintaining his innocence, the Applicant is merely exercising his fundamental right.  Notwithstanding that, at paragraphs [14] and [29] of these reasons it has been explained that 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.  There has to be a balance drawn between the rights of an individual and the rights of children to live safely in the community.  That balance has been tipped in the favour of children and the prevention of potential harm to children is to be at the forefront of any correct and preferable decision reached.
  8. [56]
    In regard to the Applicant’s character, evidence was given at the hearing by KNG and MJJ.  Their evidence was unchallenged when they spoke of the positive interactions of the Applicant in the presence of children.  The tribunal is satisfied that their evidence was given in an open, honest and credible manner.   
  9. [57]
    Overall, having regards to this matter and applying the Briginshaw test, the tribunal is satisfied that discretion should be used in deciding this matter and this case should be considered on its own facts.  Without any other tangible evidence to the contrary, the facts strongly indicate that there are sufficient protective factors in favour of the Applicant and that the correct and preferable decision is to set aside the decision of the Respondent dated 1 November 2018 that the Applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children) Act and substitute that decision with the tribunal’s decision that there is no exceptional case.

Non-publication

  1. [58]
    The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) makes provision that the tribunal, in certain circumstances, 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.[58]
  2. [59]
    The making of a non-publication decision or order should not be exercised lightly.  The tribunal should only exercise its discretion if it forms a reasonable opinion that the decision or order is necessary, including whether it is in the interests of justice.[59]  The term ‘in the interests of justice’ is not defined in the QCAT Act, however there is a broad and general discretionary power conferred on the tribunal.
  3. [60]
    In exercising that broad general discretionary power as provided for by section 66 of the QCAT Act, the tribunal is satisfied that 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 should be 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] On 1 August 2018.

[2] Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 4 defines the offence of Indecent Treatment of a Child Under 16 pursuant to s 210 of the Criminal Code Act 1899 (Qld) as a disqualifying offence.     

[3] Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 5 (Repealed or expired disqualifying offences) defines the offence of unlawful sodomy pursuant to s 208 of the Criminal Code Act 1899 (Qld) as a disqualifying offence.

[4] On 30 March 2015.

[5] The trial commenced on 13 October 2015 and concluded on 14 October 2015.

[6] Referred to in the Respondent’s document BCS at page 15.

[7] Referred to in the Respondent’s document BCS at pages 18 – 31 and 58 – 71.

[8] Referred to in the Respondent’s document BCS at pages 74 – 147.

[9] Referred to in the Respondent’s document BCS at pages 53 – 55.

[10] Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 353, 354.

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

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

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

[14] Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, [84].

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

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

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

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

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

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

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

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

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

[24] Re Perry and Brown's Patents (1930) 48 RPC 200.

[25] 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.

[26] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].

[27] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

[28] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

[29] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(4).

[30] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

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

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

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

[34]  [2004] QCA 492, [30] per McPherson and Jerrard JJA and Philippides J.

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

[36]  [2004] QCA 492, [28].

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

[38] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.

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

[40]  Referred to in the Respondent’s document BCS at page, 8.

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

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

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

[44]  Referred to in the Respondent’s document BCS at page 8.

[45]  Referred to in the Respondent’s document BCS at page 9.

[46]  The applicant was aged between 15 and 17 at the time of the alleged offences.

[47]      [2015] QCAT 489.

[48]      [2010] QCAT 243.

[49] TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [15] – [28].

[50]  Referred to in the Respondent’s document BCS at page 6, paragraph 31 citing TNC v Chief Executive Officer, Department of Justice and Attorney-General [2015] QCAT 489, [90].

[51]  Respondent’s submissions at pages 10 and 14.

[52]  For criminal trials in the District and Supreme Courts, the Office of the Director of Public Prosecutions is responsible for the prosecution of defendants.

[53]  Applicant’s legal representative’s letter to the respondent dated 15 August 2018 annexed to the Respondent’s document BCS at page 44.

[54] Shi v The Migration Agents Registration Authority (2008) 235 CLR 286, [40] – [41] per Kirby J.

[55]  The High Court was referring to the powers of the War Pensions Entitlement Appeal Tribunal.  Similar to the practices and procedures as provided for the tribunal in section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the War Pensions Entitlement Appeal Tribunal was not bound by the rules of evidence and could inform itself in any way it considered appropriate. 

[56]  (1933) 50 CLR 228, 250 per Rich, Dixon and McTiernan JJ.

[57]  In its determination of this matter, the tribunal recognises that the focus, objective and intent of the Working with Children (Risk Management and Screening) Act 2000 (Qld) legislative intent does not provide that merely because an applicant was a child at the time of the alleged commission of any disqualifying offence, that does not mean that the applicant’s case cannot be an exceptional case.   

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

[59] 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:

    SAM v Director General, Department of Justice and Attorney General

  • Shortened Case Name:

    SAM v Director General, Department of Justice and Attorney General

  • MNC:

    [2020] QCAT 243

  • Court:

    QCAT

  • Judge(s):

    Member Pennell, Member Cooper

  • Date:

    20 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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