Commission for Children and Young People and Child Guardian v BWA
[2011] QCATA 362
•3 November 2011
| CITATION: | Commission for Children and Young People and Child Guardian v BWA [2011] QCATA 362 |
| PARTIES: | Commission for Children and Young People and Child Guardian (Applicant/Appellant) |
| v | |
| BWA (Respondent) |
| APPLICATION NUMBER: | APL268-11 / CML195-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 12 September 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J Thomas, AM QC, Member |
| DELIVERED ON: | 3 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal dismissed. 3. Publication is prohibited of any information that would identify BWA or his son. |
| CATCHWORDS: | APPEAL – REGULATED EMPLOYMENT – BLUE CARDS – issue of negative notice by Commissioner – where man charged in 1995 with murder and convicted of manslaughter on the ground of provocation – violent crime – good conduct and life thereafter – offence of manslaughter not specified as a ‘disqualifying offence’ in Act – whether grant of blue card in the best interests of children – whether an "exceptional case" under s 221(2) shown Reconstitution of Tribunal after first day’s hearing – objection by respondent – validity of reconstitution – President’s powers of appointment – Tribunal’s decision based partly on demeanour when only one member had seen witness – error – leave to appeal Commission for Children and Young People and Child Guardian Act 2000, ss 219, 221, 226 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | C Capper for the Commissioner |
| RESPONDENT: | D Sushames for BWA |
REASONS FOR DECISION
This is an application by the Commission for Children and Young People and Child Guardian (“the Commissioner”) for leave to appeal against a decision by a two-member QCAT Tribunal.
The order of the Tribunal was that the Commissioner’s decision to issue a negative notice be set aside, and that a positive notice and blue card be issued forthwith. Shortly stated, the Tribunal overturned the Commissioner’s refusal to issue a blue card to the respondent.
The respondent will be referred to as “BWA”.
Jurisdiction
I have been appointed under section 166 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) to constitute the Tribunal for the Appeal.
The Commissioner’s issuing of a “negative notice” in response to BWA’s application was a reviewable decision, and QCAT’s jurisdiction to review it arises under section 354 of the Commission for Children and Young People and Child Guardian Act 2000 (“the Act”).
To the extent to which the Appeal is on a question of fact or a mixed question of law and fact the Commissioner needs to obtain leave to appeal (QCAT Act, s 142(3)(b)).
There are two main areas of complaint on which the Commissioner’s counsel relies in contending that there have been errors of law that require the decision to be set aside.
The first is that the Tribunal was incorrectly reconstituted subsequently to the first day’s hearing. It is contended that the replacement member did not have the advantage of seeing BWA give evidence on the first day. It is further contended that this was not an appropriate case for reconstitution and that the Tribunal erred in proceeding with a substituted Member.
The second alleged legal error is that the evidence was incapable of satisfying a reasonable Tribunal that the case was not “exceptional” under section 221(2) of the Act.
[10] For reasons later stated I have concluded that leave should be granted to appeal. However before dealing with the points raised by the Commissioner it is necessary to set out the essential facts.
Basic Facts
[11] BWA is 46 years old. He is single and currently works at a mine in Western Australia as a rigger.
[12] He works at the mine for periods of four weeks and flies back to Brisbane for one week. He uses his parents’ home on the Sunshine Coast during these periods. He states that his employment and lifestyle are satisfactory and enable him to assist in paying off a house.
[13] He left school at age 17 having completed the NSW school certificate. He then did a six year apprenticeship as a plumber and maintained constant employment except for brief periods between jobs.
[14] He was charged with murder and convicted of manslaughter of his wife in January 1995 when he was 29 years old. The assault was very violent. Following an incident with his wife he strangled her, beat her over the head with a set of bathroom scales, and cut her throat with a Stanley knife.
[15] Following this he attempted to commit suicide by driving over a 40 metre cliff. The attempt failed and he sustained relatively minor injuries.
[16] The circumstances of these events will be recounted in more detail later. He was sentenced to nine years imprisonment and served five years and ten months before unconditional release.
[17] His main object in applying for a blue card is to enable him to gain employment in teaching or training at a TAFE level. He has reached the stage in life where he realizes that heavy physical activity will not be available to him forever, and wishes to use his “brains a bit more”. In addition to his qualification he has a rigger’s ticket and a Workplace Health and Safety Officer’s ticket.
The concerning event
[18] The facts concerning the traumatic event with his wife in 1990 are stated in R v BWA, in which the gravity of his conduct was considered in appeals brought by both BWA and the Attorney-General against the sentence.
[19] At trial he had raised issues of diminished responsibility and provocation, both of which the trial Judge left to the jury. The jury returned a verdict of “guilty of manslaughter with provocation”.
[20] In the joint reasons for judgment of Fitzgerald P and de Jersey J (as he then was) the following facts are stated:
“The appellant’s victim was his wife, whom he unlawfully killed on 16 January 1995. They had been in a relationship for four years prior to their marriage and then been married for four years when the appellant’s wife left the matrimonial home with their 18 month old son on 31 December 1994. The appellant, who loved his wife and child and was emotionally and financially dependant on his wife, had suspected for some months that she was involved in an extra-marital affair. He became depressed when she left and, on 15 January 1995, invited her to return to discuss the possible resumption of their marriage; he had recently found employment after a lengthy period of unwanted employment.
The appellant’s wife arrived at the matrimonial home at about 8:30pm and was dead approximately seven minutes later. The only explanation of what occurred is to be found in a police interview with the appellant a number of hours later. He said that his wife “looked around, sat down, started showing me a piece of paper .. to change the phone number” and that he “tried to persuade her and talk to her and give me all your reasons why you’re leaving..”. According to (BWA) she said “no it’s over, there’s nothing to explain”. He then said “have you got a boyfriend or something, and she sort of umm’d and ah’d and then she said yes I have”, and the appellant added “I sort of knew that all along”. In his interview, the appellant then stated that his wife said “I am gonna go for all the money I can, go for your super.””
[21] Her last statement before his violent reaction was “yeah.. I going for more money too. I’ll take your super. So I can set me and the kid up”.
[22] BWA then proceeded to strangle his wife, beat her over the head with bathroom scales at least twice, and cut her throat with a Stanley knife.
[23] BWA then attempted suicide by driving his car over a 40 metre cliff, but sustained only relatively minor injuries.
[24] Pincus J, in a concurring judgment observed that “his suicide attempt was of a kind which was fairly likely to succeed”. His Honour also referred to the trial Judge’s view that it was because of BWA’s fragile personality that he was gravely provoked by the words of his wife. His Honour also noted BWA’s good work history, the absence of any prior criminal convictions, and the fact that he was well regarded and deeply remorseful.
[25] The verdict could not have been returned unless the jury considered that the provocation had been so serious to him as to induce loss of control of his actions, and that it could cause an ordinary person to lose self control and act in the same way as he did (see Stingel v The Queen (1990) 171 CLR 312). The jury’s verdict in that case necessarily held that severe provocation had induced a loss of control of BWA’s actions, and that an ordinary person could reasonably have reacted similarly.
The Act
[26] The Act sets up a system of “regulated employment” whereunder many areas of employment are forbidden to any person who does not hold a “current positive notice”, or in more common terminology, he or she is the holder of blue card. It is common ground that the application in question fell to be decided by the Commissioner under division 9 of part 4 of chapter 8 of the Act (sections 219 et seq).
[27] Section 221 states:
Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence
(1) Subject to subsection (2), the commissioner must issue a positive notice to the person if—
(a) the commissioner is not aware of any police information or disciplinary information about the person; or
(b) the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
(i) investigative information;
(ii) disciplinary information;
(iii) a charge for an offence other than a disqualifying offence;
(iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv)—
For charges for disqualifying offences that have not been
dealt with, see sections 208, 217 and 240 (in relation to
prescribed notices), and sections 269, 279 and 298 (in
relation to exemption notices).
(c) the commissioner is aware of a conviction of the person for an offence other than a serious offence.
(2) If subsection (1)(b) or (c) applies to the person and the commissioner is 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, the commissioner must issue a negative notice to the person.
[28] Manslaughter is neither a disqualifying offence (under section 168 and schedule 4 of the Act) nor a current serious offence (section 167 and schedule 2 of the Act). It follows that sub-sections 221(1)(c) and 221(2) apply.
[29] The consequence is that the Commissioner was obliged to issue a positive notice to BWA unless the Commissioner was satisfied that “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”.
[30] Section 226 mentions five factors to which the Commissioner must have regard in deciding whether “there is an exceptional case for the person”. Section 226(2) provides:
(2) 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 a disqualifying offence; and
(iii) when the offence was committed or is 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 the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;
(b) any information about the person given to the commissioner under section 318 or 319;
(c) any report about the person’s mental health given to the commissioner under section 335;
(d) any information about the person given to the commissioner under section 337 or 338;
(e) 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.
[31] Subparagraph (a) of that subsection sets out matters that one would naturally expect to need consideration whenever the commission of an offence was involved; sub paragraphs (b) to (d) provide a useful checklist of information sources (none of which was regarded by the Commissioner as necessary in the present case), and requires such information to be taken into account; and subparagraph (e) opens up anything that may reasonably be considered to be “relevant”. The section lists information and factors to which the Commissioner must have regard, but, this apart, it leaves open an unfettered discretion to determine whether a case is exceptional.
[32] Provision is then made for review from the Commissioner’s decisions on such matters, in sections 353-354. Jurisdiction is conferred on QCAT, and there are no special requirements involved with respect to such reviews. Accordingly the usual QCAT provisions concerning reviews (Queensland Civil and Administrative Tribunal Act 2009, sections 17-24) apply. The tribunal was therefore required to "produce the correct and preferable decision" and to do so by way of a fresh hearing on the merits (s 20), and in doing so, it had "all the functions of the decision maker for the reviewable decision being reviewed"(s 19(c)).
The proceedings
[33] Against the above background, BWA applied in 2007 for a blue card and on 21 February 2007 the Commissioner issued a negative notice. On 14 April 2010 BWA applied to the Commissioner to cancel the negative notice, and some time later that application was refused.
[34] This prompted the current reference to QCAT for review.
[35] The Tribunal originally constituted consisted of the Honourable R J Bulley as Presiding Member and Mr G Quinlivan as additional Member.
[36] On 17 November 2011 the hearing commenced and evidence was taken from BWA and various witnesses. The proceedings were adjourned for the obtaining of further relevant psychiatric assessments and materials.
[37] A resumed hearing date was arranged, but before that date Mr Bulley became indefinitely unavailable. The President of QCAT, under section 168 reconstituted the Tribunal by replacing Mr Bulley with Ms Jennifer Wiltshire.
[38] Upon the resumption counsel for the Commissioner objected to the reconstitution. The replacement member undertook to read the transcript of all evidence so far taken, and the Tribunal indicated that the matter should proceed. Evidence was then taken from Wendy Bryant, a psychologist, and she was cross-examined. No further examination or cross examination of BWA took place.
[39] The matter was then adjourned to enable the new Presiding Member to read the transcript and for the Tribunal to determine whether further evidence would be required.
[40] Subsequently the parties were advised that no further evidence would be called and that final submissions might be made.
[41] The Tribunal delivered its decision on 4 July 2011 in a joint judgment.
Tribunal’s reliance on demeanour
[42] A ground of appeal is that the reconstituted Tribunal erred in law in making a unanimous decision, based upon the demeanour and presentation of the respondent, when both members had not had the benefit of witnessing the respondent’s evidence.
[43] In the Tribunal’s reasons for judgment, it is stated that “BWA provided evidence to the Tribunal in a calm and pragmatic manner”.
[44] Later, having referred to certain alleged traits of BWA that were thought to have been present 16 years ago, the reasons for judgement state “there is no evidence that these traits have been evident .. in his presentation to the Tribunal” (para 91).
[45] The quoted statements were not statements that could be made in an unqualified way in a joint judgement when one of the members had not seen BWA give evidence.
[46] This was an error. Whether this misstatement in the reasons was an error of law is a nice question. It may have been intended for the judgment to speak only for the Member who had heard and seen BWA questioned and cross examined, but the judgment purported to speak for both and plainly there has been an error of some sort. Importantly, it bespeaks error on a point that involves determination of the ultimate issue. It cannot be told whether BWA’s demeanour was a minor or major factor in the decision.
[47] Normally in an appeal of this kind against the exercise of a discretion (characterising a case as "exceptional") it would be necessary for the appellant to show some clear error of principle or one of the recognised categories of case where it is appropriate for an appeal court to interfere with the exercise of discretion (cf House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513, 534).
[48] However the above error, which is equivalent to be taking into account of an incorrect consideration, could have affected the result. The tribunal’s judgment therefore does not have the usual protection of a discretionary decision. I have decided that leave to appeal should be granted and that it is necessary for a fresh examination of the evidence to be made.
Objection to reconstitution of the Tribunal
[49] Strictly speaking, it is now unnecessary to determine this additional ground, but as it reveals a misconception concerning the process of reconstitution of the Tribunal, it is desirable to say something about it. The Commissioner’s ground on this point was stated as:
Error of law in reconstituting the Tribunal, despite the objections of the respondent, without apparent regard to the considerations prescribed by section 167 of the QCAT Act or alternatively without providing adequate reasons for the decision.
[50] It was submitted for the Commissioner that “the decision to reconstitute the Tribunal was made by QCAT without reference to the parties whose views on the decision were not sought”. Both the ground and the submission assume that the assignment of cases by the President is a function upon which the parties have a right to be heard. This is incorrect.
[51] Every matter in QCAT must be heard by a member or members (or adjudicator) chosen by the President (section 165).
[52] Section 168 states as follows:
168 Reconstitution
(1) The president may change who is to constitute the tribunal for a matter, including a change from 1, 2 or 3 members to an adjudicator and a change from an adjudicator to 1, 2 or 3 members.
(2) The tribunal as reconstituted must continue to hear the matter and decide it and, for that purpose, may have regard to the decisions and any records of proceedings of the tribunal as previously constituted, including any record of evidence.
[53] The power of appointment is fettered by certain requirements in section 167, though, with respect, these are trite and obvious matters. None of them have been suggested to have been overlooked in relation to the present reconstitution of the Tribunal.
[54] The nature of the power to assign cases to eligible judicial officers within the court system is well established. It was held in Rajski v Wood (1989) 18 NSWLR 512 that the nomination or allocation of a Judge to hear a particular case is not justiciable. The assignment of a judicial officer to a particular case or locality is a matter intimately related to the independent and impartial administration of justice (Fingleton v The Queen [2005] HCA 34 23 June 2005 paragraph 52 per Gleeson CJ). In that case his Honour accepted that “where it is the function of a head of jurisdiction to assign Members of a Court to hear particular cases, the capacity to exercise that function, free from interference by, and scrutiny of, the other branches of government is an essential aspect of judicial independence”. In the context of Magistrates Courts his Honour noted that if decisions about an arrangement of the Court’s business or the assignment of Magistrates to cases, or classes of case, could be called to account in legal proceedings, the capacity for the erosion of independence is obvious.
[55] The above remarks were made in relation to the practice of a traditional Court. The position in a Tribunal such as QCAT depends of course on the particular legislation that deals with the power. The President’s powers of appointment, as conferred, are central to the working of QCAT, in that every matter must be heard by a Member or Adjudicator chosen by the President. However the power of assignment has some legislative fetters. The question whether section 167 has been infringed must of course be justiciable by some means by an aggrieved party, perhaps by judicial review. But in my opinion parties have no general right to be heard on the exercise by the President of his power under section 165(1) to choose the persons who will constitute the Tribunal. To do so would be to institute a regime of forum-shopping. In my view, apart from the question of bias or apparent bias, parties have no legitimate stake or interest in the constitution of the Tribunal.
[56] The determination of matters by reference to transcript rather than viva voce evidence is a common phenomenon. Section 168(2) of the QCAT Act expressly deals with reconstitution in part heard matters, and contemplates reliance by the new Member on the record of evidence. In the present case it is difficult to think of any other course of action than that actually taken, if the Tribunal was to carry out its duty “in a way that is “accessible, fair, just, economical, informal and quick” (QCAT Act, section 3(b)).
[57] No practical alternative has ever been suggested on behalf of the Commissioner other than adjournment or continuation with the existing Member alone. Indefinite adjournment of course would have suited the Commissioner, as a negative notice would have remained in force unless and until the Tribunal set it aside. But adjournment certainly did not suit BWA who had flown from Perth to Brisbane for the hearing.
[58] Obviously the importance of the matter (which is a relevant statutory consideration) and the surrounding circumstances, including the prospect of undue delay and BWA’s readiness to proceed having travelled from Western Australia, justified the replacement of the absent member with another.
[59] I therefore consider that the above ground of appeal is misconceived, and in any event, without merit.
Determination of final question (whether case exceptional)
[60] The characterisation of a case as “exceptional” is the task of the decision-maker, in the first instance the Commissioner, in the second instance the QCAT Tribunal, and now, because an error has been shown which casts doubt upon the validity of the Tribunal’s decision, this Appeal Tribunal. As earlier observed, subject to the non comprehensive criteria mentioned in section 226 this is necessarily a discretionary decision.
[61] In the present case the Commissioner was obliged to issue a positive notice unless satisfied that BWA’s case was an “exceptional” case and as a result it would not be in the best interests of children for him to have a blue card.
[62] There is a large body of evidence directed to the question whether the issue of a blue card would be contrary to “the best interests of children”.
[63] A considerable body of evidence was gathered and considered, in which I have in turn examined. It includes psychological reports and testimonials for many sources including members of the police force.
[64] There is no need to repeat the extensive evidence covering BWA’s behaviour before and since his crime. Much of it is stated in the Tribunal’s reasons for judgment paragraphs 20-61, and I substantially agree with those findings, subject to reservations about some statements in dot points 4 and 8 of paragraph [73] of those reasons, which may legitimately be criticised as too broad. Otherwise the findings are clearly open on the evidence, and I take a similar view of them.
[65] A considerable amount of the evidence consists of material obtained from Corrective Services concerning BWA’s conduct in prison and assessments by officers who had contact with him. It is worth noting that despite extensive observations and assessment by experts, very little emerges that is adverse to BWA other than the concerns at various stages during his incarceration about his attitude and progress within the system. These concerns diminished as his term progressed. Eventually he was considered suitable for release without supervision.
[66] Upon release he sensibly returned to his family with whom he maintained close ties ever since. He stayed with his sister and her family for five months, and then his parents at Mudjimba for 10 months. He obtained employment as a plumber (with Mr Fixzit) in Brisbane, and in due course worked at Laidley and Gatton before spending more time with his parents and eventually took employment with a mine in Western Australia. At the time of hearing his routine was four weeks on, followed by one week with his parents in Queensland.
[67] His main goal is to become a trainer in rigging, scaffolding and plumbing, through apprentice training or TAFE. It seems that this would generally involve contact with persons 16 years of age and upwards. However, a blue card could not restrict him to this, and would permit him, if he were so minded, to seek employment involving contact with younger persons.
[68] Much of the concern expressed by the Commissioner in her reasons for judgment was based on Corrective Services reports prepared well before the end of his imprisonment in 2000. These include a report from a psychologist, M O’Connell, in 1998, who noted that BWA’s natural tendency to be suspicious and defensive had hindered progress. There was also a report from Dr Ian Atkinson dated in January 1999, noting that he had "a lot of psychotherapy and counselling." Dr Atkinson was concerned that Family Court issues might trigger a loss of control, but added "he seemed to accept the idea that he had little hope of gaining access to his son, and most likely will have to wait until the son is into his teens before he will be able to contact him".
[69] This is what has in fact come to pass. The son is now 17 years old and has been cared for by his maternal grandparents. The son’s initial contact with BWA’s parents has been limited in recent years. BWA has therefore had no direct contact with his son since the boy was an infant, and he states that he accepts that any future contact will depend on the attitude of his son. Recently, his son sent an email asking for information.
[70] At page 15 of her reasons for decision the Commissioner correctly observed that there was no up-to-date evidence, other than from laypersons, to show that BWA could cope with stressors. This seems to have been a very influential consideration in her decision.
[71] This gap in the evidence probably influenced the tribunal to update the expert evidence, and in the result a comprehensive report was obtained from a well qualified psychologist, Ms Wendy Bryant. This evidence enables a fuller picture to be obtained of the situation, particularly in the area of the risk of future misconduct.
[72] Ms Bryant's evidence, in the form of a detailed and current report and ample cross-examination in the tribunal, is not all one-way, but it confirms that no significant psychological problems are evident. It also indicates that he is in the low risk category of reoffending, and that the likelihood of reoffending is very low. His emotional function is considered to lie within the normal range.
[73] His single horrific reaction to a situation in 1990 was not related to children. There has never been any suggestion of misconduct in relation to children, and because of his association with family and friends he has been "around children" a good deal.
Conclusions
[74] The test is directed to the best interests of children generally, and obviously one needs to envisage the children with whom he might come into contact by means of his possession of a blue card. If he works in a TAFE environment, which seems highly likely having regard to his life history and qualifications, he will be in contact with persons towards the higher range of the age group, probably 16 and upwards. However a blue card may open the door to contact with children of any age, so it is necessary to bear in mind the entire community of children.
[75] BWA’s area of risk is not that of a person with a propensity to corrupt morals or to take mental or physical advantage over young persons. His case is related to the danger of recurrence of a violent act resulting from loss of control or anger, presumably stimulated by some unknown stressful incident or situation.
[76] Most human activity can not be made totally risk free. Judicial officers and Tribunal Members are frequently entrusted with the duty of making predictive decisions based on the degree of likelihood of a person reoffending or of engaging in future anti social behaviour. In such cases, courts and tribunals naturally look for the guidance of experts and temper it with their common sense.
[77] In any event, in the present case, the legislative test that I must apply is whether the evidence stamps this case as an "exceptional” one in which it would not be in the best interests of children for BWA to have a blue card.
[78] An important factor is the extent to which he has interacted with children over the past 11 years without any problems. Details of his relatively frequent and beneficial contact with children are contained in paras 49, 53, 55, 58 and 61 of the Tribunal judgment, which I adopt. They include his contact with the children of his sister, observations of his interactions with children in community organisations, and the observations of a police officer with two daughters who has regular contact with him through family interactions, and has observed him interacting with his nephews and nieces.
[79] I appreciate that "references" from friends and acquaintances may tend to reflect favourable preconceptions, but they may also provide a useful picture of a person from laypersons who have had the most contact with him. In this context, the assessment of JS, a police officer acquaintance, is worthy of quotation.
I have known [the applicant] for the past 5 1/2 years. I first met [his] parents.. And their children [J],[C] and [D] during 1999 through a mutual friend.
I first met [the applicant] after his release from prison in October 2000. He returned home to reside with his parents.
I was aware that [the applicant] had been convicted of manslaughter and sentenced to a period of imprisonment. I am aware of the circumstances surrounding this matter which can best be described as a "crime of passion". I, like others, admit that I had reservations about [the applicant] and how he would fit back into society after his release from prison.
Since I have known [the applicant] I have found him to be polite, well mannered, honest and generous. He has been gainfully employed as a plumber since his release from prison. He is more than willing to help out people with problems and devotes much of his spare time in helping others. I am aware that he spent a considerable amount of his time fundraising for the RSL Girl in a Million Quest. He is a person of sober habits who wants to better himself and has saved money to buy a block of ground and build his own home.
I have two of my own children who are aged 11 and 14 years respectively. [The applicant's sister [C] has younger children, as does his younger brother [D](Jnr). My children and I have had numerous social outings at [the applicant's] residence and elsewhere we children have been present. During those times [the applicant] had interacted with those children in an appropriate manner and I cannot 40 situations that would warrant concern. My children have stayed at [the applicant's] parents’ residence on a number of occasions in my absence, and have enjoyed their stay. I have discussed this matter with my wife and her observation of [the applicant] in regards his character and conduct and interaction with children concur with mine.
…
[80] Details of his community contact and interaction support the view that there has been a reasonably successful rehabilitation.
[81] A number of negative conditions which were noticed during his incarceration have been relied on by counsel for the Commissioner. These have been noted, but they were also noted by various experts who, having taking them into account, still presented overall positive assessments.
[82] Counsel for the Commissioner submitted that the effect of his incarceration following his crime has been to deprive his child of contact with him, and that that is "contrary to the accepted best interests of children.” I do not think that this has anything to do with issue which I have to decide, which is concerned with the effect of granting a blue card.
[83] Similarly, the submission that “the respondent’s attempted suicide, had he been successful… would have resulted in his child being orphaned…" and that undoubted harm has been caused to BWA’s child, misses the point.
[84] Counsel for the Commissioner also submitted that BWA’s conduct in defending the murder charge, obtaining a verdict of manslaughter and later appealing against his sentence was an attempt "to minimise his role in the offence" and that it demonstrated a lack of insight and remorse. I fail to see how his exercise of his legal rights was other than a normal and proper response on a matter proper for a jury’s consideration, or that his appeal against sentence contemporaneously with the Attorney-General's appeal seeking to increase it should be seen as any reflection upon his remorse or insight.
[85] Reference was also made by counsel for the Commissioner to reports noted by Ms Bryant that “he has episodes where he is verbally abusive” and that he has "had fights on the street but has not been involved in fights for two years." This, it is said, shows an inability to control his anger and emotions. However, Ms Bryant thought otherwise. In cross-examination, she did not regard the reference to physical altercations as significant, given the lifestyle he was living, that is, working in mining communities.
[86] The evidence as a whole shows that, while a recurrence of a violent reaction to an extremely stressful situation is a possibility, it is a very remote one. The positives would seem to outweigh the negatives. The evidence does not show this to be an exceptional case requiring a person who is otherwise entitled to the issue of a blue card to be denied it on the ground that it would not be in the best interests of children to do so.
[87] I would therefore grant leave to appeal, and, having considered the appeal, will dismiss it.
[88] Having regard to the reasons for judgment of the Tribunal and in particular paragraphs 94 and 98 of those reasons, I prohibit the publication of any information before the Tribunal that would identify BWA and his son.
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