Jensen v Director-General, Department of Justice and Attorney-General
[2017] QCAT 467
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- Jensen v Director-General, Department of Justice and Attorney-General[2017] QCAT 467
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Jensen v Director-General, Department of Justice and Attorney-General[2017] QCAT 467
Jensen v Director-General, Department of Justice and Attorney-General[2017] QCAT 467
CITATION: | Jensen v Director-General, Department of Justice and Attorney-General [2017] QCAT 467 |
PARTIES: | Owen Barry Jensen (Applicant) v Director-General, Department of Justice and Attorney General (Respondent) |
APPLICATION NUMBER: | CML024-17 |
MATTER TYPE: | Children's matters |
HEARING DATE: | 18 August 2017 |
HEARD AT: | Townsville |
DECISION OF: | Member Johnston |
DELIVERED ON: | 7 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the Director-General, Department of Justice and Attorney-General of 3 January 2017 to issue a negative notice to Owen Barry Jensen under the Working with Children Risk Management and Screening Act 2000 (Qld) is set aside as the Tribunal finds there is no exceptional case. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where allegations including touching a female in the course of driving instruction and making sexually inappropriate connotations towards a female – whether or not in the best interests of children to issue a positive notice Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24, s 66
Working with Children Risk Management andScreening Act 2000 (Qld), s 5, s 6, s 221, s 226, s 354, s 360 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 |
APPEARANCES: | |
APPLICANT: | Owen Barry Jensen |
RESPONDENT: | The Director-General represented by Mr Iain McGowie Government Legal Officer |
REPRESENTATIVES: | |
APPLICANT: | Douglas Turnbull of Counsel, instructed by Tristan Carlos, Solicitor of Arthur Browne Solicitors |
RESPONDENT: | Mr Iain McGown, Legal Officer, Department of Justice and Attorney-General |
REASONS FOR DECISION
Background
- [1]Mr Owen Jensen worked for the North Queensland Therapy Services and Graduate School of Motoring as a Driving Instructor.
- [2]On or about March 2014 a complaint was made against Mr Jensen that he had acted inappropriately towards a female client.
- [3]When the allegations were put to Mr Jensen, he denied the allegations, sought leave to get legal advice and was sacked on the spot.
- [4]After Mr Jensen was sacked, the Office Secretary, another Driving Instructor and a friend of one of the Directors, lodged three further complaints.
- [5]The crux of the case against Mr Jensen is that:
- The alleged behaviour in relation to the first complaint included touching the Complainant on the back during the lesson and using highly inappropriate comments with sexual connotations.
- The alleged behaviour in relation to the second complaint was inappropriate behaviour at work involving intentional physical contact with a female staff member.
- The third complaint related to alleged making derogatory comments by the applicant about young females.
- The fourth complaint related to comments allegedly made by the Applicant to a student which included ‘You are beautiful’, ‘You have beautiful eyes’, ‘You should be a model’.
- [6]Mr Jensen has strenuously denied all the allegations.
- [7]Mr Heath Ward his former employer gave evidence that before the first complaint he had no concerns whatsoever about Mr Jensen and that he was very happy with Mr Jenson as a Driving Instructor. He had absolutely no concerns with his behaviour. Mr Ward confirmed that Mr Jensen had denied the allegations and asked for legal representation to respond to the allegations. He acknowledged that he did not give Mr Jensen the opportunity to get legal advice but rather because of the seriousness of the allegations sacked him on the spot.
The Applicant’s evidence
Mr Jensen’s Evidence
- [8]Mr Jensen is in a relationship with Melanie van Genderen and they have three young children.
- [9]Mr Jensen in relation to the first complaint stated that she had not followed his advice and her driving was not up to the required standard. He told her that her prospects of passing the test were poor. She then failed the driving test and was very emotional and upset. He told her that he would not continue as her Driving Instructor and she would need to pick one of the other Driving Instructors. He denied the evidence regarding him touching her or making any sexual connotations towards her.
- [10]Mr Jensen told the Tribunal that he was not aware of the other complaints and they were not raised at his dismissal.
- [11]Mr Jensen told the Tribunal that he had denied the allegations when they had been made against him. He had asked for legal representation given the seriousness of the allegations and this had been denied.
- [12]Mr Jensen denied the allegations made by complainants Two and Three and denied he had used the words alleged or caused any harm to the young person described in complaint Four.
- [13]Mr Jensen has a support network that includes his Mother, his partner and friends.
- [14]In relation to his criminal history, he told the Tribunal that the Magistrate has accepted his evidence about the knife that it was a family heirloom and he did not carry the knife with the intent to use it.
- [15]He admitted to the drug use as a young person and said he had moved on from there. His drug use was recreational, he had learnt to adjust his lifestyle and he had changed his circle of friends. He admitted to making poor choices and had sometimes learnt the hard way. He is now not affected by peer pressure. He is now dead against drug use.
- [16]Mr Jensen stated that he is in a relationship and his children have helped him respect young people. He tries to use courtesy and to get young people to trust his advice.
- [17]Mr Jensen told the Tribunal that ninety percent of his clients were young people. He accepts that they are vulnerable and need to be cared for appropriately. He emphasises safety and competency.
- [18]Mr Jensen told the Tribunal that there was no reason for him to touch a student.
- [19]Mr Jensen in relation to the allegation that he suggested oral sex said that he was very shocked by the allegations. He had dealt with hundreds of students without any problems.
- [20]Mr Jensen totally denied the allegations of the second complainant.
- [21]Mr Jensen told the Tribunal that there had never been a change in his client’s gender mix as alleged in the statement of the second complainant. He did driving instructor lessons for both male and female clients.
- [22]Mr Jensen totally denied the allegations of complainant three saying that he did not speak about women in that way. He told the Tribunal that it was wrong to talk about young females in the way that complaint Three had alleged. He told the Tribunal that he had been brought up to treat female persons with respect.
- [23]Mr Jensen in relation to alleged complaint Four denied the allegations. He worked to build up the confidence of young people. He accepted that he needed to act in the best interests of children.
- [24]Mr Jensen told the Tribunal that he manages the stress he faces through his support network and with the support of good legal advice. He sees his GP on a three monthly basis. He believes that mental health is a big issue in males. Mr Jensen sees his strengths as his ability to learn and good family support.
- [25]Mr Jensen says that he has conducted himself appropriately. He undertakes child protection and acts positively towards young people. He has received lots of good positive feedback from young people and their parents.
Mrs Glynis Prudence Jensen
- [26]Mrs Glynis Jensen stated to the Tribunal that her son was a very loving and caring person. She said that he had become depressed with the passing of his Father but he had pulled himself together. He had sought out help and had been good since then.
- [27]Mrs Jensen’s evidence was that Mr Jensen has many friends on both sides of the family. He has a very good relationship with his Mother and Sister.
- [28]She had seen the complaint material and does not accept that he would act in that way. She said that he was always supportive and caring. She would not believe Owen would behave in that matter.
- [29]Mrs Jensen has never heard Mr Jensen speak in derogative terms about women.
- [30]She sees his strengths as being able to pull himself together and improve himself and she sees his weakness, as he gets disheartened when things go wrong. He had problems when his Father passed and with his first break up. While he may become depressed, he seeks out help from his friends and gets medical help.
- [31]She has never seen him be disrespectful of women. She said that he treats people with respect. He is not harsh with others. She has seen him deal positively with both their children and with the child of his Aunts and Uncles. He gets on well with children. She told the Tribunal that her Son was simply not like what had been alleged at all. He does not speak in derogatory terms about women. He has the ability to learn from his mistakes and improve himself. He has suffered from depression in the past but he has been able to handle that illness. She has never seen him speak disrespectfully. He respects the rights of others. She told the Tribunal that her initial reaction to reading the complaints was shock as she did not believe her Son would behave in that way. She has seen him in a range of social situations and has not known him to act disrespectfully towards women.
Melanie Dawn van Genderen
- [32]She told the Tribunal that her partner had handled the issues around his family very well. He had dealt with the demands she and the children had placed on him. This included dealing with many stressful situations. She was quite shocked by the allegations. She has never seen him treat young people in a disrespectful way. He does not use sexual connotations in dealing with others. He does not use sexual references in his speech. He plays a pivotal role bringing up their children. He is a very social person with lots of friends. He is a kind, gentle soul whose children adore him. She sees his strengths as being a compassionate, fair, hard working person. He described his weaknesses as being a bit slack around the house at times. He is supported by herself, his Mother, Sister, her Mother and other family and friends.
Douglas Wong – Department of Communities
- [33]Mr Wong has been working with the Department of Communities in the area of child safety and is well aware of the need to look after the best interests of children. He sent his two children to Mr Jensen for driving instruction. His children were very happy with the service that Mr Jensen provided. He saw him deal with his children with professionalism and courtesy. His children talked positively of their interaction with Mr Jensen. He was of the view that Mr Jensen was a very respectful and professional person.
- [34]Mr Wong said that he was shocked by the allegations that had been made against Mr Jensen. He said that it was not at all consistent with his observations of Mr Jensen who conducted himself quite appropriately with his children. If there had been any issues he would have become aware of them but he saw no issues with Mr Jensen as a Driving Instructor. He told the Tribunal that Mr Jensen was an excellent communicator and had the ability to teach in an appropriate manner. He could not fault Mr Jensen the way that he handles his job with young persons. He would have no hesitation in recommending Mr Jensen’s services to other young people. His children have been happy to refer their friends to Mr Jensen.
Kaitlin Wong – Service Officer at Centrelink
- [35]Ms Wong used Mr Jensen as a Driving Instructor. She was sixteen at the time and she spent five to six hours with Mr Jensen. She had no problems with him as a Driving Instructor. She felt comfortable in his presence. She was happy to refer him to other young people. She was aware of the complaints that had been made but they were inconsistent with her experience of Mr Jensen. He was very approachable and provided support in a professional way. She had nothing bad to say about him at all.
Donna Craig – Beauty Therapist
- [36]Ms Craig told the Tribunal that she was aware of the allegations but this was not consistent with her view of Mr Jensen. She stated that he was very professional and very good with her. She had no concerns about Mr Jensen at all. She was happy to refer him to other young people.
Anna – Marie Ellis – Second Year Nursing Student
- [37]Ms Ellis had no concerns about Mr Jensen at all. She was an ease with him while a student driver. She had read the allegations against Mr Jensen but had no concerns about his behaviour at all. She was very comfortable with him as an instructor. He was very professional and very helpful. She spent between twenty and thirty hours with him. The complaint material did not match at all with the person whom she knew who at all times acted appropriately. She had no concerns whatsoever about Mr Jensen.
Brendan Scott – Watson Watto Training
- [38]Mr Jensen did his driving instruction training from his organisation to Certificate IV. His observations of Mr Jensen was that he was a professional and courteous person towards clients. He was satisfied that Mr Jensen had the appropriate skills to be a Driving Instructor.
Thomas Dodd
- [39]Mr Dodd had done eighty hours with Mr Jensen to fill up his logbook. He told the Tribunal that Mr Jensen focused on his driving skills and improving his abilities. He was dealt with courtesy. Mr Jensen always acted in a respectful manner. He had no hesitation referring Mr Jensen to his mates for driving instruction. He described him as a great trainer. He had read the complaint material but had no concerns about Mr Jensen’s behaviour.
Respondent’s Witnesses
Mr Heath Ward – Director
- [40]Mr Ward told the Tribunal that he was giving evidence because he felt strongly about the matter. He told the Tribunal that he was not aware of any other formal complaints. He had no issues with Mr Jensen before the first complaint. He was quite happy with his work performance.
- [41]Mr Ward told the Tribunal that he received a complaint from Complainant One raising concerns about the conduct of Mr Jensen. He telephoned Complainant One to get an understanding of the issues. He asked the office to cancel Mr Jensen’s afternoon lessons and have him come into meet him. He was very concerned by the allegations.
- [42]Mr Jensen when confronted with the allegations, denied the allegations and had become quite upset that the allegations had been made. Mr Ward told the Tribunal that he had no concerns with Complainant One’s credibility. Based on speaking to her on the telephone he accepted the truthfulness of her claims. Mr Ward stated that based on Complainant One’s concerns about Mr Jensen’s appropriateness he had sacked Mr Jensen.
- [43]Mr Ward confirmed that Mr Jensen had asked for legal representation to respond to the allegations.
Anna Marie Nicholls – Director
- [44]Mr Jensen was employed by her company in 2013.
- [45]She was made aware that Complainant One was a woman in her 30s.
- [46]Ms Nicholls in paragraph thirty of her affidavit says, ‘Heath told me that Owen had not been able to give an explanation for his conduct and that he had terminated his employment’. However, in her oral evidence Ms Nicholls confirmed that she was aware that Mr Jensen had strenuously denied the allegations.
Relevant law to be applied by the Tribunal
- [47]The relevant law to be applied is the Working with Children Risk Management and Screening Act 2000 (Qld) (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
- [48]The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
- [49]The decision under review is whether the Applicant’s case is an ‘exceptional case’ in as much as the presumption prescribed by section 225 of the Act has been displaced. The nature of the Applicant’s Police information is such that the statutory presumption is that a notice should be issued to the Applicant.
- [50]In order to issue a negative notice to the Applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an ‘exceptional case’ exists.
- [51]Any hardship or prejudice suffered by the Applicant due to such a determination is irrelevant to this consideration.
- [52]The Tribunal has decided in other cases that the passage of time alone is not determinative as to whether or not an ‘exceptional case’ exists.
What is an ‘exceptional case’?
- [53]The Act does not define the meaning of an ‘exceptional case’. Section 226 of the Act refers to certain factors that the Respondent must have regard to in determining whether this is an ‘exceptional case’, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Respondent reasonably considers relevant to the assessment of the person.
- [54]The Tribunal must, in exercising its review function under the QCAT Act, in determining whether an ‘exceptional case’ exists, ensure that the harm and welfare and best interests of children is its ‘paramount consideration’.[1]
- [55]It has been previously determined by the Appeal Tribunal that the meaning of an ‘exceptional case’ is a matter of discretion and should not be confined to ‘any general rule’.[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher[3] stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]
- [56]The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances, including the nature of the offending behaviour, there are exceptional circumstances which dictate that it would not be in the best interests for children for a Blue Card to be re-issued.
- [57]The purpose of employment screening is to assess the risk to children involved from anything disclosed by such a check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm.
- [58]The Tribunal must be satisfied that this is an exceptional case of harm to children. The onus is on the Brigginshaw standard (on the balance of probabilities) to show that the there is such an exceptional case of relating to harm to children.
Director General, Department of Justice and Attorney-General Submissions
- [59]Mr Iain McGowie referred the Tribunal to the Statement of Reasons provided with the decision.
- [60]Mr Iain McGowie noted that the object of the Act was to promote and protect the best interests of children.
- [61]Mr Iain McGowie submitted that the Western Australian decision of Scott No 2 [2008] WACA 171 provided that the negative impact on an Applicant that was not a factor to be taken into account.
- [62]The Tribunal must make the correct and preferable decision. There are no serious charges so a Blue Card should be issued unless an ‘exceptional case’ occurs wherein such a decision would not promote the welfare and best interests of children.
- [63]Mr Iain McGowie noted that because none of the charges were serious offences that presumption was that a positive notice should be issued.
- [64]Mr Iain McGowie in relation to positive protective factors noted the following:
- Mr Jensen has no convictions since 2010.
- Mr Jensen has a stable relationship with his partner.
- There was good support from family and friends.
- Mr Jensen had previously accepted help when he experienced depression. It was clear that if he needed assistance he would access health or his identified support network.
- His convictions for drug use was as a casual user and he is no longer associated with people who use drugs. He is opposed to the use of illicit substances.
- Mr Jensen in relation to the alleged complaints responded to them in writing.
- There was evidence of improvement and positive changes in Mr Jensen’s life from 2010.
- His referees spoke highly about the quality of his work. His witnesses who had knowledge of the complaints stated that they were inconsistent with the person that they knew.
- Douglas Wong is a Child Safety Officer with twenty years’ experience. Neither he nor his children saw any matters of concern.
- [65]Mr Iain McGowie conceded that the Respondent had previously considered the Applicant’s criminal history and had issued him with a positive notice. He submitted that in view of the serious allegations made against him that his criminal history needed to be taken into account.
- [66]Mr Iain McGowie told the Tribunal that s 226 (2) of the Act indicates some of the factors that are relevant. These include the Applicant’s criminal convictions (see the Statement of Reasons at paragraph 5.4).
- [67]Mr Iain McGowie in relation to risk factors noted the following:
- The Complaint information which has been outlined in the Statement of Reasons document.
- The Respondent’s witnesses received no benefit from giving evidence. Mr Heath made a note of the complaint by Complainant One.
- Mr Heath and Anne-Marie Nicholls were cross-examined at length in relation to the complaints and their evidence should be accepted.
- The applicant’s criminal history contains offences relating to drugs, violence and a knife in a public place.
- The applicant was found in possession of cannabis on numerous occasions. He made admissions that the cannabis was for his own personal use. Cannabis use is associated with maladaptive behavioural or psychological changes. Children have a right to be cared for by persons who are not using drugs that may impair their ability to promote their best interests.
- The allegations made against the Applicant involved very concerning behaviour of a sexually inappropriate nature directed towards females including children with which he was charged the responsibility to learn how to drive.
Applicant’s Submissions about Protective Factors
- [68]Mr Turnbull submitted the following matters could be added as protective factors:
- Mr Jensen had adopted a policy for managing risks including child protection.
- Mr Jensen had undertaken driver training with a professional organisation.
- Mr Jensen conducted his business with professionalism.
- There was evidence that Mr Jensen had a good relationship with young persons and communicated well with them his role as driving instructor.
- [69]Mr Turnbull emphasised the need for certainty in relation to the evidence given the gravity of the consequences for Mr Jensen.
- [70]Mr Turnbull in relation to Complainant One noted both that Complainant One refused to speak with the Respondent or make a formal complaint in writing to the Department of Transport. Mr Turnbull further noted Mr Jensen had given a reason why Complainant One might have reacted emotionally to having failed her driver’s test. Mr Turnbull also questioned why Complainant One had not complained at the time of the alleged behaviour but rather at a later date some three weeks later after she had failed her driving test.
- [71]Mr Turnbull in relation to Complainant Two noted that the complainant had changed her story. She admitted to the Respondent that the Applicant had not touched her. This complaint only came forward after Complainant One had made a complaint. This information was volunteered to Anne-Marie Nicholls. Complainant Two gave evidence that she had stopped allocating young female clients for Mr Jensen because of her concerns. This evidence is inconsistent with the evidence of both Mr Jensen and Mr Heath Ward.
- [72]Mr Turnbull in relation to Complainant Three noted that there was no complaint at the time. This information was volunteered to Anne-Marie Nicholls after the complaint made by Complainant One.
- [73]The evidence of Mr Ward was that he was of the view that Mr Jensen was a courteous and respectful driving instructor until the time of the complaint by Complainant One.
- [74]Mr Turnbull in relation to Complainant Four notes that the complaint was made after he was dismissed. He submitted that Anne-Marie Nicholls was putting a gloss on the evidence that was not supported by the information that had been provided in relation to the complaint.
- [75]Mr Turnbull submitted that Ms Nicholl’s attitude to Mr Jensen was neither balanced nor fair. He was subject to an unfair process. She admits that Ms Jensen denied the allegations that had been made by Complainant One. Her opening statement, which accused Mr Jensen of being a paedophile, demonstrated that her attitude was biased, her view of the evidence was tainted, that she incorrectly placed weight on the complaints against Mr Jensen. It is clear that Ms Nicolls was prejudiced against Mr Jensen. She did not provide evidence to back what were very serious allegations. Ms Nicholls cobbled together a series of misconceptions to base an adverse opinion towards Mr Jensen. She could not explain why, if she had such serious concerns, she took eighteen months to make a complaint to the Respondent. If she had serious concerns, she would not have waited for eighteen months to elapse. There was no explanation given her depth of feeling for the delay.
- [76]Mr Turnbull questioned the credibility of Complainant One. The Complainant who was not a young person, had not followed through with her complaint when approached by the Department of Transport. The Complainant had refused to speak to the Respondent. Mr Turnbull submitted that Mr Jensen had provided a credible explanation. Mr Turnbull said that it was unlikely that Mr Jensen would have rubbed her back or spoke to her using sexual connotations. He submitted that this was so unlikely, that without the evidence of Complainant One being tested, that it should not be accepted and that little or no weight placed on the evidence.
- [77]Mr Turnbull submitted that if Mr Jensen was prone to speaking in an inappropriate way in relation to young females, that this would have come out in the eighty hours he spent instructing Mr Dodds. This must surely impugn the credibility of Complainant Three.
- [78]Mr Turnbull noted that Mr Jensen had no convictions in the last ten years. That his previous offences did not relate children. The knife had been explained to the Magistrate and the Magistrate had accepted his version and the knife had been returned.
- [79]Mr Turnbull suggested that there was evidence of his professionalism towards young females given by Kaitlin Wong and Anna-Marie Ellis. The young females who gave evidence were aware of the complaints which had been made but expressed no concerns about Mr Jensen’s conduct. There is evidence from the Mother of Mr Jensen handling problems in his life including a bout of depression. He has sought assistance and has a support network.
- [80]Mr Turnbull noted that Mr Jensen had been involved in an industrial accident from which he suffered a serious injury. Mr Jensen has handled the stresses involved in this matter very well. When he was dismissed, he started a new business and had no relapse. Mr Jensen is in a stable relationship and has handled his own young children very well.
- [81]Mr Turnbull submitted that the substantial amount of positive protective evidence, and the issues around the credibility and substance of the complaints, meant that an exceptional case had not been established. The Tribunal should determine that Mr Jensen is not an exceptional risk under the Act.
Discussion of the Evidence.
- [82]The evidence in relation to the first Complainant was that she was asked by the Department of Transport to put her complaint in writing. The Complainant has not done so and was not called to give evidence at the hearing.
- [83]The evidence in relation to the second Complainant was that Mr Jensen had physical contact with her in the office. Her account to the Respondent before the hearing was that Mr Jensen did not have physical contact with her in the office. The Complainant was not called to give evidence at the hearing.
- [84]The evidence in relation to the third Complainant was that the Applicant used derogatory language about females. The Complainant was not called to give evidence at the hearing.
- [85]The evidence in relation to the fourth Complaint comes by way of hearsay from the Mother of a young person to Anna Marie Nicholls. The Respondent did not seek to interview the young person. Neither the alleged Complainant nor the young person were called to give evidence at the hearing. When drawn to the attention of the Respondent’s representative that the response of the young person was to ‘giggle’ Mr McGowan was not able to demonstrate on the facts presented, even if accepted, that any harm had been done to the young person.
- [86]The Tribunal has serious reservations about accepting the evidence of the Complainant’s as none of the Complainant’s were actually available to give sworn evidence and to be tested regarding the veracity of their complaints.
- [87]This point is well served by giving an example. The evidence of the second Complainant was that because of her concerns about Mr Jensen that she stopped referring young females to him for driving instruction. This is inconsistent with the evidence of Mr Jensen who told the Tribunal that he was providing tuition for both young females and young males. He was actually providing tuition for a female client at the time of the complaint. This is also inconsistent with the evidence of Mr Ward who told the Tribunal that up until the first complaint, he had absolutely no issues or concerns about Mr Jensen’s conduct.
- [88]In relation to the second Complainant, the account, which she gave to the Department, is inconsistent with the information contained in a written complaint.
- [89]The Complainants did not attend the hearing and the Tribunal for these reasons does not accept the complaint and places no weight on this evidence.
- [90]The fourth complaint is by the Mother of a young person. The young person was not called and the only evidence before the Tribunal is that the young person ‘giggled’. The Tribunal put it to Council of the Respondent that there was no evidence of harm to the child.
- [91]The Respondent was unable to give evidence that there was any harm to the young person. The Tribunal does not put any weight on this complaint for these reasons.
- [92]The evidence of both Mr Ward and Mrs Nicholls is that Mr Jensen denied the allegations that had been made by Complainant One. Mr Jensen had actually sought legal representation to address the concerns that had been raised. This request had been refused and without any apparent process, Mr Jensen was sacked.
- [93]The Tribunal notes that much of Ms Nicholls evidence is hearsay as she never witnessed Mr Jensen doing anything wrong. Her evidence is entirely based on the allegations of others.
- [94]Her affidavit exhibits a letter from Coralie O'Rourke Minister for Disability Services. The Minister states that Senior Transport Inspector attempted to contact complainant One on multiple occasions including leaving messages for her but no response has been received. ‘Therefore, no action can be taken as it is not currently possible to substantiate the alleged misconduct of Mr Jensen’.
- [95]The Tribunal is of the view that her highly emotional characterisation of Mr Jensen as a paedophile in her opening evidence demonstrates that she has been unable to deal with the issues in an objective and logical manner. She has based her view on what amounts to a series of unsubstantiated allegations and is clearly pursuing a vendetta against Mr Jensen which included a complaint to the Minister overseeing the Transport Department. The witness’s opening statement raised serious concerns about her motivation giving evidence. It was an emotional tirade with little evidential basis.
- [96]The Tribunal accepts Mr Turnbull’s submissions in relation to the weight to be given to Ms Anne-Marie Nicolls evidence.
- [97]The Tribunal does not accept the submission by the Respondent that the allegations against the Applicant concerned behaviour of a sexually inappropriate nature directed to females including children. The only allegation that raised sexually inappropriate behaviour was made by complainant one a woman in her 30’s according to the evidence.
- [98]The Tribunal having considered manner and content of Ms Nicholls’s evidence places little weight on that evidence.
- [99]The Tribunal accepts the positive protective factor put forward by the Applicant’s counsel and those by the Respondent’s counsel.
- [100]Mr Jensen on the other hand called several witnesses who had firsthand experience with his professionalism and courtesy to young men and young women about his driving instructor abilities. These witnesses were prepared to attend and give evidence on Mr Jensen’s behalf. They were aware of the complaint and material and gave evidence that this was inconsistent with their knowledge and understanding of Mr Jensen as a Driving Instructor. The Tribunal accepts and places weight with the evidence of Douglas Wong, Kaitlin Wong, Donna Craig, Anna- Marie Ellis and Thomas Dodd.
- [101]The Tribunal viewed Mr Jensen as an honest and credible witness and accepted the evidence, which he gave. The character evidence that was given by his partner and mother impressed the Tribunal. The Tribunal placed weight on that evidence.
- [102]There is ample evidence of the positive way the Applicant interacts with children and young people. The Tribunal sets this as an important protective factor.
- [103]The Tribunal is satisfied in undertaking this weighting exercise that it has been established on the balance of probabilities that the case against the Applicant is not an ‘exceptional case’, which would harm the welfare of children and young people.
- [104]The Tribunal takes the view that the Applicant’s convictions must be taken into the context of:
- his criminal history as a whole;
- the balance between risk and protective factors; and
- the strategies, which the applicant has put in place to address his offending behaviour.
- [105]Mr Jensen will need to work hard implementing the strategies.
- [106]The Tribunal in the circumstances above does not accept Respondent’s position as set out in paragraph 5.4 of the Respondent’s Reasons document that the evidence establishes an exceptional case.
- [107]The Tribunal is of the view that the cluster of protective factors outweighs the risk factors.
- [108]The Respondent was probably right to refuse the Applicant at first instance based on the information that was before the Respondent. The Tribunal has had the advantage of much more evidence than was before the Respondent and is of the view that the Applicant’s circumstances are such that the Tribunal is satisfied that this is not an ‘exceptional case.’
- [109]The Tribunal notes the decision of His Honour Justice Carmody in RPG v Public Safety Business Agency [2016] QCAT 331 where he found that the Tribunal can only in these circumstances set aside the decision of the Respondent and remit that back to the Respondent. The practice of the Respondent is to then take into account the reasons and decision of the Tribunal.
Orders
- [110]The decision of the Director General Department of Justice and Attorney- General dated 3 January 2017 to issue a negative notice to Owen Barry Jensen is set aside as the Tribunal finds that there is no exceptional case.
- [111]The practice in accordance with the decision referred to in paragraph 162 of his Honour Justice Carmody is that the matter is remitted back to the Respondent to take into account the reasons and decision of the Tribunal.