BDY v Children's Guardian
[2014] NSWCATAD 110
•23 June 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BDY v Children's Guardian [2014] NSWCATAD 110 Hearing dates: 23 June 2014 Decision date: 23 June 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane, Senior Member Decision: 1. The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the four offences found proved by the District Court of NSW at Port Macquarie on 8 December 2006.
2 The Respondent must grant the Applicant a Working with Children Check Clearance.
Catchwords: Enabling Application under Child Protection (Working with Children) Act, 2012 Legislation Cited: Child Protection (Working with Children) Act, 2012 Category: Principal judgment Parties: BDY (Applicant)
Children's Guardian (Respondent)Representation: Counsel
H Packer, (Applicant)
R Lee, (Respondent)
Crown Solicitor Office, (Respondent)
File Number(s): 1410015 Publication restriction: Usual prohibition against publication of information identifying applicant or victim
reasons for decision
INTRODUCTION
On 5 July 2006 in the Kempsey Local Court the Applicant pleaded not guilty but was convicted on four counts of committing an act of indecency with another person in November 2005. Two of those counts related the person being under 16.
The Applicant appealed to the District Court in relation to the convictions and the fines totalling $3,000.00. The Appeal was heard by the District Court of NSW at Port Macquarie on 8 December 2006 and the Judge decided not to record a conviction in regard to any of the charges. The Judge found the offences proved but having regard to the good character of the Applicant, without proceeding to a conviction he released the Applicant on a good behaviour bond for a period of 6 months. The conditions of the Bond required that he appear before Court if called upon to do so at any time, that he be of good behaviour, and that he advise the Registrar of the Court at Newcastle of any change of residential address.
The Applicant and members of his family are members of the Jehovah's Witnesses Church. He has been a member of the Church since he was about 13. He was a Leader in the congregations at Mudgee for 10 years, Raymond Terrace for 4 years and from 1991 in the Bowral area.
Upon receiving notification of the charges, the Jehovah's Witnesses stood down the Applicant from his position as an Elder of the congregation.
The Applicant in his statement to the Tribunal says that he has consistently denied the allegations and continues to do so. That may be so, but on Appeal to the District Court, the offences were found proved.
The charges were under ss.61N(1) and 61N(2) of the Crimes Act, 1900. Offences under those subsections come within Clause 1(1) of Schedule 2 of the Child Protection (Working with Children) Act, 2012 ("the Act"). As a consequence they are disqualifying offences and the Children's Guardian is prohibited from issuing a Working with Children Check Clearance to the Applicant.
On 7 January 2014 his Application to the Children's Guardian for a Working with Children Check Clearance was refused by the Children's Guardian, as it was required to do by the legislation, on the basis of the four offences found proved by the District Court of NSW at Port Macquarie.
THE EVIDENCE
The evidence in the hearing comprised:
(1) The Application of 9 January 2014
(2) Notice of Representation filed on 31 January 2014 on behalf of the Respondent
(3) Bundle of documents tabulated with 6 tabs and filed by the Respondent on 22 April 2014
(4) Bundle of documents (51 pages) filed by the Applicant on 10 June 2014 comprising:
4.1 Risk Assessment report by Dr J H Baron on 6 June 2014
4.2Statement of BDY
4.3 Reference of JF
4.4 Reference of C P
4.5Reference of JF
4.6 Reference of GS
4.7Reference of TC
(5) Exhibit R1 - up-to-date statement of BDY
(6) Oral evidence of BDY
(7) Oral evidence of Dr Baron
RELEVANT PROVISIONS OF THE ACT
Section 4 provides that:
"The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act."
Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act.
Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar".
Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.
Section 12 provides that there are two classes of Working With Children Check Clearances which are:
(a) Volunteer - authorising workers to engage in unpaid child-related work; and
(b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work.
Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance.
Subsection 18(1) prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Applicant was an adult at the time of the offence.
In Schedule 2 to the Act, the offences for which he was convicted under the Crimes Act, 1900 are included in the specified offences that are disqualifying offences.
Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the Applicant because of the offences in 2005. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for the Applicant.
Section 28 provides:
(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.
(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.
(3) A disqualified person may make an application under this section only if:
(a) the person has been refused a working with children check clearance, or
(b) the person's clearance has been cancelled, because the person is a disqualified person.
(4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.
(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.
(6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance.
(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.
(8) An enabling order may not be made subject to conditions.
(9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings.
Section 30 provides:
(1) The Tribunal must consider the following in determining an application under this Part:
(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d) the age of each H of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the H,
(e) the difference in age between the H and the person and the relationship (if any) between the H and the person,
(f) whether the person knew, or could reasonably have known, that the H was a child,
(g) the person's present age,
(h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j) any information given by the applicant in, or in relation to, the application,
(k) any other matters that the Commission considers necessary.
(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter.
Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal.
(3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.
PRESUMPTION
Section 7 contains a presumption that, unless the Applicant proves to the contrary, the Applicant poses a risk to the safety of children.
ENABLING ORDER CANNOT BE SUBJECT TO CONDITIONS.
It should be noted that ss.28(8) prohibits the making of a Enabling Order subject to conditions.
DISCLOSURE
Subsection 28(5) requires the Applicant to make full disclosure of any matters relevant to the Application.
MATTERS UNDER SECTION 30
a) The seriousness of the offences
On a day in November 2005 Victim 1, a 15 year old girl, was standing on a corner waiting for her brother, who was about 50 metres behind her. She observed BDY standing on an upstairs balcony on a block of units. He was not wearing any pants and she could see his genital area. It was about 50-60 metres away from where she was standing. He was alone on the balcony and she watched him for about a minute. He stepped behind a large pot plant on the balcony and took his shirt off. He then stepped out naked. He stepped towards the wall and she could see him clearly. He started to play with his genital area and she saw that he had taken hold of his penis and was masturbating. He was looking at Victim 1. She called out to her brother, Victim 2. When he arrived, they left. They caught up with Victims 3 and 4, who are friends of Victim 1. Victim 1 discussed with them what she had seen.
The group of four then walked back through the park and approached the intersection. They could then see the Applicant standing on the balcony naked. The three girls walked along a footpath which leads to a creek. As they walked down the footpath they could see the Applicant clearly but only from his chest up. When they got to the footpath near the creek, they looked up and could see that the Applicant had moved from the side balcony to the front balcony overlooking the creek. He was naked and masturbating looking towards the Victims.
Victim 3 called out to Applicant: "You fucking paedophile". The Applicant turned around and entered the unit through a sliding door. He could still be seen to be completely naked. The Victims then attended a police station and reported the incident. The Applicant was arrested and taken to the police station. He was offered the opportunity to be interviewed but declined. He was charged.
In accordance with submissions from the Children's Guardian, the level of seriousness of the offences is increased by the fact that it was done openly in public, it continued in two instances; and one victim was involved in both.
b) The period of time since those offences and the conduct of the person since they occurred
It is more than 8 years since the offences occurred.
c) The age of the Applicant at the time of the offences.
The Applicant was 48 years of age.
d) The age of the victims at the time of the offences and matters relating to the vulnerability of the victims
Victim 1 and one of the other female victims were 15 at the time of the offence. Victim 2 and the other victim were 17.
e) The difference in age between the Applicant and the victims and the relationship between the victim and the Applicant
The Applicant had no relationship with any of the victims. He was 33 years older than the 15 year old victims, and 31 years older than the two 17 year old victims.
f) Whether the person knew, or could reasonably have known, the victim was a child
On the evidence, such as it is, the Applicant knew the two 15 year olds old were children.
The Tribunal is not comfortably satisfied that he knew or could reasonably have known that either of the two 17 year olds was a child.
g) The Applicant's present age
The Applicant is 57.
h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the offence occurred
The Applicant has no other criminal convictions and so far as the Tribunal is aware he has had no other charges against him.
The Applicant's evidence is that:
"I have always maintained a strict code of personal sexual morality which I have instilled in each of my three children. Such a strict code of personal sexual morality is a fundamental aspect of Jehovah's Witnesses thought, practice and teaching."
After he was stood down from his position as an Elder in the Jehovah's Witnesses ("JW") he was not able to regain his position as an Elder until about January 2013. His evidence is that regaining his position was "based on my character I had displayed in the time since the charges".
His role as a JW Elder has involved teaching and visiting and most of the kinds of activities associated with a Minister of Religion. His evidence is:
"JW does not have separate Sunday Schools or youth groups as children and young people are taught in the congregation with the adults. So far as visiting is concerned this is always done by two Elders together."
He said in his Affidavit:
"I have only once [sic] instance where I had to counsel a child. This was concerning the child's obedience and respect for a parent and was done in the presence of myself, another Elder and his parent."
All of the Applicant's children have remained in JW and he now has two grandchildren aged 9 and 6. The family spends time together regularly.
The Applicant said in his statement:
"For the last 7 years I have felt that I have had little or no purpose in my life as my life has been devoted to guiding people in the spiritual life. Because I have not been able to pursue my Ministry, I have been learning Vietnamese and helping establish a JW Vietnamese congregation, including trips to Vietnam.
"If I do not receive an Enabling Order from the Tribunal I will not be able to continue with my vocation in JW."
There is no evidence of any adverse conduct of the Applicant since the offences in 2005.
He said in his cross-examination that in the period while he was stood down as an Elder he regained perfunctory roles in the congregation in 2010. He said he was appointed to look after the magazines. He said that his role as an Elder now involves teaching in the congregation and also "shepherding", which is counselling and guidance of other members.
The Applicant told the police who arrested him that day that he had been drinking alcohol before going onto the balcony. He did give evidence contradicting the statements to the Police by the witnesses saying he was on the balcony that day but that he was wearing underpants. He denied being naked or masturbating. However, in the context of him having pleaded not guilty and then being convicted at trial by the Magistrate and subsequently having the District Court find the offences proved, it is not open to the Tribunal to re-consider the issue of whether he was guilty or innocent of the offences.
In answer to a question he said that he is vigilant about the requirements of having supervision by other adults if he is dealing with children.
i) The likelihood of any repetition by the Applicant of the offences of conduct and the impact on children of any such repetition.
Younger children could find indecent exposure as confusing and frightening. Older children could be shocked and offended.
As to the likelihood of repetition of such conduct, Dr Baron prepared a report at the request of the solicitor for the Applicant. Dr Baron is a Clinical and Forensic Psychologist. He holds a Bachelor of Arts degree with Honours, a Master of Clinical Psychology, and a Doctorate in Psychology. He has specialist training in sex offender assessment and treatment with accreditation at the level of Supervisor with the NSW Child Sex Offender Counsellor's Accreditation Scheme (NSW Commission for Children and Young People) to provide treatment for adult sex-offenders.
He has worked as a psychologist since 1979 in various areas including sex-offender assessment and treatment. From September 1998 to January 2007 he was a Clinical Psychologist at the Forensic Psychology Services, Sex-Offender Programs, NSW Department of Corrective Services. In 2005/6 he conducted a 12 week group at Forensic Psychology Services, for men who had been convicted of internet child pornography offences.
Since July 2008 he has been in private practice and the majority of his clients have contacted him via the Commission for Children and Young Peoples' website. Therapy has involved both clinical and forensic aspects.
He has provided conference presentations on sex-offender programs and treatment of sexual abusers.
Dr Baron's report is of 14 pages. It covers details of the offences, the Applicant's current circumstances, his early family history, his educational background, his post school years with employment history and early family life, social and life-style, and his activities within the Church which he joined in 1971.
In relation to his sexuality/psychosexual history, the Applicant told Dr Baron that he has a good relationship with his wife and there are no difficulties in their marriage. He said that he has only ever had the one sexual partner since he adheres to the morality and standards of the JW's - which includes being a virgin when married. The report also covers issues such as mental health history and the Applicant's version of what happened on the day of the alleged offence.
The report also includes a psychometric assessment, assessment on the Millon Clinical Multiaxial Inventory - III, an assessment on the Personal Assessment Inventory, Interpretation of various results and a risk assessment. The risk assessment includes assessment of actuarial risk and consideration of personal risk factors, dynamic risk factors and numerous other matters.
In his conclusions, Dr Baron found that the overall evaluation of risk was that the Applicant : "is not assessed as posing any appreciable risk to children or young people".
He also said that the results of psychometric assessment raised no concerned relevant to the Applicant's fitness to be granted a clearance. He said that on actuarial assessment the Applicant had been assessed as falling in a "low" risk category with an associated non-recidivism rate of about 97% over 5 years. He also said:
"Review of his dynamic risk factors (stable and acute) his risk management strategies and his protective factors does not indicate the presence of any risk factors that could raise concerns about the possibility of further charges or convictions."
In his conclusion, Dr Baron said:
"Central to [BDY's] core values in identity are his pastoral involvements within his Church community and his engagement with others in a helping role. His active affiliation with his Church community clearly provides him with a sense of purpose and meaning in life. Being barred from exercising ministry as an Elder, therefore, has a significant impact on his sense of worth and his capacity to live out his values. In recent times margins of safety are drawn widely in mane - perhaps most - religious denominations; a Working with Children check is often required even for people exercising a ministry that does not involve working with children and young people in face to face situations. My understanding is that this is also the case with the Jehovah's Witnesses who have in place robust standards of child protection. In my previous employment Forensics Psychology Services (then NSW Department of Corrective Services, Sex-Offender Programs) I had occasion to verify this in a visit to their national and regional headquarters at Ingelburn to discuss their protocols with the Executive Members of their Church; this was in relation to the supervision of one of their members who had a conviction and custodial sentence for a sexual offence, and who was about to be released into the community. As noted above they do not engage specifically in youth ministries; pastoral contacts with minors are within a family context."
Dr Baron concluded:
"My view is that [BDY] can be considered a fit person to be granting a Working with Children clearance."
j) Any other information given by the Applicant in relation to the Application
The Applicant relies upon five letters from members of the JW community to which he belongs, including his wife. They are not sworn. But, they testify to his character and decency and his commitment to this Church. He has been married to his wife for 36 years and they have 3 children and 2 grandchildren. Unfortunately none of those people who provided references indicate any acceptance that the Applicant committed the offences for which he was convicted. All of them, though, have had close and longer term experience of him and testified to his good character.
That evidence supports the Tribunal's conclusion that the offences in 2005 were inconsistent with his other conduct and out of character.
k) Any other matters that the Children's Guardian considers necessary
The Guardian reminded the Tribunal that the paramount consideration in the operation of Part VII of the Act is the safety and welfare of children and, in particular, protecting them from child abuse. The inclusion of the words "well-being" in s.4 compared with the provisions of the previous legislation, indicate that it is not just the safety and welfare of children that is to be protected.
CONCLUSIONS
The Tribunal concludes that the Applicant has satisfied the onus of proof and has displaced the presumption he poses a risk to the safety of children.
The reasons for this finding are:
(1) The nature of the offence which did not involve close contact with any child. On the contrary, it was at a distance of 50-60 metres.
(2) The particular offences are the only offences with which he has been charged in a lifetime of 57 years.
(3) Mr Baron's expert evidence is the Applicant does not pose a risk to children.
(4) The strength of the Applicant's religious commitment to the Jehovah's Witnesses since the age of 13, his life in the JW and the life of his family in the church impose considerable pressures and obligations on him to ensure that he complies with the morality of the Church and avoids any untoward conduct towards children.
ORDERS
Accordingly, the Orders of the Tribunal were:
(1) The Tribunal declares that the Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act, 2012 in respect of the four offences found proved by the District Court of NSW at Port Macquarie on 8 December 2006.
(2) The Respondent must grant the Applicant a Working with Children Check Clearance.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 30 July 2014
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