BKP v Children's Guardian
[2014] NSWCATAD 207
•28 November 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BKP v Children's Guardian [2014] NSWCATAD 207 Hearing dates: 7 November 2014 Decision date: 28 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: M Anderson, Senior Member Decision: The application filed 23 July 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.
Catchwords: ADMINISTRATIVE LAW-Working with Children check clearance sought by way of an enabling order under section 28 of the NSW Child Protection (Working with Children) Act 2012- disqualifying offence section 61L NSW Crimes Act 1900 -whether the applicant has proven he is not a risk to the safety of children-Tribunal not bound by the rules of evidence-onus of proof-failure to discharge the onus of proof-enabling order refused. Legislation Cited: Child Protection (Working with Children) Act 2012
Civil and Administrative Rules 2014
Civil and Administrative Tribunal Act 2013
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995Cases Cited: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69
BFN v NSW Office of the Children's Guardian [2014] NSWCATAD 162
BFX v Children's Guardian [2014] NSWCATAD 115
BYR v Children's Guardian [2013] NSWADT 310
Commission for Children and Young People v FZ [2011] NSWCA 111
Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Meissner v R (1995) 184 CLR 132
R v Commission for Children and Young People [2002] NSWIRComm 101
Roberts v Balancio (1987) 8 NSWLR 436Category: Principal judgment Parties: BKP (Applicant)
Children's Guardian (Respondent)Representation: Lighthouse Law Group (Applicant)
Crown Solicitor's Office (Respondent)
File Number(s): 1410392 Publication restriction: Section 64 (1), Civil and Administrative Tribunal Act 2013-restricition on publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
reasons for decision
Introduction
An order was made at the commencement of the hearing of the proceedings under section 64 of the Civil and Administrative Tribunal Act 2013 ("the CAT Act") restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence received in the Tribunal or in relation to the proceedings which is likely to identify those persons.
The applicant, known by the initials 'BKP' for the purposes of these proceedings, seeks an enabling order under section 28 (1) of the Child Protection (Working with Children) Act 2012 ("the Act") which will, if granted, be a declaration that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence which is specified in the Act. The enabling order would permit the applicant to work with children in any child-related work.
The applicant applied for a Working with Children check clearance on 17 November 2013 which was refused by the respondent on 30 June 2014 on the basis of his criminal history which contained a conviction for assault with an act of indecency, under section 61L of the NSW Crimes Act 1900. The applicant was convicted on 29 May 2014 and sentenced to a 12 month good behaviour bond under section 9(1) of the NSW Crimes (Sentencing Procedure) Act 1999. The applicant filed his application for an enabling order in the Tribunal on 23 July 2014. The application was heard by the Tribunal on 7 November 2014.
The respondent opposes the enabling order sought by the applicant BKP.
The Evidence
The applicant relied upon the following documentary material:
(1) A bundle of letters and references filed in the Tribunal on 25 September 2014: Exhibit A1.
(2) Report of Dr Maheshwari, Consultant Psychiatrist, dated 7 October 2014, who also gave oral evidence by telephone during the hearing of this matter and was cross-examined by counsel for the respondent: Exhibit A2.
The respondent relied upon the Bundle of material filed with the Tribunal on 30 September 2014 containing 61 pages: Exhibit R1.
There was no objection maintained by either party to the receipt of this evidence by the Tribunal.
The applicant gave oral evidence and was cross-examined.
Although some other psychological evidence was filed by the applicant it was not relied upon for the purposes of the application.
The Tribunal received and was assisted by oral submissions. The applicant's counsel also specifically relied upon the decision of BFN v NSW Office of the Children's Guardian [2014] NSWCATAD 162 ("BFN"), and Meissner v R (1995) 184 CLR 132 at 157, per Dawson J ("Meissner's case"). The decision of Principal Member Higgins in BFN was relied upon to demonstrate that a disqualified person may obtain an enabling order, despite a conviction of 2 counts of carnal knowledge in 1976 concerning the continuing lifelong partner (who was the victim) of the applicant in that case, where the sentence was a suspended sentence. Each case must be decided upon its own facts. The facts in that matter are different to the facts in this application.
The decision of the High Court in Meissner's case is relied upon, in essence, because the applicant in this matter pleaded guilty to the offence which renders him a disqualified person and he now argues that there were other reasons (arguably were the real motivating reasons) than admitting guilt, for him to plead guilty to the charges. The relevant passage from Meissner's case to which attention was drawn should be read carefully and it is as follows, at CLR page 157 (per Dawson J):
"The appellant contends that endeavouring to persuade a person charged with an offence to plead guilty cannot constitute the offence of attempting to pervert the course of justice because an accused person has a right to enter a plea of guilty and to do so whether or not that person believes himself to have committed the offence with which he is charged. It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit that he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence (citations omitted). But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud (citations omitted)."
It should be observed that Justice Dawson in Meissner's case was in the minority in the result because he would have allowed the appeal. The majority of the High Court Justices dismissed the appeal. Justice Brennan (as he then was), Justice Toohey, and Justice McHugh delivered a joint judgment and Justice Deane in a separate judgment came to the same conclusion. The real question it appears from that case was whether improper means were used by the appellant to persuade Ms Perger to plead guilty.
The applicant, as the Tribunal understands the submissions made on his behalf, does not allege any improper means were used to persuade the applicant to plead guilty and does not criticise his legal representatives for their representation on the plea of guilty. The applicant concedes that he did not appeal his conviction nor did he seek to withdraw his plea of guilty to the charges. These matters will be addressed in further detail later in these reasons.
A statement contained in these reasons of factual matters is a finding of fact based upon the evidence referred to in these reasons.
Factual Background
On 29 May 2014 the applicant was convicted, after pleading guilty to a charge under section 61L of the Crimes Act 1900 referred to in short form as "assault with act of indecency". The certificate of conviction dated 12 June 2014 (contained in Exhibit R1 at pages 41-42) from the Local Court states that:
"[t]he offender... is convicted and is directed to enter into a good behaviour bond for 12 months pursuant to section 9 (1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 29 May 2014 and accept the following conditions: The offender must be of good behaviour and appear before the Court during the bond term if required."
A person belongs to a category of "disqualified persons" if they are convicted as an adult of an offence specified in Schedule 2 of the Act. The offence with which the applicant was charged and subsequently convicted as an adult, is an offence referred to in Clause 1(1)(e) of Schedule 2 of the Act. The applicant is therefore a disqualified person.
The circumstances which gave rise to the offence and the subsequent conviction as recorded in the amended statement of facts presented to the Court on 29 May 2014 alleged that on 19 December 2013 the applicant who was a full-time male teacher at a single sex school, and had been a teacher for a long period of time (decades). While giving the victim a hug, the applicant was alleged to have sucked on the right cheek of the victim's face and moved his left hand from the victim's back onto her buttocks. The victim pushed the applicant back and left the classroom while the applicant attempted to talk with her some more: Exhibit R1 page 39.
The victim's date of birth meant that she was over the age of 18 by a number of months at the time of the offence. The victim had completed her Higher School Certificate course and received excellent marks overall and particularly in the subject taught by the applicant.
The victim was taught by the applicant for the last 2 years of High School. The applicant was a popular teacher with his students and the victim thought of him as her favourite teacher and thought highly of him until the incident. The day prior to the incident the applicant sent the victim a text message from his mobile phone to hers. The applicant provided his year 12 students with his mobile phone number in order to assist them with their school work outside school hours or on a more urgent basis. The applicant communicated to his students via text messaging about school-related issues. The text message sent by the applicant the day prior to the incident included the phrase: "Looking forward to seeing ur beaut smile 2moro (sic)..."
The victim attended a school barbecue event on the day of the incident and a number of students were in attendance together with approximately 10 teachers. At the barbecue the victim stated that the applicant told her he attended the barbecue in order to see her. The victim stated that he asked her to make sure she said goodbye to him before she left. The victim followed the accused from the place where the barbecue was occurring to his classroom where he was talking to a female substitute teacher. The applicant introduced the victim to the substitute teacher as the teacher was leaving. After speaking a short while the applicant beckoned the victim into the classroom where the incident occurred.
After the incident the victim left the school and caught the train in a distressed state. The victim contacted her mother who picked the victim up from the train station and took her home. The mother noticed that her daughter was upset and after the victim explained to her mother what had occurred, the victim was taken by her mother to the police who took a statement.
When the victim returned from the police station she received a text message from the applicant which stated: "Looks like I might have upset you. My apologies if I have. All the best. Cheers [BKP]."
On 6 January 2014 the applicant attended the police station and was arrested. The applicant was read his rights and offered the opportunity to participate in an electronically recorded interview. The applicant accepted the offer of an interview.
The applicant pleaded 'not guilty' to the charges which were initially laid against him. The prosecution was adjourned on 2 occasions to allow preparation for the hearing and a hearing date was then set down for 29 May 2014.
As a result of the conviction the applicant's employment was terminated and he has been placed upon a list maintained by his employer that he is never to be employed again as a teacher.
The applicant was notified by the Children's Guardian, by letter dated 30 June 2014 that he was a disqualified person and not permitted to work in child related employment or a child related role: if he did, he would be committing a criminal offence. As a result, an employer also has a statutory obligation to immediately dismiss a disqualified person from child related employment: see sections 8 and 9 of the Act.
It is to be observed that the applicant is a disqualified person and is not permitted to work in child related employment or a child related role despite the fact that the conviction relates to a victim who was not a child. This is by reason of the definition of a disqualified person referred to earlier in these reasons and the provisions of Schedule 2 of the Act.
Relevant Provisions of the Act
The object of the Act is set out in section 3 of the Act and can be summarised as protecting children by requiring those persons engaged in child-related work to be eligible to obtain clearances and effectively prohibiting disqualified persons from engaging in that work.
The paramount consideration in the operation of the Act is contained in section 4 of the Act as follows:
"Safety, welfare and well-being of children to be paramount consideration
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."
An enabling order is sought pursuant to section 28 of the Act which provides:
"28 Orders relating to disqualified and ineligible persons
(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 Children's Guardian 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 Children's Guardian 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."
The applicant seeks to work in child related employment or role, either in teaching or as part of the ministry of the Church to which he belongs.
Onus of Proof
It is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children: section 28 (7) of the Act. The standard of proof applied is the civil standard, that is, the balance of probabilities.
Required Considerations
The factors which are required to be considered when making a determination under section 28 of the Act are those contained in section 30 of the Act. Those matters are:
"30 Determination of applications and other matters
(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 victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim 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 Children's Guardian considers necessary.
(2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter.
Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal."
It should be observed that it is specifically provided in the Act that enabling orders may not be made subject to conditions: section 28 (8) of the Act. This has a bearing upon some of the submissions received on behalf the applicant as was observed at the time. For example, no conditions could be imposed to ensure that the applicant was not to be left alone in the company of children.
The applicant is required to fully disclose any matters relevant to the application for an enabling order: section 28 (5) of the Act. The applicant has provided material contained within the exhibits tendered on his behalf. In addition the applicant has given oral evidence and was cross-examined.
The Children's Guardian is provided information by various government agencies pursuant to section 31 of the Act. The relevant material so obtained in this matter has been provided and collated in Exhibit R1.
Other Legal Provisions
The Act came into force on 15 June 2013 replacing the previous scheme for regulating persons who are prohibited from employment with children.
The Children's Guardian must refuse the application from a disqualified person under the Act: section 18 of the Act. The only pathway for the applicant to seek to work in a child related role or in child related employment is by obtaining an enabling order under section 28 of the Act.
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the CAT Act.
The Tribunal may determine its own procedure in relation to any matter for which the CAT Act or Civil and Administrative Rules 2014 do not otherwise make provision. The rules of evidence do not bind the Tribunal (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: sections 38, and 67 of the CAT Act; see Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Procedural fairness and other aspects of natural justice apply to these proceedings where the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on the material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
Because the rules of evidence do not apply in these proceedings, except as referred to in the previous paragraph, the restrictions imposed by section 91 of the Evidence Act 1995 do not apply to the consideration of the circumstances of the offence which led to the conviction imposed upon the applicant: section 38 of the CAT Act. This aspect of the Tribunal's procedure is also relevant to the argument which has been raised in submissions by the applicant concerning the reasons for his plea of guilty.
The Issues
The primary issue before the Tribunal is whether the evidence satisfies the onus of proof on the balance of probabilities and the applicant has rebutted the presumption that the applicant poses a risk to the safety of children: section 28 (7) of the Act. The Tribunal will have regard to all of the evidence in order to determine whether the presumption has been rebutted, including the evidence adduced by the respondent. The respondent submitted at the conclusion of the proceedings that the applicant had failed to discharge the onus.
The jurisdiction of the Tribunal under section 28 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61], and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
In determining whether the applicant does pose a risk to children it is accepted that the risk must be "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as his Honour then was).
The risk must also be linked "to the safety of children": section 28 (7) of the Act; Commission for Children and Young People v V (supra), at [42]. This decision, as this Tribunal has previously observed, does not make reference to the High Court decision in M v M [1988] HCA 68; 166 CLR 69, and the discussion there of "unacceptable risk" of harm.
The Tribunal in BFX v Children's Guardian [2014] NSWCATAD 115, at [45]-[48] referred to the Minister's Second Reading Speech on 13 June 2012 which does not need to be extracted in this decision. It is sufficient to observe that the elements of risk assessment should take into account those matters which it is considered by the legislature to identify whether a risk to the safety of children is a real and appreciable risk, or in the Minister's words, a "significant" risk. Those matters will be referred to more appropriately under the required considerations pursuant to section 30 (1) of the Act.
Consideration of the Evidence
The evidence received by the Tribunal is now considered under each of the required subheadings of section 30 (1) of the Act.
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
The offence of which the applicant was convicted carries a maximum sentence of 5 years imprisonment. The applicant through his legal representative accepted that this was a serious offence but argued that the imposition of a section 9 bond gives an indication that the offence was not considered in the category of the most serious. The fact is that the sentence was also not the least serious penalty which could have been imposed.
The applicant in his material provided to the Tribunal attempts to explain the incident. In his three-page letter dated the 16 September 2014 the applicant states: "I have always denied that this happened, but the barrister that was provided to me by the NSW Teaches Federation, pressured me into pleading guilty on the lesser charge..."
The reason primarily given by the applicant in the letter for pleading guilty was so that the penalty would not be as harsh. The applicant was concerned, consistent with his legal advice, that he may have received a custodial sentence if he did not plead guilty.
The applicant admits that he hugged his former student "and gave her a peck on her cheek as she was leaving." The applicant argues that he reciprocated the former student's hug and in the same paragraph admits that it is behaviour which he knows is against a teacher's accepted code of conduct. In his defence the applicant states that the victim was over the age of 18 and no longer a student at the school, so the victim did not technically come within the codes of conduct by which he was bound. Also contained in the same letter is a statement that he did not know the victim's age until the case started.
The applicant in his letter states that the last day of school for the victim was 20 September 2013, which incidentally is after the victim's birthday on which she turned 18. Therefore, the victim was a visitor to the school and not an enrolled student.
The applicant in his own words states that he did not think the offence was "extreme". It is clear from his oral evidence that the applicant was aware that he was originally charged with a more serious offence where it had been alleged that he also touched the victim's breasts. That charge was dropped and the less serious charge was the one to which the applicant ultimately entered a plea of guilty. The agreed facts tendered to the Magistrate were amended to remove those allegations which would have made it a more serious offence.
The fact that the behaviour occurred with a former student with whom the applicant had a trusting and respectful relationship means that the victim was entitled to expect it would not become an abusive relationship. The victim was clearly upset by the incident, causing her mother to ascertain what occurred and reported it to the police. If it is accepted that her distress was exhibited in the way described in the police facts, and there is no reason not to accept it, there was a serious breach in trust and a rude awakening as to the risks posed by abusive males to a young and unworldly woman.
A teacher is in a trusted position within society, a fact which the applicant himself recognises. The applicant states that the students looked up to him and respected him as a father figure. The applicant states that if he was given a hug by the students he considered himself obliged to reciprocate and give them a hug in return. This attitude is not protective of the relationship between teacher and student, or former student, or young woman and carries with it the sort of risks which are all too evident in this situation which ultimately resulted in the applicant's conviction and rapid loss of esteem and trust.
The applicant was also investigated for a complaint in 2002 where he was cleared by his employer of any wrongdoing, after an investigation. In that matter a year 10 female student made allegations that the applicant made comments to her which she found to be sexually suggestive and which the applicant in the course of the investigation denied. It was alleged the applicant said the words "in and out, in and out, what does that remind you of?" The second complaint investigated was that it was alleged that the applicant put his hand on the student's back, pressed his face against hers, then started patting her chest above her breasts. During the investigation of that complaint it was recorded by the investigator that there was a partial admission that the applicant "may have brushed her in the doorway of the store room..."
In the investigation of those 2 complaints the character of the student making the complaints was not put in doubt. It was said that the advice received "does not cause doubt to be cast on the honesty and integrity" of the student. The complaint was made immediately after the lesson and the investigation occurred sometime later. This was a circumstance where one person's word was weighed against the other person's word and clearly the true situation could not be determined on the balance of probabilities.
As a result of those investigations, which it is emphasised cleared the applicant of any wrongdoing, a letter was written to the applicant dated 2 December 2002: Exhibit R1 pages 50-51. The letter contains the following passages:
"As a teacher, you should be aware of the interpretations that can be placed on the actions and intentions of teachers in their interactions with students. The community has clear expectations that all teachers will conduct themselves in a safe, courteous and professional manner in the contact with students and that they will refrain from making comments or acting in a manner which could be construed as offensive or inappropriate.
All teachers need to be aware that any physical contact with students which could cause discomfort, embarrassment, bewilderment, insecurity, distress or fear, or which breaches the trust students have in teachers is totally unacceptable. Please refer to the Revised Code of Conduct 97/2030 (S.211) and Professional Responsibilities of Teachers 97/209 (S.209) for details of the professional standard expected of all teachers. Copies are attached for your information."
After provision of those codes of conduct the applicant was on notice and should not have been in a position where the allegations leading to his conviction could have been made, if he complied with the norms and conduct expected of a teacher in his position. This is so even if the former student was no longer a child and leaving the school to undertake more challenging pursuits.
While the matter is not the most serious of offences, it is still a serious offence which the applicant does not appear to have accepted. Partly, the applicant is in denial that there was an offence at all, despite the plea of 'guilty'. However, it is clear the applicant's employer considers this matter to be a very serious offence resulting in his immediate dismissal as a teacher notified by letter dated 15 July 2014. Additionally, the applicant's name is placed on a database of people not to be employed in any capacity in NSW Government schools or TAFE NSW institutes without reference to a Director in the organisation. This is called the NTBE database.
The period of time since those offences or matters occurred and the conduct of the person since they occurred
The offence occurred on 19 December 2013. The applicant was convicted on 29 May 2014. The hearing was on 7 November 2014. Therefore, less than a year has expired since the offence.
Since the time of the offence the applicant has lost his employment as a teacher and is restricted in his capacity to engage in his religious activities where they involve children. There is no evidence to suggest the applicant has committed any further offences relevant to this application.
The age of the person at the time the offences or matters occurred
The applicant was born in 1954 and is currently aged 60, but at the time of the offence he was aged 59.
The age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim
The victim was aged 18 at the time of the offence. It is accepted that the victim was a vulnerable young woman who respected and trusted the applicant. The victim was entitled to expect that she would not be indecently assaulted by her former teacher when she visited the school.
The difference in age between the victim and the person and the relationship (if any) between the victim and the person
The difference in age is 41 years.
Whether the person knew, or could reasonably have known, that the victim was a child
The victim was not a child because she was over the age of 18 at the time of the offence. However, the applicant in his letter referred to earlier in these reasons identified that he was not aware that she was over the age of 18 until the case commenced.
The applicant in his letter dated 16 September 2014 to the Tribunal states that he regarded all the students as he would his own children, or grandchildren. The applicant states that the students regarded and respected him as a father figure. The five references from his former students attest to the accuracy of that statement. The applicant has impressed the Tribunal with his sincere and undoubted paternal concerns for his students. The fact that the offence occurred in those circumstances is more disturbing than if that relationship had not been evident.
The person's present age
The applicant is currently 60 years of age.
The seriousness of the person's total criminal record and the conduct of the person since the offences occurred
There is no evidence that the applicant has committed any further offences and he has no recorded previous convictions.
It is to be recalled that when the victim returned from the police station she received a text message from the applicant. That text message clearly recognised that the applicant had somehow upset the victim. The applicant's evidence concerning this text is that he acknowledged he sent this message and states that he sends this text message to all of the students. There was no corroborative evidence tendered to support this statement. None of the five former students made mention of that matter. The applicant did not provide to the Tribunal any printout or other evidence of his other text messages to support that statement. The message stated: "Looks like I might have upset you. My apologies if I have. All the best. Cheers [BKP]." It is therefore more likely that this message was sent to the victim as a recognition of her upset. It was more probable than not that the applicant knew he had upset the victim with his indecent behaviour. That is also consistent with his plea of guilty.
It is more likely than not that this text message coupled with the message sent prior to the barbecue event means that the applicant knew that he had stepped outside the permitted boundaries concerning the relationship he had with his student.
The applicant has not acknowledged by his statements or conduct since the offence, despite the plea of guilty, that he has behaved inappropriately with a young woman in his classroom.
The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
The applicant is no longer employed as a teacher. The applicant is no longer a marriage celebrant. The applicant is restricted in his activities with his church. The impact upon the applicant is clear.
In support of his application a report from Dr Rajesh Maheshwari, Forensic Psychiatrist, dated 7 October 2014 was admitted into evidence: Exhibit A2. Dr Maheshwari was cross-examined by telephone.
The report provided by Dr Maheshwari does not contain a risk assessment based upon the usual psychological tools such as Static 99 or RSVP which are usually conducted to identify the level of risk of recidivism. Dr Maheshwari informed the Tribunal that he asked the questions used in Static 99 assessments but did not rate the answers given to him by the applicant. The evidence from Dr Maheshwari was given carefully and it was submitted by the respondent that the psychiatrist was an advocate in the applicant's case.
The psychiatrist recounted the applicant's version of events. The applicant told his psychiatrist that the victim gave him "another hug" and said goodbye. The applicant told the psychiatrist that the police did not find any incriminating evidence even after checking his emails and computer. The applicant claimed that he was pressured to plead guilty to avoid a prison sentence, even though he insisted his innocence. This version is inconsistent with the police facts which were relied upon during sentencing. The applicant denied any history of complaints and omitted to tell the psychiatrist of the allegations in 2002. The applicant does not have any history or current symptoms of any psychiatric disorder, or any pervasive personality pathology. There were no indications of any paraphilias. The psychiatrist assessed the applicant as having a "low risk of future recidivism."
Dr Maheshwari in cross examination conceded that the incident in 2002 was relevant to an assessment of risk and the fact of the allegations would require some further enquiries by the psychiatrist of the applicant, which may or may not affect the final conclusion reached by Dr Maheshwari. Those enquiries have not been conducted.
As referred to previously, Dr Maheshwari did not utilise Static 99 ratings to come to his conclusion, although he used the tool's assessment criteria. The Tribunal has accepted that caution should be exercised, as stated by Dr Collins, when relying upon expert risk assessment: see BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179, at [67]. Dr Maheshwari accepted that the tools used to assess risk are but one source of data though they are possibly superior to "gut feeling" and prejudice which can influence judgment. The Tribunal would have been assisted by a more objective assessment than Dr Maheshwari was able to provide in order to compare with his clinical assessment. Indeed, there is some force in the submission by the respondent that Dr Maheshwari's report and evidence is diminished in weight because of the appearance that he was an advocate for the applicant. Dr Maheshwari did not make ready concessions to matters which an expert in his position assisting the Tribunal might have otherwise made.
The Tribunal has concerns about the possibility of recidivism. The applicant has minimised his offending, and couched the description of his behaviour in terms which shows some possibility of emotional identification with his former student.
The failure of the applicant to bring to Dr Maheshwari's attention his previous disciplinary complaint in 2002 and his continued insistence on his innocence are considered negative risk factors and increase his risk of re-offence in an assessment of the risk the applicant poses to children.
Other sources of evidence in addition to Dr Maheshwari's evidence before the Tribunal inform the likelihood of repetition of the offences or conduct which is abusive of children.
The applicant did not seek to withdraw his plea of guilty at any point after his conviction. The applicant did not attempt to appeal the conviction. The applicant appears to blame his legal advice for failing to clearly explain to him "or to [his] support team" the consequences of a conviction. In his letter the applicant states "[t]he alleged offence did not actually take place at all but unfortunately I have been incriminated." It would appear to the Tribunal, based on all the information provided as evidence in the hearing, that the applicant was aware he could have gone to jail and decided to plead guilty to the lesser charge in order to avoid the possibility of incarceration.
As observed in Meissner's case, in the extract referred to previously in these reasons, a plea of guilty constitutes an admission of all the elements of the offence.
The onus is on the applicant to establish that he does not pose a risk to the safety of children. The evidence before the Tribunal has not rebutted the presumption contained in section 28 (7) of the Act.
The impact on children of any repetition of the offence upon which the applicant has been sentenced will clearly be deleterious to the psychological, emotional, and physical health of any child victim.
Any information given by the applicant in, or in relation to, the application
The Tribunal has had regard to all of the evidence provided by both the applicant and the respondent. The applicant has complied with the obligation under the Act.
Any other matters that the Children's Guardian considers necessary
There were no other matters specifically raised on behalf of the Children's Guardian which has not already been referred to in these reasons.
Conclusion and Determination
The impact upon the applicant of his conviction for the offence which renders him a disqualified person has been significant. It is accepted that the applicant has had decades of teaching and involvement in the community which has benefited society generally. The applicant has expressed regret and remorse but still maintains that the offence did not happen at all.
On the basis of all the evidence before the Tribunal, and having regard to the required considerations contained in section 30 (1) of the Act, it is the assessment of the Tribunal that the applicant has failed to discharge the onus placed upon him to prove that he is not a risk to the safety of children.
The order of the Tribunal will therefore be:
(1) The application filed 23 July 2014 seeking an enabling order under section 28 of the Child Protection (Working with Children) Act 2012 is refused and dismissed.
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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: 28 November 2014
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