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OJA v Chief Executive Officer, Public Safety Business Agency QCAT 146
OJA v Chief Executive Officer, Public Safety Business Agency  QCAT 146
Chief Executive Officer, Public Safety Business Agency
11 March 2016
20 April 2016
CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Agency’s decision to cancel a positive notice and issue a negative notice – whether exceptional case exists – whether or not in the best interests of children to issue a positive notice – where the applicant is charged with ‘producing dangerous drugs’
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 226, s 261, s 266, s 295
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
Kylie Heath, Adovacy Officer for the Chief Executive Public Safety Business Agency
REASONS FOR DECISION
- The Applicant, OJA, applied for a positive notice and blue card on 12 March 2015.
- On approximately 4 May 2015 the Respondent was advised by the Queensland Police Service of the Applicant’s police information.
- The Applicant was invited to make submissions to support her eligibility to continue holding a positive notice and blue card.
- On 25 September 2015 the Applicant was issued with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Applicant was provided with a written notice outlining the decision, the reasons for the decision and the relevant review information.
- The Applicant lodged an application to review the Respondent’s decision that the Applicant’s case was an ‘exceptional case ‘in which it would not be in the best interests of children for the Applicant to be issued with a positive notice of blue card.
- OJA was working as a disability support worker for Life Without Barriers (“LWB”) dealing with people with intellectual disabilities. She was looking after people for LWB trying to improve their quality of life. OJA was also working for FNQ Independent Living Supports. Between these two organisations, she would work up to 100 hours per week.
- OJA also owned four rental properties. This included a unit at 113 Scott Street that she rented to a person known as “JL” for $170 per week. Her evidence was that she wanted $200 per week but reached an understanding with JL to accept the $170 per week if JL would mow the grass on her acreage property at Kuranda six times a year. She denied that she received $200 per week and denied that she was being paid $30 per week to allow marijuana to be grown the unit.
- JL was there for four weeks between 16 November and 24 January. Police attended the unit and could smell marijuana and entered the dwelling and allegedly found 111 cannabis plants in the two bedrooms. The police charged JL and when interviewed this person alleged that the Applicant was aware that cannabis was being produced on the premises.
- OJA says that JL lied about her knowledge that cannabis was being produced on the premises. She told the Tribunal that had she known what JL was doing she would have terminated the lease and directed him to leave.
- OJA was charged by the Police after declining the opportunity to participate in a record of interview.
- OJA stated that her employment had been terminated by LWB and that she took LWB to court for unfair dismissal and that the Deputy Commissioner ordered LWB to give her a payout.
- OJA stated that she had good relationships with the members of the family and that they are her support network.
- The crux of OJA’s case is a complete denial of the drug charge. She pleaded “not guilty” to the charge and would have contested the charge at a hearing if the matter had proceeded to trial. The charge was dropped by the Prosecution and dismissed by the court.
- The Respondent contends that it is open to the Tribunal to make a finding on the balance of probabilities that the Applicant committed the offence of ‘producing dangerous drugs’ on 24 November 2013.
- This is based on the following reasons:
- When police searched the rental property on 24 December 2013, they located the 74 cannabis plants of between 70 to 80 cm tall, in addition to 39 plants 30 cm tall and paraphernalia.
- On 28 December 2013, the Applicant told police that the co offender JL had lived at the rental property between 16 November 2013 to 24 December 2013 for $200 per week.
- On 29 December 2013 a co-offender (it is unclear from material which co-offender) participated in an interview with the police and made admissions to knowing cannabis was located in the bedrooms but denied being involved in the production process. The co-offender was charged with possession of the plants and the hydroponic equipment.
- On 30 December 2013 police arrested another co-offender (presumably JL) who made admissions to residing at the dwelling between 16 November 2013 and 21 December 2013. The co-offender said he was aware of the hydroponic cannabis plants growing in two bedrooms and assisted to co-offenders to produce them. He told police of the meeting between himself, the Applicant and a co-offender prior to his moving in which they discussed the growing of the hydroponic cannabis in the bedrooms of the dwelling. He had an arrangement with a co-offender that $30 per week should be paid to the Applicant towards his rent to allow the production of the cannabis to take place. He said the Applicant was aware of the hydroponic cannabis being produced at the address and on one occasion he was told by a co-offender to give the Applicant access to the dwelling to show her the progression of the cannabis.
- The Applicant was the owner of the rental property at the time of the offence.
- The Applicant states in her letter to Blue Card Services dated 17 August 2015 that she “has several large mortgages to repay and dependents to support”.
- Two of the co-offenders (HC and LN) worked with the applicant at LWB.
- The rental agreement states that the amount of $170 rent was to be paid each week by the tenant JL to the Applicant. The Applicant told police on 28 December 2013 JL paid her rent of $200 per week. The Respondent notes that the interview on 30 December 2012 presumably JL indicates he told police he had arrangement with a co-offender that $30 per week should be paid to the Applicant towards his rent to allow the production cannabis take place at the address.
- On 30 June 2015 the Applicant told Blue Card Services that she has “eight rental properties and one of the tenants in the property was caught producing drugs and she was charged and that the charges were dropped. [The tenant] has worked for a company before it got taken over by LWB. The Applicant is therefore apportioning blame on JL for the hydroponic cannabis”.
Discussion of the evidence
- The main evidence against OJA comes from JL who has been convicted and has turned informant. The “No evidence To Offer” report from police states that the informant “is the lynch pin to the prosecution case as it is his evidence alone that is sufficient to implicate the three defendants mentioned in this report”. This is untested evidence and the Tribunal has to weigh up how much weight should be given to it.
- The Tribunal has undertaken this task by evaluating the weight and credibility of the Applicant’s evidence.
- OJA produced a copy of the tenancy agreement, which shows a rental of $170 per week. This is the amount Centrelink has used for the determination of the rental assistance.
- The Tribunal accepts OJA’s explanation that she had asked for $200 in rent but was prepared to agree to $170 per week in rental on the basis that JL use her ride on motor mower to mow the acreage on Kuranda property six times a year.
- The Tribunal accepts OJA’s evidence that she was not aware that cannabis was being grown in her unit at 113 Scott Street. The Tribunal accepts OJA’s evidence that she would have terminated JL’s lease if she had been made aware that he was growing cannabis in her property.
- The Tribunal found OJA to be a credible witness.
- The Tribunal notes that OJA did not call any witnesses. The Tribunal sees a benefit in applicants calling witnesses to attest as to their character and there will be cases where applicants will fail because of their failure to do so.
- The evidence of OJA is not consistent to the evidence of JL. The Tribunal has decided to accept the evidence of OJA where there are different accounts.
- The Prosecution case at best does not demonstrate that OJA took any active part growing the marijuana. This case turns on whether OJA had a role in the production of the drugs. The Tribunal accepts OJA’s evidence that she did not know that cannabis was being grown on in her premises at 113 Scott Street and that she was not receiving $30 per as her consent to the production of drugs.
- The Tribunal notes that Ms O'JA pleaded not guilty to the charge and was contesting proceedings.
- The decision of the Tribunal to accept OJA’s evidence over that of JL means that the Tribunal proposes to put no weight on JL’s evidence, which is the crucial part of the Police case.
- The Tribunal is of the view that presumption of innocence has not been displaced in these circumstances. This clearly undermines the basis for the Respondent’s decision to issue a negative notice.
- The Applicant does have a criminal history but there are no recent convictions to raise a concern about the suitability of the Applicant to hold a blue card here.
- Published Case Name:
OJA v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
OJA v Chief Executive Officer, Public Safety Business Agency
 QCAT 146
20 Apr 2016