HAM v Director General, Department of Justice and Attorney General
[2021] QCAT 28
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- HAM v Director General, Department of Justice and Attorney General[2021] QCAT 28
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HAM v Director General, Department of Justice and Attorney General[2021] QCAT 28
HAM v Director General, Department of Justice and Attorney General[2021] QCAT 28
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28 | |
PARTIES: | HAM (applicant) | |
v | ||
DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) | ||
APPLICATION NO: | CML219-20 | |
MATTER TYPE: | Childrens matters | |
DELIVERED ON: | 29 January 2021 | |
HEARING DATE: | 2 December 2020 | |
HEARD AT: | Townsville | |
DECISION OF: | Member Pennell | |
ORDERS: |
| |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – The applicant was previously issued with a positive notice and blue card – applicant charged with sexual assault –applicant voluntarily surrendered his positive notice and blue card – applicant denied sexually assaulting the adult female complainant – applicant was acquitted by a jury after a trial in the District Court – applicant applied for a positive notice and blue card – respondent issued a negative notice –applicant has no criminal convictions – whether the protective factors negate the risk factors – the transcript of the applicant’s trial was not considered when the original decision was made to issue a negative notice – whether an exceptional case exists EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – de-identifying of the proceedings undertaken by the tribunal on its own initiative – the publication of the identity of the applicant, witnesses and non-parties would be contrary to public interest and would lead to the identity of a non-party complainant Criminal Code Act 1899 (Qld), s 352(1)(a) Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 20(2), s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(c), s 66(1), s 66(2) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 8, s 221(2), s 226(2), s 360, Schedule 2 Baker v R (2004) 223 CLR 513 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 FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Kent v Wilson [2000] VSC 98 Kioa v West (1985) 159 CLR 550 Paull v Queensland All Codes Racing Industry Board [2017] QCATA 92 Perry and Brown Patents (1930) 48 RPC 200 R v Kelly (Edward) [2000] QB 198 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 Re TAA [2006] QCST 11 Sudath v Health Care Complaints Commission [2012] NSWCA 171 The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228 | |
APPEARANCES & REPRESENTATIONS: | ||
Applicant: | A Raeburn of Counsel instructed by M Murray, Solicitor of Townsville Community Legal Service. | |
Respondent: | N Rajapakse, In-House Solicitor. | |
REASONS FOR DECISION
Introduction
- [1]The applicant (‘HAM’) was born and educated overseas. By the time he immigrated to Australia, he had already completed five years of university studies in his native country towards being qualified as a medical practitioner. Since arriving in Australia, he has taken up permanent residency and enrolled into the James Cook University School of Medicine in Townsville to complete his studies in a Bachelor of Medicine and Surgery. Currently, he is employed at a local hospital in the Townsville area as an Orderly and Theatre Technician on a permanent part time basis. To complete his studies, he requires a positive notice and blue card so that he can undertake placement in areas where he will interact with patients, including children and young people.
- [2]HAM had previously been issued with a positive notice and blue card.[1] During the currency of his blue card, his police information changed because he had been charged with sexually assaulting a woman (‘ATD’) after they had met through Tinder. When charged with the offences, HAM surrendered his positive notice and blue card.[2]
- [3]After a trial in the District Court at Townsville, HAM was acquitted of all charges. He subsequently applied to be issued with a positive notice and blue card, however after considering the information contained within the police information, the Director General, Department of Justice and Attorney General (‘the respondent’) assessed that it would not be in the best interests of children for him to be issued a positive notice and blue card.
- [4]The parties have competing positions. HAM seeks a decision from the tribunal that his case is not an exceptional case pursuant to section 221(2) of the Working with Children (Risk Management and Screen) Act (2000 (Qld) (‘Working with Children Act’). The respondent argues that regardless of HAM’s acquittal by the District Court jury, the factual circumstances of ATD’s allegations places this matter in a category where his case is exceptional, and it would not be in the best interests of children and young people for a positive notice and blue card to be issued to him.
- [5]There are differencing views between the parties in their respective submissions as to the actual date the respondent made the decision to issue the negative notice to HAM. The respondent contends that the decision was made on 4 June 2020,[3] whereas HAM suggests that it took place on 3 June 2020.[4] Contained within the material provided to the tribunal is a copy of the notification to HAM regarding the issuing of the negative notice.[5] That notification is dated 4 June 2020 and I accept this date as confirmation of when the respondent’s decision was made.
Background information
- [6]On 20 August 2017, ATD made a complaint to the police that HAM sexually assaulted her.[6] At that time, HAM was enrolled in his studies to become a medical practitioner and ATD was a youth worker.
- [7]HAM and ATD met through Tinder. They exchanged telephone numbers and sent text messages to each other. HAM later telephoned ATD and they arranged to meet and spend time together at HAM’s residence. At about 7:30pm that evening, ATD drove to HAM’s residence.
- [8]During the subsequent investigation by police into ATD’s allegations, HAM voluntarily participated in a record of interview with police.[7] He gave his version of what had transpired on the evening when ATD visited his residence. It was his belief that he was falsely accused, and he disagreed with ATD’s version of the events. Following his interview, he was arrested and charged with two charges of sexual assault against ATD. At first, he appeared in the Magistrates Court[8] and was later committed to the District Court for trial.[9]
When HAM appeared in the District Court,[10] he was arraigned on a two count indictment alleging that he sexually assaulted ATD twice at his residence. He pleaded not guilty to both counts. During his trial,[11] the jury heard evidence from ATD. Other evidence was heard from the police officers involved in the investigation along with the witness LL who was ATD’s close friend and housemate. It was to LL that ATD first revealed her allegations. HAM also gave evidence and was cross-examined.
The evidence
- [9]Before discussing the evidence, an appropriate point to make is the tribunal’s relevant function comprises of an analysis and evaluation of risk. It is not the tribunal’s responsibility to establish HAM’s guilt or innocence with respect to ATD’s allegations. That was the province and responsibility of the jury in his District Court trial. Nor is the tribunal concerned with proving that HAM, on the balance of probabilities, committed the offences as ATD alleges.
- [10]More so, what is be at the forefront of the tribunal’s correct and preferable decision is the principle of preventing any potential future harm to the welfare and best interests of children.[12] However, any finding of a risk of potential future harm can only come about if the evidence supports a nexus of a current risk to children if a positive notice and blue card were to be issued to HAM.
- [11]The evidence made available to the tribunal comprised of material provided to the respondent from the Office of the Director of Public Prosecutions (‘the DPP’). This material was the full brief of evidence (‘full brief’) comprising of three transcripts and ten statements.[13] The statements were made by –
- Plain Clothes Constable HME.[14] This officer was the principal investigating officer.
- Senior Constable KR.[15] This officer assisted in the investigation and was responsible for extracting electronic data from ATD’s mobile phone.
- Property Officer KKM.[16] This witness was responsible for the safe handling, storage and continuity of exhibits seized during the investigation.
- Detective Senior Constable BG.[17] On 01/09/2017, this officer collected a number of exhibits relating to the investigation from Property Officer KKM. BG transported those exhibits to the Queensland Police Headquarters in Brisbane where they were deposited into a drop safe awaiting for collection for DNA testing.
- Senior Constable BR.[18] On 30/10/2017, this officer collected a number of exhibits relating to the investigation from Property Officer KKM. BR transported those exhibits to the Queensland Health Forensic and Scientific Services Centre in Brisbane for DNA analysis.
- Administration Officer CS.[19] This witness worked at the DNA Management Section within the Queensland Police Headquarters in Brisbane, and on 04/09/2017 was responsible for the collection of the exhibits deposited into the drop safe by Detective Senior Constable BG.
- Administration Officer HMK.[20] This witness worked at the DNA Management Section within the Queensland Police Headquarters in Brisbane, and on 07/09/2017 was responsible for the delivery of the exhibits deposited into the drop safe by Detective Senior Constable BG to the Queensland Health Forensic and Scientific Services Centre in Brisbane for DNA analysis.
- PR.[21] This witness is a Scientist employed at the Forensic DNA Analysis Laboratory, Queensland Health Forensic and Scientific Services Centre in Brisbane and was responsible for the forensic DNA analysis of the exhibits seized during the investigation.
- LL.[22] She, along with BR shared a house with ATD. The day after the alleged incident, ATD disclosed her allegations to LL and BR.
- ATD.[23] She is the complainant and alleged that HAM sexually assaulted her twice on 21/08/2017.
- [12]In respect to ATD’s allegations, she began communicating with HAM[24] after she gave an indication on the Tinder that she was interested in meeting him. As arranged, she drove over to his residence, arriving at about 7:30pm.[25] On arrival, he offered her a drink. At first, she declined, but then accepted a drink. They sat on the couch together and engaged in conversation while drinking their drinks. After about an hour, they mutually kissed each other.
- [13]ATD went on to allege that at some point HAM reached over and ran his hand up and down her arm. He then touched her on the breast. She pulled his hand away and told him that was not happening, and she was not there to have sex. They continued to sit on the couch, and it appears that he respected her position because they then engaged in further conversation. During that conversation they were sitting close enough that HAM was able to have his arm placed around her. They again began kissing, seemingly with her consent. At some point after that, HAM tried to place his hand down between her legs on the outside of her clothing, but she pushed her legs together to prevent this occurring. She said to him “Look mate, I told you nothing was going to happen”.
- [14]ATD then told HAM that she was going outside into the courtyard for a cigarette. He joined her where they both smoked their cigarettes. They returned inside and again sat on the couch together. As they sat there talking, HAM rolled his body on top of her and started to kiss her neck and ear. She pushed at HAM’s shoulders but was not able to push him off. She alleged he put her hands above her head, placed his hand under her shirt and pulled down her bra. He then kissed her on the breasts, at the same time attempting to pull down her pants, simultaneously rubbing his genital area on her right hip/stomach area.
- [15]ATD went on to say she resisted, and HAM stopped. They engaged in some further conversation, but she did not leave the house immediately. Instead, she suggested they both go outside for another cigarette. After finishing their cigarettes, he walked her to her car. She then drove home. Later that night he sent a text message to her asking if she was okay. She did not respond immediately, but the following day, she sent a text message back to him saying –
When someone says no it means no. It doesn’t matter if they seem they wanted it, and things got heavy. Don’t you dare force yourself on anyone. I came to house (sic) because I thought you were nice guy (sic) and I made it very clear that I was not going to have sex with you. So what gives you the right to do so? And you know what you did last night was wrong and fucked up or you wouldn’t have (sic) asked if I was going to the police. Next time the girl might not be too determined as I was but you need to have a good look at yourself.[26]
- [16]He sent a text message back asking, “Can I please talk to you?” He also tried to phone her several times, however she did not take his calls. It would seem that by that time, ATD had already made her complaint to the police and she was advised by the investigating officer not to have any contact with him. Despite telephoning ATD on numerous occasions, there was only the one occasion that he left a recorded message on her voicemail where he said, “Hey babe fuck you”.
- [17]When ATD returned home after leaving HAM’s house on the evening of the alleged offences, she tried telephoning a friend, and then her sister but neither of them answered her calls. The following morning, she disclosed her allegations to her housemates, LL and BR. She was then taken to a local police station where she made her complaint. Shortly thereafter, she met with the investigating officer and provided her statement.
- [18]At this point, it is important to note that ATD’s housemates, LL and BR are what is referred to in criminal law as fresh complaints. The police did not obtain a statement from BR to corroborate ATD’s allegations, but one was obtained from LL. Although LL’s statement was not obtained until 13 months later.
- [19]In respect to LL’s evidence, generally the rules of evidence in any criminal court proceedings would not allow her hearsay evidence. However, in any trial involving sexual offences, an exception to this rule applies because historically, a complainant in sexual assault matters is more likely to divulge the circumstances (complain) to someone about the assault at the first reasonable opportunity. LL is classed as a recent, or fresh complaint.[27] Merely because LL is the fresh complaint, her evidence does not prove any fact in the case, for example, whether ATD did or did not consent.
- [20]The contents of LL’s statement are predominantly a corroboration of ATD’s allegations, with some notable exceptions. What is missing from LL’s statement is any reference to ATD and HAM consensually kissing each other. Nor is there any reference to them twice going outside to smoke cigarettes together.
- [21]The day after ATD made her complaint to the police, she participated in a pretext telephone call with HAM. This call was recorded and the contents of the conversation between them was used as part of the evidence to prosecute him.[28]
- [22]The statements which were earlier referred to in these reasons (not including the transcripts) was the prima facie evidence relied upon by the police to have HAM committed for trial to the District Court. It seems that it was also the same evidence used to prosecute HAM in his District Court trial, and the same material relied upon by the respondent’s decision maker when deciding to issue a negative notice.
- [23]With a verdict of an acquittal, it appears the jury rejected ATD’s allegations and arrived at a conclusion that the DPP could not prove the offences beyond a reasonable doubt.
- [24]HAM totally disagrees with ATD’s version of events and has always believed that he was falsely accused of the charges. He argued his position was vindicated by the decision reached by the jury. He told the tribunal that during the trial, ATD’s evidence was unreliable, and under cross examination from his Barrister, there were a lot of irregularities and inconsistencies identified which raised doubts about her credibility and when the witness LL was called to support her version of the events, the jury heard a different story from what ATD claimed.[29]
- [25]The respondent places emphasis upon the allegations raised by the police in the summary of the facts contained in the Court Brief (‘QP9’) documents and the statements within the full brief, in particular those statements from ATD and LL. When assessing the statements, the most significant evidence or witnesses in the trial would have been ATD and LL. After all, HAM does not deny that there was physical interaction between him and ATD.
- [26]In the conduct of the District Court trial, the evidence from ATD and LL as witnesses would have consisted of their oral testimony (evidence in chief) followed by cross examination by HAM’s Barrister. Absent from the respondent’s material provided to the tribunal is the transcript from the District Court trial. HAM suggested that there were irregularities and inconsistencies between the allegations contained within the statements of ATD and LL to their trial evidence. This was identified to the respondent’s decision maker well before the conclusion was reached to issue the negative notice to him.[30]
- [27]In arriving at its decision, it seems the respondent referred only to the material contained within the full brief and there is an absence to any reference to the transcripts from the trial. The trial evidence would not only have been the most recent evidence, but it would have also identified, clarified or negatived HAM’s suggestion about any irregularities and inconsistencies in the evidence of ATD and LL. The transcripts would have also provided context of the submissions of the prosecutor and defence counsel, along with the manner in which the trial judge addressed and/or directed the jury with regard to the evidence.
- [28]Although identifying that point, this is a merits review undertaken by way of a fresh hearing, and the role of the tribunal is to reconsider the original decision and to make the correct and preferable decision. Unlike a judicial review, it is not the tribunal’s function to review the process by which the original decision was made, nor the reasons for making it. Accordingly, the tribunal is not required to identify any error in either the process or the reasoning that led to the original decision being made.[31]
- [29]
The tribunal’s role
- [30]The tribunal’s role in administrative reviews for blue card matters is conditional on the provisions of the Working with Children Act, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’). In conducting proceedings, the tribunal is obligated to observe the rules of natural justice;[34] act fairly and in accordance with the substantial merits of the case;[35] and apply fair procedures that are adapted to the circumstances of each particular case.[36]
- [31]In regard to evidence, the tribunal is afforded a broad discretion in that it is not bound by the rules of evidence.[37] Notwithstanding that discretion, generally the rules which ordinarily apply to evidence should not be completely overlooked. Every effort or attempt must be made to administer substantial justice and methods of inquiry should not be adopted that unnecessarily places one party at a disadvantage whilst favouring the evidence of the other party.[38]
- [32]Primarily, when considering a review pursuant to the Working with Children Act, the tribunal should be mindful of the legislative objective promoting and protecting the rights, interests and wellbeing of children in Queensland.[39]
- [33]Any conclusions reached by the tribunal about whether or not HAM’s case is exceptional must be based on the merits of the application and the evidence before it at the time of the review hearing;[40] and any regard to his eligibility to work with children and young people should only be undertaken after a thorough evaluation of the available material and evidence. It is only then the tribunal can arrive at the correct and preferable decision[41] and exercise its discretion 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 original decision and return the matter for consideration to the respondent with directions that the tribunal considers appropriate.[42]
Exceptional case discussion
- [34]HAM was charged with and indicted on two counts of sexual assault upon ATD. It was alleged that he unlawfully and indecently assaulted her,[43] but was acquitted after a District Court trial. The offence of sexual assault is classified within the Working with Children Act as a serious offence,[44] but is not a disqualifying offence in this instance because ATD was not a child.
- [35]Given that the legislative intention, purpose and design of the Working with Children Act is to protect children from future abuse,[45] the overarching consideration is whether HAM’s case is exceptional. The threshold to be met is whether the circumstances that gave rise to him being charged are such that they are inextricably linked to it being in the best interests of children for a negative notice to be issued to him.
- [36]In regard to what makes a case exceptional, there is no guidance or assistance provided within the Working with Children Act to define the term. Commonly, the approach adopted in Queensland is that it would be unwise to lay down any general rule about what an exceptional case is, and discretion should be used. Each case should be considered on its own merits and facts and examined in the light of the legislation, the legislative intention and the interests of the parties involved.[46]
- [37]The analysis of what makes a case exceptional has been the subject of many discussions by various courts and tribunals and has been described as meaning ‘unusual, special and out of the ordinary course’.[47] The approach adopted by the High Court was the term must be construed as an ordinary, familiar English adjective, and not as a term of art. The High Court went on to say the term –
… describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[48]
- [38]In this instance, for the tribunal to exercise discretion when deciding whether an exceptional case exists, what should be borne in mind is the gravity of the consequences involved if a positive notice and blue card were to be issued to HAM.[49]
- [39]Therefore, the tribunal is obliged to consider a number of features about HAM’s circumstances and regard must be given to him being charged with the serious offences, including when the offences occurred, and the nature of the alleged circumstances. Any relevance of the allegations to his employment that may involve children should also be taken into consideration.[50] The weight given to each of those factors will depend upon the overall circumstances of HAM’s case and they must be considered within the predominant principle relating to the protection of children.[51]
- [40]HAM proclaims his innocence and he argued that the accusations levelled against him by ATD were false and lacked both common sense and reasonability.[52] He feels that by the jury acquitting him of all the charges, this justifies his position that he is innocent. Bearing that in mind, the distinction between the tribunal’s functions in blue card matters to the role of the jury in a criminal trial should be identified. It is not for the tribunal to settle upon whether HAM 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.[53]
- [41]Notwithstanding HAM’s acquittal, and it was not the design of the legislation to punish him twice, however, in 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 his rights and the rights of children to live safely in the community. The prevention of potential harm to children is to be at the forefront of any correct and preferable decision reached, thus requiring the balance to be tipped in favour of protecting children from harm and promoting their wellbeing.[54]
HAM’s supporting evidence
- [42]Apart from relying on his own evidence and material provided to the tribunal, HAM relied upon the evidence of FM, his psychologist and SDF. HAM is significantly involved with the Coptic Church (‘the church’).
SDF’s evidence
- [43]SDF provided a short two page statement in support of HAM. He also gave personal evidence (by phone) to the tribunal. His evidence was unchallenged. He has known HAM for more than five years. Their association is through the church where SDF is the parish priest and HAM’s confession father and spiritual mentor. HAM discussed with him ATD’s allegations and the charges that he faced in the court. SDF considered the allegations to be very uncharacteristic for HAM.
- [44]SDF told the tribunal that within the church, HAM is held in the highest regard not only by SDF, but also the greater community of the church. In his opinion, HAM is a highly motivated individual who is strong-minded, polite, honest and trustworthy. He is one of the most highly regarded members of the church community in Townsville. He is loved by all friends and family members of the church and serves the church as a Deacon and leader to the children of the church. On many occasions, SDF has observed HAM’s interactions with children. The manner of that interaction was respectful, professional and caring. At no point has there ever been any concerns about HAM and his involvement with the children associated with the church.
FM’s evidence
- [45]In regard to FM’s evidence, he is a psychologist. In a single page letter provided to the tribunal, FM wrote –
I have seen (HAM) on 14 occasions between 19/7/16 and 28/2/18.
He had multiple concerns about his university studies, his family in (HAM’s native country) and his ability to manage the complexities of his life. On the last occasion of 28/2/18 I have made notes reporting that (HAM) was managing the complexities of his life well.
His most recent attendances have to do with him seeking support to have his blue card returned to him,
I can see no reason why he should not have a blue card.
He had another appointment scheduled for 9/12/20 at 1300.[55]
- [46]Although FM’s correspondence suggests that HAM consulted with him on 14 occasions, with future sessions scheduled, there is little probative value in FM’s correspondence to assist the tribunal in reaching its decision.
HAM’s evidence
- [47]As earlier discussed, HAM immigrated to Australia and is presently undergoing university studies with the goal of being a medical practitioner. For that to occur, it is essential that he be issued with a positive notice and blue card.
- [48]Apart from an entry relating to him being charged because of the allegations made by ATD, HAM’s police information is otherwise unblemished. He acknowledged that arranging a Tinder date was something foreign to him. It was not part of his culture. When charged, this embarrassed him because his religious faith does not condone him meeting ATD under those circumstances. Being charged impacted upon his studies, his financial position and his personal wellbeing. He took time off from his studies and concentrated on his health and wellbeing. His involvement in the church assisted with him coping with what he describes as the untruthful accusations made by ATD.
- [49]To his credit, he acknowledged that he could have handled things differently so far as his interactions with ATD, in particular sending the “Hey babe fuck you” text message after she failed to respond to his phone calls. His acknowledgment indicates a degree of insightfulness.
- [50]Overall, he was frank in his evidence and when cross examined, he remained clear and concise. His responses conformed with his earlier disclosures to the investigating police officer.
Discussion
- [51]There are competing descriptions given by the parties in regard to the facts relating to the interaction between HAM and ATD on the night she visited his residence. HAM argues that what favours his position are the allegations which gave rise to him being charged did not occur in the normal course of child related employment. He went on to say there was no evidence of a power imbalance, the incident took place over three years ago with no prior or subsequent unfavourable behaviour exhibited by him.[56]
- [52]HAM relied upon a proposition that because the jury in the District Court trial acquitted him, the respondent had failed to provide any evidence which showed any risk factors associated with his case. He said his case was not an exceptional case and therefore he was not a potential risk of harm to the welfare of children if a positive notice and blue card were issued to him.
- [53]Although those points he made may be acknowledged, just because he was found not guilty, this is not the test to be applied. As recently identified by the tribunal’s appeal jurisdiction –
To the extent that it is necessary to make findings in relation to past conduct, the tribunal might consider evidential principles and take into account the considerations outlined in Briginshaw. However, the ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children.[57]
- [54]In furtherance to those comments, the potential future risks to children are an important consideration so far as HAM’s suitability to hold a blue card and positive notice. What is also relevant is whether he has insight into his interactions with ATD. For the potential risks to be appropriately assessed, HAM should be able to at least demonstrate an awareness, be insightful and acknowledge any identifiable flaws and deficiencies within himself or his character which provide a nexus to what occurred. He should also possess the appropriate attributes to be able to recognise and accept the subsequent or possible consequences than can flow from any such flaws or deficiencies, if they exist.
- [55]The respondent suggested there are some areas where HAM has not displayed insight into what transpired between him and ATD, or into his use of alcohol.[58] The respondent’s case is predicated on a suggestion that despite HAM being acquitted of the charges, he has no insight in respect to his interaction with ATD because he ‘kept trying’ despite ATD saying “no”,[59] and there was a lack of insight through his inappropriate comments to her in a text message when he was unable to speak to her. Other examples relate to HAM’s acceptance that he should not have put his hand on the outside of ATD’s shorts the second time because she had earlier said no. Finally, there was a concern that he lacked insight in regard to his use of alcohol and how alcohol contributed to his adverse behaviour. The respondent argued that because of those features, HAM did not understand why the nature of the allegations presented a concern for him to be engaged in child related employment.
- [56]In analysing the evidence, it seems that the respondent’s view of this takes into isolation only part of the whole scenario of the events that transpired between HAM and ATD. HAM’s unchallenged evidence was that they both engaged in kissing each other, something which ATD failed to disclose to LL. HAM does not deny he intimately touched her vagina on the outside of her clothing but added that ATD reciprocated by rubbing his penis on the outside of his pants.[60] If weight were to be placed upon HAM’s unchallenged evidence about that interaction, it seems that what took place was mutual foreplay between consenting adults prior to ATD indicating their interactions should cease.
- [57]HAM accepted that after ATD said “no”, he should not have touched her the second time. If all the circumstances are considered, including the consensual interactions between them, including kissing and the rubbing of genitalia by both parties, perhaps at that particular immediate point in time he was momentarily devoid of insight. However, at the hearing he acknowledged that he should not have put his hand back on the outside of ATD’s shorts the second time because she had already said no. It now seems that after reflecting upon the ‘whole’ of the circumstances which transpired, he does possess an awareness, or at the very least an insight that his actions at that relevant time were inappropriate.
- [58]In respect to HAM’s consumption of alcohol, the respondent submitted that the there was a concern in relation to the extent of his use of alcohol, and his behaviours while under the influence of alcohol. The respondent pointed out that HAM did not provide any details relating to any counselling, courses or other strategies he has put in place to prevent further concerning behaviours relating to excessive alcohol consumption. The respondent went on to suggest that HAM’s behaviour leading to the charges implied a failure on his part to judge appropriate boundaries and his use of alcohol may have contributed to the charges, and other antisocial behaviour. The only strategy he has in place came from his evidence to the tribunal that he was not drinking alcohol anymore.
- [59]HAM identified at the hearing two occasions where he consumed alcohol in excess, and there may have been a third incident during his studies some time ago. Nevertheless, HAM contends that the tribunal should disregard any concern raised about alcohol as there were no evidence of any substance abuse. To an extent I disagree. He told the tribunal he was intoxicated at the Townsville Casino, and he woke the next morning with a hangover. Notwithstanding these admissions, it is accepted that his uses of alcohol were isolated and over a relatively short period of his life as opposed to being prolonged events.
- [60]In discussing insight, guidance should be sought from the principle outlined in Re TAA where the former Children Services Tribunal helpfully explained that –
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.[61]
- [61]The determinative issue for the tribunal is whether, on the evidence before it, the circumstances show that HAM is not aware of the consequences of not having insight into the behaviour just discussed and whether his behaviour during the events with ATD and his occasional use of alcohol poses a future risk to children should he be issued with a positive notice and blue card.
- [62]Although there could not be a determination of no risk, the evidence suggests that his actions during the events with ATD and the message he left on her phone should be considered under the circumstances already explained. So far as his use of alcohol, there appears to be little risk of alcohol playing a part in HAM’s life. His consumption of alcohol at the time seems to have been borne out of stressful situations he was experiencing at the time, and he appears to have dealt with that issue himself without the intervention of professional assistance such as counselling. He contends that since being charged with the serious offences, he has remained sober. This point was not challenged, and I accept that if there were any concerns raised with regard to his alcohol consumption, then those concerns are historical and have no bearing on whether he poses a risk to children.
Conclusion
- [63]Depending on the facts in any a particular case, consideration should be applied to the conventional practice that the higher the stakes and more accusatory the process, the more adversarial and exacting the procedures should be for deciding what information is acceptable for finding facts.[62] However, this does not invalidate the objectives and principles of the Working with Children Act where the emphasis of a review into blue card matters is the need for protection of children from future harm within places of employment.
- [64]The emphasis of this review is not whether HAM should be issued with a positive notice and blue card so that he can complete his studies towards becoming a medical practitioner. But rather, the paramount principle under the Working with Children Act should be applied, that being, is HAM’s case exceptional where it would not be in the best interests of children for him to be issued with a clearance to work with children?
- [65]Notwithstanding that as a matter of law the tribunal is not bound by the rules of evidence, the tribunal’s decision must be derived from relevant, reliable, and rationally probative evidence that with all logic shows the existence or non-existence of the facts in issue.[63] An important consideration is whether the required assessment indicates the circumstances arising out of HAM’s interaction with ATD which led to her complaint, along with his consumption of alcohol around that time, presents a situation where there is a likelihood of risk to children should a positive notice and blue card be issued to him. For the tribunal to be satisfied of any likelihood of risk to children, any assessment must be more than mere speculation. There should be some identifiable and justifiable nexus between the facts and any potential risk. The question that remains for the tribunal is although there were allegations made by ATD which led to HAM being charged, and he had isolated uses of alcohol around that time, do the facts support a likelihood of risk, and how does it impact upon the consideration of how children might be affected if a positive notice and blue card were to be issued to him.
- [66]The respondent suggests that HAM’s psychological state resulted in him being charged with the sexual assault offences and although he was acquitted of those offences, it is not clear from the material filed whether his psychological state has been addressed. The respondent went on to say that HAM’s behaviour leading to the charges suggested a failure on his part to judge appropriate boundaries and his use of alcohol may have contributed to the charges along with further antisocial behaviour.
- [67]Whereas HAM suggests that any stressors he was under at the time of his interaction with ATD arose out of his studies and the financial burden of meeting the associated costs. In regard to him addressing his use of alcohol around that time, and in the absence to the contrary, I am satisfied that with the assistance of his consultations with his psychologist and his association with his church as negatived any concerns about his isolated use of alcohol and the unease he was experiencing in his life at that time.
- [68]In addressing whether there is a potential risk to children arising out of the allegations raised by ATD, there is a need to assess the entirety of the circumstances of their interactions. The respondent suggestions that HAM lacks the appropriate awareness of appropriate boundaries, whereas HAM says that what ATD alleged was an incorrect version of the actual facts. Any careful assessment of the facts alleged by ATD when weighed against the contents of the fresh complaint statement of LL would indicate that some weight should be given to HAM’s explanations given his overall acquittal of the charges.
- [69]Having weighed all of the circumstances against that paramount principle, I am satisfied the protective factors negate the likelihood of a future risk to children. In that regard, the correct and preferable decision is to conclude that the respondent’s decision that HAM’s case is ‘exceptional’ within the meaning of the Working with Children should be set aside and substituted with the decision that it is not an exceptional case.
Non-publication decision
- [70]The QCAT Act provides the tribunal a discretion as to whether an order should be made to prohibit the publication of the contents of a document or other thing produced to the tribunal; evidence given before the Tribunal; or information that may enable a person who appeared before the Tribunal to be identified.[64] However, this discretion can only be exercised if the tribunal considering the order is necessary because of any of the categories defined within section 66(2) of the QCAT Act.
- [71]In this matter, HAM had been charged with sexually assaulting ATD. Having regard to the provisions of section 66(2) of the QCAT Act, I consider that the discretion should be exercised to de-identify HAM because to do otherwise may lead to the identification of ADL and LL, and this would be contrary to the interests of the public and the interests of justice.
- [72]Therefore, the publication of the contents of any document or thing filed in or produced to the tribunal and any evidence given to the tribunal by any witness is prohibited to the extent that it could lead to the identity of the applicant or any member of the applicant’s family or any non-party to the proceedings.
Footnotes
[1]Issued 22 April 2015.
[2]Respondent’s material, BCS-6. HAM’s blue card and positive notice was surrendered on 28/08/2017.
[3]Respondent’s submissions, paragraph 4.
[4]Applicant’s submissions, paragraph 2.
[5]Respondent’s material, BCS-225.
[6]Respondent’s material, BCS-27.
[7]On 25/08/2017.
[8]On 12/09/2017.
[9]On 16/05/2018.
[10]On 20/09/2018.
[11]The trial commenced on 29/01/2019 and concluded on 01/02/2019 (3 days).
[12]Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, [84].
[13]Respondent’s material, BCS-25 to BCS-197.
[14]Dated 10/02/2018.
[15]Dated 21/08/2017.
[16]Dated 09/02/2018.
[17]Dated 28/03/2018.
[18]Dated 15/03/2018.
[19]Dated 13/02/2018.
[20]Dated 08/02/2018.
[21]Dated 03/04/2018.
[22]Dated 22/09/2018.
[23]Dated 22/08/2017.
[24]On 18/08/2017.
[25]On 19/08/2017.
[26]Respondent’s material, BCS-40. ATD’s police statement, paragraph 54.
[27]Criminal Law (Sexual Offences) Act 1978 (Qld), s 4A.
[28]Pretext telephone call made on 22/08/2017.
[29]Respondent's material, BCS-218 to BCS-220.
[30]HAM’s submission to the respondent dated 25/03/2019; Respondent's material, BCS-218 to BCS-220.
[31]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[32]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).
[33]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63.
[34]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).
[35]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
[36]Kioa v West (1985) 159 CLR 550, 585.
[37]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).
[38]The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228, 256.
[39]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5.
[40]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2); Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360.
[41]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).
[42]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
[43]Pursuant to the Criminal Code Act 1899 (Qld), s 352(1)(a).
[44]Working with Children (Risk Management and Screening) Act 2000 (Qld), Schedule 2.
[45]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] citing Kent v Wilson [2000] VSC 98, [22].
[46]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [34] endorsing 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.
[47]Kent v Wilson [2000] VSC 98, [22] referencing the Oxford English Dictionary.
[48]Baker v R (2004) 223 CLR 513, 573 citing R v Kelly (Edward) [2000] QB 198, 208.
[49]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] applying the Briginshaw test as provided in Briginshaw v Briginshaw (1938) 60 CLR 336.
[50]Working with Children (Risk Management and Screening) Act 2000, s 226(2).
[51]Working with Children (Risk Management and Screening) Act 2000, s 8
[52]Respondent’s material, BCS-6 to BCS-9; HAM’s submissions to the respondent dated 25/03/2019.
[53]Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28, [84].
[54]Commissioner for Children and Young People Bill 2000, p 10.
[55]Exhibit 2.
[56]HAM’s submissions filed 09/12/2020, paragraphs 30 – 37.
[57]Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [16].
[58]Respondent’s submissions filed 16/12/2020, paragraphs 65 – 69.
[59]Respondent’s material, BCS-190, transcripts of pre-text phone call between HAM and ATD.
[60]Respondent’s material, BCS-151 to BCS-152.
[61]Re TAA [2006] QCST 11, [97].
[62]Paull v Queensland All Codes Racing Industry Board [2017] QCATA 92, [115].
[63]Sudath v Health Care Complaints Commission [2012] NSWCA 171, [79]; The King v The War Pensions Entitlement Tribunal; ex parte Bott (1933) 50 CLR 228, 256.
[64]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1).