Commissioner for Children and Young People and Child Guardian v Johnston [2010] QDC 113

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner for Children and Young People and Child Guardian v Johnston [2010] QDC 113 PARTIES: COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE AND CHILD GUARDIAN Appellant v ALAN DAVID JOHNSTON Respondent FILE NO/S: 677 of 2009 DIVISION: PROCEEDING: Appeal from the Children Services Tribunal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 30 March 2010 DELIVERED AT: Brisbane HEARING DATE: 26 October 2009 JUDGE: Devereaux SC DCJ ORDER: 1. Appeal allowed 2. Decision of Children Services Tribunal of 11 February 2009 be set aside. 3. The matter be returned to the Tribunal for reconsideration in accordance with these reasons. CATCHWORDS: ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – where negative notice issued to Respondent by the Commissioner – where Tribunal set aside Commissioner’s decision – whether Tribunal erred in issuing positive notice. FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 – OTHER MATTERS – where Tribunal considered there was an exceptional case which would not harm the best interests of children – whether ‘exceptional case’ test properly applied – whether Tribunal proceeded on the basis of an error of law in being satisfied that there was an exceptional case. -- 1 of 11 -- 2 Children Services Tribunal Act 2000, ss 37, 38, 51(2), 96, 130 Commissioner For Children and Young People and Child Guardian Act 2000, ss 5, 6, 99(c), 100(1B), 102, 102A 121 Dicamillo v Wilcox [1964] WAR 44 In The Marriage of N and S (1995) 19 Fam LR 837 Liberti v The Queen (1991) 55 A Crim R 120 Minister v Gungor (1982) 42 ALR 209 R v CAH [2008] QCA 333 R v Gadaloff [1999] QCA 286 COUNSEL: D Kent for the appellant The respondent appeared on his own behalf SOLICITORS: Crown Law for the appellant The respondent appeared on his own behalf [1] In February 2008, Griffith University applied for a prescribed notice (a blue card) for Mr Johnston.1 On 28 October 2008, the Commissioner issued a negative notice and gave reasons.2 Mr Johnston sought a review of that decision.3 On 11 February 2009, the Children Services Tribunal set aside the Commissioner’s decision and directed that a positive notice issue to Mr Johnston 4 The Commissioner appeals that decision under Children Services Tribunal Act 2000 s. 130, which provides: “a party to a review may appeal to the District Court against the Tribunal’s decision on the review under s. 38(1), but only a question of law.” The Commissioner’s grounds of appeal seem to reduce to three propositions: (i) the Tribunal failed to give adequate reasons for the decision; (ii) the Tribunal wrongly went behind the conviction for unlawful stalking; (iii) the Tribunal took into account various irrelevant considerations. The Commissioner’s Decision [2] The Commissioner was required to issue a positive notice unless satisfied ‘it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice.’ 5 This was because Mr Johnston’s criminal history did not contain a conviction for a ‘serious offence’ as defined in s. 99C of the Commissioner for Young Children and Young People and Child Guardian Act 1 Commissioner for Children and Young People and Child Guardian Act 2000 s. 100 (1B) 2 Commissioner for Children and Young People and Child Guardian Act 2000 s. 102 3 Commissioner for Children and Young People and Child Guardian Act 2000 s. 121 4 Children Services Tribunal Act 2000 s. 38 5 Commissioner for Children and Young People and Child Guardian Act 2000 s. 102(4) -- 2 of 11 -- 3 2000. Giving detailed and lengthy reasons, the Commissioner decided this was an exceptional case. [3] The Commissioner dealt in detail with Mr Johnston’s criminal history. • On 28 June 1995, Mr Johnston was convicted in the Cleveland Magistrates Court of one charge of wilful and unlawful damage to property and one of stealing. The two offences occurred on 21 January 1995. He was discharged absolutely for the offences. • On 17 July 2001, Mr Johnston was convicted of common assault. He was placed on a good behaviour bond. • On 11 August 2006, Mr Johnston was convicted in the Wynnum Magistrates Court on two charges of conducting transactions so as avoid reporting requirements. He was convicted and fined $2,500.00. • On 18 January 2008 in the District Court at Southport, Mr Johnston was convicted after his pleas of guilty of two counts of unlawful stalking. He had spent 322 days in pre-sentence custody. He was sentenced to 2 years 6 months imprisonment with parole release fixed at 1 February 2008. The sentencing judge also made orders under Criminal Code s. 359F restraining Mr Johnston from contact with the complainants and their families and also from contact with the witness, Robyn Owen. [4] The Crown prosecutor in the District Court told the learned sentencing judge (Dick SC DCJ) that the 1995 offences arose when Mr Johnston was in dispute with other owners of display homes in a village. He broke down a fence and stole some signs. [5] The offence of common assault arose out of a dispute between Mr Johnston and a real estate agent. Mr Johnston spoke to the agent on the telephone regarding an application for a lease lodged by his daughter. The application was refused and Mr Johnston told the real estate agent that he would come to the office and “rip his fucking arms off”. Shortly after the phone call, Mr Johnston went to the office and abused the agent. He walked towards him and grabbed him by the throat and dragged him towards the front door. A female witness, an employee of the agency, tried to pull Mr Johnston away but he pushed her away and then released the complainant. Mr Johnston later told police he was annoyed by the way his daughter’s application had been denied. [6] The stalking offence arose out of a dispute between Mr Johnston and his former lawyers and financial advisor. The prosecutor told the learned sentencing Judge the solicitor arranged for Mr Johnston and his wife to meet the other complainant, the financial advisor, to assist with a restructuring of the Johnston’s finances. The prosecutor said that after this contact, “the defendant telephoned the complainant… and he said words to the effect, he was considering harmful acts. “Do you mean harmful acts towards yourself?” “No … towards others.”’ He also contacted the finance advisor and demanded ‘one hundred grand’ back. The two complainants later wrote to Mr Johnston terminating their retainers. That occurred in 2003. In early 2004 Mr Johnston took action to complain about the complainants’ conduct to appropriate professional bodies. -- 3 of 11 -- 4 [7] The stalking offence occurred some years later, in 2007. It is necessary to set out in some detail the particulars of the stalking charge. The following is taken from the submissions made by the Crown prosecutor to the District Court. This statement of the facts was uncontradicted by Mr Johnston’s counsel. [8] On 8 January 2007, Mr Johnston was travelling from Melbourne to the Gold Coast with his partner, Robyn Owen. He asked her to talk to her son about obtaining a gun for retaliation against the solicitor and financial planner who had caused him to lose everything. Later in January he told Ms Owen he was going to spy on the complainants. He had already obtained their home addresses. He returned home at about 4.00am and woke Ms Owen and showed her pictures on a camera. The pictures were of a house and Mr Johnston said ‘look at the houses, this is what they’ve spent my money on.’ He also showed Ms Owen a photo of a Porsche being driven on a highway. Mr Johnston repeatedly asked Ms Owen, during January and February, whether she had spoken to her son about obtaining a gun. [9] In March 2007, police executed a search warrant at Mr Johnston’s home and seized a folder containing photographs of a house and a Porsche. They also found computer printouts relating to the complainants, on which the names of their wives were written, and on the page relating to one complainant, the words “Silver Landcruiser, security at front door and both sides, young daughter about ?five years”. [10] His counsel told the judge Mr Johnston regretted his actions and had suffered depression. His counsel said, “He’s just focussed his anger, your Honour. For three and a half years he had no contact with the complainants. Things just got to a stage to a reasonable meltdown stage and he’s done these actions. He’s extremely remorseful for that. He’s sorry.”6 [11] In his written submission to the Commissioner, Mr Johnston had asserted the reasonableness of his actions towards the complainants while denying the evidence of Ms Owen. He asserted she had been in jail in Victoria for fraud and was addicted to drugs. He asserted she had given an untrue statement to the police in support of the charge of unlawful stalking. Incongruously, his submissions included a written reference in his favour by Ms Owen. He asserted he had been persuaded by his lawyers to enter a plea of guilty so that he could be released from custody and returned home to his children and grandchildren, the circumstances including that he had served a lengthy period in custody before sentence. He submitted to the Commissioner that he had not knowingly committed the offence of unlawful stalking. [12] After setting out and discussing at some length the criminal history, Mr Johnston’s submissions, the references he had tendered and other material which included a psychiatrist’s letter Mr Johnston tendered and material from Queensland Corrective Services, the Commissioner considered the provisions of s102A of the Act in the light of judicial consideration of the term ‘exceptional case’ and the principles of the Act. [13] Although the offences were not within the statutory category of serious offences, the Commissioner thought the offending significant because the pattern of 6 District Court, Southport. 18 January 2008 Transcript 9.25-30. -- 4 of 11 -- 5 behaviour ‘demonstrates [Mr Johnston’s] poor ability to manage conflict situations which impact on his ability to act appropriately.’ Throughout his submissions, Mr Johnston did not accept responsibility for his own actions. The Commissioner concluded, for reasons which include these matters and for others that it is unnecessary to set out, that Mr Johnston’s was an exceptional case with the result that he was denied a positive notice. The Tribunal Hearing [14] On 6 January 2009 the Tribunal ordered that Mr Johnston was not to be permitted to call Ms Owen as a witness at the hearing because of the restraining order in place. [15] Not all of the hearing has been transcribed. The available transcript has been supplemented by the affidavit of Mr Gormley. He appeared for the Commissioner at the Tribunal hearing. [16] During the hearing there was the following exchange between the presiding member and Mr Johnston: “Mr McGrath: Alan, you refer to the relationship with Robyn Owen, and why that she allegedly informed the police at various events. And you say that the majority of those were incorrect, that she lied in her statement to the police. Was there anything – did she tell you, or do you have any idea of why she would of done that? Mr Johnston: … Robyn comes from a – from an Italian background, and … Mr McGrath: The relationship had broken up prior to you being arrested. Is that the situation. Mr Johnston: Yes, but amicably. We were still under the same roof, but we’d moved into separate rooms. Mr McGrath: Right. So you didn’t see this coming, obviously. Mr Johnston: No. Mr McGrath: So you say the relationship ended about July last year. Mr Johnston: Yes. It was just that Robyn was about to be released from Currumbin Clinic. Mr McGrath: And she had been in there as a result of her drug problem. You said she had tried to commit suicide. Was that around about the time or was that previously. Mr Johnston: No. It was all associated with that. She got accused of pinching 15 ampoules of Ketanin from the Gold Coast ward back in September of 2007, might have been colleagues who put her into the Nursing Board. And as a matter of interest, I’ve also written a letter to the Queensland Nursing Council telling them that they’ve got problems and a few other truths. So they engaged the Ethical -- 5 of 11 -- 6 Standards Unit and she then went under review by a Court appointed psychiatrist. And eventually they took her licence and suggested that she needed to go to an inpatient situation. Mr McGrath: So what contact, if any, have you had with her since that time? She provided this reference, were you in contact in relation to that. Mr Johnston: Yes. We speak occasionally on the phone. She was due to go back to Melbourne. And that day she was due to go, she phoned me. She had been admitted to Gold Coast Hospital. She had been in a car accident and she’d passed out. And she’d asked me to go and see her, so I… Mr McGrath: Right. Now, has she – did she ever admit to you that she lied to police, allegedly fabricating these events that occurred in relation to the stalking charges. Mr Johnston: She… it was acknowledged that that’s how I got there. But she did say that she was angry. Mr McGrath: Did she say that she was the cause of you going to jail? Did she ever admit that? Mr Johnston: Yes. Yes, on a number of occasions. Mr McGrath: So if she were to give evidence to this Tribunal, would she admit that. Mr Johnston: I’m not sure. That’s something that you would have to put to her. I see no benefit in – in fact, she would probably be a little bit cautious about what she says… Mr McGrath: Obviously, she may incriminate herself. But she basically told you, and you say other people, that she was the cause of your going to prison. Mr Johnston: Yes. Mr McGrath: Thank you.” The Tribunal’s Decision [17] The Tribunal’s reasons for setting aside the Commissioner’s decision and ordering that a positive notice issue to Mr Johnston included:- • A brief background to the hearing; • Reference to relevant legal provisions, particularly Commissioner for Children and Young People and Child Guardian Act 2000 ss. 102 and 102A and Children Services Tribunal Act 2000 ss. 37 and 38. The Tribunal referred to Commissioner for Children and Young People and Child Guardian Act 2000, s. 96 which provides: -- 6 of 11 -- 7 “Without limiting s. 6, the paramount consideration in making a decision under this part is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing”. Section 6 of that Act provides that the Act is to be administered under the principle that the welfare and best interests of a child are paramount. The Tribunal referred to authorities in which the term ‘exceptional case’ is discussed. • Discussion of the evidence led before the Tribunal including discussion, referred to below, of evidence relating to the conviction for unlawful stalking. • Discussion of the submissions of Mr Gormley and Mr Johnston. • A conclusion which comprised a lengthy quotation from the decision of the Family Court in In the marriage of N and S (1995) 19 Fam LR 837. [18] The Tribunal’s reasons, regarding the evidence led before it, include the following: “[31] In early 2007 Alan was travelling to Melbourne with his then partner Robyn Owens when he allegedly had a discussion about obtaining a gun for retaliation against the lawyer and financial advisor. He subsequently allegedly informed Robyn that he had obtained the addresses and had photos of residences and vehicles belonging to the lawyer and financial advisor. [32] Robyn allegedly reported Alan to the police and his home was searched in March 2007. The police found photos of houses and a motor vehicle being driven on a road as well as computer print outs of the names of the wives of the lawyer and financial advisor. There was also a page on the advisor with the words “Silver landcruiser, security at front door and both sides, young daughter about ? five years” written on it. … [36] As a result of the restraining order against Robyn Owens she was not able to give evidence in favour of Alan notwithstanding that she had provided a reference for him and had subsequently resumed a relationship with him. Alan told the Tribunal that Robyn had admitted to him and to others that she was the cause of him being charged and spending time in prison. Alan said that the reason that Robyn had reported him to the police was because he had informed her that he was terminating the relationship because of her continued drug use.” 7 [19] When considering relevant matters under s. 102A of the Commissioner for Children and Young People and Child Guardian Act 2000, the Tribunal said: “[42] The Tribunal is required to consider a number of matters pursuant to s. 102A(2) of the Act. In this regard, the Tribunal finds:- (a) (i) Some of the offences committed by the applicant resulted in convictions. 7 Underlining added -- 7 of 11 -- 8 (ii) The other offences and alleged offences on the applicant’s criminal history are not categorised as “serious offences” under the Act. They are offences of concern which relate to assault and potential threats of harm. (iii) The offences of concern listed on the applicant’s criminal history were committed between 1995 and 2007. (iv) The applicant’s offending and alleged offending including violent behaviour, assault, and unlawful stalking against adults and their families which included children are factors which are relevant in the assessment of the applicant’s eligibility to work with children and young people in activities regulated by the Act. (v) In the case of the offences recorded against the applicant in 1995 and 2001 he had “no conviction” recorded in regard to these offences which were for property damage, stealing, and common assault. In relation to the financial reporting offence he was fined $2,500.00. The main offence, that is the unlawful stalking conviction, resulted in the imposition of a prison term.”8 [20] Under the heading, ‘Decision’, the Tribunal said it was: “[50] … of the view that whilst Alan’s offences, particularly the stalking offences, are disturbing and could raise concern as to his posing a risk to children or young people, they were out of character, having regard to his overall lifestyle pattern of loving husband, partner and parent. The Tribunal accepts that he is no longer under the malevolent influence of Robyn Owens and appears to have turned both his life and career around. It is important that he has a close relationship with his daughter and grandchildren. [51] In all the circumstances the Tribunal is of the opinion that the Commission has not proved, on the balance of probabilities that Alan poses an unacceptable risk to children, and that this is not an exceptional case which would preclude the issuing of a positive notice to Alan”. Discussion [21] The Tribunal’s task was to decide the matter afresh, unaffected by the Commissioner’s decision 9 and to take all reasonable steps to ensure it had all relevant material before it.10 Effectively, the Tribunal was in the place of the Commissioner. 11 The Tribunal was not bound by the rules of evidence and was 8 Underlining added 9 CST Act s37(1)(a) 10 CST Act s37(1)(b) 11 CST Act s38 -- 8 of 11 -- 9 empowered to inquire into, and inform itself of, anything in the way it considered appropriate. 12 [22] Nonetheless, in my respectful opinion, it was not open to the Tribunal to act upon a basis other than that Mr Johnston was guilty of the offence of unlawful stalking. [23] His plea of guilty to the charge was ‘the most cogent admission that can be made’ 13 of all the facts essential to the offence 14 or ‘of the necessary legal ingredients of the offence’ 15 . [24] Admission of the essential ingredients or elements of an offence need not include admission of all the particulars alleged. However, the essential physical element of the offence of stalking is ‘conduct’, which may, as in Mr Johnston’s case, be constituted by several acts. The conduct, if it has the qualities required by Criminal Code s359B, amounts to the offence. [25] By his plea of guilty, Mr Johnston admitted he had conducted himself in a way such as to constitute the offence. The prosecutor told the learned sentencing judge what conduct was relied on by the prosecution to prove the charge. Mr Johnston’s counsel took no exception to any of the allegations. By his plea and his counsel’s conduct, Mr Johnston accepted and adopted the allegations. He was sentenced on the basis of those allegations of conduct which he regretted. [26] It would reveal an error of law were the Tribunal to proceed on the basis of facts inconsistent with the conviction. 16 [27] The Tribunal’s closing comments regarding the offence, supported as they could only be by Mr Johnston’s assertion and his wife’s opinion that he was not guilty, and the exchange between him and the presiding member referred to above, present the serious danger that the Tribunal failed to take into account the conclusive nature of the conviction and the facts upon which it was based. [28] The Tribunal’s references to ‘alleged’ offences also suggest a misunderstanding of the criminal history and of the application of s. 102A of the Act. Although s. 102A allows the Commissioner and/or the Tribunal to take into account proven and alleged offences, there were only proven offences to consider in this case. The language of s.102A is not designed to invite the decision maker to go behind a conviction. The Tribunal’s repeated references to alleged - as opposed to admitted and established - facts, suggest it proceeded on the basis that Mr Johnston may not be guilty of the offence. [29] The Tribunal’s brief reasons do not disclose how it dealt with his denial of the offence. [30] If it was open to Mr Johnston to explain why he pleaded guilty while he was in fact not guilty,17 it was unreasonable for the Tribunal to act, as it appears to have done, 12 CST Act s51(2) 13 R v Gadaloff [1999] QCA 286, McPherson JA at [5] referring to Sagiv (1986) 22 A Crim R 73 14 DiCamillo v Wilcox [1964] WAR 44 15 Liberti v The Queen (1991) 55 A Crim R 120 16 Minister v Gungor (1982) 42 ALR 209 17 As in R v CAH [2008] QCA 333 -- 9 of 11 -- 10 on the prospect that, were she available to testify before the Tribunal, either Ms Owen would admit she had fabricated evidence against him or she would not so admit only out of fear of thereby revealing herself as a perjurer. [31] If it is uncertain whether the Tribunal so acted it is because the reasons for decision do not make plain how the Tribunal dealt with Mr Johnston’s statements in this regard. [32] The only inference from the Tribunal’s conclusions in paragraph [50] is that it did not take into consideration the conclusiveness of Mr Johnston’s plea of guilty to the charge of unlawful stalking. [33] Alternatively, if the Tribunal in fact proceeded on an acceptance of Mr Johnston’s guilt of the charge, it cannot have properly regarded the evidence of his earlier offending. The Commissioner examined the earlier offences closely and detected a pattern of behaviour showing ‘poor ability to manage conflict situations which impact upon his ability to act appropriately’.18 Judge Dick SC commented ‘.. he hasn’t got the proper strategies when these things happen.’19 [34] The Tribunal concluded that Mr Johnston was no longer under ‘the malevolent influence’ of Ms Owen. The necessary premise was that Mr Johnston had been under her malevolent influence, presumably at the time of the stalking offence. There is no evidence to support the premise. Given the objects and principles of the Commissioner for Children and Young People and Child Guardian Act20 and the seriousness of the offence of unlawful stalking, it was not reasonably open to the Tribunal to reach this conclusion on the materials available. Ms Owen was not before the Tribunal. She had been a principal prosecution witness – the source of serious uncontested allegations which provided part of the basis of the stalking charge. She was, incongruously, also Mr Johnston’s character referee. [35] In any case, the Tribunal’s reasons do not plainly connect any such influence to the offence of stalking and so to the question whether the issue of a positive notice to Mr Johnston would accord with the principles of the Act. Any influence she once had on him seems irrelevant. Mr Johnston’s claim, as contained in his written submission to the Commissioner and reflected in his statements to the Tribunal, was not that Ms Owen had influenced him to commit the acts which constituted the offence but that she fabricated evidence against him. [36] Next, the Tribunal concluded it was important that Mr Johnston have a close relationship with his daughter and grandchildren. Desirable as that may be it, too, was irrelevant to the decision the Tribunal was to make. Part 6 of the Act, under which the application was made, provides for ‘Screening for regulated employment and regulated business’. The purpose of Part 6 is to ensure that only suitable persons are employed in child related employment or carry on child related businesses (s. 95).21 18 Commissioner’s Reasons, p15 of 24; Affidavit of Karen Alton, p78 19 District Court, Southport, 18/01/2008, Dick SC DCJ, t9.40 20 Sections 5 and 6 21 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [15] -- 10 of 11 -- 11 [37] For these reasons, I am satisfied the Tribunal’s decision should be set aside.22 The Tribunal has taken into account irrelevant considerations; proceeded in error by failing to act on the conclusiveness of the conviction for stalking or alternatively failed properly to take into account Mr Johnston’s criminal history; and acted upon factual conclusions not apparently supported by evidence. In certain respects the Tribunal’s reasons are insufficient to ascertain the reasoning upon which the decision is based. 23 I will hear the parties as to the precise form of orders. 22 The Tribunal concluded, at [51], that the Commissioner had failed to prove on the balance of probabilities that Mr Johnston posed an unacceptable risk to children. It is not clear that the Commissioner carried any such onus. Given the provisions governing the review process, particularly, CST s38, my view would be that it does not. If this is correct, this may be another error in the Tribunal’s reasoning. However, the point was not pursued by the Commissioner and was not the subject of argument. It is unnecessary to decide the question in order to dispose of this appeal. 23 Sun Alliance Insurance Limited v Massoud [1989] VR 8 at 18 -- 11 of 11 --