Commissioner for Children and Young People and Child Guardian v Brittain [2009] QDC 112

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner for Children and Young People and Child Guardian v Brittain [2009] QDC 112 PARTIES: COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE AND CHILD GUARDIAN Appellant AND CHRISTOPHER JOHN BRITTAIN Respondent FILE NO/S: Appeal 1724/08 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 8 May 2009 DELIVERED AT: Brisbane HEARING DATE: 24 April 2009 JUDGE: McGill DCJ ORDER: Appeal dismissed with costs. CATCHWORDS: INFANTS AND CHILDREN – Care and Protection – regulation of persons in child-related employment – appeal from Tribunal – whether error of law APPEAL AND NEW TRIAL – Error of Law – appeal from Children Services Tribunal – whether error of law shown Commission for Children and Young People and Child Guardian Act 2000 s 102(6), (7), s 102A(2) Children Services Tribunal Act 2000 s 130 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 – cited. Beale v Government Insurance Office NSW (1997) 48 NSWLR 430 – cited. Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 – applied. Commissioner for Children and Young People and Child Guardian v Ross [2008] QDC 82 – considered. Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 – applied. -- 1 of 19 -- 2 Doney v R (1990) 171 CLR 207 – cited. Drew v Makita (Australia) Pty Ltd [2009] QCA 66 – applied. Lillywhite v Chief Executive [2008] QCA 88 – applied. Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24 – applied. COUNSEL: K. A. McMillan SC for the appellant M. Wilson for the respondent SOLICITORS: The appellant was not represented Reardon & Associates for the respondent [1] On 15 April 2008 the Children Services Tribunal set aside the decision of the appellant to refuse the respondent’s application to cancel a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”), and found that it would not harm the best interests of children for the Commission to issue a positive notice and a blue card to the respondent. Pursuant to s 130 of the Children Services Tribunal Act 2000 the appellant has appealed to this court against that decision of the Tribunal. Under that section, the appeal is only on a question of law. As I indicated at the hearing, no error of law on the part of the Tribunal has been revealed by the submissions for the appellant, for the reasons set out below. Accordingly, the appeal is dismissed, with costs. Background [2] The respondent was born on 18 June 1976. On 27 July 1994, he pleaded guilty to five counts of wilfully exposing a child under the age of 12 years to an indecent act, and one count of permitting himself to be indecently dealt with by a child under the age of 12 years. A further charge of indecently dealing with a child under 12 years was nolleed on that day by the Crown Prosecutor. In respect of all of the offences of which he was convicted no conviction was recorded and the respondent was placed on probation for nine months, on the usual conditions and with the condition that he undergo medical, psychiatric, and psychological treatment as directed by a probation officer.1 [3] The offences occurred between December 1992 and December 1993, according to the dates on the indictment; it appears that the remarks of the sentencing judge were not before the Tribunal, although it may be that they were unhelpful as to the details of the offending and its consequences. Some particulars of the offending are set out in the reasons for the Tribunal;2 in summary the respondent, who was then aged 16 or 17, on five occasions over a period of about one year exposed, and on most occasions masturbated, his erect penis in the presence of the complainant, who was then aged eight or nine. On one occasion a friend of the complainant of about the same age was also present; they then exposed their penises to the respondent. The sixth count related to one occasion when the complainant, at the invitation of the 1 Subsequently a psychiatrist interviewed him and informed him he did not require treatment: report of Dr Holm, 12 August 2002. 2 This was presumably based on a document the Tribunal had, an “Overview of Facts” apparently prepared by someone who prepared the indictment, a copy of which had been obtained by the appellant. -- 2 of 19 -- 3 respondent, masturbated his erect penis for a short time. The charge which was nolleed was an allegation that the respondent had sucked the penis of the complainant; in an interview with the police the respondent had denied this allegation, although he had admitted that other offences had occurred. [4] The offences and the convictions pre-date the passing of the Act. After the Act came into force, the respondent applied for what is described in the Act as a positive notice on 6 April 2002, but a negative notice was issued by the appellant on 4 December 2002. In January 2003 the respondent applied to the Tribunal to review that decision, and on 5 March 2003 the Tribunal set aside the appellant’s decision and returned the matter to the appellant for reconsideration with directions requiring the respondent to undertake further psychiatric or psychological examination. That took place, and a report from a psychologist was obtained which did not support the respondent, and on 25 August 2003 the appellant continued the negative notice previously issued to the respondent. Then on 7 June 2006 the respondent applied to the appellant for the cancellation of the negative notice previously issued. That application was rejected by the appellant on 8 June 2007, and on 11 July 2007 the respondent filed an application for the Tribunal to review that decision. Legislation [5] Section 102 of the Act deals with the decision of the appellant on an application for a positive notice; under subsection (2), unless the application is withdrawn the appellant must decide it either by approving the application (a positive notice) or by refusing it (a negative notice). The Act provides certain circumstances where the appellant must issue a positive notice, and then continues: “(6) Subject to subsection (7), the Commissioner must issue a negative notice to the relevant person if the Commissioner is aware of— (a) a conviction of the relevant person for an excluding offence for which the court that convicted the relevant person imposed an imprisonment order for the offence or made a disqualification order under s 126C; or (b) a conviction of the relevant person for a serious offence, other than an excluding offence dealt with in a way mentioned in paragraph (a). (7) The Commissioner is required to issue a negative notice under subsection (6)(b) unless the Commissioner is satisfied it is an exceptional case in which it would not harm the best interests of children for the Commissioner to issue a positive notice. (8) If the Commissioner is satisfied under subsection (7) that it is an exceptional case, the Commissioner must issue a positive notice.” [6] The offences were under s 210 of the Criminal Code, which is one of the provisions listed in Schedule 2B of the Act. Accordingly, they were serious child-related sexual offences for the purposes of the Act (s 99D), and hence excluding offences -- 3 of 19 -- 4 for the purposes of the Act: s 99. Because an imprisonment order3 was not imposed for the offences when the respondent was sentenced, nor was a disqualification order made under s 126C,4 the respondent’s case did not fall within subsection (6)(a). The offences, however, were serious offences, and therefore the respondent’s case fell within subsection (6)(b), and accordingly subsection (7) applied. The effect of this was that the appellant, and therefore the Tribunal, was required to issue a negative notice unless satisfied that the respondent’s case was an exceptional case in which it would not harm the best interests of children to issue a positive notice. [7] Section 102A requires certain matters to be considered in deciding this. It relevantly provides in subsection (2): “If the Commissioner is aware that a person has been convicted of, or charged with, an offence, the Commissioner must have regard to the following— (a) in relation to the commission, or alleged commission, of an offence by the person— (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is an excluding offence; and (iii) when the offence was committed or was alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and (v) in the case of a conviction – the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under s 126C, the court’s reasons for its decision; (b) anything else relating to the commission, or alleged commission, of the offence that the Commissioner reasonably considers to be relevant to the assessment of the person.” Grounds of appeal [8] A number of grounds were argued on behalf of the appellant. The first was that the Tribunal misdirected itself or erred in law as to the appropriate test for an “exceptional case”. The Tribunal noted that the term was not defined either in the Act or in the Children Services Tribunal Act 2000, but referred to and adopted an earlier decision of the Tribunal in Re: OAA [2006] QCST 14, where the Tribunal5 said at [43] of its reasons: “The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the 3 Ie a term of imprisonment, even if wholly suspended: the Act Schedule 4. 4 Necessarily, because the Act was not then in force. 5 Presided over by a former Family Court judge. -- 4 of 19 -- 5 Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children. The Tribunal’s answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach with should be pursued under the Commissioner’s Act. In both jurisdictions the overriding principle is that the welfare and best interests of children are paramount.” [9] The Tribunal in the present case then added at paragraph [40]: “In summary, in determining what amounts to an ‘exceptional case’, the Tribunal is to consider among other things whether the applicant presents an unacceptable risk of harm to the children of Queensland.” [10] It has not been shown that this approach of the Tribunal involved any error of law. The Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 expressly endorsed the proposition that it would be most unwise to lay down any general rule with regard to what is an exceptional case, and that all of these matters are matters of discretion.6 [11] Not only is this not authority for any particular test of what amounts to an exceptional case, it is authority for the proposition that there is no particular test for what amounts to an exceptional case. The issue in any particular case is whether in all the circumstances the Tribunal concludes that the case is exceptional. It is important to bear in mind that s 102(7) does not require just satisfaction that the particular case is an exceptional case, but goes on to require satisfaction that “it would not harm the best interests of children to issue a positive notice.” That is consistent with the fact that under the Act the overriding principle is the welfare and best interests of children: s 6(1) and s 96 of the Act.7 That, it seems to me, is the point being emphasised in the passage from the reasons of the Tribunal in Re: OAA. Far from suggesting that there was any error in law as to the appropriate test to be applied, the reasons of the Tribunal confirm that it did apply the appropriate approach when determining whether the respondent’s case satisfied the requirements of s 102(7). [12] I might add that, not only did the Tribunal expressly find that this was an exceptional case in paragraphs [166] and [168] of its reasons, but in its order expressly stated its finding that “it would not harm the best interests of children for the Commission to issue a positive notice and blue card to the applicant.” In these circumstances, there is no basis for a conclusion that the Tribunal was not properly applying the test in s 102(7) of the Act. 6 At [34] per Philippides J, with whom the other members of the Court agreed. 7 See also Children Services Tribunal Act 2000 s 7. -- 5 of 19 -- 6 [13] It was submitted that the factors enumerated by the Tribunal at paragraph [167] as “positive factors weighty to the success of the applicant’s application” were not factors which either individually or collectively made the respondent’s case an exceptional case. The Tribunal’s reasons do not suggest that it was treating those factors, either individually or collectively, as themselves establishing that the respondent’s case was an exceptional case; all it was then doing was identifying a number of factors relevant to its consideration which were factors favourable to the respondent. It has not been shown that any error of law was involved in taking any of those factors into account, and all of them appear to be supported by evidence before the Tribunal; in any event, the contrary was not argued. This submission was based on a misconstruction of the Tribunal’s reasons, and was unjustified. [14] It was further submitted that the Tribunal had failed to give sufficient consideration to the factors to which it was required to have regard by s 102A(2). With one exception, all of the factors referred to in that provision were referred to in the Tribunal’s reasons as matters considered by the Tribunal. There is no basis for a conclusion, therefore, that the Tribunal failed to have regard to them. The one exception is the reasons for the sentencing court not imposing an imprisonment order for the offence, referred to in s 102A(2)(a)(v) of the Act. It appears from the material put before the Tribunal by the appellant8 that this was because the appellant had not obtained the court’s reasons for the sentence. There was a bundle of material obtained from the police, but it does not appear that the sentencing remarks of the sentencing judge were ever obtained. I am informed by the State Reporting Bureau that transcripts of sentencing remarks from 1994 ought to be available. If they were not obtained by the appellant, then the appellant failed to that extent to comply with s 102A, but the appellant cannot complain about any failure on the part of the Tribunal in this respect (and properly did not) because any such failure occurred as a result of the failure of the appellant to obtain this information in compliance with the Act, and later to put it before the Tribunal. The absence of that information, therefore, is no reason to allow the appeal. Second and third grounds [15] The second and third grounds of the Appeal were argued together. The grounds were expressed at some length as follows: “2. In finding there was an ‘exceptional case’, the Tribunal failed to take into account and/or give adequate weight to the following relevant considerations: (a) the paramountcy of the principle of the welfare and best interests of a child; (b) the nature and seriousness of the respondent’s convictions; (c) the relevance of specialist psychiatric or specialist psychological evidence in addressing the respondent’s risk factor of reoffending (‘specialist evidence’); and (d) there had been no or inadequate relevant specialist psychiatric or specialist psychological treatment undertaken by the respondent. 8 Pursuant to s 74(1)(b) of the Children Services Tribunal Act 2000. -- 6 of 19 -- 7 3. In failing to apply the paramountcy principle, the Tribunal failed to consider whether the respondent, having access to children, posed an unacceptable risk of harm to children, and in doing so, failed to take into account the following relevant factors: (a) the nature, number, and timeframe over which the respondent committed the offences; (b) the respondent’s direct involvement and attempts to directly involve the complainant in the offence; (c) the exposure of a second child in one of the offences; and (d) the evidence as to the resultant harm caused to the complainant by the offence which circumstances would have constituted an unacceptable risk.” [16] The appeal to this court is an appeal only on a question of law. That means that in order to succeed it is necessary for the appellant to show that there was some error of law in the decision of the Tribunal. An erroneous finding of fact will not necessarily reveal an error of law which vitiates the decision of a Tribunal of this nature; the making of findings of fact without any evidence to support them, or the drawing of inferences which are not supported by the primary facts found or agreed, will be an error of law.9 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power.10 It follows that it is unlikely that a submission that insufficient weight was given to a particular consideration will expose an error of law on the part of the Tribunal. It has not been shown that it occurred in this case. [17] Senior counsel for the appellant relied on the decision in Commissioner for Children and Young People and Child Guardian v Ross [2008] QDC 82. In that matter, Tutt DCJ said at [24], after referring to the seriousness of an offence committed in 1987 when the respondent was 17 years and nine months of age: “It was incumbent upon the Tribunal in considering the ‘paramountcy principle’ set out under the Act and the level of satisfaction needed for the purpose of s 102(7) to have before it all available evidence relevant to risk factors vis-à-vis the first respondent and children, before issuing a positive notice.” [18] In that matter there was no medical or psychiatric evidence before the Tribunal relating to this, although the issue had been raised at a preliminary conference, and the respondent had told the Tribunal at the hearing that he had not obtained a report 9 Lillywhite v Chief Executive [2008] QCA 88 at [19]-[27], and the authorities there cited, in particular Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ, 367 per Deane J. 10 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985) 162 CLR 24 at 41, cited with approval in Lillywhite (supra) at [23]. -- 7 of 19 -- 8 from his psychiatrist because he had been told “the report would be bad.” In these circumstances, his Honour concluded that the Tribunal had erred in law in finding that subsection 102(7) was satisfied, when there was not only an absence of positive psychiatric evidence but in effect evidence that, had there been psychiatric evidence, it would have been unfavourable, although the Tribunal did not know, because it did not have the evidence, just what risk that evidence would have exposed had it been available. In those circumstances, the Tribunal could not reasonably have been satisfied that the requirements of subsection 102(7) had been met on the evidence before it, and had therefore erred in law. But there is no reason to think that his Honour’s remarks were intended to be other than a conclusion applicable to the particular facts of that case. His Honour would not have been intending to lay down a principle that as a matter of law certain psychiatric evidence must be available before a finding could be made of satisfaction under s 102(7). That would have amounted to a gloss on the statute, which would not have been justified. [19] All of the matters referred to in these two grounds of appeal are referred to in the reasons of the Tribunal. There is no reason to think that the Tribunal failed to take them into account. As I have indicated, the amount of weight to be attributed to them was a matter for the Tribunal. No error of law is demonstrated merely by submitting that these matters were given insufficient weight. As to the submission that the Tribunal failed to consider the relevance of the convictions to child related employment, the reasons of the Tribunal clearly demonstrate that the Tribunal was concerned with the impact of the respondent’s convictions in relation to child related employment; for example, in paragraph [163] the Tribunal commented on a factor, the respondent’s successful employment over a long time in at risk situations, as a significant factor in relation to whether the respondent presented an unacceptable risk to children. This was shortly after the Tribunal had referred to the nature and seriousness of the respondent’s convictions, in paragraphs [156]-[158], where the Tribunal correctly noted that the offences were at the lower end of serious and excluding offences, and they were opportunistic and lacked the calculated and familial breaches of trust perpetrated in, for example, Ross. [20] Indeed, the fact that the sentence imposed was nine months probation suggests that this was regarded as an offence at the lower end of the scale for offences under s 210 of the Criminal Code. Although the classic statement that those who indecently assault or otherwise deal with children should be sent to gaol other than in exceptional circumstances was not made until after the sentence in this case was passed,11 that did not reflect any particular change in the sentencing policy laid down by the Court of Appeal12 and even if the sentencing judge was not specifically thinking in terms of the existence of exceptional circumstances, that judge must have taken the view that the circumstances of this offending and this offender made appropriate an unusually lenient sentence.13 [21] I do not accept the submission that the “paramountcy principle” of the legislation required the Tribunal in these circumstances, because of the nature and seriousness of the convictions, to exclude the respondent from child related employment. There 11 In R v Pham [1996] QCA 3. 12 The statement was introduced by the words “This court has clearly indicated that … .” 13 Even now such offending would not necessarily lead to actual imprisonment: see R v Hardie [2008] QCA 32 at [30], a case which was similar except that in respect of one of the counts the offending behaviour was worse. -- 8 of 19 -- 9 was no error of law in recognising the possibility that serious offences which were excluding offences could give rise to an exceptional case within subsection (7) if an imprisonment order was not made. That necessarily follows from the terms of subsections (6) and (7). It follows that the proposition that, because of the nature of the offending an exceptional case could not be found as a matter of law, was contrary to the terms of the Act. [22] The proposition that the Tribunal failed to consider whether that respondent posed an unacceptable risk of harm to children is directly contradicted in paragraph [40] of the Tribunal’s reasons, quoted above. The appellant submitted that the respondent did not give adequate weight to or properly consider a number of features of the matter. Most of these were referred to by the Tribunal, or necessarily follow and must have been obvious to it, and the amount of weight given to them was a matter for the Tribunal. Two of the matters listed in paragraph 35 of the appellant’s outline invite some comment. The first was the proposition that the offences involved an abuse of a position of trust. In the sense in which that expression is commonly used in relation to sentencing people for sexual offences against children, the circumstances here do not disclose any abuse of a position of trust. It was then submitted that the respondent had conceded conduct that amounted to withholding information from a relevant child protection authority. I regard that characterisation of what occurred as tendentious. [23] In connection with an application by the respondent’s mother to foster a child, the respondent was asked to and did sign a form consenting to the release to the relevant authorities of his criminal history. He did not expressly point out that he had these convictions at that time, but in the circumstances he could have reasonably assumed that as a result of signing that form that information would come to those authorities’ attention. It appears that in fact it did not, because the authorities did not bother to investigate the matter further, but that is not a matter which I would characterise as reflecting adversely on the respondent. There was no material to suggest that he provided a false or misleading answer to anything he was asked. I do not consider that in the circumstances he was under any obligation to volunteer information, and accordingly his behaviour ought not to be characterised as withholding information. [24] The argument was also advanced that the respondent’s criminal history was wholly child related. I fail to see how the absence of other offences which are not child related could be said to be a matter which reflects adversely on the respondent. Fourth and fifth grounds [25] These two grounds were argued together, and were in the following terms: “(4) In failing to give adequate weight to the relevance of ‘specialist evidence’ the Tribunal failed to take into account or give adequate weight to the following: (a) the nature and seriousness of the respondent’s conviction; (b) the failure of the respondent to undergo or adequately undergo or produce evidence of specialist psychiatric or specialist psychological treatment relating to risk factors of reoffending; -- 9 of 19 -- 10 (c) the failure of the respondent to comply with the Tribunal’s order at the preliminary conference dated 9 October 2007 requiring that: ‘A psychiatrist assessment be prepared by a psychiatrist (to be selected by the applicant from a list nominated by the Children Services Tribunal) within 10 days of receipt of order’; (d) the failure of the respondent to comply with the treatment recommended by consultant psychologist Dr Lynagh, as directed pursuant to an order of the Tribunal dated 5 March 2003; (e) that all psychiatrist and psychological evidence before the Tribunal indicated that the respondent satisfied the diagnosis of ‘paedophilia’ in accordance with the Diagnostic and Statistical Manual of Mental Disorders IV (“DSM-IV”); and (f) that such diagnosis was unlikely to change irrespective of treatment.” (5) The Tribunal erred in law in finding that the respondent’s failure to comply with the Tribunal’s order of the preliminary conference dated 9 October 2007 was a perceived failure rather than a real and material failure.” [26] To some extent this is merely repetitive, and to that extent adds nothing to what had been said earlier. One of the matters particularly complained of by the appellant was that the Tribunal had failed to have sufficient regard to the failure of the respondent to comply with an order that it had made earlier. As the Tribunal itself noted in its reasons [21] on 9 October 2007 it made an order that a psychiatric assessment be prepared by a psychiatrist to be selected by the respondent from a list nominated by the Children Services Tribunal within 10 days from receipt of the order. There was a further order as to the material that was to be provided to the psychiatrist, and an order that the respondent be responsible for the costs of and incidental to the preparation of the nominated psychiatrist’s report. That did not occur. The Tribunal referred to such evidence as it had, and at [64] acknowledged that the applicant had not complied with the express order of the Tribunal, and that by this omission had failed to provide any positive psychiatric evidence for the hearing. The respondent had instead relied on two reports from a psychologist who had been treating the respondent. [27] Whether the Tribunal could or should have refused to hear and determine the review until that order had been complied with, or perhaps even whether the Tribunal would have been entitled to reject the review simply because it had not been complied with, are not matters I need decide.14 It was not directly argued on behalf of the appellant that the Tribunal erred in law in proceeding to hear and determine the review on the evidence available, that is to say, it was not submitted that the effect of the failure to comply with the order was that the Tribunal was bound as a 14 I have not heard argument as to the scope of s 79 of the Children Services Tribunal Act 2000. -- 10 of 19 -- 11 matter of law to reject the review without a consideration of its merits. Plainly no such submission could have been supported. [28] The Tribunal was clearly not under any misapprehension about the true situation, and I see no reason why the Tribunal was not entitled in law to deal with the review in this way. If at the end of the day the Tribunal found that on the material available the requirements of s 102(7) of the Act were satisfied, then the approach to the conduct of the review by the respondent was vindicated. The Tribunal at paragraphs [139]-[149] dealt with the appellant’s arguments in relation to the significance of the failure to comply with this order, and set out reasons why ultimately the Tribunal did not attach great significance to it. Those reasons seem to me adequately to expose the Tribunal’s reasoning process in this respect, and do not reveal any error of law in the approach adopted by the Tribunal. The question of what significance was to be attributed to this omission to comply with the Tribunal’s order was a matter for the Tribunal, and no error of law is shown by the fact that the Tribunal did not attribute to it the significance which the appellant submits should have been attributed to it. [29] It is true that Dr Lynagh in her report did recommend that the respondent undergo certain treatment; in this respect her opinion differed from that of Dr Holm, the psychiatrist referred to earlier.15 There was no evidence that the respondent had undertaken that treatment, and that was clear to the Tribunal. Such psychological treatment as the respondent had more recently obtained, about which there were both reports and oral evidence from the psychologist, was clearly of a different nature, and did not satisfy the requirements identified by Dr Lynagh. It was not suggested that the Tribunal was under any misapprehension about this matter; the significance of this omission was a matter for the Tribunal to take into account, and to give such weight as it thought fit. No error of law is revealed here; I do not consider that as a matter of law the tribunal was bound to reject the appeal to it because of this consideration. [30] As to the question of whether the DSM-IV description of paedophilia had been satisfied, and the implications of that, it appears that that is essentially an historical diagnosis, so that if at some point an individual satisfies the requirements for it, the diagnosis would always remain. If that is the case, it strikes me as a distinct limitation on the helpfulness of what Dr White described as a “technical” diagnosis. The Tribunal was entitled to take the view that paedophilia was a condition from which a person could be cured,16 or perhaps just get better with growing maturity, without committing any error of law, regardless of the way in which DSM-IV operates. [31] Ground 5 was critical of the reference to the failure to provide psychiatric assessment as a “perceived failure” to abide by the order made at the preliminary conference. The use of the word “perceived” in this context is a little curious, because the respondent did not comply with the order, and the Tribunal was clearly aware of that. The expression appears in a context where the Tribunal is discussing what the respondent had done after the preliminary conference, including writing to 15 The other psychiatrist who had seen the respondent, Dr White in 2002, also did not recommend or suggest any treatment, although she did then consider that he posed some continuing risk to children. 16 That is consistent with the approach of Dr Lynagh; there is no point in recommending treatment unless it is expected to achieve something. -- 11 of 19 -- 12 the Tribunal explaining what he was going to do and why, and in a conclusion that it was reasonable for the respondent to have considered this notice to the Tribunal as sufficient to excuse and explain any perceived failure to abide by the orders. In those circumstances, the word may have been used because the Tribunal was recognising that the respondent had recognised that what he had done was not in compliance with the Tribunal’s order. In any case, I do not think the point matters; the Tribunal was clearly aware of the true situation, and it was a matter for the Tribunal to decide what weight was to be given to this failure, and to decide what significance was to be attributed to the evidence of the treating psychologist that was before it. Sixth ground [32] The sixth ground is as follows: “the Tribunal erred in law in accepting and relying upon the evidence of psychologist Shirley McKenzie (Ms McKenzie) as opposed to specialist evidence due to the following reasons: (a) Ms McKenzie did not have the requisite expertise and experience in relation to assessing the respondent’s risk factors and/or in the field of sex offenders; (b) evidence from Ms McKenzie that she was not a forensic psychologist; (c) evidence from Ms McKenzie that she was the respondent’s treating psychologist in relation to the respondent’s anxiety issues; and (d) evidence from Ms McKenzie that the respondent fulfilled the diagnosis or was satisfied that the diagnosis of paedophilia in accordance with DSM-IV and that such diagnosis was unlikely to change irrespective of treatment.” [33] I have already commented on the significance of the DSM-IV diagnosis. In other respects, the weight attributed to Ms McKenzie’s evidence was a matter for the Tribunal. Her evidence was not directly in conflict with other evidence, because it related to the current psychological state of the respondent, rather than the situation in 2002, and because Ms McKenzie was not performing the exercise undertaken by Dr Lynagh in 2002. The Tribunal did not say that it rejected Dr Lynagh’s evidence, or that it saw the evidence of Ms McKenzie as being in conflict with Dr Lynagh’s evidence. But the Tribunal was entitled to accept Ms McKenzie’s evidence, and the weight to be given to it was a matter for it. The Tribunal was well aware of the limitations on Ms McKenzie’s evidence identified in the submission of the appellant.17 This is really another attempt to present the argument that a finding cannot be made under subsection (7) unless it is supported by current specialist psychiatric or psychological evidence. I regard such a proposition as a gloss on the statute, one which would unjustifiably confine the process of judgment contemplated by the statute, and do not accept that that is a correct statement of the legal position. No error of law on the part of the Tribunal in proceeding in the way it did has been shown. 17 See the Tribunal’s reasons, [121-2]. -- 12 of 19 -- 13 Adequacy of reasons [34] The seventh and eighth grounds were argued together. These were: “(7) The Tribunal failed to give adequate reasons for finding that the respondent was a credible witness. (8) The Tribunal failed to give adequate reasons for finding that the respondent’s ‘clear distress in responding to questions seeking particulars of his offending’ was a sign of shame and not that of the respondent being evasive or minimising the offences on the following grounds: (a) the Tribunal’s curtailing of the appellant’s cross- examination of the respondent in relation to his offending behaviour deprived the Tribunal of an adequate opportunity to: (i) receive relevant evidence in relation to the respondent’s offending behaviour, remorse and level of insight; and (ii) properly observe the respondent’s demeanour when giving evidence in relation to his offending behaviour.” [35] One of the criticisms made by the appellant of the Tribunal’s decision was that there had been a failure to give adequate reasons. This if made out is an error of law which is a matter which can be corrected on an appeal such as this. The Court of Appeal has recently dealt in some detail with the question of the nature and content of the obligation of a court from which an appeal lies to give adequate reasons for its decision: Drew v Makita (Australia) Pty Ltd [2009] QCA 66 at [57]-[65]. In the course of this, reference was made to three fundamental elements identified by Meagher JA: 18 first, the judge should refer to relevant evidence, identifying any conflict; second, the judge should set out material findings of fact, with, in the case of the resolution of a conflict of evidence, an explanation of how one version is accepted over the other; and third, the judge should provide reasons for making the relevant findings of fact and conclusions and reasons for applying the law to the facts found. It was noted expressly by his Honour that it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance. Broadly speaking, a tribunal such as the Tribunal under the Children Services Tribunal Act 2000 could be expected to be subject to the same obligation to provide reasons, although commonly the reasons provided by tribunals are scrutinised with a less critical eye than reasons provided by judges, with a view to detecting error.19 Subject to that, broadly speaking I am applying the approach expounded in Drew. [36] It was submitted on behalf of the appellant that the reasons of the Tribunal were inadequate in two respects. First, there was a failure to explain properly the finding in paragraph (c) under “Conclusion” following [164], that the respondent’s distress during the hearing was a sign of his shame rather than evasion or minimisation of 18 In Beale v Government Insurance Office NSW (1997) 48 NSWLR 430 at 443-4. 19 See, for example, Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 477 per Fitzgerald P, 485 per McPherson and Davies JJA. -- 13 of 19 -- 14 the offences. Second, there was a failure more generally to explain why the Tribunal regarded the respondent as a credible witness. [37] As to the former, the Tribunal said after paragraph [164] in paragraph (c) under the heading “Conclusion”: “The Tribunal accepts that Mr Brittain’s clear distress in responding to questions seeking particulars of his offending behaviour at the hearing is a sign of the shame he carries because of his actions in 1992/3 and the already numerous interviews and tests that have required the revisitation of his offences. The Tribunal does not accept his distress in responding as an evasion of or minimisation of the offences.” [38] That was specifically in response to a submission on behalf of the appellant summarised in paragraph [131](d) that the respondent “continues to minimise his behaviour as evidenced by his responses and demeanour at the hearing.” [39] It was submitted that the Tribunal had not explained why it came to this conclusion, and had not set out any process of analysis demonstrating the reasons why the Commissioner’s characterisation of the respondent’s behaviour during the hearing was not correct. However, given the nature of what is being said by the Tribunal here, it does not seem to me that there was any inadequacy in the Tribunal’s reasons. What the Tribunal has decided, and the basis of its decision, are perfectly clear to me. It was rejecting the submission that the respondent’s behaviour during the hearing should be characterised in a particular way. The Tribunal had been there during the hearing, and it could see and hear the respondent, and was therefore in a position to characterise his behaviour during the hearing on the basis of its own observations. There is no reason to doubt that that was the basis of the characterisation of the behaviour reflected in conclusion (c). [40] It is difficult to see how anything more in the way of explanation or reasoning could sensibly be recorded for such a characterisation in the circumstances. Whether a witness is being evasive is essentially a conclusion or inference which a fact-finding body draws on the basis of its observation of a particular witness. If the inference is drawn in a particular case it may be possible to provide some explanation for this by way of reasons, but if the inference is not drawn all that the fact-finding body can really say is that that is not the impression it formed of the witness. In a sense, the Tribunal here is going further than that, and indicating that it would characterise the respondent’s behaviour during the hearing in a different way, but again that is simply a matter of recording the impression that the Tribunal formed of the respondent during the hearing, as a result of looking at him and listening to him. To require anything further by way of explanation or reasoning in these circumstances would I think be setting a standard which is far higher than anything which is justified on any of the authorities.20 My impression overall of the Tribunal’s reasons is that they were commendably thorough. [41] The reference to minimising the offences relates back to something said in medical evidence. Dr White, a psychiatrist who reported on 20 September 2002, expressed 20 See, for example, Cypressvale Pty Ltd (supra) at 482, 484 per McPherson and Davies JJA, as to the difference between judgment and reasoning. -- 14 of 19 -- 15 the view that the respondent minimised his past sexual behaviour. Earlier in her report there was some discussion of the incidents the subject of the charges, and there are some differences between the respondent’s description and the particulars noted earlier. One of the differences was that he volunteered that he on one occasion touched the complainant’s penis and attempted to masturbate him, which was not one of the charges.21 The respondent had apparently told Dr White that he was vague about the details as he had pushed the memories largely out of his head, and that he had tried to do so: p 7. In addition, in the report dated 16 June 2005 of Dr Lynagh, a psychologist,22 there is a statement at p 10: “With regard to his sexual offending, Mr Brittain shows a tendency to evade, minimise and distance himself from these behaviours.” [42] Earlier at p 6 she noted that the respondent was “somewhat vague about detail concerning most of the offences and showed a notable reluctance, at times even an irritation, to talk about them.” Both matters were noted by the Tribunal in its reasons.23 [43] It may be that the respondent’s attitude was to some extent influenced by the initial psychiatric treatment that he received. Two reports were before the Tribunal from a psychiatrist, Dr Holm, one dated 12 April 1994, prepared for the purpose of the criminal proceedings, and one dated 12 August 2002, prepared for the purpose of the initial application under the Act. In the former, Dr Holm noted that the respondent was extremely remorseful, regretful of his actions, recognised that it was inappropriate behaviour given the other boy’s age, and had shown no inclination to repeat the behaviour. He assessed the respondent as an immature adolescent of below average intelligence, who was sexually naïve, and said that behaviour which would have been regarded as not unusual adolescent sexual exploration had the other boy been his age was clearly inappropriate because of the age difference, which demonstrated poor judgment on his part and was a reflection of general immaturity.24 [44] Dr Holm expressed the view in 1994 that there was no evidence that he had paedophilic tendencies at all, that he was no danger to the community, and that there would be no possibility of a repeat of this type of behaviour. In 2002 he noted that he had seen the respondent again in December 1994, after he was placed on probation and required to seek further therapy as indicated, and had then felt that there was no need for further treatment. He expressed the view that he saw absolutely no cause for any concern in relation to the respondent’s continuing to work with children. [45] To the extent that there was earlier expert psychiatric or psychological assessment of the respondent as someone who was minimising the offending at the time, that was covered in the evidence before the Tribunal. There was subsequent expert 21 It was, however, also something he had admitted to the police when interviewed: Transcript of Interview p 11. 22 Dr Lynagh’s qualifications include a Ph D, but she does not hold medical qualifications. 23 Re Dr White, [63](b), re Dr Lynagh, [71](a). 24 I wonder whether Dr White or Dr Lynagh would have regarded that as minimising the offending on the part of Dr Holm. -- 15 of 19 -- 16 evidence that he did not now minimise his offending. 25 Insofar as there is a technical sense in which the respondent could be said to be minimising his offending, an assessment of whether this was still occurring was not something which should have been made by the Tribunal itself. Hence, cross-examination about the matter could scarcely have assisted the Tribunal. For what it is worth, I would have thought that the important considerations were whether the respondent had a proper understanding that what he had done then was wrong, and had insight into the harm that it caused to the complainant, and I do not see how going over the details of exactly what he did to the complainant was going to throw any light on those issues; but I am no more an expert than the Tribunal was. [46] In the light of this, I do not think that the cross-examination at p 23, when the respondent was repeatedly pressed to say what the offending involved, was helpful. The transcript suggests that there was some genuine lack of understanding on the part of the respondent of exactly what it was that he was being asked, and if so, repeating the same vague formula certainly was unhelpful. In any case, if what was sought were precise particulars of the offending, I think it unsurprising that the Tribunal took the view that they would not be assisted by finding out to what extent the respondent could now recall all of the details on the basis of which he was sentenced, or for that matter just what the respondent could now recall of the events. The respondent should not have been cross-examined just to make him squirm in the witness box. If the respondent has now come to view his past conduct as abhorrent, I would have thought it entirely consistent for him to be trying to put the details out of his mind. Insofar as the Tribunal did discourage cross-examination in this way, I am not persuaded that there was any error of law in doing so. [47] As to the more general finding, that the respondent was a credible witness, the Tribunal gave no reasons for such finding. Again, that is usually just a matter of impression. The respondent gave evidence on oath,26 and was cross-examined, in the course of which, so far as I can see, on a quick examination, it was not put to him that his evidence was false. There was cross-examination about one minor inconsistency at p 24, and that was about all. The lengthy written submission of the appellant to the Tribunal did not submit that the respondent was not a credible witness, although a specific submission was made about the specific matter the subject of ground 8. In these circumstances, there was before the Tribunal no issue raised by the appellant as to the general credibility of the respondent as a witness, and therefore no need to give reasons for the finding. In any case, the determination of whether evidence is truthful is a matter of inference based on the collective experience of ordinary affairs of a fact finding body,27 so it is one of those matters about which ordinarily reasons need not be given. 28 Ninth ground [48] The ninth ground argued was: “The Tribunal erred in law or were against the weight of the evidence [sic] in finding that the respondent’s offences were: 25 In the evidence of his treating psychologist, Ms McKenzie, who had seen him on a number of occasions: [125]. 26 Transcript Tribunal hearing p 21. 27 Doney v R (1990) 171 CLR 207 at 214. 28 Cypressvale Pty Ltd (supra). -- 16 of 19 -- 17 (a) opportunistic and not calculating in nature; and (b) were at the lower end of serious and excluding offences.” [49] The offending was described as showing features of being opportunistic in the report of Dr Lynagh, p 10. Some of the other terms used there are more difficult for me to understand, given the information available as to the nature and circumstances of the offending, but in any event that was some evidence before the Tribunal that the offences were opportunistic. That they were not calculating in nature would be consistent with the evidence that the friendship between the respondent and the complainant had developed over a period of some two years before the offending began, simply because they had become next door neighbours. There is nothing to suggest that the development of the friendship was prompted by a desire to commit the offences. Overall, in the light of the evidence, the finding that the offences were opportunistic and not calculating in nature was I consider reasonably open to the Tribunal. [50] I have already explained that the offences were at the lower end of conduct which constitutes an offence under s 210 of the Criminal Code. They were necessarily at the lower end of “excluding offences”, otherwise they would not have fallen into subsection (6)(b); it would necessarily only be offending at the lower end of excluding offences in respect of which no imprisonment order was made. In these circumstances, they were properly identified by the Tribunal at [158] as being at the lower end of serious and excluding offences. I do not interpret that as a conclusion that they were at the lower end of serious offences, a somewhat wider category than excluding offences. No error of law has been shown in this respect. Remaining grounds [51] The tenth ground was: “The Tribunal erred in finding that the respondent worked in high risk situations with children ‘without so much as a concern being raised by those who worked closely with him’ due to the following reasons: (a) failure of the respondent to call any witnesses giving evidence in relation to these issues; and (b) reliance upon written references in circumstances where the referees did not state knowledge of the respondent’s offences and/or were not recent so as to be capable of being relied on.” [52] As to the last point, the respondent had not worked with children after the application for a blue card was rejected in 2002, and accordingly references from that time would be able to speak to his work with children as effectively as more recent references. It also seems to me that knowledge of the offending on the part of the referees was irrelevant to the question of whether the referees were happy with the work that had been done by him, and in particular whether the referees had any concern about his behaviour in the course of that employment. It may be of course that if a person was asked to give a reference by the respondent and that person had some concerns about whether the respondent had been behaving inappropriately towards children in the setting within the knowledge of the referee, the referee would not actually have said so in terms in the reference provided, but -- 17 of 19 -- 18 may well have been unwilling to provide a reference at all, or would have provided an unenthusiastic, or less enthusiastic, reference. [53] The references were to show suitability of the respondent for the work he had been engaging in for a period of some years before the blue card system was introduced, and that he had been doing that work satisfactorily, indeed very well. Knowledge of the existence of the earlier offending was irrelevant to that issue. As to whether the individuals were called as witnesses, that I think was essentially a matter for the Tribunal. Under s 47(2) of the Children Services Tribunal Act 2000, the Tribunal could decide all or part of a proceeding from a consideration of documents filed, without the parties or witnesses appearing in person, if the parties to the proceeding agreed and the Tribunal considered it appropriate in the circumstances. Section 51(1) of that Act provides that subject to the Act, Tribunal rules, or directions given under s 54, the Tribunal may decide its own procedure. Subsection (2) provides that in conducting proceedings, the Tribunal must act quickly and with as little formality and technicality as is consistent with a fair and proper consideration of the issues before it, it is not bound by the rules of evidence, and may inquire into and inform itself of anything in the way it considers appropriate. Plainly it was open to the Tribunal to accept evidence in writing such as references; obviously the Tribunal knew of the limitations inherent in the receipt of evidence in that way. [54] There is also the consideration that there was no contrary evidence from the appellant. During the hearing of the appeal senior counsel for the appellant conceded that if there had been some complaint to the police about the respondent’s behaviour during the course of any of this work, the appellant was in a position to find out about it. No doubt the Tribunal assumed that. It would have been open to the appellant to have conducted investigations of these matters itself, even apart from relying on any complaint of that nature. The Tribunal was entitled to take into account the fact that there was no evidence put to it by the appellant to suggest that there was any concern about inappropriate conduct on the part of the respondent towards children in the course of any of his work. In those circumstances, I do not consider that the finding by the Tribunal involved any error of law. [55] The eleventh ground was simply that the factors identified by the Tribunal in its decision do not themselves constitute an exceptional case. The argument in support of this repeated the misinterpretation of the reasons of the Tribunal to which I have referred earlier; it did not reveal an error of law. [56] It is not clear that any of the grounds expressly covered the proposition that on the evidence before the Tribunal a finding of satisfaction under subsection (7) was not open as a matter of law, that is to say, that no reasonable Tribunal properly applying the statute could have arrived at that finding. I suppose that follows, however, from the order sought, which was not that the matter be sent back to the Tribunal to be determined according to law,29 but to reinstate the decision of the appellant. That would be the appropriate order only if that were the only conclusion open as a matter of law on the material before the Tribunal. [57] The position is fully set out in the reasons of the Tribunal. In summary, at a time when the respondent was himself relatively young and was, on the evidence of the 29 A useful power provided by s 133(b) of the Children Services Tribunal Act 2000. -- 18 of 19 -- 19 psychiatrist who examined him at the time, of lower than average intelligence and immature, he committed offences under s 210 of the Criminal Code with a neighbour who was some years younger than him. The offences were at the lower end of seriousness for offending under that section; only one of the offences involved any touching, and that involved touching of the respondent, with which the complainant was at least going along at the time, even if not enthusiastically participating. The sentence imposed was unusually lenient for such offences. The offences occurred quite some time ago, and since then the respondent has matured, and has engaged in a range of conventional sexual activity. The respondent also was for a number of years working closely with children, without any indication of further offending. There was evidence before the Tribunal that he had performed very well in that work with children. The respondent has a professional relationship with a psychologist who speaks positively of him. These matters were enlarged on, and supported by other matters referred to by the Tribunal, including a finding that the respondent is now ashamed of what he did, and appreciates the criminal and abusive nature of the offending. On the material that was before the Tribunal, and bearing in mind the Tribunal’s findings in relation to it, in my opinion as a matter of law the finding that the requirements of s 102(7) were satisfied was open to the Tribunal, and it is not the case that the Tribunal erred in law by making a finding which, on all the evidence before it, was not reasonably open. Accordingly no error of law on the part of the Tribunal has been exposed. [58] In conclusion, I note that paragraph 2 of Practice Direction No. 5 of 2001, concerning appeals, provides in relation to an outline of argument that it is to include “a concise logical summary of submissions”. I would emphasise the word “concise”. The appellant’s outline in this matter ran to 16 pages, with 80 paragraphs of single-line spaced print. Yet at no point did it identify any question of law, the most important consideration in an appeal which is only an appeal on a question of law. The grounds of appeal were lengthy and did not focus on questions of law. The outline was repetitive, and continually emphasised factual matters. It is not helpful for submissions to seek to make up in quantity for what they lack in quality. -- 19 of 19 --