Lea v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 541
•4 December 2015
| CITATION: | Lea v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 541 |
| PARTIES: | Barry Philip John Lea (Applicant) |
| V | |
| Chief Executive Officer , Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML186-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 27 November 2015 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 4 December 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive, Public Safety Business Agency dated 18 June 2015 to issue a negative notice to Barry Philip John Lea is set aside and the Tribunal directs that a positive notice be issued. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Agency’s decision to cancel a blue card and issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where serious charge in his criminal history |
APPEARANCES:
| APPLICANT: | Barry Philip John Lea |
| RESPONDENT: | Chief Executive, Public Safety Business Agency represented by Ms Natalie Taylor |
REASONS FOR DECISION
Background
The applicant, Mr Lea, was issued with a negative notice on 27 March 2013.
On 1 September 2014, the Chief Executive, Public Safety Business Agency (‘the Agency’) subsequently received an application to cancel the negative notice issued to the applicant. Accordingly, the applicant’s eligibility has been reassessed.
On 18 June 2015, the Agency refused Mr Lea’s application to cancel a negative notice issued to him on 27 March 2013.
On 20 July 2015, the Agency received notice of an application for review of the decision to refuse an application to cancel a negative notice with respect to Mr Lea under s 236 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).
Barry Lea
Mr Lea had a good upbringing. His father instilled into him the value of mateship and camaraderie. He grew up in Hervey Bay. When his mother moved to Brisbane, he continued to live in Hervey Bay with family friends Bill and Jan Bradman. He remains in touch with Jan Bradman who is a trained psychologist. He completed his education at the Southport School. Mr Lea has a long history of youth work ranging from education and employment assistance to counselling and guest speaking.
He denies the charge and gave evidence to the Tribunal that the sexual intercourse, which took place, was on a consensual basis.
He meets every Thursday night with a group of friends that act as a sounding board.
He has no prior convictions.
He has no documented issues with alcohol or other substances.
He has been involved in three long-term relationships supporting the contention that there is stability in his life.
He has tertiary qualifications having obtained a Diploma of Education and a Diploma in Justice Administration.
The charge involved a young adult who was in a position to have consensual sex. Mr Lea contends that the complainant initiated the sexual episode. He pleaded not guilty and contested the charge.
The matter proceeded to a hearing and the jury was unable to make a decision. The Crown entered a nolle prosequi because the complainant was not prepared to give evidence at a further hearing of the matter.
Kerrie Fitzgerald
Ms Fitzgerald has been in a relationship with Mr Lea for two years. She has seen changes in him in that period. He used to be a party boy. They have a shared social network. The applicant does not abuse alcohol. He is the class clown and she has seen no negative behaviour.
She described the two sides to Mr Lea being his public face where he is jovial all the time and his private face where he has a quieter persona. He likes fishing, hanging out with his children, and spending time with his mates.
Mr Lea told her about his charge and the surrounding circumstances. It was a terrifying thing for him to be charged and for the charge to go to a hearing. She does not believe that he is capable of hurting other people.
Steven Sills
Mr Sills has known Mr Lea for five to six years through cricket. Everyone respects him in the club. His wife calls Mr Lea “Brother”. He is not a violent person. He shows respect to all and gets on well with all the people in the club. He was aware of the charge and was shocked when he heard. He believes that Mr Lea is a wonderful mentor for the children.
Kevin Mayo
Mr Mayo met Mr Lea through boxing. He found Mr Lea to be a very reliable person who the kids looked up to. He would place his utmost trust in Mr Lea. He was aware of the charge but had no problems with Mr Lea working with the children.
Quentin Barba
Mr Barba has known Mr Lea for 17 years. He was the police officer who took Mr Lea in for questioning. He was aware of the charge. He described Mr Lea as a kind and considerate person who was great with children.
He is one of the group of men who meet on Thursday nights to talk about men’s issues.
He does not accept that Mr Lea abuses alcohol.
He was shocked that Mr Lea was charged with rape.
He has no concerns with Mr Lea working with children.
Public Safety Business Agency’s submissions
Mr Lea has not been convicted of an offence but has been charged with a serious offence as defined in the Working with Children Act.
Accordingly, s 221 of the working with Children Act provides that a positive notice must be issued unless it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice.
In Commissioner for Children and Young People and Child Guardian v Maher[1] (‘Maher’s case’), the Court of Appeal endorsed the approach of identifying and balancing the relevant ‘risk’ and ‘protective’ factors arising from the circumstances of a particular case. The Agency submits that the weight to be applied to each relevant factor depends on the circumstances of the individual case and may vary accordingly.
[1] [2004] QCA 492.
The following protective factors are accepted by the Agency:
a) positive childhood;
b) good relationship with his partner;
c) actively engage with the community;
d) seeks support and assistance;
e) is cautious about his consumption of alcohol;
f) witnesses attest to his sound character;
g) his ability to form positive relationships;
h) his good work history; and
i) instils positive values into children.
The following are the risk factors:
a) the charge is of a serious offence; and
b) evidence of the complainant supported by a fresh complaint and proceeding to trial.
The Agency contends that the complainant was intoxicated and that Mr Lea should have done more to have established consent.
The Agency contends that the risks outweighs the protective factors and that this is an exceptional case.
What is an “exceptional case”?
The Working with Children Act does not define the meaning of an “exceptional case”. Section 226 of the Working with Children Act refers to certain factors that the Chief Executive must have regard to in determining whether this is an exceptional case, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Chief Executive reasonably considers relevant to the assessment of the person.
The object of the Working with Children Act is to ‘promote and protect rights, interests and wellbeing of children and young people in Queensland’.[2] The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), in determining whether an exceptional case exists, ensure that (a) the welfare and best interests of a child are paramount; and (b) every child is entitled to be cared for in a way that protects the child from harm and promotes child well-being.[3]
[2]Working with Children Act s 5.
[3]Formerly named Commissioner for Children and Young People and Child Guardian Act 2000 (Qld) s 155 (see s 6 of the Working with Children Act).
It has been previously determined by the Appeal Tribunal that the meaning of an exceptional case is a matter of discretion and should not be confined to “any general rule”.[4] The Appeal Tribunal in considering the decision in Maher’s case [5] stated: ‘The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.’[6]
[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[5]Maher’s Case at [28].
[6]Ibid at [33].
The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would not be in the best interests for children for a Blue Card to be issued.
Discussion
How should the Tribunal treat the hung jury and subsequent nolle prosequi?
The Agency contends that the complainant was not prepared to give evidence again and this is why the Crown entered the nolle prosequi.
The Tribunal notes that having presented the complainant’s case a majority of the jury was not able to reach a guilty verdict.
Mr Lea pleaded not guilty and has consistently maintained that the act of intercourse was consensual.
The Tribunal agrees with the Agency that the complainant was placed in a vulnerable position because of her level of intoxication. It is well known that people’s judgement can be impaired when they are intoxicated.
The crux of this case is that there are two different accounts of what happened on the night in question.
The charge was heard and the complainant was given the opportunity to be heard. The jury was unable to return a verdict. In other words, a majority of the jury were not convinced of the Mr Lea’s guilt. This means that the jury were not satisfied beyond reasonable doubt that the offence had been committed. That doubt must necessarily affect the weight that is placed on the charge.
The question for the Tribunal is how much weight it attaches to the charge and the surrounding circumstances.
The Tribunal was impressed by the character evidence that was given on behalf of the Mr Lea and the Tribunal places weight on this evidence. All witnesses were aware of the charge.
There is ample evidence of the positive way in which Mr Lea interacts with children. The Tribunal accepts that this evidence is an important protective factor.
The Tribunal believes that less weight should be attached to the charge because the complainant gave her evidence and this was clearly not accepted by the jury.
The Tribunal is of the view that the cluster of protective factors outweighs the risk factors.
The Tribunal placed weight on the following factors:
a) no other charges or convictions;
b) ability to form positive relationships; and
c) seeks support and assistance.
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