Devon v Department of Child Safety, Seniors and Disability Services [2024] QCATA 7

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Devon v Department of Child Safety, Seniors and Disability Services [2024] QCATA 7 PARTIES: MICHAEL OWEN DEVON (applicant/appellant) v DEPARTMENT OF CHILD SAFETY, SENIORS AND DISABILITY SERVICES (respondent) APPLICATION NO/S: APL373-22 ORIGINATING APPLICATION NO/S: GRA268-21 MATTER TYPE: Appeals DELIVERED ON: 8 February 2024 HEARING DATE: 30 January 2024 HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: Order that the name of the respondent be amended to Department of Child Safety, Seniors and Disability Services. Appeal dismissed. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – EVIDENCE – General Principles – non-application of rules of evidence – effect of this – whether error of law in failing to consider particular material not before the Tribunal Disability Services Act 2006 (Qld) s 88, s 92, s 93, s 94 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chief Executive Officer of the Department for Child Protection v Grindrod (No 2) [2008] WASCR 28 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, (2010) 241 CLR 390 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 CMH v Director-General, Department of Justice and Attorney-General [2020] QCAT 15 -- 1 of 10 -- 2 R v The War Pensions Entitlement Appeal Tribunal, ex parte Bott (1933) 50 CLR 228 Shi v The Migration Agents Registration Authority (2008) 235 CLR 286 APPEARANCES & REPRESENTATION: Applicant: A L Raeburn, instructed by Lee Turnbull and Co, solicitors Respondent: A Y Tarrago, instructed by Crown Law REASONS FOR DECISION [1] The Disability Services Act 2006 (Qld) (“the Act”) contains in Part 5 a scheme to screen persons to assess whether they pose an unacceptable risk of harm to people with disability: s 40(a). Persons who pose such an unacceptable risk of harm are prohibited from carrying out particular work with people with disability. On 29 March 2021 the respondent decided, on a reassessment, that the appellant posed such an unacceptable risk, and confirmed an exclusion under the Act.1 The appellant had that decision reviewed by the Tribunal, and on 18 October 2022 the Tribunal confirmed that decision.2 On 15 December 2022 the appellant filed an application for leave to appeal or appeal against that decision. [2] Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142 the appellant has a right to appeal from the decision of the Member on a question of law, but requires the leave of the Tribunal to appeal on a question of fact, or of mixed fact and law. So far as the appeal is on a question of law, it is to be decided as an appeal in the strict sense, and the powers of the Appeal Tribunal are limited.3 I do not need to consider the position if there is an application for leave to appeal. Grounds of Appeal [3] The grounds of appeal relied on by the appellant were as follows: (a) The Tribunal misdirected itself as to the binding nature of the rules of evidence leading to a failure to afford the appellant substantial justice. (b) The Tribunal erred in finding that under s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) [“the QCAT Act”] a model litigant was not required to provide the Tribunal with the transcript of the trials that resulted in the acquittal of the appellant so it could fairly assess the conduct of the appellant. (c) The failure of the Tribunal to rely upon the transcripts of the criminal trials meant that the Tribunal misdirected itself about the true factual basis of the conduct of the appellant and the Tribunal was unable to properly find whether the appellant’s conduct was offending conduct under [the Act s 94]. 1 I shall refer to Mr Devon as the appellant, and the Department as the respondent. 2 [2022] QCAT 386. 3 The QCAT Act s 146; Pivovarova v Michelsen (2019) 2 QR 508 at [9]. -- 2 of 10 -- 3 (d) The misdirection of the Tribunal about the factual basis of the conduct of the appellant meant that the Tribunal could not fairly find that the appellant might be a real and appreciable risk to persons with a disability. (e) The Tribunal erred in failing to give an, or any appropriate weight, to the appellant’s unchallenged evidence of efforts to mitigate the alleged risk (which risk was denied). The Legislation [4] The Act provides relevantly as follows: 41 The paramount consideration in making a decision under this part is the right of people with disability to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation. 51(1) An exclusion is a declaration, issued by the chief executive to a person, that— (a) screening of the person has been conducted under this part; and (b) the person is excluded from carrying out disability work. 87(1) The chief executive must— (a) consider the person’s application and the information available to the chief executive about the person; and (b) if section 89 or 90 apply to the person—decide the application under that section; and (c) if section 91 or 92 apply to the person—conduct a risk assessment of the person before deciding the application under that section. 87(2) However, the chief executive is not required to decide the person’s application if— (a) a charge for an offence against the person has not been dealt with; or (b) the chief executive is aware that an incident involving the person, or an allegation or complaint about the person’s conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended. 88(1) The chief executive must consider each of the following types of information for a person of which the chief executive is aware, if any— (a) police information; (b) domestic violence information; (c) disciplinary information; (d) NDIS disciplinary or misconduct information; (e) information about— (i) whether the person holds, or has previously held, a clearance, interstate NDIS clearance, exclusion or interstate NDIS exclusion; or -- 3 of 10 -- 4 (ii) if the person has previously held a clearance or interstate NDIS clearance—whether the clearance was suspended at any time or cancelled. 88(2) The chief executive may consider other information about the person that is relevant to whether the person poses a risk of harm to people with disability. 92(1) This section applies if sections 89, 90 and 91 do not apply to the person. 92(2) The chief executive must— (a) if satisfied the person does not pose an unacceptable risk of harm to people with disability—issue a clearance to the person; or (b) if satisfied the person poses an unacceptable risk of harm to people with disability—issue an exclusion to the person. 93(1) The chief executive conducts a risk assessment of a person by— (a) considering the information about the person obtained by the chief executive under this part; and (b) deciding whether the person poses an unacceptable risk of harm to people with disability. 93(2) In conducting the risk assessment, the chief executive— (a) must consider information as required under this division; and (b) may decide the person poses an unacceptable risk of harm to people with disability— (i) if satisfied there is a real and appreciable risk that the person might cause harm to people with disability; and (ii) without needing to be satisfied it is likely the person will cause the harm. 94(1) This section applies if the chief executive is aware of conduct of the person (the person’s offending conduct) that— (a) involved the commission of an offence; or (b) was the subject of a complaint, allegation or investigation under a law; or (c) is otherwise relevant to whether the person poses a risk of harm to people with disability. (2) The chief executive must consider the following matters— (a) the nature, gravity and circumstances of the person’s offending conduct; (b) how the person’s offending conduct is relevant to disability work; (c) how long ago the person’s offending conduct occurred; (d) if the person’s offending conduct was committed against another person (the victim)— (i) the victim’s vulnerability at the time of the conduct; and -- 4 of 10 -- 5 (ii) the person’s relationship to, or position of authority over, the victim at the time of the conduct; (e) whether the person’s offending conduct indicates a pattern of concerning behaviour; (f) the person’s conduct since the offending conduct; (g) any other circumstances relevant to the person’s offending conduct. [5] Section 108 and s 109 deal with a reassessment by the chief executive, but provide that the provisions quoted above apply. There are a number of relevant definitions in the Act Schedule 8. “Police information” is defined to include a person’s “criminal history” and “investigative information” about the person. “Criminal history” of a person is defined as meaning every conviction of the person for an offence anywhere, before or after commencement of the Act, and every charge made against the person for an offence anywhere, before or after commencement of the Act. [6] The Act s 138I defines “investigative information” in a way which includes allegations of the commission of an offence, including one which did not proceed to a charge, for certain stated reasons, including information from a third party in some circumstances, but subject to a decision of the police commissioner.4 By the Act s 138C, the chief executive may obtain police information from the commissioner, and may then obtain further information including “a section 93A transcript or a transcript of a recorded statement relating to an offence mentioned in the police information.” [7] The Act s 138M enables the chief executive to obtain from the Director of Public Prosecutions material concerning a relevant person who was convicted or charged with an offence, including a copy or written summary of “evidentiary material” which is defined as including a police summary of the offence, a witness statement, an indictment, a record of interview of a person, including a s 93A statement, or a transcript of a record or statement, or an expert report about the person.5 The chief executive may also obtain a written summary of reasons for a decision not to proceed with a charge. A transcript of any trial is not referred to expressly in either section. Consideration – Ground (a) [8] The first ground of appeal was based on the proposition that the Member failed to take into account the requirement, in the QCAT Act, to act in accordance with the principles of natural justice. The appellant accepted, inevitably, that the statutory exemption from the rules of evidence applied, but submitted that the principles of natural justice meant that some regard should still be had to them. Reference was made to the decision in R v The War Pensions Entitlement Appeal Tribunal, ex parte Bott (1933) 50 CLR 228 at 256, per Evatt J. [9] This passage, which I need not quote, said that despite a similar statutory excusal the rules of evidence cannot be set to one side without grave danger of injustice, and that the obligation of the Tribunal was to administer “substantial justice”. That expression was a quote from the provision in the relevant Act governing the operations of that tribunal, the equivalent of the provision in s 28(2) of the QCAT Act. The facts in that 4 The decision of the police commissioner that information is investigative information, and that it may be given to the chief executive, cannot be reviewed by the Tribunal, but can be appealed to a Magistrates Court: s 138J. 5 This is also subject to a decision of the DPP, but there is no special provision made for any appeal. -- 5 of 10 -- 6 case were very different from those of the present, and it was the process adopted by that tribunal, of itself obtaining independent expert evidence about the medical condition of the applicant for a pension and then acting on it, which produced this condemnation from his Honour.6 But only his Honour; the other members of the Court joined in discharging the order nisi. [10] In CMH v Director-General, Department of Justice and Attorney-General [2020] QCAT 15 the Member said at [22] that this passage was something “the High Court held”. It was not.7 It was a statement by one justice, in a dissenting judgment. I was not referred to any later decision of the High Court where at least a majority of the Justices endorsed it. The passage was cited by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32, (2010) 241 CLR 390 at [17] in a separate concurring judgment, which was clearly dicta,8 but it was followed by the comment that the caution implied by that passage “is not a mandate for allowing the rules of evidence, excluded by statute, to creep back through a domestic procedural rule.” [11] In my opinion the true position is that the test for what the Tribunal may take into account, that is, may treat as evidence, is relevance, and, at the margin, reliability, in that the circumstances of relevant material may be such as to make it so unreliable that no weight should be placed on it. That some material would have been excluded by the rules of evidence may go to the weight that should be given to the material as evidence, which will vary depending on the particular rule. Hearsay for example may deserve considerable weight, or little weight, or something in between, depending on the circumstances.9 Caution in the use of eye witness identification is still appropriate. On the other hand, the highly restrictive approach of the common law as it has been developed by the High Court to similar fact evidence, particularly in cases of sexual offences, is particularly undeserving of respect, as shown by the fact that it has been cut back by statute in England, and in most of the rest of Australia. It follows that I do not consider that the first ground has been made out. - Grounds (b) and (c): Trial transcripts [12] The second ground, which with the third were the ones particularly the focus of oral submissions, was that there was an error of law in failing to require the respondent to obtain and put before the Tribunal the transcripts of the trials, or at least the transcript of the trial which resulted in an acquittal. The submission was that, in circumstances where allegations had been tested at a trial or trials, what was said by the complainant in evidence in chief, and the cross-examination, and a consideration of the extent to which this fitted in with other evidence at the trial or trials, would provide a better basis for assessing the significance of the allegations of a complainant. [13] The ground referred to the “trials that resulted in the acquittal of the appellant”, but there was only one such trial. One trial was discontinued by the prosecution because another complainant had come forward, and in two cases after a trial the jury failed to 6 He also overlooked the fact that at common law the rules of evidence did not apply to tribunals anyway: Forbes, Justice in Tribunals, 5th Ed 2019, p 208, [12.43]. 7 The error was repeated in SAM v Director-General, Department of Justice and Attorney-General [2020] QCAT 243. 8 The issue was as to the power of the Supreme Court on appeal from the tribunal from “a decision with respect to a matter of law”, and whether a decision that there was no evidence (ie material) before the tribunal to support a finding that certain notices had been served was a matter of law. 9 The rule against hearsay has been much modified by statute anyway. -- 6 of 10 -- 7 agree. Only the fourth trial, where the jury heard from only one complainant, resulted in an acquittal. It is clear however that the argument was that all trial transcripts should be provided. It was said that the effect of this was to have regard only to the prosecution case at its highest, which risked distorting the position. It was also submitted that the decision was influenced by the statements of two other persons who were not called as witnesses and whose evidence was not tested by cross-examination. [14] The difficulty with this argument is that, in order to succeed on an appeal on a question of law, it is necessary to show that there was an error of law on the part of the Tribunal in this regard. In effect, it is necessary to show that, as a matter of law, the Tribunal had to have considered the transcripts of the trials before it could make a decision on the review, and that there was an obligation on the respondent to provide this material. [15] There is no provision of the Act which requires the decision maker to have regard to the transcript of any trial which resulted from any charges brought, and among the various things which the decision maker is empowered to obtain in order to make the decision, such transcripts are not mentioned expressively. There has been no decision holding that such transcripts are necessary, and I was referred to two matters decided where such transcripts were not provided, and evidently not regarded as necessary.10 I was referred to one decision where the appellant submitted that the transcript of a trial was received by the Tribunal, but it is not clear that that was a case where it was not put in evidence by the applicant for the review.11 Given the broad terms of the Act s 88(2) and s 94(2)(g)12 I expect that the Tribunal could have had regard to the trial transcripts if they had been put before it,13 but it does not follow that the respondent to the application for review was obliged to put them before the Tribunal. [16] Under the QCAT Act s 21(2)(b) the respondent was required to provide to the Tribunal “any document or thing in the decision-maker’s possession or control that may be relevant to the Tribunal’s review of the decision.” The transcripts would not be within the possession or control of the respondent Department, even if they could be said to be in the possession or control of the Justice Department, and in any case, as I shall explain below, are of limited relevance to the issue that the Tribunal had to decide. [17] The appellant applied to have the Tribunal issue a notice to the respondent under s 21(3) requiring it to produce the transcripts, but that application was refused. I have not seen reasons for that refusal, but in view of the limited relevance of the transcripts such a decision was within the discretion of the Member who made it. [18] As to relevance, under the Act s 94 the decision maker is required to consider various things if the decision maker is aware of “offending conduct” as defined in s 94(1). This is not confined to conduct that involved the commission of an offence, but extends to conduct that was the subject or a complaint, allegation or investigation under a law. It follows that the consideration is not confined to offences which have been proved in a court to have been committed already, or which the decision maker finds have been committed, but extends to conduct just the subject of an allegation. 10 CMH v Director-General, Department of Justice and Attorney-General [2020] QCAT 15; SAM v Director-General, Department of Justice and Attorney-General [2020] QCAT 243. 11 Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152. 12 And the QCAT Act s 28(3)(c). 13 See also Chief Executive Officer of the Department for Child Protection v Grindrod (No 2) [2008] WASCR 28 at [87], which suggests that the decision maker can look at transcripts. -- 7 of 10 -- 8 The conduct alleged against the appellant was offending conduct by definition under s 94 of the Act. The Member would have erred in law if it had not been so found. [19] In the present case, there were undoubtedly five allegations available for consideration because five separate women alleged that the appellant had handled them sexually in the course of their being massaged by him. Apart from the complainant in the last trial and the two complainants in the trials where the juries could not agree, there were two other witnesses who provided statements to police alleging similar conduct against them. Because of the restrictive approach to similar fact evidence, no jury heard all of these allegations; the acquittal occurred in a trial where the jury heard from only the one complainant. [20] It was submitted that the material considered would have been the prosecution case put at its highest, and that what was actually said in evidence in chief, and what emerged in cross-examination, could have put a very different complexion on the signification of the allegations of the particular complainant. The suggestion in submissions that the allegations may have been significantly qualified in evidence at the trials was essentially speculative. The defendant would have been at each of the trials,14 and he would have been legally represented, and it would have been open for him to put material about any such modification before the Tribunal. [21] That in three cases the matter was left to the jury suggests that there was never such a collapse of the prosecution case as to induce the trial judge to take the case from the jury, or persuade the prosecutor to do so.15 In two of the trials, at least one member of the jury was persuaded of the appellant’s guilt beyond reasonable doubt, also suggesting no significant inroad was made into the credibility of the complainants. There is no reason to think that trawling through the minutiae of the trials is going to provide any significance assistance to a decision maker required to consider the significance, in terms of risk, of the allegations which had been made.16 [22] In practice no doubt the reason for this push for access to the transcripts from the appellant was that such things are now very expensive to obtain, and he wanted to move the cost onto the respondent. That is not a reason why, as a matter of law, the respondent was required to provide this material. [23] Reference was made to Shi v The Migration Agents Registration Authority (2008) 235 CLR 286 at [40], [41] per Kirby J, who said that administrative decision makers are generally obliged to have regard to the best and most current information available. His Honour was there addressing the question of whether, on a merits review, the tribunal could have regard to additional, more recent evidence to that which was before the decision maker from whom the review was brought, and was particularly noting the desirability to have regard to up to date information.17 This is by no means a rule of law that all material which might have any possible relevance must be assembled before any decision can be made. There is no such rule. [24] Overall, I do not consider that there was any obligation on the respondent to provide a transcript of all, or any, of the trials, nor do I consider that the Tribunal Member 14 Criminal Code s 617. 15 In my experience it is rare for complainants to qualify their allegations significantly during cross- examination, at least in relation to the central events of the offence. 16 Chief Executive Officer of the Department for Child Protection v Grindrod (No 2) [2008] WASCR 28 at [84]. 17 See now Frugtniet v ASIC [2019] HCA 16 at [14], [15]. -- 8 of 10 -- 9 made any error of law in deciding the review without reference to them. The Tribunal Member was clearly aware of the results of the trials, and that what was available as offending conduct were only allegations, and there is no reason to doubt that the risk assessment was conducted on that basis. This ground, and ground (c), are not made out. As I interpret ground (d), with the benefit of the oral submissions, it falls away because of my rejection of the earlier grounds. The Briginshaw test [25] The appellant submitted that the Tribunal ought to apply the Briginshaw test.18 Reference was made to the decision of the Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, in relation to the Briginshaw test. What Philippides J, with whom the other members of the Court agreed, said at [30] was: It was accepted by both parties that the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 was applicable in respect of the level of satisfaction needed for the purposes of s 102(4); that is, that the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued. [26] That was said in relation to the test provided under the “blue card” legislation. The position may be less clear under the Act, where s 92(2) contemplates that the chief executive, at the end of the process, will necessarily be satisfied one way or the other, but one thing that the Act and that legislation have in common is that both operate on a precautionary basis.19 Further, in Mayer the test was being applied by her Honour in the way indicated by the precautionary principle, whereas in the case of the Act, the analogy would be that the Briginshaw test has to be satisfied in order for the decision maker to act under s 92(2)(a). It may not follow that the Briginshaw test applies to a decision under s 92(2)(b). That issue does not arise in this matter. [27] For present purposes, assuming that at the stage of the s 92(2) decision, the Briginshaw test does apply, in circumstances where the relevant issue was whether there were allegations rather than whether the offending conduct actually occurred, so as to bring the matter within s 94(1)(a), I do not consider that any issue arises as to this test. There were undoubtedly allegations, the Member was entitled to take them into account as “offending conduct”, and had to consider the matters in s 94(2), of which paragraphs (a), (d) and (e) supported the conclusion of the Member. - Ground (e) [28] The final ground was that the Member failed to give any, or any appropriate weight to the evidence of efforts to mitigate the alleged risk. The Member referred to the material supporting the proposition that the appellant did not pose an unacceptable risk of harm to persons with disability, of which there was a good deal, and there is no basis to conclude that the Member failed to have regard to it. The question of whether the Member gave appropriate weight to it raises a question of fact,20 or mixed 18 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 19 See the Act s 41; Commission for Children and Young People and Child Guardian Act 2000 (Qld) as it then was, s 6(1), s 96. 20 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Warley Pty Ltd v Adco Constructions Pty Ltd [1988] NSWCA 166; Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140. -- 9 of 10 -- 10 fact and law, and counsel for the appellant disavowed any application for leave to appeal.21 I do not need to consider it further. In any case, in circumstances where the appellant denies that the events which give rise to concern about his presenting a risk to such persons actually occurred, it is difficult to see how he could show that he had taken steps to mitigate that risk. The appellant’s material was really directed to a different issue. Ground (e) is also not made out. [29] It follows that the appeal is dismissed. [30] During the hearing I was informed that, since the appeal was filed, the name of the respondent has been changed. Accordingly I order that the name of the respondent be amended to “Department of Child Safety, Seniors and Disability Services”. 21 As did the original Application for Leave form. -- 10 of 10 --