Eiseman v Commissioner for Children and Young People and Child Guardian - [2014] QCAT 168

CITATION:

Eiseman v Commissioner for Children and Young People and Child Guardian [2014] QCAT 168

PARTIES:	Frederick Leslie Eiseman (Applicant)
v
Commissioner for Children and Young People and Child Guardian (Respondent)

APPLICATION NUMBER:

CML083-13

MATTER TYPE:

Children’s matters

HEARING DATE:

17 February 2014

HEARD AT:

Brisbane

DECISION OF:

Member Quinlivan
Member Goodman

DELIVERED ON:

23 April 2014

DELIVERED AT:

Brisbane

ORDERS MADE:	The application for review is dismissed and the decision of the Commissioner made on 18 April 2013 to issue a negative notice to the Applicant is confirmed.
CATCHWORDS:	Blue Card – non-serious offence – no conviction – child exploitation material – lack of insight and remorse

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Frederick Leslie Eiseman

RESPONDENT:

Ms Louisa Keown –representing the Commissioner for Children and Young People and Child Guardian

REASONS FOR DECISION

Mr Eiseman is a 69-year-old man with an intellectual disability. He told the Tribunal that he contracted spinal meningitis at the age of three and since that time he has had only 50% use of his brain. He had corneal transplants in 1984 and is legally blind. He says that these impairments have greatly affected him throughout his life.
Mr Eiseman’s father left the family when he was very young, and he was raised by his mother and stepfather. He attended the Opportunity School in Fortitude Valley. He found school and learning particularly difficult. He did not attend school after grade 5. Between the ages of 18 and 26 years he worked for the Queensland Subnormal Children’s Association, which is now known as the Endeavour Foundation.
He was later employed to sell newspapers and currently operates a videotape repair business. He says that he has never worked with children and has not had much association with children as an adult.
Mr Eiseman has two brothers. He gets on well with his brother John but does not associate with his brother Alan. Although he is an uncle he does not have contact with his nieces and nephews. He has no other close family members and has never been married or had children.
Mr Eiseman says that volunteering has become an integral part of his life. He began volunteering with the Salvation Army at Redcliffe in 2011 where he helped out with fundraising activities, street ministry and collecting donations. He signed up with the Salvation Emergency Services Commission because he is passionate about helping those who are less fortunate than him and he wants to contribute to a better community. He says that volunteering allows him to feel part of the community and form friendships with his fellow volunteers.
Mr Eiseman has applied for a Blue Card so that he can meet the requirements of the Salvation Army, and continue to do the volunteer work, which he enjoys. He says that this gives purpose to his life at his age and in his circumstances. He says that if he did not do this then his health would suffer, as he would be stuck in a room most days with nothing to do because he cannot enjoy his hobby and work as much as he used to.
Mr Eiseman was first issued with a positive notice and Blue Card on 1 December 2005. On 23 October 2006, the Queensland Police Service notified the Commissioner that Mr Eiseman had been charged with a criminal offence and his Blue Card was suspended.
Mr Eiseman was not convicted of that offence but his eligibility to hold a Blue Card was re-assessed under s 119D(2) of the Act and his Blue Card was cancelled. A further application for a Blue Card was unsuccessful on 22 January 2010.
On 23 November 2012 Mr Eiseman applied again to cancel the negative notice under s 236 of the Act. That application was unsuccessful and the negative notice was continued. It is that decision we are reviewing.
As Mr Eiseman has not been convicted of a serious offence, we must issue him with a positive notice and a Blue Card unless we are satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a positive notice (ss 102(3) and 102(4))
We must consider the matter afresh. We may consider new evidence and we can affirm, amend or set aside the original decision and substitute our own.
The paramount consideration is the welfare and best interests of children. Our decision making is guided by the right of children to be cared for in a way that they are protected from harm and so that their health and well-being is promoted.
We must determine, on the balance of probabilities, whether Mr Eiseman's circumstances amount to an exceptional case where it is not in the best interests of children for a positive notice to issue.
Section 226 of the CCYPCG Act sets out matters that are relevant to our consideration. It is not an exclusive list, and we may take into account anything relating to the omission or alleged commission of an offence that we reasonably consider to be relevant.
Mr Eiseman's criminal history includes a 1994 conviction for wilful and unlawful damage to property and other minor matters, which have not impacted on our decision.
The matter of concern to this Tribunal is a 2006 charge of possession of child exploitation material. Mr Eiseman was not convicted of this offence in circumstances discussed later in this decision.
Mr Eiseman was 61 years of age on 22 October 2006 when police attended at his residence and spoke to him.
In material prepared for his criminal trial police assert that:
a)     They were invited into his unit, and recorded a conversation with Mr Eiseman.
b)     They found and examined a computer connected to the Internet and discovered numerous pornographic files stored on the computer's hard drives.
c)     Mr Eiseman told them that he used the computer for keeping accounts for his video repair business and playing a train simulation game. He said he knew how to save and delete files and that files stored on his D drive had been saved for later viewing.
d)     The police observed that a large amount of picture files were stored on both the C and D drives. Most of the pictures were either pornographic or associated with train simulation game software.
e)     A yellow piece of paper was found adjacent to the computer on which the words - “VOYEUR, MASTUTION, DEFLORATION” - were written.
f)     The picture files depicted a significant amount of material involving both male and female children engaged in sexual practices or exposing their genitalia. The police took possession of the computer and Mr Eiseman voluntarily accompanied them to the police station where they determined that a large number of indecent images had been saved to both the C and D drives.
g)     Mr Eiseman's C drive contained four pictures of young children unclothed and engaged in sexual acts including anal and oral intercourse. On the computer’s D drive there were 150 pictures contained in 8 folders of children and toddlers exposing their genitalia and performing sex acts.
h)     In particular an image of a teenage female and a young male of approximately 12 years engaged in a sexual act that appeared to have been modified on 21 October 2006 and was last accessed later on the same day, an image of children engaged in sexual acts that appeared to have been modified on 7 September 2006 and was last accessed on 21 October 2006. Another image of a small naked female child was modified on 7 September 2006 and last accessed on 21 October 2006. This date is significant as it is the date before police interviewed Mr Eiseman.
i)     Mr Eiseman allegedly told police that he had copied the files from Internet sites and saved them to his computer for the purpose of viewing them later on. The police said that Mr Eiseman stated that some of the pictures contained children of a young age and that he had still saved them even though he knew them to be offensive.
j)     An examination of the hard drive of Mr Eiseman's computer, uncovered a list of saved Internet favourites that included: “All child porno”, “Extreme children porno”, “Go defloration” and similar titles.
When the criminal charges came before the Court, it ruled that any confessional evidence obtained from the applicant, and the information obtained from searching Mr Eiseman’s computer were not admissible as the information was obtained unfairly or illegally. The proceedings were subsequently discontinued.
Notwithstanding the discontinuation of the proceedings, the Commissioner formed the view that he could not “be satisfied the charges against the applicant were without substance” and he urges that the Tribunal adopt a similar view.
In his evidence to the Tribunal, Mr Eiseman’s states that he bought the computer from an acquaintance. He denies ever accessing child pornography and denies knowing that it was on the computer. However, he offered no reasonable explanation as to the admissions he was said to have made to the Police, the yellow hand written note in his home, or how or why the material had been accessed the night before the visit by police.
Mr Eiseman states that we should take into account that:
a)     He did not save the images on his computer and did not know they were there,
b)     He has not been found guilty of any charges of possessing child exploitation materials or possessing tainted property which arose out of the same circumstances,
c)     There was no finding of fact made against him in relation to the charges,
d)     The police investigation was clearly tainted,
e)     The charges were serious but they were in 2006, over 6 years ago, and they did not proceed. Since then no further charges have been laid,
f)     He has never exposed any children to harm or to a risk of harm,
g)     He has had little contact with children throughout his life and he is not seeking a blue card to enable him to work in child related employment,
h)     There is no other evidence to suggest that he would pose any risk to children.
We are not deciding whether Mr Eiseman was guilty of the charges brought against him. We accept that the charges were withdrawn. The allegations are however extremely concerning and we are able to consider all the material presented to us (including the information contained on the police file) in determining whether this is exceptional case in which it would not be in the best interests of children to issue a positive notice[1].
[1]QCAT Act s 28(3).
In making our determination we have weighed up the protective factors and risk factors identifiable in the evidence.
We have taken into consideration that Mr Eiseman:
·        Has not been convicted of a criminal offence that would show him to be an unsuitable person to hold a blue card;
·        Has a long history of volunteering in the community;
·        Is highly motivated to maintain community ties in his retirement;
·        Has a largely unblemished criminal record
·        Has the support of community members who provided written referee reports to the Tribunal. Mr Cliffe, an acquaintance of some 20 years, also provided oral evidence in support of Mr Eiseman and was steadfast in his support of Mr Eiseman, whom he described as a man of lower intellect who was devastated by the charges.
·        Has the qualified support of Dr Bob Jacobs, a psychologist working at the Parenting Centre. Dr Jacobs indicated by way of letter that he did not see any “red flags” pertaining to the issuance of a blue card. Unfortunately, Dr Jacobs was unable to complete a formal assessment of Mr Eiseman and was not available to provide oral evidence at the hearing.
In terms of risk factors, we note that:
a)     Mr Eiseman owned a computer containing graphic images of children engaged in sexual acts. While he denies knowledge of the images, he has not provided a credible alternative explanation as to how he failed to notice them on his computer, particularly given the evidence that they had been accessed the day before the computer was seized by police.
b)     Given his denial of any involvement in the storing of the images, Mr Eiseman did not demonstrate remorse for or insight into the harm that such images cause children.
c)     There is no psychiatric or medical evidence to demonstrate that Mr Eiseman is suitable to engage with children in a protective way.
Mr Eiseman's current intentions in terms of his work are irrelevant. If a Blue Card is issued, Mr Eiseman would be entitled to have unsupervised and unfettered interactions with children. There is no power to issue a conditional card restricting its use to the purpose that Mr Eiseman currently seeks.
We are satisfied that the gravity of Mr Eiseman’s behaviour outweighs any protective factors in this case. This is an exceptional case in which it would not be in the best interests of children for a positive notice to issue.
We dismiss the application for review and confirm the decision of the Commissioner made on 18 April 2013 to issue a negative notice to the Applicant.