Jackson v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 186
•17 April 2014
| CITATION: | Jackson v Commission for Children and Young People and Child Guardian [2014] QCAT 186 |
| PARTIES: | Lynne Betsy Rae Jackson (Applicant) |
| v | |
| Commission for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML111-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 2 and 6 December 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne, Presiding Member Murray |
| DELIVERED ON: | 17 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commission for Children and Young People and Child Guardian dated 16 May 2013 to issue a negative notice to Lynne Betsy Rae Jackson is confirmed. |
| CATCHWORDS: | CHILDRENS MATTERS – BLUE CARD – REVIEW – where the applicant seeks a review of the Commissioner’s decision to issue a negative notice – where serious offence of murder – whether exceptional case exists – whether it would not harm the best interests of children to issue a positive notice Commission for Children and Young People and Child Guardian Act 2000, ss 225, 226, 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Jackson represented by Mr A Hoare of Counsel acting on a pro-bono basis, instructed by Callaghan Lawyers |
| RESPONDENT: | Commission for Children and Young People and Child Guardian represented by Mr Craig Capper, Solicitor (in-house) |
REASONS FOR DECISION
Ms Jackson is an employment consultant at Centacare. She requires a blue card to enable her to work with young people who have finished or left school and who are looking for training and employment opportunities.
Ms Jackson applied for a blue card on 18 September 2012 under the categories of ‘health, counselling and support services’. The Commissioner, of the Commission for Children and Young People and Child Guardian (the Commissioner), after conducting an employment screening process, was notified of Ms Jackson’s criminal history by the Queensland Police Service (QPS).
Ms Jackson’s criminal history includes traffic offences in the early 1980’s and drug offences in 1985 and 1992; and unlawfully taking shop goods in 1993.
The criminal history also disclosed a serious offence of murder concerning an incident that took place on 19 April 1995. Ms Jackson was convicted following a trial by jury and sentenced to life imprisonment in the Brisbane Supreme Court on 5 February 1996. An application for leave to appeal the conviction was dismissed by the Supreme Court of Queensland Court of Appeal on 14 May 1996.
The Commissioner invited Ms Jackson to provide submissions in support of her application for a blue card. After considering Ms Jackson’s submissions the Commissioner determined on 16 May 2013 to refuse the application for a blue card and issued a negative notice.
Ms Jackson filed an application in the Queensland Civil and Administrative Tribunal to review the Commissioner’s decision to issue a negative notice. Ms Jackson relies on statements prepared by her and other people that she says attest to her good character and personal circumstances since the offending behaviour, including her employment and training skills. Ms Jackson also relies on a psychological assessment report prepared by a psychologist.
The matter proceeded to a hearing before the Tribunal. Ms Jackson and some of her witnesses that attest to her good character and personal circumstances, William Gerrard, Phillip Dodds and Deborah Kilroy gave oral evidence at the hearing. Ms Jackson’s probation and parole officer, Maria Edmunds, her employment supervisor Kenneth Menzies (from Centacare) and Tanya Eliasson, psychologist also gave evidence at the hearing.[1] Ms Jackson in giving her evidence was given an opportunity to respond to questions about her offending behaviour and personal circumstances since her release from prison on parole (with conditions) on 5 March 2009.[2]
[1]Maria Edmunds, Phillip Dodds and Tanya Eliasson gave evidence (with leave) by telephone.
[2]Affidavit of Deborah Kilroy sworn 21 November 2013, exhibit marked “7”.
The Tribunal received final written submissions from the parties on 23 January 2014 having made directions at the hearing on 6 December 2013.[3]
[3]Directions made by the Tribunal on 6 December 2013 for the exchange and filing of final written submissions.
What is an ‘exceptional case’?
The conviction of murder is, for the purposes of s 225(1) of the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) a serious offence and the Commissioner must issue a negative notice to Ms Jackson unless satisfied it is an exceptional case in which it would not harm the best interests of children to issue a positive notice, then the Commissioner must issue a positive notice.[4]
[4]CCYPCG Act, s 225(2).
The offending behaviour resulting in a conviction of murder involved a stabbing by Ms Jackson, aged 39 years, of a female, aged 28 years (the deceased victim) in the neck with a serrated knife, causing death.[5] It has been approximately 18 years since the offending behaviour in 1995 and Ms Jackson has served 14 years in prison having been released on parole in March 2009.
[5]The Queen v Lynne Betsy Jackson, (Unreported, Supreme Court of Queensland Court of Appeal, Fitzgerald P, McPherson JA, Byrne J, 14 May 1996).
The Tribunal on review, standing in the shoes of the Commissioner, must be satisfied that there are exceptional circumstances before it ‘that takes the case outside the normal rule and thus makes it an exceptional case’.[6]
[6]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [29].
The ‘approach’ to be taken by the Tribunal in determining whether this is an exceptional case in which it would not harm the best interests of children for the Commissioner to issue a positive notice is ‘to consider its application in each particular case, unhampered by any special meaning or interpretation’.[7]
[7]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [33].
The CCYPCG Act refers to certain factors that the Tribunal must have regard to in determining whether this is an exceptional case including, for example, when the offence was committed, the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children and anything else the Commissioner reasonably considered to be relevant to the assessment of the person.[8]
[8]CCYPCG Act, s 226.
The Tribunal must consider the objects of the CCYPCG Act to ‘promote and protect the rights, interests and wellbeing of children in Queensland’.[9] In determining whether this is an exceptional case, the Tribunal must also ensure that the safety and wellbeing of children is its ‘paramount consideration’.[10]
[9]Ibid, s 5.
[10]Ibid, s 155.
In the event that the Tribunal confirms the decision made by the Commissioner to issue a negative notice, Ms Jackson is not prevented from applying to the Commission for Children and Young People and Child Guardian, at some future time, for a blue card to enable her to work with young people.
Relevant factors in considering whether this is an exceptional case
The Tribunal has identified the following factors as being relevant to the exercise of discretion under s 225 of the CCYPCG Act to determine whether this is an exceptional case.
a) Nature of the offending behaviour
The Tribunal was referred to the Supreme Court of Queensland Court of Appeal decision in relation to Ms Jackson’s appeal against her conviction for murder. The appeal was dismissed on 14 May 1996. President Fitzgerald (as he then was) and Justice Byrne stated:
The appellant [Ms Jackson] did not testify. In her record of interview, the appellant denied having intended to cause [the deceased victim] harm. She also told police that she had tried to stop the bleeding. The appellant called for an ambulance soon after the attack.
Apparently, remorse and attempts to prevent death were almost immediate. Previous fights had not resulted in life-threatening injuries. And it may be accepted that only moderate force was needed to inflict the injury [serrated knife penetrating the neck]. But in the circumstances, the intentional insertion of a sharp knife into the neck pointed convincingly to possession of the intent requisite to murder. On the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended at least an injury of such a nature as to be likely to endanger life when the stabbing occurred. The appeal should be dismissed.[11]
[11]The Queen v Lynne Betsy Jackson, (Unreported, Supreme Court of Queensland Court of Appeal, Fitzgerald P, McPherson JA, Byrne J, 14 May 1996).
Ms Jackson gave evidence at the hearing at some length about the circumstances of the offending behaviour in particular the nature of the relationship she had with the deceased victim, her partner at the time, that spanned some 5 years, before the offending behaviour.
Ms Jackson in giving her evidence refers to a history of domestic violence perpetrated by her partner the deceased victim, spanning a number of years. The evidence given by Ms Jackson that there was a history of physical and verbal aggression between her and her partner, the deceased victim, prior to the offending behaviour is consistent with the evidence considered by the Court of Appeal. Fitzgerald P (as he then was) and Byrne J stated:
[Ms Jackson] and her victim had lived at a house at Bribie Island for a few weeks before the killing. They had maintained a lesbian relationship for some time which was often tempestuous. Fights, which usually associated with alcohol, had resulted in black eyes and broken bones. Ms Slade, another occupant of the house, saw knives and other objects used on the odd occasion. Allegations of infidelity frequently accompanied violence.[12]
[12]The Queen v Lynne Betsy Jackson, (Unreported, Supreme Court of Queensland Court of Appeal, Fitzgerald P, McPherson JA, Byrne J, 14 May 1996).
Ms Jackson gave evidence that the relationship with the deceased victim commenced a few months after she (Ms Jackson) moved into a housing commission unit with her young son aged approximately 8 or 10 years of age. The deceased victim was Ms Jackson’s next door neighbour who was also the mother of a young child (aged 2 years). It was Ms Jackson’s first same sex relationship.
Ms Jackson gave evidence that after some 3 months of being in the relationship she became a victim of domestic violence. Ms Jackson states that there was one physical act of violence involving a child’s small plastic chair being hit over her head while she was asleep at night. Ms Jackson could not recall whether her son was in the house at the time. From that time on there were several verbal acts of aggression but no further acts of physical aggression until about 2 years later. Ms Jackson states that she began to fight back in the relationship after about 2.5 years.
Mr Hoare of counsel on behalf of Ms Jackson argues in written submissions that there are matters relevant to the offence such as evidence of the abusive relationship that were not the subject of a determination by a jury because such evidence would not have afforded Ms Jackson a defence at the time. In particular Mr Hoare refers the Tribunal to s 304B of the Criminal Code[13] and submits that if available at the time the ‘battered person defence’ would provide a partial defence to murder in circumstances where there was evidence of the abusive relationship.
[13]Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010 received assent on 16 February 2010. See written submissions filed on behalf of the applicant dated 17 January 2014.
The Tribunal in exercising its review function under the Queensland Civil and Administrative Tribunal Act 2009 cannot go behind the conviction. As previously determined by the former Queensland Childrens Services Tribunal (QCST) in Re FAA[14] the Tribunal must accept the conviction as ‘conclusive’. In Re FAA, the former QCST considered an earlier Federal Court decision of Minister for Immigration and Ethnic Affairs v Gungor.[15] The Federal Court determined that an administrative tribunal with ‘wide investigational powers’ that was not bound by the rules of evidence should review the conviction on its ‘essential factual basis’. The Federal Court determined:
While it stands, the conviction must be conclusive, so far at least as concerns a Tribunal reviewing a decision which takes the conviction and the Minister’s decision as its starting point. When I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed…[16]
[14](Unreported, Queensland Children Services Tribunal, Hon Robert Bulley, 31 July 2006).
[15][1982] 42 ALR 209.
[16]Ibid at 212 per Fox J.
In determining whether an exceptional case exists the Tribunal must have regard to the evidence before it including the conviction of murder that is for the purposes of s 225(1) of the CCYPCG Act a ‘serious offence’. It is not open to the Tribunal on review to attach any weight to the evidence of domestic violence in determining whether an exceptional case exists to draw the inference that if such evidence had been led at trial in the criminal proceedings, on the basis that s 304B of the Criminal Code was available as a defence, it may have reduced a possible verdict from murder to manslaughter.
The evidence of the circumstances of the offending behaviour and Ms Jackson’s evidence about the history of domestic violence is relevant to the nature of the offence for the purposes of s 226 of the CCYPCG Act as it relates to employment, or carrying on a business, that involves or may involve children. The evidence of domestic violence is also relevant to insight and remorse demonstrated by Ms Jackson in relation to the offending behaviour and the effect of any physical and verbal acts of aggression on Ms Jackson’s son; in particular any steps taken by Ms Jackson to protect her son from harm either directly or indirectly resulting from the domestic violence.
b) Insight into the offending behaviour – Ms Jackson’s son
Ms Jackson gave evidence at the hearing about the deceased victim’s child and her own son prior to the offending behaviour. Ms Jackson states that her partner’s young child moved away soon after their relationship commenced. Ms Jackson states that approximately 18 months to 2 years later she gave her son a choice to either stay with her in Bribie Island or to move to Brisbane to live with her parents so that he could attend schooling in the area (where his grandparents lived). Ms Jackson gave evidence that her son decided to move away for his schooling but continued to return to Ms Jackson’s home for visits and to stay during the school holidays.
Ms Jackson gave evidence that after her son moved away the relationship with her partner, the deceased victim, became more physical. Ms Jackson states that she attempted to move away from her partner but she would always follow and Ms Jackson would end up taking her back for reasons she did not know but when questioned at the hearing, Ms Jackson states that she would feel sorry for her. Ms Jackson also states that on one occasion her partner (the deceased victim) left and she later returned to Ms Jackson stating that she had cancer and was not well. Ms Jackson took her partner back and later found out that she was lying and did not have cancer.
The Tribunal observed many inconsistencies in the evidence given by Ms Jackson about the circumstances of the domestic violence; in particular the alleged physical and verbal threats and the impact that this may have had on her son. For example, there were inconsistencies in Ms Jackson’s evidence given at the hearing and the evidence reported to have been given by Ms Jackson to Ms Eliasson, psychologist, during their meeting on 4 October 2013.
Ms Eliasson in her report dated 28 October 2013[17] states:
Ms Jackson described an “on/off” highly volatile relationship. She stated: I lived next door to Tracey. That’s how we met. The first five or six months were good… But we started having arguments because of my struggle to be open about our relationship. I was embarrassed about my sexuality. The arguments turned physical… The first time [it] happened I woke up to her smashing her daughter’s little plastic chair over my head. She still lived next door. She was always threatening my family. She chased my son up the road with a knife once. I was tied up with the Housing Commission… I had a lovely unit one street away from the beach at Bribie Island. Ryan loved it. Tracey was booted from her place and kept coming around. When things got really bad Ryan went to live with my parents. She’d ring my parents and abuse them if I was there. I would spend at least two weekends a month with Ryan and ring every couple of days. I’d come back to all my things smashed…[18]
[17]Exhibit marked “3”.
[18]Ibid, [5.4.6]-[5.4.10].
Ms Jackson’s evidence that there was a physical act of aggression involving a child’s plastic chair approximately 3 months after the relationship commenced with the deceased victim is inconsistent with Ms Jackson’s evidence reported to have been given to Ms Eliasson that reports the first 5 or 6 months of the relationship ‘were good’. Ms Jackson also reports in her Parole Application the first 6 months of her relationship with the deceased victim as going ‘quite well’.[19] Ms Jackson gave evidence at the hearing that she could not recall if her son was in the house at the time of the incident (involving a child’s plastic chair). This is also inconsistent with Ms Jackson’s evidence that her son lived with her until approximately 18 months to 2 years later when she stated that her son left home to live with his grandparents. No explanation was given by Ms Jackson, at the hearing, as to the whereabouts of her son at the time of the incident, when she was hit over the head with a child’s plastic chair.
[19]Parole Application & Relapse Prevention Plan dated 22 September 2008, exhibit marked “4”, [1.10].
Ms Jackson gave evidence at the hearing that her son was not always in the house during the acts of domestic violence but he had witnessed at least one act of physical aggression by her partner stating that during one incident involving a physical attack by the deceased victim her son had yelled for her partner (the deceased victim) to ‘get off his Mum’.
There is evidence before the Tribunal of Ms Jackson’s son witnessing more than one act of physical aggression and as reported by Ms Eliasson, Ms Jackson’s son was also the victim of aggression perpetrated by the deceased victim. There is reference in Ms Eliasson’s report dated 28 October 2013 to Ms Jackson’s son being chased ‘up the road with a knife’ and that the deceased victim was ‘always threatening’ Ms Jackson’s family.
Ms Jackson gave evidence that when Ryan came home to stay her partner would leave. Ms Jackson also gave evidence that she would pay for her partner to stay somewhere else when her son came home. This is also inconsistent with Ms Jackson’s evidence that her son knew about the relationship and that he had spoken to her about the nature of the relationship on at least 2 occasions. For example, Ms Jackson gave evidence that after Ryan (her son) witnessed her partner (the deceased victim) ‘punching’ her, Ryan had a discussion with her about the relationship. Ms Jackson states that her son said (when he was ‘angry’): ‘You need to get out of this lesbian relationship.’ Ms Jackson states that her son has since told her that he does not care (about whether she has same sex relationships) as long as she is happy.
The evidence given by Ms Jackson about the circumstances of her son moving away from home approximately 18 months to 2 years after the relationship commenced is also unreliable. This is relevant to the issue of insight into the circumstances of the offending behaviour and the protective measures put in place by Ms Jackson, at the time, to protect her son from any physical or verbal aggressions either directly or indirectly resulting from the volatile relationship with her partner. Ms Jackson is reported to have told Ms Eliasson that ‘when things got really bad’ her son went to live with her parents. The evidence reported by Ms Eliasson suggests that Ms Jackson’s son was sent away to live with her parents to protect him from any harm that may have been happening in the home as a result of the relationship. This evidence is inconsistent with the evidence given by Ms Jackson at the hearing that she had given her son a choice as to whether he wanted to stay with her or move to Brisbane to live with her parents to complete his schooling.
The evidence given by Ms Jackson about counselling undertaken by her son is also unreliable. Ms Jackson gave evidence that she had arranged for her son to attend counselling as he was experiencing difficulties with school and later became involved in drugs. Ms Jackson also gave evidence that she took her son to counselling after the offending behaviour because he was not coping and would cry when he saw her. Ms Jackson states that she now has regular contact by phone with her son who lives and works overseas. Ms Jackson also states that her son is ‘doing brilliantly’ and that ‘good comes out of the bad’.
The Tribunal is not satisfied that Ms Jackson has demonstrated insight into the effects of the domestic violence and offending behaviour on her son. For example, when questioned at the hearing Ms Jackson stated that she had placed her own needs above her son and that in hindsight she would not have done it. Ms Jackson was unable to identify the emotional impact the effects of the domestic violence may have had on her son. Ms Jackson stated that he (her son) missed his mother. Ms Jackson also stated that Ryan had told her she had to ‘get out of this lesbian relationship’. Ms Jackson did state, however, when asked directly about the effect on a child witnessing a domestic violence incident that the child would be hurt and angry.
c) Insight into offending behaviour – remorse
There is evidence of remorse in relation to the offending behaviour and Ms Jackson’s strategies in place now to support her if faced with a difficult situation today. Ms Jackson in her affidavit sworn 21 November 2013 states that she understands the ‘ill effects’ that her offence has had on her family and the deceased victim’s family. Ms Jackson also gave evidence at the hearing about the effects of her offending behaviour stating that she thinks about the deceased victim’s daughter everyday.
Ms Eliasson, psychologist, reports that Ms Jackson does not recall the whole incident giving rise to the conviction but accepts responsibility for her actions.[20] In the report dated 28 October 2013 Ms Eliasson states:
Ms Jackson demonstrated genuine remorse for her actions that led to the victim’s death…Although Ms Jackson could not recall the whole incident; she took full responsibility for her actions that precipitated the offence. Ms Jackson may have experienced dissociative amnesia, a common response to a traumatic event and viewed as a means of self-preservation.[21]
[20]Exhibit marked “3”, [5.9.4].
[21]Ibid, [5.9].
Ms Jackson also gave evidence about assistance she sought prior to the offending behaviour and that there was support of family and friends available but it was her ‘embarrassment’ that kept her from ‘reaching out’. Ms Jackson states in her affidavit sworn 21 November 2013:
I sought professional advice on two occasions during the physical violence however at the time no-one appeared willing to counsel on same sex domestic violence situations. Friends who supported me at the beginning began to take a step back as the destructive mess I had myself in was out of control and my self-esteem was in tatters. The doors of family support with family and a few friends were always open however it was my embarrassment that kept me from reaching out. This led me to having the feelings of isolation and no positive direction in my life.[22]
[22]Exhibit marked “1”, p 5.
Ms Jackson also states in her affidavit that she can now ‘recognise triggers’ associated to her offending behaviour and that she would be able to apply the strategies she has put in place ‘to control a difficult situation effectively’.[23] Ms Jackson gave evidence about her ‘support’ network comprising of family and friends stating that she would now be able to ‘get support’.
[23]Affidavit of Lynne Betsy Rae Jackson sworn 21 November 2013, exhibit marked “1”, [42].
Ms Jackson was questioned at the hearing about why she chose to not use her support network of family and friends that was also available to her prior to the offending behaviour. Ms Jackson gave evidence that she was ‘very embarrassed’ stating that she knows it was the ‘wrong thing today’ and she knows who she would turn to now.
d) Insight into offending behaviour – alcohol use
There is unreliable evidence about Ms Jackson’s use of alcohol prior to and in relation to the offending behaviour. The evidence about the role that alcohol played in relation to the offending behaviour is relevant to insight and the emotional triggers as they relate to Ms Jackson that led to the offending behaviour.
There is reference to ‘alcohol’ in the Court of Appeal decision being associated with ‘fights’ between Ms Jackson and her partner resulting in ‘black eyes and broken bones’. Ms Jackson was also found to have been ‘at a hotel’ on the day of the offending behaviour.[24]
[24]The Queen v Lynne Betsy Jackson, (Unreported, Supreme Court of Queensland Court of Appeal, Fitzgerald P, McPherson JA, Byrne J, 14 May 1996).
Ms Jackson states in her sworn affidavit that prior to her relationship with the deceased victim she did ‘drink on occasions’ and that over time alcohol ‘became the mask for [her] relationship problems’.[25] Ms Jackson also reports in the Parole Application that she started drinking during her relationship with the deceased victim. Ms Jackson states in the Application:
Overtime I began to retaliate to defend myself from the physical violence. It became one big vicious cycle and I started drinking even more to cope with my insecurities with my sexuality. This caused a lot of tension and hopelessness and I turned to alcohol instead of dealing with it. To be honest I did not know how to deal with it but I do know now that alcohol was not the answer, in fact it was disastrous.[26]
[25]Affidavit of Lynne Betsy Rae Jackson sworn 21 November 2013, exhibit marked “1”, [17].
[26]Parole Application & Relapse Prevention Plan dated 22 September 2008, exhibit marked “4”, [2.0].
Ms Jackson gave evidence at the hearing that she attended alcoholics anonymous (AA) meetings during her period of imprisonment and attended psychological counselling after her release on parole. Ms Jackson gave evidence that she attended AA meetings when she first went to prison as this allowed her to have tea and biscuits and other privileges including staying up late. She states that she no longer drinks and if faced with a situation of domestic violence again today she would walk away.
Ms Jackson also gave evidence that she was not an ‘excessive drinker’ during her 5 year relationship with the deceased victim. Ms Jackson states that she has said it was an ‘escapism’ but she did not have the money to drink and that she would often go to the pub because this was her ‘safe haven’. Ms Jackson states that her partner (deceased victim) was not allowed in the pub and she (Ms Jackson) would go to the pub and drink water. Ms Jackson also states that she had drinks on the night of the offending behaviour.
Ms Jackson’s evidence that she was not an ‘excessive drinker’ and she would go to the pub and drink water is inconsistent with the evidence reported by Ms Eliasson in her report dated 28 October 2013 and the evidence of Ms Kilroy that suggests Ms Jackson used alcohol as a coping mechanism. Ms Eliasson states in her report dated 28 October 2013:
[Ms Jackson] acknowledged the two driving offences involving alcohol that occurred in the early 1980s. There were problems within her relationship at the time. Her partner was very controlling. She used alcohol as a means of emotional coping… Her alcohol intake escalated significantly during the five years with the victim, but she did not develop an alcohol dependency. The local pub became somewhere to escape the volatile situation she was in. She explained, I wasn’t always drinking there either. I never got up thinking I need a beer today, but I did drink to mask my relationship problems.[27]
[27]Exhibit marked “3”, [5.5.3]-[5.5.5]..
At the hearing Ms Eliasson gave evidence by telephone about the offending behaviour stating that Ms Jackson would use alcohol as a coping mechanism but it was not a dependency problem. Ms Eliasson also states that there was some ‘alcohol abuse’.
Ms Jackson relies on the evidence of Ms Kilroy, legal practitioner and Chief Executive Officer and founding member of Sisters Inside of which Ms Jackson was also a member during her period of incarceration. Ms Kilroy gave evidence about professional counselling Ms Jackson received to help resolve traumatic areas of her life and her transition from prison to the community following her release from prison on parole on 5 March 2009. Ms Kilroy in giving her oral evidence at the hearing states that prior to the offending behaviour Ms Jackson would use alcohol to get away from ‘violence’ by going to pubs and drinking and that this would have a ‘numbing effect’. Ms Kilroy also gave evidence about Ms Jackson’s remorse about the offending behaviour stating that Ms Jackson knows she is responsible for her partner’s death.
Mr Gerrard also gave evidence on behalf of Ms Jackson about her use of alcohol as a coping mechanism. Mr Gerrard is a family friend of Ms Jackson who also has a history of drinking and has now been sober for approximately 18 years. Mr Gerrard gave evidence at the hearing that he spoke to Ms Jackson after her release from prison and states that Ms Jackson had told him about the ‘alcohol issue’. Mr Gerrard states that he had offered to take Ms Jackson to AA but she declined the offer at the time. Mr Gerrard states that he did not think she had an issue with alcohol. Mr Gerrard also gave evidence about his observations in relation to Ms Jackson interacting with his disabled daughter stating that he had no trust or confidence issues with Ms Jackson being around his daughter.
e) Ms Jackson’s employment and risk of re-offending
Ms Jackson has been working at Centacare since she was released on parole in 2009. The Tribunal observed Ms Jackson in giving evidence about her employment at Centacare to speak in a confident and forthright manner. Ms Jackson spoke at length about her achievements at work. Ms Jackson states that she would like to continue working with her clients including young people. Ms Jackson states that she did not know what she would do if she was refused a blue card stating she would ‘cross that bridge when we get to it’.
Mr Menzies gave evidence on behalf of Ms Jackson in relation to her employment. Mr Menzies was the site manager for Centacare at the Toowong office where Ms Jackson commenced working in or about June 2009, shortly after her release from prison. Ms Jackson’s employment contract with Centacare will end in or about June 2015. Mr Menzies states that Ms Jackson requires a blue card to enable her to work with clients who are early school leavers. Mr Menzies states that approximately 60% of their clients are early school leavers.
The Tribunal cannot be satisfied based on the evidence of Mr Menzies and Ms Jackson that holding a blue card is a necessary requirement to enable Ms Jackson to continue her employment with Centacare. Mr Menzies gave evidence at the hearing that in the event Ms Jackson is not successful in obtaining a blue card he will take the matter to the director stating that he ‘supports’ Ms Jackson. Mr Menzies was questioned at the hearing about whether Ms Jackson would be able to work at Centacare with clients who were not school leavers. Mr Menzies gave evidence that Ms Jackson would be able to work with non-school leavers but it was preferable to have a blue card. Mr Menzies states that teams can be managed more effectively if everyone holds a blue card.
Mr Menzies described Ms Jackson as being a very positive person. Mr Menzies states that she has an ability to engage with younger clients and to keep them interested. Mr Menzies gave evidence that Ms Jackson is required to work with clients who are quite often angry because they have had their financial entitlements ceased and states Ms Jackson has the ‘life skills’ to ‘turn people around’.
Mr Menzies also gave evidence about Ms Jackson’s role at Centacare stating that she is responsible for working with clients to assist them in finding employment including assisting clients to write resumes and meeting with other staff. Mr Menzies states that Ms Jackson has a ‘high strike rate’ which he explained to mean that Ms Jackson was successful in placing clients with an employer that exceeded her key performance indicators.
The evidence given by Mr Menzies about Ms Jackson’s dedication and success to her work at Centacare is corroborated by the evidence given by Mr Dodds. Mr Dodds in his statement dated 11 September 2013 states that he first met Ms Jackson in 2002 when he started working for Sisters Inside as a youth worker in the Crucial Connection Program. Mr Dodds refers to Ms Jackson’s work with clients in her role as a job consultant at Centcare. He states: ‘Lynne is thoroughly professional in her work and shows an ability to connect with her clients’.[28]
[28]Statement of Phillip Dodds dated 11 September 2013, exhibit marked “10”, [13].
Ms Eliasson states in her report dated 28 October 2013 that Ms Jackson does not pose a danger to children or young people in the workplace and her personal life. Ms Eliasson states in her report: ‘I consider that the likelihood of Ms Jackson committing another offence of any type is highly unlikely’.
Ms Eliasson was questioned at the hearing about Ms Jackson’s risk of offending in the context of the transferability of a blue card, for example living with someone who is a foster carer. Ms Eliasson states that any risk would be determined by Ms Jackson deciding to be in a dysfunctional relationship. Ms Eliasson states that Ms Jackson presents as being at a low risk of reoffending but further states that safeguards should be put in place by organisations to do criminal history checks so that they are aware of Ms Jackson’s offending behaviour. Ms Eliasson also gave evidence that Ms Jackson, in her opinion, has changed ‘so much’ stating that Ms Jackson is aware of what is a healthy relationship and has come to terms with her sexuality.
Ms Eliasson’s evidence given at the hearing and in her report that Ms Jackson is not interested in pursuing another relationship is consistent with the evidence given by Ms Jackson at the hearing. Ms Jackson states that it is a condition of her parole to report any relationships and states that she does not want a relationship. Ms Jackson also gave evidence that if she was in a dysfunctional relationship again she would walk away, stating that she would ‘never put herself in that situation again’.
There is evidence before the Tribunal in relation to the conditions of parole since Ms Jackson was released from prison in March 2009. Ms Edmunds gave evidence at the hearing in her capacity as Ms Jackson’s parole officer. Ms Jackson will be on parole for life and as part of her conditions she must report to her officer regularly and also report any changes in her circumstances; for example any changes in her personal relationships including social supports. Ms Jackson has complied with her conditions of parole since her release from prison.[29]
[29]As of 7 October 2009 Ms Jackson is no longer subject to the parole condition to not enter or remain in a pub or club or licensed premises, Form 41, Section 21 material.
Are there exceptional circumstances before the Tribunal and therefore an ‘exceptional case’ exists?
The Tribunal accepts that it was difficult for Ms Jackson, in giving her evidence, to discuss certain aspects of her past relationship with the deceased victim that involved physical and verbal aggression over a number of years and that with the passage of time it may have been difficult for her to recall particular circumstances of the physical and verbal aggression. The Tribunal observed that Ms Jackson became at times emotional in answering questions asked by Mr Capper on behalf of the Commissioner. For example, Ms Jackson became teary and it was necessary to take a short break on at least one occasion during the hearing.
The Tribunal gave Ms Jackson several opportunities to answer questions asked by Mr Capper and questions asked by the Tribunal about the offending behaviour and her son and the impact that the domestic violence situation and the offending behaviour may have had on him.
The Tribunal observed some inconsistencies in relation to Ms Jackson’s evidence given about the circumstances preceding the offending behaviour including the physical and verbal threats by Ms Jackson’s partner, the deceased victim, witnessed by her son; and evidence about Ms Jackson’s alcohol consumption. There is also evidence before the Tribunal that although Ms Jackson had close family and friends around her prior to the offending behaviour she did not seek their support because of her ‘embarrassment’. Ms Jackson gave evidence that she now has in place strategies including the support of family and friends she can rely on today.
There are no restrictions on the issuing of a blue card in that Ms Jackson would be able to engage in any type of employment with children. For example, Ms Jackson would be able to enter into another relationship and live with a person who works as a foster carer. The evidence given by Ms Eliasson, psychologist, is unreliable as to the risk of Ms Jackson reoffending. Ms Eliasson when questioned at the hearing gave evidence that Ms Jackson was a low risk of reoffending but also stated that there would need to be strategies put in place by relevant departments to be aware of Ms Jackson’s history of offending.
The best interests of children is the Tribunal’s paramount consideration in these proceedings. There must be exceptional circumstances before us in order for the Tribunal to be satisfied that this is an exceptional case and therefore a positive notice should issue. The Tribunal cannot be satisfied that this is an exceptional case in which it would not harm the best interests of children to issue a positive notice having identified inconsistencies in Ms Jackson’s evidence about the offending behaviour and the protective strategies put in place to protect her son from the effects of the domestic violence prior to the offending behaviour.
The Tribunal has also considered the evidence relating to Ms Jackson’s employment at Centacare and is not satisfied based on the evidence of Mr Menzies and Ms Jackson that it is a requirement for Ms Jackson to have a blue card to enable her to continue employment with Centacare. There is no evidence before the Tribunal that Ms Jackson’s work at Centacare including working with young people such as early school leavers is what may be described as ‘exceptional’. The evidence of Mr Dodds as to Ms Jackson’s ability to ‘connect’ with her clients including young people such as early school leavers is consistent with the evidence given by Mr Menzies that Ms Jackson is committed and dedicated to her work and is successfully performing her role at Centacare.
The Tribunal has carefully considered all of the material and circumstances surrounding the offending behaviour. The Tribunal accepts that Ms Jackson is remorseful for her actions resulting in the offending behaviour and has been complying with the conditions of her parole since her release from prison as well as maintaining employment. Ms Jackson’s witnesses attest to her positive outlook and there is evidence that Ms Jackson has a close relationship with family and friends who also support her in daily life.
The evidence about Ms Jackson’s present circumstances is consistent with what is expected of her having been released on parole with conditions (for life). Ms Jackson is complying with her conditions of parole and living as an ordinary member of the community. There are no circumstances that take this matter ‘outside the normal rule’.[30] The appropriate order will be that the decision of the Commissioner to issue a negative notice is confirmed.
[30]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [29].
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