Johnston v Commissioner for Children and Young People and Child Guardian
[2010] QCAT 674
•31 August 2010
CITATION: | Johnston v Commissioner for Children and Young People and Child Guardian [2010] QCAT 674 | |
| PARTIES: | ALAN DAVID JOHNSTON Applicant | |
| V | ||
| COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE AND CHILD GUARDIAN Respondent | ||
| APPLICATION NUMBER: | CSR 156-08 |
MATTER TYPE: | Childrens matters |
| HEARING DATE: | 20 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon R J Bulley, Presiding Member Ms Julie Ford, Member |
| DELIVERED ON: | 31 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the Decision of the Commissioner for Children and Young People and Child Guardian of 28 October 2008 to issue Alan David Johnston with a negative notice BE CONFIRMED. |
| CATCHWORDS : | ADMINISTRATIVE LAW – where negative notice issued to Applicant by the Commissioner – where Children Services Tribunal set aside Commissioner’s decision – where Commissioner appealed Tribunal’s decision – where District Court set aside the Tribunal’s decision and returned the matter to the Tribunal for reconsideration – where Queensland Civil and Administrative Tribunal reconsidered the matter. FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 – OTHER MATTERS – where transitional provisions of Queensland Civil and Administrative Act 2009 considered – where Tribunal considered the application of the phrase exceptional case – standard of proof and onus of proof in blue card reviews commented on. Commissioner for Children and Young People and Child Guardian Act 2000, ss 100,492)2), 474,6(1),Chapter8,155,221(1),221(2),226, Children Services Tribunal Act 2000, ss79,38(1),38(2),37 Queensland Civil and Administrative Tribunal Act 2009, s.260 Kent v Wilson (2000) VSC 98 at paragraph 29 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 Maher’s Case [2004] QCA 492 In the Marriage of Sandrk (1991) 104 FLR 394 at 399-400 Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287-288 Re OAA [2006] QCST 14 M v M (1988) 82 ALR 577 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The applicant appeared on his own behalf |
| RESPONDENT: | Craig Capper for the respondent |
REASONS FOR DECISION
History of Proceedings
On 18 February 2008 Griffith University lodged with the Commissioner for Children and Young People and Child Guardian (the Commissioner) in approved form an Application for Suitability Notice (a blue card) in respect of the Applicant Alan David Johnston (Alan) under the provisions of s. 100 of the Commission for Children and Young People and ChildGuardian Act 2000 (the Act) as it then stood.
By letters dated 28 October 2008 the Commissioner advised both Griffith University and Alan of her decision to issue a Negative (Unsuitable) Notice to Alan in respect of the Application. This letter enclosed the Statement of Reasons for the decision.
By document (in Form 1) lodged 5 November 2008 Alan lodged an Application to Review the decision of the respondent Commissioner. By that Application Alan in effect sought that the Commissioner’s decision be set aside and that a Positive (Suitable) Notice be issued to him. The Application to Review was made to the then Children Services Tribunal. (the CST).
On 25 November 2008 the CST held a Preliminary Conference in the matter pursuant to sec. 79 of the then Children Services Tribunal Act 2000 (the CST Act) (repealed). At that Conference the CST, inter alia, directed that the hearing of Alan’s Application for Review take place on 12 January 2009. The CST made other directions at the Preliminary Conference.
The hearing of the review application duly took place on 12 January 2009. At the conclusion of the hearing the CST reserved its decision.
On 11 February 2009 the CST delivered its Decision and provided its Reasons for Decision.
The CST Decision was that the decision of the Commissioner to issue Alan with a negative notice be set aside and that a positive notice be issued to Alan forthwith.
On 12 March 2009 the Commissioner lodged a Notice of Appeal to the District Court against the CST Decision. This appeal was heard by the District Court on 26 October 2009. The District reserved its decision.
The District Court delivered its decision on 30 March 2010. It ordered that the Appeal be allowed, that the Decision of the CST of 11 February 2009 be set aside, and that the matter be returned to the CST for reconsideration in accordance with the reasons of the District Court. The reasons of the District Court accompanied the orders made on 30 March 2010.
On 13 July 2010 the Queensland Civil and Administrative Tribunal (the Tribunal) conducted a directions hearing pursuant to the order of the District Court returning the matter to the CST. At that hearing the Tribunal, inter alia, set the matter down for hearing on 20 August 2010.
The hearing duly took place before the Tribunal on 20 August 2010. At the conclusion of the hearing the Tribunal reserved its decision.
At the outset of the hearing the parties agreed to rely on all the written material presented at the CST hearing held on 12 January 2009 with the exception of the document entitled Points System Assessment carried out by the Commissioner. See the Commissioner’s letter dated 16 August 2010. This approach was adhered to by the Tribunal.
Further written material was presented at the hearing conducted by the Tribunal on 20 August 2010. In addition further oral evidence was provided. Further written submissions were produced by the parties.
The Law to be Applied
The relevant law to be applied is the Act referred to above as amended, and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
In accordance with s. 260 of the QCAT Act, as the District Court appeal had already been commenced under the CST Act and had not been finally dealt with upon commencement of the QCAT Act, where the District Court’s decision was to remit the matter, QCAT must deal with the matter under the CST Act as if it were still in force.
In this regard QCAT has, and only has, the functions of the CST and can only make a decision the CST could have made in relation to the matter under the CST Act. The CST Act and other relevant laws continue to have effect as if they were still in force for these purposes.
Thus in accordance with s. 38 (1) of the CST Act , after reviewing the reviewable decision (in this case that of the Commissioner), the Tribunal may:
(a) confirm, set aside or vary the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return it to the decision maker for reconsideration in accordance with directions given by the Tribunal.
S. 38 (2) of the CST Act provides that For subsection (1) the tribunal-
(a) has all the functions of the decision maker; and
(b) must have regard to the matters the decision maker was required to have regard to under the Act under which the decision was made.
S.37 of the CST Act provides that for reviewing a reviewable decision, the tribunal is to decide afresh the matter to which the reviewable decision relates, unaffected by the reviewable decision, and take all reasonable steps to ensure it has all relevant material before it. The tribunal may have regard to relevant material that was not available to the decision maker.
In accordance with the Criminal History Screening Legislation Amendment Act 2010 a number of significant amendments were made to the Act on 1 April 2010., most notably a complete restructure and renumbering of the Act.
Pursuant to s. 492 (2) of the amended Act, if a person applied for a review prior to commencement, and the review has not been decided at the commencement, the Tribunal must apply the amended Act in relation to the matter the subject of the review.
Relevantly s. 474 of the amended Act provides that a negative notice issued under the unamended Act is taken to be a negative notice issued under the amended Act.
S. 6 (1) of the Act prescribes that This Act is to be administered under the principle that the welfare and best interests of a child are paramount. Chapter 8 of the Act deals with the subject of Screening for regulated employment and regulated businesses. S. 155 under that Chapter provides Without limiting section 6, the paramount consideration in making a decision under this Chapter is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well being.
S. 221 (1) of the Act relevantly provides that
Subject to subsection (2), the commissioner must issue a positive notice to the person if –
…
(c) the commissioner is aware of a conviction of the person for an offence other than a serious offence.S. 221 (2) of the Act relevantly provides as follows –
If subsection (1) …(c) applies to the person and the commissioner is 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, the commissioner must issue a negative notice to the person. (bold type has been added)
Alan’s criminal history contains a number of convictions for offences. Details of these offences are set out in the written material before the Tribunal. None of these offences come within the definition of a serious offence
It therefore follows for present purposes that the commissioner is to be taken as being satisfied that this was an exceptional case as described in s. 221 (2) of the Act.
The phrase exceptional case has not been defined in the Act. It is a matter of discretion after a consideration of the merits of the case and a consideration of the factors that the commissioner, and in the event, the Tribunal, are obliged to take into account. Assistance as to the meaning of the phrase can be gleaned from judicial pronouncements in such reported decisions as Kent v Wilson [2000] VSC 98, at paragraph 29; Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR1; Maher’s Case [2004] QCA 492; In the Marriage of Sandrk (1991)104 FLR 394 at 399-400; and Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287-288.
Further the Tribunal gains assistance from the discussion as to what amounts to an exceptional case in the CST decision of Re OAA [2006] QCST 14. In that decision the Tribunal concluded that consideration should be given as to whether an applicant represents an unacceptable risk to children.
S. 226 provides as follows:
(1) This section applies if the commissioner –
(a) Is deciding whether or not there is an exceptional case for the person; and
(b) Is aware that the person has been convicted of, or charged with, an offence.
(2) The commissioner must have regard to the following –
(a) In relation to the commission, or alleged commission, of an offence by the person –
Whether it is a conviction or charge; and
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
When the offence was committed or is alleged to have been committed; and
The nature of the offence and its relevance to employment, or carrying of a business, that involves or may involve children; and
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.
The decision-making process of the Commission, and now the Tribunal, is guided by the High Court decision of M v M (1988) 82 ALR 577, that is:
31.1 The purpose of employment screening is not to re-try the applicant’s case. Neither the Commission nor the Tribunal is a court exercising criminal jurisdiction;
31.2 It is not the role of the Commission, nor the Tribunal, to arrive at a definitive conclusion on the issue of guilt or innocence. The applicant’s guilt or innocence is a secondary consideration to the determination of what is in the best interests of children and young people.
The term conviction is defined in Schedule 7 of the Act as meaning – a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.
In accordance with the Act an applicant’s criminal history means –
(a) Every conviction of the person for an offence, in Queensland or elsewhere, and whether before or after the commencement of this Act; and
(b) “every charge made against a person for an offence…”. (See definition
of “criminal history” in Schedule 7 of the Act).
For the sake of completeness the Tribunal notes and applies-
(a) the standard of proof of satisfaction as being upon the balance of probabilities; and
(b) That there is no onus of proof on either party. In particular there is no onus on the Commissioner to establish an exceptional case.
Factual Background
Alan is now aged 54 years. He was born on 3 October 1955. He lives with his partner Sally Emerson in a rented unit on the Gold Coast. They have been together for the past 17 months. They are the only occupants of their accommodation.
Alan describes himself as a full time student at Griffith University on the Gold Coast campus. He is doing a course in Nursing. He said that he has 5 subjects to complete. He will need to complete practical work in placements and to be able to do this he needs a blue card as this he says is the policy of the Nursing Faculty at Griffith and of Queensland Health. It is this requirement which caused Alan to apply for and pursue a blue card. Additionally Alan does some casual work provided from time to time by nursing agencies. He derives some income from these activities. His other source of income is from Centrelink payments.
Sally earns income from her employment as a massage therapist.
Alan has regular contact with his married daughter Justine, her husband, and their 2 children, daughters aged 6 and 3. The visits are usually about every fortnight. Alan is reported to have a good relationship with his granddaughters.
Alan has described his work and life history in the written material supplemented by his oral testimony. He had quite a number of types of employment. He worked in sales and was involved in various business enterprises. Perhaps the account of his life he gave to Dr Kazlauskas as set out in the Doctor’s report dated 16 August 2010 provides as good an insight as any into his own perception of it. He agreed in oral evidence that he had had a good deal of contact with business people, accountants, and lawyers over the course of his life. He went on to agree that he could reasonably be described as a man of the world.
As part of the employment screening process the Commissioner undertook a check of police services. As a result Alan’s criminal history was disclosed. This history disclosed the following offences:
(a) On 28 June 1995 Alan pleaded guilty in the Cleveland Magistrates Court to having committed on 21 January 1995 the offences of Wilful and unlawful damage to property and Stealing. He was discharged absolutely on both charges, and no conviction was recorded.
(b) On 17 July 2001 Alan pleaded guilty in the Cleveland Magistrates Court to having on 7 June 2001 committed the offence of Common assault. No conviction was recorded but he was placed on a Recognizance in the sum of $500 to be of good behavior for 12 months.
(c) On 11 August 2006 Alan pleaded guilty in the Wynnum Magistrates Court to the offences of Conduct transactions so as to avoid reporting requirements (2) between 19 October 2003 and 8 November 2003. He was convicted of these charges and fined $2500.
(d) On 18 January 2008 Alan pleaded guilty in the Southport District Court to the offences of Unlawful stalking (2). He was convicted of these charges and sentenced to imprisonment for a period of 2 years 6 months. It was declared that the time he spent in pre-sentence custody be deemed as time already served under this sentence – 322 days (between 2 March 2007 and 18 January 2008). It was ordered that the date he be released on parole be fixed at 1 February 2008. His parole period was then due to come to an end on 29 August 2009.
In addition the District Court made comprehensive restraining orders against Alan all to last for 5 years. These orders were made in favour of the victim solicitor Barnes, his wife, and with the handwritten addition by the sentencing Judge, their children. A similar restraining order was made in favour of the victim Daley, his wife, and their children. A further restraining order was made in favour of the complainant Robyn Owen.
In relation to the offences referred to in paragraph 40 (a). There is a difference between Alan’s version of these offences and that of the version put to the District Court by the Crown Prosecutor at the time Alan was sentenced for the Unlawful Stalking offences. The Crown Prosecutor’s version was not disputed at the sentencing. In any event the Tribunal found Alan to be not a reliable witness. Alan told the Tribunal that he committed the offences out of frustration.
In relation to the offence referred to in paragraph 40 (b) there is once more a divergence in the version of the police version of events and that of Alan. Again the Tribunal accepts the police version as it found Alan to be an unsatisfactory historian. Alan told the Tribunal that he committed the offence out of anger.
In his written submission Alan described the offences in paragraph 40 (a) as petty and unjust. In that document he described the offence of Common assault referred to in paragraph as an extremely minor incident. However in her sentencing remarks on the Unlawful stalking conviction Her Honour Judge Dick included the following;
It is relatively high level, I think, of this type of offence, and if you did not have the two previous – which, although they are relative minor, have that similarity that causes some concern – I might have been amenable to the idea that the head sentence should be 18 months to 2 years.
Effectively, I am going to order a two and a half year sentence…It is clear from these remarks that because of the similarity of all these offences the longer term of imprisonment was imposed. Thus contrary to Alan’s submissions to the Tribunal the learned Judge regarded the earlier offences as of significance.
Alan asserts that the offences described in paragraphs 40 (c) and (d) are interrelated. Alan said that he consulted the lawyer Barnes in mid 2003 seeking help to protect his and his family’s assets from a claim for substantial damages made against him arising out of a business transaction. Alan asserts that he was given advice by Barnes which later proved questionable. He said that Barnes also advised him to consult the man Daly who was a financial planner. Alan said he also took up Daley’s advice. He said that this also proved questionable.
Alan asserted that as a result of following the advice from Barnes and Daley he and his wife were thoroughly investigated by the Federal Police and later charged with the offence referred to in paragraph 40 (c). He said that he found the investigation by the Federal Police an extremely stressful experience. He asserts that his marriage fell apart as a result of the stress both he and his wife Elaine so endured. He said that he sought help from his GP and a psychologist who diagnosed reactive depression.
Barnes and Daley quickly ended their association with Alan. However Alan pursued his alleged grievances against them by reporting their alleged questionable advices to various authorities as described in the written material. However he derived no real satisfaction from those complaints. He also instituted civil proceedings for damages against them. He consulted a different firm of lawyers to assist him in his claims against Barnes and Daley.
In October 2005 Alan moved out of the family home in Queensland and went to Melbourne. There he entered into a relationship with one Robyn Owen, a registered nurse. However he separated from Robyn towards the latter part of 2006 and returned to live on the Gold Coast. Some 3 months later in January 2007 Robyn came to the Gold Coast and started work as a nurse at the Gold Coast Hospital. She resumed living with Alan although Alan says that they were not in an intimate relationship.
After resuming living with Alan, Robyn alleged that he began to badger her repeatedly to obtain a gun for him in order to seek revenge on Barnes. She said that Alan began making threats that he wanted to shoot someone. She said that Alan felt that she would be able to obtain a gun from her brother Mick Gatto, a well known crime figure in Melbourne. She found pictures on her camera taken by Alan when he was following someone in a motor vehicle. She discovered a folder belonging to Alan in their unit. This folder contained information about Barnes and Daly. She then contacted police about her concerns that Alan was planning some revenge on these 2 men.
Police executed search warrants at Alan’s premises. There they located computer print outs of the details of the complainants’ companies, maps to the complainants’ addresses, notes regarding relevant security at their homes, notes of vehicles that they owned, and a note that one complainant had a 5 year old daughter. When interviewed Alan admitted photographing the complainants’ homes and vehicles, following the complainants and taking photos of one complainant whilst driving on a highway.
Further details of the circumstances of the Unlawful stalking offences are set out in the written material. Alan’s account of his trip to Gympie as he told the Tribunal was not at all convincing. The Tribunal was left with grave suspicion surrounding his intention in making this trip. The assertion that he had said that he intended to secure a fire arm for himself gains credence as a result.
Apart from his plea of guilty to the Unlawful stalking offence and his failure to deny any assertions of the Crown Prosecutor at his sentencing hearing, Alan has adopted a stance of denial of these charges and in particular a denial of any suggestion of seeking to obtain a gun, or of having made any request of Robyn Owen to obtain a gun for him.
However Alan told the Tribunal that for the purpose of this review he accepts that the Tribunal must proceed on his plea of guilty in the District Court. However he said that he personally does not believe he was guilty of these offences. As a result he said that he felt no remorse about his actions, this despite his Counsel telling the District Court at his sentencing that –
…Things just got to a stage to a reasonable melt down stage and he’s done these actions. He’s extremely remorseful for that He’s sorry…
Alan told the Tribunal that 3 days after he was released from prison he contacted Robyn. He knew that this was in breach of the restraining order imposed a few weeks earlier in his presence. He said that a few months later he and Robyn resumed living together in an intimate relationship.
On 28 February 2008 Alan filed an application for leave to appeal against sentence. However he only sought to appeal challenge the restraining order against Robyn Owen. As part of his application Alan sought to adduce fresh evidence in the form of a statutory declaration dated 22 May 2008 and apparently signed by her. The application was heard on 19 September 2008, and judgment was delivered on 26 September 2008.The substantive judgment in the Court of Appeal hearing Alan’s application was that of Fraser JA. The other 2 judges agreed with His Honour’s reasons and order. At paragraph 23 of his judgment Fraser JA stated:
…Given the nature of the offences of which the applicant was convicted, the absence of any evidence concerning the circumstances in which Ms Owen’s statutory declaration was made, and the conflict between it and the evidence discussed below, I would not be prepared to rely on the statutory declaration.
At paragraph 25 of His Honour’s judgment the following appears:
…In any event, having regard to the applicant’s ability to apply in the District Court for revocation of the restraining order, in my opinion it is not in the interests of justice to grant leave to appeal.
The Court’s decision was to refuse Alan’s application.
Alan told the Tribunal that he has not made an application to the District Court to revoke the restraining order in Robyn’s favour. The statutory declaration dated 22 May 2008 was not produced to the Tribunal. The circumstances of its compilation were not explained for the Tribunal’s benefit.
Alan had made a complaint to the Queensland Nursing Council on 6 December 2007 alleging that Robyn Owen had a problem with drug addiction and had used drugs obtained from the workplace in his presence. As a result of this complaint and an earlier complaint by another person, a Dr Prior Psychiatrist was engaged by the Council to assess Robyn. Dr Prior’s report is in evidence. Relevantly Robyn Owen’s there reported account of her unlawful stalking assertions are fully consistent with her allegations to the police.
Alan told the Tribunal that he made his complaint about Robyn in revenge for her complaint to the police about him.
In support of his application for a blue card Alan provided a signed statement from Robyn dated 5 August 2008. He agreed that he collaborated with Robyn in the compilation of this statement. He agreed that there is nothing in this statement which is inconsistent with the two earlier statements she made about the unlawful stalking offences.
Alan said that his relationship with Robyn ended in August 2008. It has not been resumed. He told the Tribunal that he is not aware of her whereabouts, but that he believes that she has returned to Victoria. The Commissioner’s representative said that his office does not know the whereabouts of Robyn either.
Discussion of Evidence
It was Alan’s submission that he maintained his innocence throughout the 11 months he spent in prison whilst awaiting trial. However his reason for changing his plea to guilty was, he stated, to avoid a longer stay in custody and to return home to his children and grandchildren.
Alan said that he then privately maintained his innocence and has continued with this stance. However the Tribunal places no weight on this assertion of innocence. In coming to this conclusion the Tribunal bears in mind that Alan is an intelligent, articulate, and worldly man who had prior to his plea of guilty shown himself to have weathered many difficulties in his business and life activities, had shown himself to be a person of considerable determination and focus, and a person who was not easily distracted from pursuing his goals. He would have been aware of the seriousness of a plea of guilty to the offences. He was legally represented. He makes no complaints about his legal team assisting him with the stalking charges.
Furthermore the Tribunal generally found Alan to be an unsatisfactory witness, an unreliable historian, and flexible with the truth.
As a witness Alan was prone to circumlocution and tangentiality. He gave rambling responses at times, on occasions he spoke in unnecessary detail, and often his answers were not germane to the question. He thus gave the impression of trying to avoid or evade providing a truthful response.
Alan’s explanations for his trip to visit Gympie referred to in paragraph 50 of these Reasons were fanciful in the Tribunal’s view, and did him no credit.
Alan’s making contact with Robyn Owen within 3 days of his release from prison not only reduces the acceptability of his asserted reason for his change of plea so that he could spend time with his family, but also shows his contempt for the Court order in terms of his breach of the restraining order. His entering into and maintaining a relationship with Robyn shortly afterwards in defiance of that order serves to emphasise this contempt. It also establishes further that Alan has a lack of proportion and a lack of boundaries in his makeup. When he has a goal in mind nothing or no one will stand in his way would appear to be his philosophy.
Alan has attempted to minimize, justify, and excuse any proven misdemeanours on his part. He is not prepared to assume responsibility for his misdeeds.
Alan’s explanations for taking the photographs of the homes and cars of the complainants in the stalking charges, and of the notes relating to security of one home and the reference to a 5 year old daughter are not acceptable to the Tribunal. Alan would have it that he took those steps in order to ascertain the assets of the complainants for possible satisfaction of a successful civil action for damages he was planning to take against them. However any reference to security of a home and a 5 year old daughter was clearly irrelevant to such a plan despite Alan’s efforts to link it in to such a plan in his evidence before the Tribunal. Those efforts were spurious.
Alan provided a good deal of documentation to the Tribunal. This documentation included an interim report by one Philip Hishon into the complaint by Alan to the Queensland Law Society about the conduct of solicitor Barnes. In that report at JOH 119 the following appears:
3. BACKDATING COMPANY DOCUMENTATION
Alan Johnston told me that he may have typed Justine’s resignation on his computer but he is not certain, but if that is not the case, he moves to the story that it would have only been because Paul Daily and Gavin Barnes, in the presence of one another, told him to do so. He seems to be vague about the whole business and prepared to adjust his story to whatever he thinks is necessary.
Justine is Alan’s daughter. The Tribunal shares the view that generally Alan is the type of personality who will adjust his story to suit his own ends.
At JOH 111 Mr Hishon’s report sets out the following :
CREDIBILITY OF WITNESSES
Unlawful stalking that he is prepared to involve himself in smurfing, bogus transactions such as mortgages and loan agreements and the signing of false affidavits and transactions involving the avoidance of GST. Mr Alan Johnston has committed a number of offences including swearing a false affidavit and his evidence will be subject to privilege against self incrimination. No disciplinary action should be taken upon any allegation by him in the absence of independent corroboration. The evidence of his son, his brother-in-law and his wife who are accomplices in this matter does not fit into that standard of independent corroboration. Therefore what must be relied upon is correspondence, taped conversations and public documents.
Clearly Mr Hishon had a concern about Alan’s lack of boundaries too. Mr Hishon was not a witness before the Tribunal.
Following his release from prison in February 2008 Alan consulted a Dr Kazlauskas, Psychiatrist/Psychotherapist. He saw him 5 times up until 20 August 2008. Dr Kazlauskas reported that The problems presented were to do with the ending of a romantic relationship. He resolved the issues and so further attendance is not necessary.
Dr Kazlauskas saw Alan again in August 2010. His report dated 16 August 2010 is in evidence. Dr Kazlauskas also provided oral testimony.
Dr Kazlauskas formed the view that Alan was normal. He felt that he was a well adjusted individual who acts within normal ranges of expected responses when faced with stressful situations. I consider the strategies that he relies upon as being sound and proven strategies. Dr Kazlauskas went on to report that he saw no reason why Alan should not be the holder of a Blue Card.
In oral evidence Dr Kazlauskas agreed that his views were based on self reporting by Alan. He said that Alan’s strategies when faced with stressful situations were to seek out solutions. He also agreed that a person can act normally in between committing unlawful acts.
Unfortunately the Tribunal did not find the evidence of Dr Kazlauskas very useful. Dr Kaslauskas did not have the opportunity of seeing Alan examined in the witness stand as the Tribunal did. Alan does not seem to have had one on one counselling to address his reactions to stressful situations. His strategies seem to depend on his personal reactions only. The evidence indicates that he has not been subject to stressful situations since he and Sally have been together. Dr Kazlauskas seemed to adopt a stance that it was all too obvious and therefore wearisome to consider that Alan should not have a Blue Card. In other words he did not impress as displaying that degree of professionalism the Tribunal would like.
Sally Emerson gave oral evidence to supplement her written statement. She is clearly enamoured of Alan and is supportive of him. Justine Rugers, Alan’s daughter, also provided oral evidence in addition to her written statement. She is naturally supportive of Alan. A friend Anita Peckham similarly testified in support of Alan. Anita also supplied a written statement. These 3 witnesses were not persuasive of the ultimate issue confronting the Tribunal.
In his final submission Alan, inter alia, stated that this was not an exceptional case as provided in the Act. He said that he was not proud of his criminal history but he said that he could not say that he was remorseful. He asserted that he had re-invented himself by choosing nursing as his vocation. He submitted that he had not been a risk to children.
Craig Capper, the Commissioner’s representative, supplied comprehensive written submissions. In his oral submissions Craig, inter alia, submitted that Alan was a person who took matters into his own hands. He pointed that Alan had received no remedial counselling following his stalking offences. He submitted that Alan displayed a pattern of behaviour of committing offences in response to stressful situations and that this had happened over a 12 year period with breaks between his unlawful acts.
Section 226 (2) of the Act
The Tribunal has regard to the following matters under sec. 226 (2) of the Act:
(a)In relation to the commission, or alleged commission, of the offences by Alan -
(i) The offences were convictions as defined in the Act;
(ii) None of the offences are serious offences as defined;
(iii) the offences were committed in 1995(2) 2001, 2003, and 2007 (2);
(iv) the offences of Unlawful stalking may have involved a child or children as evidenced by the addition of the words and their children by the District Court in the restraining orders;
In the court’s reasons for its decision on the Unlawful stalking the court imposed a sentence of 2 years and 6 months, a heavy penalty, and, inter alia, stated that Alan did not have proper strategies in place, that he was emotionally overwrought at the time, but that it was a relatively high level of that type of offence;
(b)The Tribunal has taken into account the information about Alan given to the commissioner under section 318 and 319;
…
(e)Relevant to the assessment of Alan are the following:
· The supportive words stated by Sally, Justine, and Anita;
· The successful commitment of Alan to his studies;
· His lack of police charges since his release from prison;
· His stable relationship with Sally over the past 17 months;
· His good relationship with Justine and her family;
· The Tribunal’s findings as set out above, particularly in paragraphs 62 to 69 inclusive;
· The Tribunal’s assessment in paragraph 79 of these Reasons.
The Tribunal has assessed Alan as a personality who takes little or no responsibility for his inappropriate conduct. He is blaming of others. He minimizes his culpability, or justifies or excuses it. He is very determined to achieve his own goals irrespective of his actions on others. He has no sense of appropriate boundaries. He shows scant respect for the law when he is focused on his own needs e.g. His breaches of the restraining order in Robyn’s favour in 2008. He is most vulnerable to commit unlawful acts when he feels highly stressed or feels he or his family has been wrongly treated. At these times his self control is very limited.
The Tribunal considers that as a result of its deliberations as set out above Alan represents an unacceptable risk to children. His conviction for Unlawful stalking and the reasons behind it included an express reference by him to a young child in his surveillance. This is a major concern for the Tribunal in carrying out its role under the Act where the welfare and best interests of children are regarded as paramount. The Tribunal is not satisfied that Alan has any insight into or remorse for the risk to children he displayed in that instance. Thus Alan is a person who could react inappropriately towards children or when children are present.
Conclusion
It then remains to determine whether on the basis of the Tribunal’s findings
the Tribunal is satisfied pursuant to sec. 221 (2) of the Act that it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to Alan.
In deciding this matter the Tribunal is of course obliged to have regard to the matters set out in sec. 226 (2) of the Act. The Tribunal has made findings on all these matters as per paragraphs 78 and79 of these Reasons. Having done so the Tribunal has concluded that it is satisfied that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued to Alan.
DECISION
That the decision of the Commissioner for Children and Young People and Child Guardian to issue the applicant Alan David Johnston with a negative notice prohibiting him from working in any category of employment or business regulated by the “Commission for Children and Young People and Child Guardian Act 2000” (the Act) BE CONFIRMED.
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