Eamer v Director-General, Department of Justice and Attorney-General [2019] QCAT 330

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Eamer v Director-General, Department of Justice and Attorney-General [2019] QCAT 330 PARTIES: JOHN EDWARD EAMER (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML083-19 MATTER TYPE: Childrens matters DELIVERED ON: 30 October 2019 HEARING DATE: 21 October 2019 HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The decision of the Director-General, Department of Justice and Attorney-General made on 24 January 2019 is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – Blue card – where applicant issued with negative notice – whether exceptional case Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 169, s 221, s 225, s 353, s 354, s 358 Baker v The Queen (2004) 223 CLR 513 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 D and Department for Community Development [2007] WASAT 154 Re FAA [2006] QCST 15 R v Kelly [2001] 1 QB 198 RPG v Public Safety Business Agency [2016] QCAT 351 -- 1 of 8 -- 2 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: A Bryant REASONS FOR DECISION Introduction [1] This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General, made on 24 January 2019, to issue a negative notice in respect of the application by Mr Eamer for a blue card. [2] Blue Card Services undertook a criminal history check in relation to Mr Eamer. This check disclosed the following criminal history which Blue Card Services considers to be of concern in relation to Mr Eamer’s application for a blue card: (a) Mr Eamer was convicted of the offence of recklessly cause serious injury, which took place on 28 December 1995. Mr Eamer smashed a beer glass into the back of the complainant’s head, causing a laceration which required 14 stitches. Following a successful appeal, Mr Eamer was sentenced to a community based order for a period of 12 months and ordered to perform community service work. (b) Mr Eamer was charged with the offences of rape and sexual penetration of a child under 16 years, which allegedly took place on 24 June 1996. Mr Eamer was acquitted of these offences. (c) Mr Eamer was charged with the offence of rape, which allegedly took place on 29 June 1996. Mr Eamer was acquitted of this offence. The ‘blue card’ legislative framework [3] Employment screening for child-related employment is dealt with in chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’). The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.1 It is protective legislation and has been described as ‘precautionary’ in its approach. [4] A child-related employment decision2 is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.3 The overriding concern is the potential for future harm to children. 1 Working with Children Act, s 5. 2 Child related employment decision is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358. 3 Working with Children Act, s 360. See also s 6. -- 2 of 8 -- 3 [5] As applicable to this case, the Working with Children Act requires that a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.4 What is meant by ‘exceptional case’ [6] What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.5 [7] Section 226(2) sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:6 (a) Whether it is a conviction or charge; (b) Whether the offence is a serious offence, and if it is whether it is a disqualifying offence; (c) When the offence was committed; (d) The nature of the offence and its relevance to employment that may involve children; and (e) In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision. [8] Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.7 [9] The application of the Act is intended to put gates around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.8 The applicant’s evidence and submissions [10] Mr Eamer provided the Tribunal with his life story dated 2 April 2019, and a further statement dated 26 June 2019. [11] At the commencement of the hearing, I referred Mr Eamer to the directions made on 30 April 2019, relevantly: 2. John Edward Eamer must file in the Tribunal two (2) copies and send to the Director-General, Department of Justice and Attorney-General one (1) copy of all material upon which he intends to rely at the hearing. The material must: … 4 Working with Children Act, s 221. 5 Re FAA [2006] QCST 15, [22]. 6 Working with Children Act, s 226(2)(a). 7 Working with Children Act, s 226(2)(e). 8 Re FAA [2006] QCST 15, [29], citing the second reading speech Commissioner for Young Children and Young People Bill, p 4391. -- 3 of 8 -- 4 (d) contain any health reports, including any reports by a psychologist or psychiatrist; by: 4:00pm on 25 June 2019. 3. If his material includes any health report, John Edward Eamer must provide the report writer with a copy of the Director-General, Department of Justice and Attorney-General’s reasons for the decision to issue a negative notice. Any report should consider: (a) the extent to which John Edward Eamer has insight into their offending behaviours and its impact on society, the victim(s) and any children associated with John Edward Eamer; (b) what risk factors, or triggers, if any, continue to be present which could contribute to a risk of further offending behaviours; (c) what protective factors, if any, are present to reduce the risk of further offending behaviours; (d) what preventative strategies, if any, does John Edward Eamer to reduce their risk of further offending behaviours? [12] I noted that Mr Eamer had not filed a health report, and asked whether he wished to make an application for an adjournment in order to obtain one. Mr Eamer declined the opportunity to obtain a report, and stated that he was happy to proceed on the basis of the evidence he had provided. [13] Mr Eamer provided the following submission to blue card services in relation to the charges he was acquitted of: In 1996 I met [Q] many times through mutual friends and from watching bands at many of the pubs through Geelong. One particular night we all went back to a friend’s house to hang out. The music was quite loud so we both went into the bedroom, sat on the bed for a while before getting under the covers fully clothed as it was cold. We talked for a while then kissed, touching each other. Then we undressed each other and had sex. We laid there chatting for a bit before I fell asleep. At no time while we were together did [Q] say or give any indication that she did not want to have sex with me. She was definitely willing, it was totally mutual. I had no idea that [Q] was only 15 at the time as I had seen her out in all the hotels late at night etc so I did not give it a thought that she was under age whatsoever! She did admit in court that she looked a lot older than her age, hence getting into clubs. Many years after the court case I was acquitted of, I saw [Q] and I said “if anything I did that night made you feel like it was a bad experience then I am sorry”. [Q] replied with, “it just wasn’t special and that’s why I was upset with you”. I met [M] only a few times and talked briefly together and could see we had some chemistry. -- 4 of 8 -- 5 We both met up again at a mutual friend’s party. We were all talking together with some other people in one of the bedrooms of the house, the other guests left the room. [M] and I stayed and continued to talk then started kissing, leading to us wanting to have sex. She asked if I had a condom, I said no, so things stopped for a while then started up again. While we were having sex, the guy whose bedroom it was came in and told us to get out of his bed, which was extremely embarrassing for both [M] and myself. We stayed at the party for a while longer before I left with my friend. I said goodbye to her, but she seemed to be quite drunk and out of it, not saying much at all. I later learned she had been taking some kind of drugs mixed with alcohol. Besides saying she was forced to have sex with me, she also told the court I ran down the street with my pants around my ankles. I told the court that both allegations were a complete lie. At no point did [M] say that she was not interested in having sex with me. [14] Mr Eamer gave oral evidence that had he known Q and M were 15 and 17 years of age, respectively, he would not have had sexual intercourse with them. He accepted that there was a power imbalance, which he described as ‘regrettable’. [15] Mr Eamer was cross-examined about his statement that M seemed to be quite drunk and out of it. He stated that everyone had had a bid to drink, and that he could not see that she was the worse for it. [16] In his written statement, Mr Eamer stated that he took full responsibility for his actions. I put to Mr Eamer that, notwithstanding his acceptance of responsibility, the explanation advanced that he had no idea that Q was only 15 years of age at the time might still cause me some concern. Mr Eamer stated that Q looked and came across as older than a 15 year old, and that alcohol was involved. [17] Mr Eamer also gave oral evidence that the fact that he had relations with two different girls in a short period of time was ‘reckless and unfocussed’. [18] Mr Eamer also gave evidence that went through a 10 year period of abstinence from sexual intercourse and alcohol consumption. He has been in a relationship for the past three years with Jade MacCullum, who was his childhood sweetheart and to whom he is now engaged. He will have a glass or two of red wine with dinner on occasion. [19] In relation to the recklessly causing serious injury offence, Mr Eamer recounted an incident which he stated took place approximately three years ago. His brother was assaulted and sustained a broken jaw. When Mr Eamer encountered the perpetrator outside the hospital, he proceeded to report the incident to the police rather than responding in a violent manner. [20] Mr Eamer is father to four children aged between 14 and 29 years. [21] Ms MacCullum gave evidence that Mr Eamer has been nothing but respectful towards her, both now and during their initial relationship when they were both 17 years of age. [22] Further favourable references were provided by Wesley Bleakly and Dean Lobbe, who are Mr Eamer’s current and past employers. Neither employer had any concerns in relations to Mr Eamer’s interactions with vulnerable disabled persons. -- 5 of 8 -- 6 The respondent’s evidence and submissions [23] In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher which involves identifying and balancing ‘risk’ factors with ‘protective’ factors arising from the circumstances of the particular case. [24] In applying that approach, the respondent identified the following protective and risk factors: Protective factors (a) Other than the four offences of concern, there are no further entries of concern recorded in Mr Eamer’s criminal history. (b) Mr Eamer is in a long term relationship, is employed with the disability sector and has undertaken tertiary study. (c) Mr Eamer has expressed remorse for his behaviour and the impact it may have had on the complainants. (d) Mr Eamer has provided three character witnesses who attest to his good character. Risk factors (e) The three charges of which Mr Eamer was acquitted were for disqualifying offences. (f) Mr Eamer was acquitted of charges relating to conduct of a sexual nature, which still raises significant concerns about the possible risks posed to children. (g) Although a considerable period of time has elapsed since Mr Eamer’s offending and alleged offending, the clear intention of the legislation is what passage of time is merely one factor to be considered. (h) At the time of the alleged sexual offending, Mr Eamer was 27 years old and therefore considerably older than the complainants. Both complainants were vulnerable due to their age. Further, due to the 10 to 12 year age difference, Mr Eamer was in a position of power and authority compared to the complainants. He exploited this position of power and the complainants’ vulnerability for his own sexual gratification. This raises concerns about Mr Eamer’s ability to engage appropriately with respect to vulnerable people, including children and young people. (i) The level of insight possessed by Mr Eamer is not clear from the material, and in particular he has not provided any psychological evidence. [25] I note that the respondent also put forward as a risk factor that the juries in each of the criminal cases were not aware of the other charges against Mr Eamer, so that the allegations of each complainant were unable to corroborate the other. As I stated at -- 6 of 8 -- 7 the hearing, I regard this as an ill-considered submission and reflects the very reason that such trials are held separately. Is this an exceptional case? [26] The factors in s 226(2) are factors that must be considered in making a decision about whether it is an exceptional case. [27] In terms of the level of satisfaction required to meet s 221(2), it has been accepted that while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.9 [28] There is no scope under the legislation for the Tribunal to issue a positive notice with conditions, for example, that the adult be supervised when working with children.10 [29] Looking at the factors which must be considered and at factors I consider relevant, I make the following observations: Whether the offence is a conviction or a charge [30] Mr Eamer was convicted of recklessly causing serious injury. He was charged with, but acquitted of, two counts of rape and one count of sexual penetration of a child under 16 years. Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence [31] The offence Mr Eamer was convicted of is not a serious or disqualifying offences. [32] The offences which Mr Eamer was charged with, but was acquitted of, are disqualifying offences. When the offence was committed or is alleged to have been committed [33] The offence Mr Eamer was convicted of took place in 1995. [34] The charges which Mr Eamer was acquitted of relate to events in 1996. The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children [35] The evidence before me does not allow me to conclude that Mr Eamer’s sexual relationships with the two complainants were anything other than consensual. However, the age of the complaints and Mr Eamer’s relative position of power are relevant to whether he is able to provide a protective environment to vulnerable children and young people. 9 [2004] QCA 491, [30]. 10 Working with Children Act, s 353(a); RPG v Public Safety Business Agency [2016] QCAT 351, [27]. -- 7 of 8 -- 8 In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision [36] In relation to his conviction of recklessly causing serious injury, Mr Eamer was sentenced to a community based order for a period of 12 months and ordered to perform community service work. Other relevant circumstances [37] I have considered the risk and protective factors in Mr Eamer’s life. [38] This is a finely balanced case. On the one hand, the evidence is that Mr Eamer has more recently worked with vulnerable disabled persons for a period of time without incident. [39] On the other hand, the view I take of the two relevant sexual encounters in 1996 is that Mr Eamer exploited his relative position of power arising from the fact that he was considerably older than the two complainants. I would also add that the complainant’s vulnerability was due not only to their age, being 15 and 17 years old respectively, but also due to the effects of alcohol on at least one of the complainants. As I noted above, this raises concerns in relation to Mr Eamer’s ability to respect boundaries with vulnerable persons, including children and young people. [40] What could potentially have tilted the balance in Mr Eamer’s favour is if he had provided a health report expressing favourable views in relation to the matters raised in paragraph 3 of the directions made on 30 April 2019. I offered Mr Eamer the opportunity to make an application for an adjournment in order to obtain such a report, but he declined. In the circumstances, I have placed considerable weight on the absence of such a health report in assessing whether an exceptional case exists. Conclusion [41] Based on the findings of fact I have made and weighing all of the matters in s 226(2) and the other circumstances I have considered, I have reached the conclusion that there is an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued. [42] I therefore confirm the decision under review. -- 8 of 8 --