BNM v The Children's Guardian - [2015] NSWCATAD 179

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: BNM v The Children’s Guardian [2015] NSWCATAD 179
Hearing dates: 23 April 2015
Decision date: 25 August 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: G Mullane, ADCJ (Principal Member)
Decision:
1. The decision of the Children’s Guardian refusing to grant the applicant a Working with Children Check Clearance is affirmed.

2. The application by the applicant filed 22 October 2014 is otherwise refused and dismissed.
3. Broadcast or publication of the name or other identifying information of the applicant, or his former wife who is the complainant in respect of alleged offences of the Applicant on 22 August 2008, is prohibited.
Catchwords: Review of decision of Children’s Guardian refusing to issue the applicant Working with Children Check Clearance – conviction of Common Assault in November 2008 – charges of Sexual Intercourse Without Consent November 2008 withdrawn – held to be risk to the safety of children.
Legislation Cited: Child Protection (Working With Children) Act 2012
Crimes Act 1900
Administrative Decisions Review Act 1997
Cases Cited: Commission For Children and Young People - v- V [2002] NSWSC 949;
M v M (1988) 166 CLR 69;
Category: Principal judgment
Parties: BNM (Applicant)
Children’s Guardian (Respondent)
Representation:
Counsel:
P Lowson (Respondent)
Solicitors:
BNM (Applicant in person)
Crown Solicitor’s Office (Respondent)

File Number(s): 1410594
Publication restriction: Per order 3

Reasons for decision

INTRODUCTION

On 22 August 2008 an incident occurred between the applicant and his then wife. The wife made complaint to the Police and the applicant was charged with having sexual intercourse with the wife without consent and also with common assault of the wife.
On 15 October 2008 the applicant's wife decided not to give evidence against the applicant in respect of the charge of Sexual Intercourse Without Consent and she withdrew the charge.
On 13 November 2008 the applicant pleaded guilty to the common assault charge. He was convicted and released on entering into a bond for a period of 9 months with conditions that he:

be of good behaviour;

appear before Court if the Court required him to do so at any time during the term of the bond; and

comply strictly with Apprehended Violence Orders.

On 14 October 2013 the applicant applied to the Children’s Guardian for a Working with Children Check Clearance.
The Children’s Guardian notified the applicant by letter dated 26 September 2014 that the application was refused because the applicant posed a risk to the safety of children.
On 22 October 2014 the applicant filed his application for this Tribunal to review the decision of the Children’s Guardian refusing the Check Clearance. This is the hearing of his application.

THE EVIDENCE

The evidence before the Tribunals comprises the following: -

The application of 22 October 2014 annexing the letter from the Children’s Guardian to the applicant of 26 September 2014

The letter of 4 June 2014 from the Children’s Guardian to the applicant offering a “Final Opportunity” to provide Statutory Declaration or other supporting documentation and references before a final decision was made by the Children’s Guardian.

Statutory Declaration of Umaru Binneh Conteh

Indexed bundle of 10 documents filed by Children’s Guardian pursuant to section 58 of the Administrative Decisions Review Act of 1997 on 20 November 2014

Statement of the applicant filed 12 January 2015

Letter from Murray Kanneh of Sierra Unite Incorporated of 16 March 2013

Letter from Manpreet Singh Bains 20 April 2015

Indexed bundle of documents filed by Children’s Guardian on 16 April 2015 pursuant to s58 of the Administrative Decisions Review Act 1997

Oral evidence of the applicant in cross examination

Oral evidence of psychologist Mr Navin Goonniah

Relevant Legislation

The application for a Working With Children Check Clearance is made pursuant to the Child Protection (Working With Children) Act, 2012 (“The Act“). Section 4 of the Act 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 authorized carer of a child is engaged in "child-related work" for purposes of the Act.
Subsection 18 (1) of the Act 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 commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult”.
The applicant as of 22 August 2008 was 32 years of age and an adult. In paragraph 1(e) of Schedule 2 of the Act, an offence under section 61I of the Crimes Act, 1900, is included in the specified disqualifying offences. The offence of Sexual Intercourse Without Consent came within section 61I. If that offence had been found proved, subsection 18(1) of the Act, which prohibits the granting of a Check Clearance to a disqualified person, would have prohibited the Children’s Guardian from granting a Check Clearance to the applicant. But that offence was not found proved. The complaint was withdrawn.
Section 15 of the Act requires the Children’s Guardian to conduct a risk assessment of an applicant tor a Check Clearance “to determine whether the applicant ……….. poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant ……….. is subject to an assessment requirement.”
Section 14 of the Act provides that a person is subject to an assessment requirement if any matter specified in Schedule 1 of the Act applies to the person. Schedule 1 specifies in a clause 1(1) that there is an assessment requirement where proceeding have been commenced against the person for a disqualifying offence committed as an adult, and the person is not because of those proceedings a disqualified person. It appears that this then applies to the applicant in respect of the charge of Sexual Intercourse Without Consent.
Subsection (15) (2) of the Legislation provides

“The Children’s Guardian may conduct a risk assessment of the holder of the Clearance if the Children’s Guardian becomes aware that the decision to grant a Clearance was based on wrong or incomplete information”

Subsection 15 (3) provides that

“Subsection (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or the holder”

Subsection 15(4) of the Act provides:-

(4) In making an assessment, the Children’s Guardian may consider the following:
(a) the seriousness of any matters that caused the assessment in relation to the person,
(b) the period of time since those matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time it 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 matters occurred,
(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,
(j) any information given in, or in relation to, the application,
(k) any other matters that the Children’s Guardian considers necessary.

Accordingly, even if there is no assessment requirement and no clearance based on wrong or incomplete information, under subsection 15(3) the Children’s Guardian may conduct a risk assessment of an applicant for a Check Clearance.
*Subsection 27 (4) of the Act requires that in this proceeding the applicant “must fully disclose to the Tribunal any matters relevant to the application”.
The application such as this under Section 27 of the Act falls within Part 4 of the Act and Section 30 applies. Section 30 provides:

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.

The Applicant’s Application to the Children’s Guardian

The applicant filed his application with the Children’s Guardian on 14 October 2013. On 14 March 2014 the Applicant contacted the Office of the Children’s and advised he need the clearance as soon as possible. The Children’s Guardian by the letter 19 March 2014 responded and stated in the letter to the applicant

“To process your application the Office of the Children’s Guardian requires clarification of certain matters. We would appreciate if you could make contact with this Office actuary at your convenience”.

An officer of the Children’s Guardian attempted to contact the Applicant by telephone on 19 March without success, but left a message requesting him to return the call. It appears that he was advised on 20 March 2014 by the Children’s Guardian that it may assist him to provide additional information to support his application.
The applicant telephoned the Office of the Children’s Guardian on 26 March 2014 and left a message.
On 22 April 2014 the Children’s Guardian wrote to the applicant advising him that because of the charge of Sexual Intercourse Without Consent that was dismissed, a risk assessment of him would be conducted. The letter stated that it may assist him to provide additional information to support his assessment. He was requested to provide that information and any references within 15 working days of 22 April 2014. The applicant did not provide any such information or references in response to that letter.
An officer of the Office of the Children’s Guardian attempted to call him on 30 April. But there was no answer and there was no facility to leave a message.
The applicant telephoned the Children’s Guardian’s Office on 2 May 2014. The Children’s Guardian then sent him a letter on the same day indicating that the risk assessment would be based not only on the Sexual Intercourse Without Consent charge that was withdrawn, but also in relation to the Common Assault conviction. The letter stated:

“Further to our telephone conversation on Tuesday 2/5/2014 it may assist you to provide the following information to support your assessment –
•   A written description of the events surrounding the above charges from your perspective, (as discussed in our conversation today).
•   Information surrounding the above offence/charges, which you feel may support your application for a ‘Working with Children Check Clearance’.
•   Steps you may have taken to address your offending behaviour,
•   Professional references that may support your application for a WWCC,
•   any other information that you may deem appropriate to the risk assessment process.”

The letter requested that the information and references be provided within 15 working days of the date of the letter. The Applicant did not provide any supporting material.
On 4 June 2014 the Children’s Guardian again wrote to the applicant . The letter again identifying the events that “triggered the risk assessment”. It stated：

“This is your final opportunity to provide Statutory Declaration or any other supporting documentation and references before the final decision is made. Attached to this notice are details of information you may wish to provide.”

The letter also indicated that if he did not respond to the request for the information the Children’s Guardian may refuse the granting of a Check Clearance and it would then be a criminal offence if he were to engage in child related work.
The applicant did not provide any Statutory Declaration or other supporting documentation or references to the Children’s Guardian in support of his application.
On 26 September 2014 Children’s Guardian decided to refuse the application and sent the letter of that date to the applicant notifying him of the decision and also of his rights to apply to the Tribunal for a review of the decision.

The Role of the Tribunal

Section 27 of the Act provides that a person who has been refused a Working with Children Check Clearance by the Children’s Guardian may apply to this Tribunal for an administrative review (of the decision) under the Administrative Decision Review Act 1997.
This is the hearing of the applicant’s application pursuant to that section.
Subsection 63 of the Administrative Decisions Review Act 1997 provides:

“In determining an application for an administrative review under this Act of the administratively reviewable decision, the tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) Any relevant factual material,
(b) any applicable written and unwritten law.”

The Evidence of Matters That Caused the Assessment in Relation to the Applicant.

The allegation raised by the then wife of the applicant in respect to the events on 2 August 2008 were serious. In evidence are 7 pages of a typed and detailed statement which she signed on 26 August 2008 and also the Police “COPS” computerised record created on the day of the offence.
The COPS entry and the Wife’s statement were prepared after a Police Officer had made 5 pages of notes in his police notebook upon attending the applicant’s home on the day of the alleged offences.
In addition, there is 30 page transcript of the record of interview of the applicant by police on 22 August 2008 after his arrest.
On 12 January 2015 the applicant filed a statement in this Tribunal headed “My Major Problem”. That statement was apparently prepared more than 6 years after the alleged offences.
The applicant relied upon a report of a psychologist he instructed for the proceedings and that included details from statements of the applicant to the psychologist on 4 February 2015 as to the matters that resulted in the assessment.
The applicant also gave oral evidence on 23 April 2015, some of which related to those matters, more than 7 years after those matters.

The Wife’s Version of the Matters That Caused the Assessment

The parties commenced co-habitation in 2002 and they were married on 4 December 2004. In late 2006, the applicant’s sister and her son were residing with the parties in their home. Subsequently, the wife had problems dealing with the applicant’s sister and her son. The wife sought the applicant’s agreement that his sister and her son move to other accommodation, but the applicant refused to agree to that. Subsequently the applicant absented himself from home for long periods. This adversely affected the couple’s relationship.
In December 2007, the applicant had a friend from New Zealand come to stay for few days. During that period, the husband and his friend went out at night and did not return until late. The wife was concerned that the husband was dressing differently, and was avoiding her. He began ignoring her and informed her that his uncle was arranging for him to marry another woman, which was permissible under his religion. The applicant was concerned about this and was angered. She suspected that the applicant was having sexual relations with other women.
From March 2008, the wife refused the applicant’s requests for sexual intercourse. Her reasons for this were: -

he informed her that he was going to marry another woman

she became aware that he had already become engaged to another woman;

She felt betrayed by this and that the applicant did not love her;

He was often absent from home;

She believed that he has been having sexual intercourse with another woman.

She alleged that there were subsequently occasions when he tried to physically force her to have sexual intercourse by grabbing her arms or forcing her onto a bed. In her statement of 22 August 2008 she said “I have always managed to struggle with him and prevented him from inserting his penis, however he always continues to try. I have a neck injury and during these struggles, sometimes my neck becomes inflamed.”
She said in paragraph 30 to 57 of her statement on 26 August 2008:-

30   At 1:45pm on Friday the 22nd of August 2008, I had just returned home to [home address] from work and found my husband [BNM] in the upstairs our bedroom. I entered the room and asked him "What time do you have to go to work". He replied, "five o'clock". I informed him that the people from the real estate agent were coming to inspect the house. He left the room and commenced cleaning downstairs in the kitchen area.
31   After some time, [BNM] has come down the stairs and started telling me, "Why couldn't you, change your clothes", I usually get changed as soon as I return home from work. I explained to him that the real estate people were coming to the house soon as they were due at 2:00pm and the time was now 1:50pm. He continued hanging around the downstairs area and talking with me.
32   After cleaning the kitchen area, I returned upstairs to the spare bedroom and was beginning to get changed when [BNM] entered the room. I had just taken my belt off and at that time he began telling me: "I have to have sex with you. I have to have it. I have to have sex". He repeated this a number of times. [BNM] was wearing a greyish/brownish coloured dressing gown. This gown was a wrap around type gown with a cord that you tie at the front. He had no underpants on and I could clearly see his skin through the gap in the front of it.
33   I informed him that the real estate people would be there any time. [BNM] said, "I don't care". I know from previous occasions when he has done this, that he grabs me by any part of my body and physically forces me onto our bed, I have managed in the past to run away from him, he chases me around the house and on one occasion, carried me from down stairs to our upstairs bedroom. I have had to leave the house on a number of occasions to get away.

34   This time he was at the door, preventing an exit from the room, he knows that I generally run from him. He requested sex again and I said, "Please don't". He then pushed me onto bed which is positioned in the corner of the spare room. I have then fallen backwards onto the bed, facing him. I have immediately positioned my arms in a bend position and brought my knees up to my chest to prevent him from forcing himself on top of me. I deliberately kept my legs close together so he could not open them.
35   I was wearing black work pants, a black t--shirt which were still done up despite wanted to get changed prior. I was also wearing underpants and a bra. He was also grabbing at this.
36   He has grabbed both of my wrists which were positioned in front of me and forced them onto the bed. This action pinned my arms down and could not move them. It caused immediate pain to both of my wrists. I was physically thrashing my whole body around trying to get away,
37   I was attempting to get ride (sic) of his hands, I tried grab both of his hands and at this time he has removed his hands from my wrists. I still had my knees bent and they were still positioned to my chest. I was using my feet to push him away, I was kicking his torso area. This was working momentary, however he continued to come back, we continued to struggle.
38   I felt him trying to separate my legs with his head but was unable to do so. He was doing this whilst still grabbing at my wrists with his hands. He then removed his hands from around my wrists and placed his chin into my chest. This has caused immediate pain. He then used his hands to remove both my black coloured pants and underwear.
39   He then managed to get my legs apart using his hands, so the first thing t did was to block myself I blocked between my legs, my vagina area. I then grabbed at his penis, which at the time was I believe to be erect. I squeezed his penis which then caused him grab my hands and pull them away. He then forced his upper torso over the top of me and pushed his head into the right side of my neck.
40   I then took my hands and I managed to twist myself to the side, so I had my feet and knees positioned up to my chest and in front of me again. He stopped for a short time and he appeared to be tired from the struggle. He was out of breath, sweating and was fatigued from the struggling.
41   I said, "If you don't stop what you are doing. I am going to call the Police". He said, "Go ahead". I then picked up the phone which was positioned on the bed beside me. I then dialled '000' and was about to press the call button to make the call.
42   I then decided at this time that we may able to sort things out so I said to [BNM], "We don't have to do this you know. We can sort this out in a better way". He said, "You're not going anywhere". He was lying on top of me at this time, I could not leave, however I took this comment to mean that I could not leave our relationship. The door of the room was still open.
43   We continued struggling and he pressed down firmly onto my stomach, which caused a great deal of pain and I told him, "You're hurting me". He did not respond to this and did not take any notice. [BNM] then used his fingers to penetrate my vagina. He used his left hand and it caused me a great deal of pain. I believe it was more than one finger as I have felt one finger inside my vagina before. [BNM] has inserted his finger inside my vagina prior to this, upon my consent. He only uses one finger. I did not consent to [BNM] inserting his finger into my vagina on this occasion.
44   I then pushed him away using my whole body and i screamed loudly in pain. He has then grabbed my hands and twisted my right wrist. He squeezed it tightly, which caused me to scream out a second time in pain.
45   I said to [BNM] "You've hurt me. You've really hurt me". He said, "I'm sorry". I informed him, "This is becoming too much. I need to inform someone of this". I then informed him that I wanted to contact the Police. [BNM] said, "Don't call them. Don't call them". He then picked up my mobile telephone which was still positioned on the bed. Cannot remember what he did with this phone, however he was preventing me from making this call. I wanted to call the police but was unable to do so from upstairs due to this.
46   I then attempted to go down stairs, proceeding towards the stairwell and whilst doing so, he blocked the entrance to the stairwell and used his physical frame to obstruct me. He is much larger than me and I was unable to use the stairs. I then tried to get down the stairs to call the Police and pushed him. He the said, "If you push me again, I will hit you''. I said, "Leave the way for me to go down the stairs". I then managed to force my way past him and get down stairs.
47   [BNM] then took the hand set telephone, which is our commonly used home phone. It is positioned on a small bench, near the kitchen area. I was unsure where he put it, however I saw him remove it from this position. I then hit him with the lamp shade which is positioned in the lounge room area. This lamp hit him on the side of his torso. l said, "Why do you have to take the phone". He then went half way up the stairs.
48   I used the speaking (sic) from the telephone without the handset to call triple '000'. I was crying at the time and I spoke with a female person over the telephone via the loud speaker and informed her of what had occurred. She asked me where my husband was and that was when [BNM] realised that I was in fact speaking to the Police over the speaker phone.
49   Once over hearing our conversation, [BNM] has returned downstairs. I then got off the telephone from the Police and [BNM] then said, 'Okay, now their (sic) going to separate us." I then waited for the Police to arrive. I waited for the Police down stairs, whilst [BNM] returned upstairs.
59   A short time later Police arrived and have spoken with me about the incident I spoke with two male officers. I know these officers to be Constable's SANTOSA and WRIGHT. These Police went upstairs and spoke with [BNM]. They were up there for a short time and the returned downstairs and I spoke with them about my side of the story. I noticed that one to the police officers were writing in his notebook. He asked me if I would like to make a statement about what had occurred. I informed him that I would.
51   The officers then informed me that I would need to return to Parramatta Police Station with them to obtain further details. The Police then spoke with [BNM], who at the time was now on the lounge in the lounge area of the unit. The Police then drove me to Parramatta Police Station, where I was introduced to Plain Clothes Senior Constable SMITH and Detective Senior Constable WALDRON. I spoke with Constable WRIGHT and SANTOSA who took further notes in his notebook.
52   A short time later, the Police took me to Westmead Hospital, where I spoke with a social worker. I was seen by a female doctor, who took a number of swabs from my vagina and examined the rest of my body. Once these tests were completed the Police took items of clothing from me, which were a black coloured t-shirt and my underwear.
53   Once this examination was completed, the Police returned me to my home.
54   When [BNM] and I have consentual (sic) sex, it is normal vaginal sex, prior to this incident [BNM] and I have not had consentual(sic) sex since March 2008.
55   [BNM] does not drink or take drugs, he does not consume alcohol as he does not like it. He was not drinking on the day of the incident. He is physically fit and does not take medication for any illnesses. On the day of this incident I would best describe his demeanor as aggressive and his behaviour as "out of control".
56   At no time did I give [BNM] permission to assault me and at no time did I give [BNM] consent to have any form of sexual intercourse with me.
57   At the time of the incident I had a fears (sic) for my safety. I was scared and was praying the whole time. [BNM] was extremely violent and I feared that I could be seriously injured or killed. I did not know what [BNM] was going to do.

The wife’s reason for the withdrawal of the charge of Sexual Intercourse Without Consent

In evidence is the document of 15 October 2008 signed by the wife that day and witnessed by Police Officer. She says in that document that the reason that she decided to have the charges withdrawn are:-

•   I did not understand that it was a crime when reported the incident to the police and that the matter would go to Court. As far as I was aware in Kenya, you do not discuss the problems that you have with your husband to others or report them to police.
•   When I contacted police, I just wanted someone in authority to speak with him and help resolve the issues in the marriage.
•   I contacted the police because I had no one else to go to at the time.
•   My husband has lost his job as a taxi driver since being charged with the offence. I know that he would not do anything to jeopardise his work.
•   My husband was trying to establish himself in his employment and I do not want that taken away from him.
•   If I gave evidence in the trial where my husband was found guilty and sentenced to prison, I am concerned that he would become a worse person and would seek revenge upon release from prison. Whilst I'm not sure he would do such a thing, I could not be sure that would not happen.
•   I am not looking for my husband to be punished by going to prison.
I think counselling is a better solution to the problem and our issues and I know through a mutual friend that he is willing to see a counsellor.

BNM’s responses to the allegations in his record of interview on 22 August 2008.

At the time of being interviewed by the police at his home on the day of the alleged offences, he told the police:

“I’ve had an argument with my wife. I said I wanted to have sex with her and she agreed with me and she started to hit me so I just grabbed her around her wrist.”

He agreed to demonstrate to the police grabbing her around the wrist. He agreed that he was then arrested for attempted sexual assault on his wife and cautioned.
He agreed that at the Police Station he was told that the arrest was for the sexual assault upon his wife on that day, and he was again cautioned that he did not have to say or do anything.
He was then interviewed by police and the interview was recorded. The transcription is in evidence.
The record of the interview records that the applicant said

“O.K. I came from work and um, when I came she was not at work, at home, she went to work, she came back, I was sleeping and then she wake me up …. people have to come and visit the house to come and …. the house. I said, that's fine. And then I told her, I said, [wife], I said I've been in this problem before, you say, O.K., you want to cut me off, no cooking in the house, not doing nothing. I say, it's not too fair. I say, we have been together for years now, about, 2 month without doing anything. I say it's not fair. I said when I come from work I need to eat, I say, all the time I'm eating junk …. I said, it's too fair as a married wife. I said, if you don't want the relationship tell me and if we can divorce I can find another wife to settle down. …. you put me, on, hold. Because I’m doing a hard job, when I come from work and taxi work is very hard work. I do twenty-four hours, 'around the clock. When I come, I mean, there's no food at home, nothing, even … you don't …do laundry: You leave all those things for me. I say it Is very hard for me, don't put me on hold, O.K. … let me go and take the divorce paper … divorce … I hold her hand like this. I say, this is not fair. I say, I like the relationship. I want you so please come back to …. we do things like how we used to do before. O.K. And she started: twisting her hand from me. I said, you don't have to do that one. I said I have been married about, only two months now without sexual relationship, two month without cooking for me doing anything for me. When I come home … I pay the rent at the same time do all the extra things. I said, but it's very, very hard, you don't have to behave like that … lamp, hitting me with it. So I so upset like that. I say it's not fair. I say, calm down, calm down. And … drop on the floor, screaming, because she is the one, she upset, she take anything, hitting me…. finally I said, behave. I said … upset, don't do any action, you will do something out of the control. O.K. You came here as a student, I married you not for any documentation, for you to get your stay, I actually married … they are prettier than you but I don't want to choose to marry other … nationality, O.K. But if you don't put me on hold. O.K. Soon as I divorce you, if immigration know about this divorce they'll give you twenty-four .,... twenty-eight days to leave the country. I said, I want a ….. “

The record includes the following passage:

Q102   - - of what's been alleged. And it, it states that on Friday, the 22nd of August, 2008, your wife, being [wife], returned home to [address]. O.K.
A   Correct.
Q103   It: states that you were asleep in the upstairs bedroom of the house at the time and that your wife entered another room upstairs doing housework. O.K. My husband woke up and wanted to have sex. O.K., meaning: that you wanted to, you woke up out of your sleep, wanted to have sex and she said "No. O.K.
DETECTIVE S'ENIOR CONSTABLE WALDRON
Q104   What can you tell us about that?
DETECTIVE S'ENIOR CONSTABLE WALDRON
Q105   What can you say about that?
A   That's what she said but by then I already have any sexual emotion. She cut me off about two months without anything to me, not, cooking in the house, because I always come late sometimes. Not doing washing, nothing. She only cook for herself.
Q106   Q.K. [BNM] do you agree that that conversation did take place, that you did ask your wife to have sex with you and she said no? Do you agree that that conversation took place?
A   The conversation took place. I didn't ask her to have sex with me present, that present moment. I told her, I said, [wife], please said, I 'want the relationship, come back from …. was before. I said, you've cut off everything, no sex, no anything. I said, you don't have to behave like that as a married wife. If we get upset we can discuss and negotiate, we solve this problem. That was all, that all.
Q107   All right. [BNM], it was also alleged that you then forced her onto the bed, O.K., with your open hands. You pushed her to her chest area back onto the bed and that you then positioned yourself on top of [wife], O.K., and grabbed her wrists. O.K. He then, well then, it's then been alleged that you've then pinned her wrists to the bed, O.K. And whilst that was happening your wife was trying to get away.
A   O.K.
Q108   O.K. What can you tell me about that?
A   I grabbed her wrist, actually I grab her wrists and then 1 told her, I said, [wife], as a husband and wife there is no need refuse me anything because you haven't tell me that I don't want a relationship and you haven't tell me you want to divorce. And before I got married to you I make up my mind that I'm not going to, I'm not going, to mess up- with any other woman once I am married, O.K. I said, please, I actually need, you and I need your service as a husband and wife. O.K. I hold like this, unless you want to … I said, [wife], you don't have to fight; there is no need whipping you. I am … I Said sit in the bed and we talk about it to solve this problem because ... l sleeping. O.K. I … her chest and then put her on the bed, not force … head down, sit down the bed, the other room. I said, please, I'm really begging you. I want this relationship to continue, not to separate this relationship. O.K. And she started fighting saying, no, she don't want the relationship anymore. I said, well, don’t hold on me. If you don't want the relationship anymore, O.K, go … the, divorce paper and then we can divorce, so I can move from there ….
Q109   O.K. [BNM] it's then been alleged that you've then released your grip on her wrists and then you've removed [wife’s], both her track pants and her underpants, O.K. And that [wife] then screamed, O.K.
A   Ah hmm.
Q110   Can you tell me anything about that at all?
A   I didn't … her. I didn't do that
Q111   O.K.
A   … there is no other witness, only me and her so there's no need.
Q112   O.K. It’s also been alleged that you inserted your fingers into her vagina. What can you tell me about that?
A   No, no.
Q113   [BNM]?
A   Yeah.
Q114   Yeah.
A   I say no.
Q115   You say no?
A   Yeah.
Q116   O.K. O.K. O.K. Do you agree that [wife] said that she did not want to have sex?
A   Yeah, she told me before, said because she don't want the relationship.
Q117   O.K. So she told you sometime prior ---
A   Yeah, sometime before. Yeah; she don't want the relationship.
Q118   Do you agree that she told you today at she didn't want to have sex?
A   Yeah, today, she didn’t want, yeah, she told me. I said ---
Q119   She did.
A   Yeah, she did. I say I no want to have sex with you. I said I just want to solve this problem. I said. Because I ….. sister, she's back home. She's told me, let me be talking to her, encouraging her all the time and she come, we’ll solve the problem.
Q120   O.K. O.K. So she has been, when you’ve asked for sex in the past she has, over a number of months. Is that right?
A   Exactly. Not only sex, even when, like ----
Q121   How, how long, would you say that's been going on for, or other, you’ve been, sort of, arguing? Sort of arguing?
A   Not too arguing ---
Q122   Not arguing but ---
A   Refusing any, not only sex. Like, if I, like, before we used to … if she … busy I put in the washing, I wash it and then hang it. Like, when she, she did the same thing to me. Sometimes she cook, sometime when I come home I cook but oh, about, two months … two months she cut up everything because she want to … from the relationship.
Q123   O.K
A   And … she want to go back home.
Q124   Ah hmm. O.K. Is there anything further you want to add, Detective Senior Constable?
DETECTIVE S'ENIOR CONSTABLE WALDRON
Q125   Yeah. What were you wearing today when she woke you up, or when you woke up?
A   When, pants.
Q126   Yep.
A   Yeah.
Q127   O.K. been alleged today that you were-wearing a, a grey ---
A   Exactly.
PLAIN CLOTHES SENIOR:CONSTABLE SMITH
Q128   Dressing gown.
DETECTIVE SENIOR CONSTABLE WALDRON
Q129   Dressing gown.
A   Yeah. Dressing gown …. dress on the ...., T-shirt, and I have … and I wear dressing gown on top because the house was very, cold and … we don't like to turn heater on.
Q130   O.K. Has there been any previous incidences like this?
A   Oh, exactly. The previous incident before oh, about a few months ago. O.K. I … I said, [wife], can we have fun? … said no … I don't want. O.K. Like ----
Q131   So you were talking about sex?
A   Yeah.
Q132   She's said before that she doesn't want sex when you've asked her.
A   Ah hmm.
Q133   O.K. Yep.
A   O.K. I told her, I said, can we have fun? ... said, no, she's not in the mood. O.K. But I tried to play with her … in the mood … no, I don't want. O.K. Like ---
Q134   Yep.
A   O.K. When she totally refuse I relax, I didn't proceed.
Q135   O.K. So what would you consider as totally refusing?
A   Total refusing?
Q136   Yeah.
A   Like, if I want to play with her she still refuse, she push my hand with force so I, I … she’s not in the mood.
Q137   O.K.
A   I set her free.
Q138   How often has that happened? When you say you set her free what, what would that mean?
A   I leave her.
Q139   O.K.
A   ……
Q140   Has there been, has there been any other incidence where you've grabbed her or done anything like the, like today where you've grabbed her arms?
A   … I grabbed her arm
Q141   No, has it happened before?
A   Before?
Q142   Yeah.
A   I didn't grab her.
Q143   This is the first time you've grabbed her.
A   Yeah.
Q144   Do you understand that grabbing someone would be construed as an assault, like, you're not allowed to just grab people.

A   Oh, yeah, because, like, if you are on the street like; you grab someone Which is not your partner or any other thing, violently, it's assault.
Q145   Yeah. But do you understand that your wife is not your property?
A   Exactly.
Q146   Like, like, she can, free to leave and come and go as she wants?
A   Yeah.
Q147   That you're not supposed to grab your wife. You understand that?
A   Yeah, you don't have to … like that. Understood.
Q148   O.K. So you understand that you're not allowed to grab your wife.
A   Yeah, violently, because, like, when I hold her hand, when she started fighting, I told her, I said, [wife], you don't have to fight. I said, there is no need fighting. I said ... when you're upset, because when she's really, really upset she, anything she grabs she will hit you with it. I said, you don't have to. I said, because sometime … accidentally, maybe if you hit me by my side if I drop you regret it. I said, you don't have to … forcing her like that. I said please, please calm down because she attended all the time, when she told me, let me give her some money … all the money is on the docket. I was sleeping on the bed, she take the lamp, the iron lamp and then she hit my back with it. … I said, [wife], this is not necessary. If I say to you I don't have money there is no need to go upset. I said, because the place she hit me, that's my spinal cord … you'll regret it. O.K. That is … I said, [wife], please calm down. That's why I put, put on the, put down on the bed, not, like violence, violence way. I said, 'please calm down, you're upset. I’m not going to force you I'm just trying to say, O.K., we negotiate and then try to solve this problem ... as married wife. I said, because the last time, when she moved from the house, she go before this. She came back ... you don't have, you are not in relationship. I say, I have to move ahead. I have to … settled down. This … with her all the time … I said, I have to marry another wife. I have to go … with it so let me set her free so she wants me to … I say, I only say this one for you to come back to normal so … husband and wife..
PLAIN CLOTHES SENIOR CONSTABLE SMITH
Q149   O.K. [BNM], do you agree that your wife, [wife], has a, an injury, a neck injury? Are you aware that she had a neck injury from a previous incident?
A   Yeah, she was complain about neck injury before, previous, yeah, from previous …
Q150   She has.
A   Yeah.
Q151   O.K. And do you know how she got that injury at all?
A   Yeah, because the place I used to work before … she work before.
Q152   O.K.
A   They used to work, like, bended their neck for half an hour.
Q153   Yeah.
A   That's why she's got injury, that's how she told me.
Q154   O.K. Can you demonstrate how you grabbed your wife?
A   Yeah.
Q155   O.K. All right. How did you grab her? Did you grab her using both hands or one hand or how did you do it how did you do it today?
A   I, when I came she was in the room ---
Q156   Yes.
A   --- doing the … I wake …
Q157   Yep.
A   She went to … to clean the house. I came, I said, [wife] … said, please, I said, [wife], I said, please, I want to ….come back to normal as husband and wife ---
Q158   O.K. So, so you're indicating that you 'grabbed her wrist with one hand.
A   With one hand, this hand.
Q159   O.K.
A   … like this.
Q160   All right. Thank you, [BNM], just take a seat.
DETECTIVE SENIOR CONSTABLE WALDRON
Q161   Just one: quick question. Mate, the layout of the house, how many bedrooms has it got?
A   Three bedrooms
Q162   Three bedrooms.
A   Correct.
Q163   Where did this incident take place today?
A   In the other room.
Q164   The other room?
A   Yeah.
Q165   Not the marital room?
A   Not the marital room.
Q166   What, how would you describe the other room?
A   … have a single bed where my, my adopted sister ..... sleeping, used to sleep before so she was just trying to clean the place and then I … and I said, [wife] … told her.
Q167   Yeah. Is that at the front of the house or at the back of the house? Like, if you were to walk upstairs ---
A   Go up the stairs.
Q168   --- is that at the front or the back of the house?
A   Just, as soon as you enter the room there, the front-of the house.
Q169   At the front of the house.
A   Yeah.
Q170   O.K.
PLAIN CLOTHES SENIOR CONSTABLE SMITH
Q171   O.K. [BNM], I'm just going to ask you another question regards to when the police turned up. You spoke to a constable there, Constable Santosa. Do you remember speaking to him at all?
A   Yeah.
Q172   Yeah. Can you describe what he looks like?
A   The guy?
Q173   Yeah, the policeman that you spoke to.
A   The other guy, like, Asian, short guy, plump guy.
Q174   So an Asian gentleman.
A   Yeah.
Q175   O.K. And he was a, a plump guy.
A   Exactly.
Q176   O.K. He recorded, or he had a conversation with you and he made some notes in his notebook and I'll just refer to those notes just quickly. It states in this, in this entry that you had an argument with your wife and that you wanted to have sex, that you grabbed her around the wrists and then you returned downstairs. What, what did you do downstairs, can you remember?
A   When I went downstairs.
Q177   Yeah.
A   The time police, they are there?
Q178   O.K. No, no, there was an incident upstairs and then it, it states here that you returned downstairs. What did you do downstairs, do you remember?
A   I went downstairs. I didn't do anything because … when she was upset at the same time I have food in the hand and then she took that thing … the lamp, hit me, all the rice scatter in, the, in, the, in the lounge room, in the couch. So when the police … I tried to explain. I said … when she really, really upset, sometimes, anything she grab it. She tried to beat me. Because all the time she beat me I ask to one of my friend, I said, oh, [wife], when she upset she never think properly … later and then she regretted it. I said, that is not her character … character … character, only habit.
Q178   O.K. Did [wife] give you permission to assault her, to touch her, to grab her hand; to grab her wrist? Did she, did she give consent to that?
A   No. I never asked permission for that … she never asked permission to me … my wife.
Q179   How would you say she reacted to you grabbing her?
A   … talk nicely. So people are … and then she want to take the pussy cat downstairs, I say pussy cat, you can't control her.
Q180   Sorry, [BNM], I don't know if you understood that question. What I'm trying to say is, today, when you grabbed your wife by the wrist how did she react to that, when you grabbed her?
A   When I grabbed her first she was laughing. O.K. She say, I don't want to..... I haven't seen your character change because you took … you just want to achieve … you want the relationship very, very hard. I said, that doesn't mean anything. If I'm working, I'm just working hardly to meet our needs. Well, that doesn't mean, still, I'm working, I don't want the relationship, I still at work, I still want the relationship. … that was agreement between me and her ... I said, look at the, look at the TV, like, what … from ... looking for a wife … around there. That was the agreement, argument between me and her.
Q181   O.K. Alf right. Is there anything further you want to add to ---
DETECTIVE SENIOR CONSTABLE WALDRON
Q182   She hasn't given you permission for sex for the last two months.
A   The last two months. She told me she want cut off everything so I will not ... she don't want the relationship.
Q183   So she's told you, no sex for the last two months and everything else, no cleaning, no ---
A   Well, she only clean the house actually … like, taking off … if I come back, clothes, this, you know.
Q184   O.K.
A   So, but when I come … I told my elder sister and. then she told me … talk to her. O.K. She talk to her, buy flower for her … even when l want to buy anything for her, like, if I can buy …. don’t by anything. O.K. I said, don't be talking to her all the time … and you will see, maybe she will change. O.K. … working here … O.K. I want to do. O.K. When. I come …[wife], please come … O.K. She will come … sleep … just cuddle, do nothing. I say, that's fine. O.K.. That’s what we used to do when we were asleep ... same bed, O.K. Normally when I'm going to work I wake her, I say, I'm going to work. She say, O.K., good luck. When come back again I say I’m back. O.K. We'll sleep to the same bed, we’ll cuddle … cuddle. O.K. We are just cuddle … about it. We'll cuddle … shower …. So When I come and then when I … action was so aggressive … I said, please … upset because when you're upset you do something … regret. ...
Q185   Ah hmm.
A   So that is the only way …
Q186   O.K.
A   And she started crying.
PLAIN CLOTHES SENIOR CONSTABLE SMITH
Q187   O.K.
DETECTIVE SENIOR CONSTABLE WALDRON
Q188   ..... read through that before.
PLAIN CLOTHES SENIOR CONSTABLE SMITH
Q189   Yep.
DETECTIVE SENIOR CONSTABLE WALDRON
Q190   …….
PLAIN CLOTHES: SENIOR CONSTABLE SMITH
Q191   OK. O.K. I'm just going to it's also been alleged that when, when you, well it’s been alleged that she was pinned down onto the bed, [wife]. Do you agree that she pushed, attempted to get away from you?
A   Exactly. She tried to remove her hand.... exactly like this.
Q192   Exactly.
Yeah …
Q193   So it did occur.
A   She did attempt to remove her hand. I said because I knew her when she take I release her automatically she will go and grab something and come and hit with me, only, only to the …
Q194   It’s also been alleged that you pushed your chin, being the bottom half of your face there, into her breast area, into her chest.
A   Ah hmm.
Q195   O.K. Do you agree that that took place?
A   On the bed?
Q196   Yeah. Yep, that you pushed your chin or the lower part: of your face into her, into her chest area, into her breasts. Do you agree that that took place?
A   I do agree that. I attempt to play with her.
DETECTIVE SENIOR CONSTABLE WALDRON
Q197   Today?
A   Today, yeah.
Q198   You attempted to play with her today?
A   I ... when she was upset, I said, [wife], please, don't upset, O.K. Like, what my sister told me, like, what if you've got a wife upset, try to … her, play with her, maybe she will come back …
Q199   Foreplay.
A   Yeah.
Q200   Like foreplay.
A   Foreplay, yeah, just let, encourage her, calm her down. O.K. I ---
PLAIN CLOTHES SENIOR CONSTABLE SMITH
Q201   O.K. So, sorry, I'll just stop you there. Can you just explain to me what, you say play. What is play?
A   Play..... like, to hold her, to encourage her … calm down. If someone upset, like, like your wife, to play with your wife. I told her, I said, please, [wife], no upset. I said, I want this relationship. I only told you that I want to … for your character to change.
DETECTIVE. SENIOR CONSTABLE WALDRON
Q202   Is this, is this playing trying to assist you in having sex with your wife?
A   No, because she was upset. When she tell me, she said, no, no, she push me.
Q203   But when you say play and you cuddle her and stuff is that to try and get her to have sex?
A   Yes, I try to cuddle her; Yeah.
204   Yeah. Is that to try to have sex with her, like ---
A   Sex, yeah. Yeah, but when she's totally … I know, like, she was really upset I avoid it ---
Q205   You let her go.
A   Yeah. And then she started crying. I … look, please don't cry. Please come back to normal. O.K.
PLAIN CLOTHES SENIOR CONSTABLE SMITH
Q206   O.K.
A   But then … hit me with the, from the lamp … went downstairs. I said, [wife], please, I said.
PLAIN CLOTHES SENIOR CONSTABLE SMITH
Q207   O.K. Is there anything further that you wish to add to this interview, is there anything that you want to tell me? Is there anything that you can say, anything further?
A   There is nothing further because actually the damage … I attend … have sex … but she refuse I tried to encourage her then she came back to me, … but she still refuse. So I didn't … that one.
DETECTIVE SENIOR CONSTABLE WALDRON
Q208   Yeah, but, but she's refused all your advances.
A   Pardon?
Q209   Like, everything you've tried to do she's refused.
A   Totally she refused, yeah, yeah.
Q210   Yep. O.K. from start to finish., From the time you first touched her she refused ---
A   When I … like this and then she want to move her hand. O.K. I told her ---
Q211   But, but, even when you've done, on the bed, she's refused.
A   I pushed, I … like, l don’t push her on the bed with force. O.K. I hold her hand and … we'll sit, I said because people are coming to come and inspect the house. I say it’s true. I said but I want to … because I have to go back to work.
Q212   Yep.
A   I said, please, come back as husband and wife. Please, I said have marry, I don’t want to go any other relationship again.
Q213   Mmm.
A   But she …
Q214   Do you understand that when your wife says no to sex or advances you have to stop? Do you understand that?
A   Yes, I do.
Q215   Just 'cause you're married doesn't mean that you're ---
A   Yeah. That's why I didn't disadvantage her to the … says she don't want … refusing … fighting … I stopped right there. And then … want to call police.
Q216   Although before you said that she stopped, asked a couple of times to stop.
A   She only told me to stop once.
Q217   O.K.
A   O.K. But I ... please, please, I said, well, come back to normal. That's it.
Q218   O.K.
A   And when … actually she don't want … she went downstairs and took that lamp, want to fight with me downstairs … please, I'm telling you … only beating all the time If … this she too will be upset with you.
Q219   Do you think that was because of what you did?
A   I think because she was upset.
Q220   She, she was upset with what you did.
A   Yeah.
Q221   O.K.
A   All the time, normally when she upset, if I come home late she always take something, hit me with it. If she request money, I say, O.K. no I don’t have money today, I only have money on the docket. She wants beating me. That is a common character now.

BNM’s statement in January 2015

In this statement more than 6 years after the alleged offences, the relevant parts are as follows as typed in his statement:-

On the 13/11/2008 my problem began when I came from work as a taxi driver around 3:45am to 4:ooam, we slept together and then we get up by 8: 30am, we shower together after we took our bath, she went down stair and pear a breakfast while I was up the room and then she called me after we have done all the necessary morning things such as showering, took our breakfast and watching TV, She told me that she want to return to bed for sleep, I said to her okay I will join you later and I join her about one and half hours in the nest room.
I started gave her some lovely stored and we started played romantically and I finally asked her for sex and she accepted it, and she told me to do the necessary thing mean to removed her pants and her under pant which I did and I clam on top her while myself was naked as I tried to penetrated my private in to her private.
She told me to stop and to get up on top from her and I asked her why? She said to me that she wants to ask me a question and I ask her too what is your question? And she said to me that if am sure that I will marriage another girl, I said to her you need to change your attitude, if not I have to.
She started crying and told me to move on top of her which I did but I hold her hand and I said to her that I say these because I want you to change the attitude of raning out of your marital home.
But she was continue crying said I should released her hand am pressing the vines, I said to her that I am holding your hand to avoid not to involve into trouble because if I released you possible to started throwing things to damage me.
She told me that, she will call police and than I took the land phone from her but she was insisted so I finally gave up and I said to her that if police come they will definally separated us and possible to curt and I went up stair to sleep and the policeman wake me up and then they took some statement and take to Parramatta police station on that date.
On my first appearance in curt she was crying and pleading telling the magistrate that these was not her plain and she want to withdraw the case and she was upset with him because I told me that he will marinade another woman and he never force me for sex form the past seven years.
It was very sad, a shame and difficult situation that I find myself in on the 13/ 11`/ 2008. I tried hard to calm down the tension as I could but it was difficult and than I finally give up, because I never use force on any women to seduce her, it is very degrading and bad in human life and I acutely acknowledge the gravity of the impart. And not only that I also have Sibling both elder and young and I wouldn't like any body to treated them badly and I also have a focus and I cannot afford to ignore or anyone to hindering my focus by damaging or tarnish my reputation and image.

The above quotation states date of the matters giving rise to the charges as 13 November 2008 instead of 22 August 2008. It is not been edited for spelling, grammatical or other errors. There are though some serious inconsistencies in the version the applicant provided in that statement and his answers to questions in the police interview on the day of the events in 2008.

BNM’s Statements to the Psychologist Mr Navin Goonniah

The applicant engaged Mr Goonniah to provide psychological assessment of him. Mr Goonniah related in his report:

[BNM] reported that owing to issues with his ex-wife where an allegation of sexual assault without consent was made by his ex-wife to police when she was reportedly upset with him, this has been placed on his record despite no charge. This is presenting as the barrier to his current wife’s ability to open a home childcare facility”.
[BNM] reported that he has been requested by the Administrative and Equal Opportunity Tribunal to have a formal psychological assessment completed.”

Mr Goonniah also reported in relation to what [BNM] told him on 4 February 2015 about the events on 22 August 2008.

[BNM] reported that he married his first wife who was from Kenya in 2004. [BNM] reported that issues in his relationship emerged in 2006 when his younger sister came to Australia. [BNM]Mr [BNM] reported that his sister has a disability and issues arose surrounding her care. [BNM] reported that his sister contributed to issues in his relationship. [BNM] reported that his wife wanted his sister to leave the home but he wanted to care for her as he felt sorry for her. [BNM]reported that he agreed to find his sister an alternate residence but his wife's lack of patience and negative attitude resulted in further hostility. [BNM reported that out of anger and emotion, [BNM] reported that his. wife called the police to resolve a disagreement not knowing that they would end up in court. Mr [BNM] reported that his wife wanted to withdraw the matter but it was too late and the sexual assault without consent was placed on his record.
[BNM] reported that when he was removed from the residence. [BNM] reported that his wife was unable to be contacted for a period of time. [BNM] reported that in light of not knowing her location or when she would return, he filed for divorce which was granted by the Magistrate. [BNM]reported that he recommenced a relationship with his ex-girlfriend of ten years who he later married and is Mr [BNM’s] current wife.

Dr Goonniah also concluded his opinions with the following:-

“Based on what [BNM] has reported in light of not known history of similar issues with law surrounding or relating to domestic violence with sexual assault or otherwise, I can easily confirm that [BNM] is not at risk to the community or any person.”

It is noted that the applicant did not inform Mr Goonniah of the common assault conviction arising from the events on 22 August 2008 nor of the one provisional apprehended violence order, four interim apprehended violent orders and a further apprehended violence order that all followed the events on 22 August 2008.
Mr Goonniah prepared his risk assessment based purely on what he was told by the applicant. He was not informed that the applicant pleaded guilty to common assault of the wife in respect of the events on 22 August 2008. Nor he was informed the reasons why the charge for Sexual Assault Without Consent was withdrawn by the wife; nor of the allegations made by her in respect those events of that day.

In oral evidence by telephone, Mr Goonniah could not record whether he had been told that the applicant had been convicted to the common assault. He conceded that he did not use any specific risk assessment tools. He denied having any familiarity or expertise in relation to assessing specifically risks to children. He could not recall whether he was provided with the former wife’s police statement. He was unable to say what documents he was provided by the applicant. He said: he was unable to produce any notes of his consultation with the applicant “because my hand written notes were destroyed when the report was done.” He said that as regards to the allegation of Sexual Assault Without Consent, he proceeded on the basis that he accepted [BNM’s] version that there was no such assault. He did not question [BNM] regarding the version of the wife, apparently, because he did not have it.
Mr Goonniah did not in his documents purport that he has any expertise in the assessment of the risk a person poses to children or adults. Nor did he purport to rely upon or use any tests or other instruments, recognised by the profession or otherwise, appropriate for making such opinions.
In all the circumstances, the purported risk assessment by Mr Goonniah could not be relied upon.

The Relevant Oral Evidence of BNM at the Hearing of 23 April 2015.

The applicant’s evidence was that after the event of 22 August 2008 he subsequently divorced his then wife and has since re-married. He volunteered in his oral evidence: “All my life is just about having a fight with people”. He said that he and his present wife have two children of their marriage and they are presently “living apart because of the relationship problem – jealousy. I had to distance from her. I am not going for divorce yet.”
Of the event on 22 August 2008, he alleged that there had been foreplay with the wife and he had intended to have sexual intercourse with her, she then refused. He agreed that there was a strain in the relationship because of her refusal to have sexual intercourse with him. He denied that he was abusive in the arguments. He denied that there were a lot of arguments. He denied trying to have sexual intercourse with her. He said he told her if she didn’t control her anger and change her attitude he would marry another woman. He agreed in cross examination that as at the date of the alleged offenses in August they had not had sexual intercourse since March. He conceded that the wife was at that time still unhappy about his sister and her son residing with them.
In cross examination he said that he wanted his statement to be his sworn evidence and said that what was in the statement was truth. He said that he didn’t want to change anything. It was put to him and he conceded that a few days before the incident the wife had resumed cooking and cleaning. That was not what he told the police. When he was asked whether he told the police the truth he said: “I always tell the truth”.
He conceded that in his statement in January 2015, he said that the wife had gone back to bed and later he had joined her. But he told the police in answer to the question 92, that when he arrived home the wife was not present and subsequently he said when she came home he was sleeping and she woke him up. Those versions are inconsistent. He was also forced to concede that in the statement in January 2015 he had said they started sexual activity before wife told him to stop. But in the police interview he denied any kind of sexual activity. It was put to him “because you have forced yourself on her and when she refused you put your fingers into her vagina?” and he responded to that by saying “I didn’t force her”.
It also was drawn to his attention that in his statement of January 2015, there was no reference to the wife hitting him with the lamp but he told the police that she did hit him with the lamp. He said that she did do that. Asked whether that happened before the alleged assault or after, his attention was drawn to his answer to question 148 of the police interview where he said that he was sleeping on the bed when she hit him with the lamp. And it was put to him that she hit him with the lamp before any sexual activity. His response was “I can’t remember”. But he insisted that it was the same occasion. When asked whether it was after he attempted sexual activities, he answered “when she said she will go to the police then and will write to the immigration”.
Then he said that he had gone from the small bedroom to the large bedroom and lay on the bed there and then the wife had hit him with the lamp. But this was inconsistent with his answer to the question 177 in the police interview where he told that police that she hit him with the lamp downstairs in the lounge room.
He insisted at one stage he sat on the top of the wife on the bed. He said she was lying on the bed and he sat on top of her. Asked how she came to lie on the bed, he said, “I didn’t push her. I said, ‘let’s have sex’”. When asked whether she was already lying on the bed, he said “we were both on the bed in the small room. She told me to ‘do the usual’. I removed her pants and under pants’”. It was put to him that he did not tell the police that he had removed her pants and his attention was drawn his answer to question 109 in this regard. He then he denied removing her pants. When was put to him that he didn’t tell the police that he had removed her under pants, he answered “I can’t remember”.

The period of the time since those matters occurred and the conduct of BNM since they occurred.

It is nearly 7 years since the matters occurred. There is no evidence of any further charge or conviction in respect of conduct of the applicant. There is, however, the evidence that he has divorced the wife and re-married and he is now living separate from his current wife because of a problem in their relationship. There is also evidence he volunteered that “all my life is just about to having a fight with people”.
There is also the fact that despite the conviction for assault, and other admissions he made about his conduct that day, he does not appear to be contrite about his conduct. He does not appear to recognise any fault on his part. He did not address allegations of the wife of other occasions where he attempted to physically force her to have sexual intercourse.
The Respondent also failed to make full disclosure to the psychologist of relevant matters, including the assault conviction, the apprehended violence orders, and the allegations the victim made about his conduct to the police. He purported to the psychologist that the wife’s call to the police was “to resolve a disagreement” He did not disclose to the psychologist even damaging admissions he made to the police and in the proceedings.

Age of the Applicant at the Time the Matters Occurred

The applicant was 32 years of age at the time of the matters.

The Age of the Victim of his Conduct at the time it occurred and Any Matters Relating to the Vulnerability of the Victim

The victim was 29 years of age. She came to Australia from Kenya in 2000 as a student studying International Business at the University of Western Sydney. She has been forced to withdraw from her course after about a year and a half because the financial problems. She had some employment at about the time of the matters, but it is not clear that to what extent, if any, she was financially depended on the applicant.
She was unhappy living with the applicant because of his conduct as already discussed and also the ongoing presence of his sister and her son. The Applicant had also refused her requests that he ask them to go to other accommodation. He had given precedence to his own interests over those of his wife.

The difference in an age between the victim and the person and the relationship (if any) between the victim and the person

The victim 3 years younger than the applicant.

The Applicant’s Present Age

The applicant is 39 years of age.

The Seriousness of the Applicant’s Total Criminal Record and the Conduct of the Applicant since the matters occurred.

The criminal record of the applicant that is in evidence indicated that as of 3 December 2014 he had no criminal charges or convictions other than the subject matters.
In cross examination the applicant conceded that he has used a different surname. The difference was that the last letter was an “o” in one and an “a” in the other. In his Interview by the police, the court proceedings in 2008, his application to the Children’s Guardian and his application to the Tribunal he used the surname ending with “o”. It was also used by the Murray Kanneh, the writer of the reference from Sierra United Incorporated and used by the pastor.
But the other surname ending with “a” was used by him when he obtained an Australian visa, used by him in his statement of 12 January 2015, and used in the reference by the owner of the taxi he drives. In cross examination he said his driver’s licence is in the surname ending with “o”. He conceded that he uses both surnames.
The Criminal history in evidence is in respect of the surname ending with an “o” and does not refer to him using the other surname. It does, however, refer to 2 aliases he has used. One has his middle name as his first name and his first name as his middle name. The other has a different spelling of his middle name.
There was no criminal history in evidence in respect of the surname ending with an “a”. The Tribunal in the circumstances cannot be satisfied that his full criminal record since he came to Australia in 2000 has been disclosed.
There is no criminal record of the applicant in evidence under the other surname he uses. Nor is there any independent evidence of his criminal record prior to him coming from Kenya to Australia in 2000 at about 24 years of age and in respect of the subsequent time he lived in Kenya in 2004 and/or 2005 at 28 years of age .
The relevant conduct of the Applicant since the matters concerning his remarriage and separation have been described. He also has failed to recognise or regret any of his controlling and otherwise abusive behaviour towards the victim.
He has also told the tribunal that “All my life is just about having a fight with people”.

Any Information Given in, or in Relation to, the Application

The applicant has provided no evidence by any person with relevant expertise assessing what risk he poses to the safety of Children.
He has provided a reference dated 14 December 2014 by a Pastor of El Bethel Weyfia Peier Ministries. The pastor says that “to the best of my knowledge [BNM] has been reliable, pleasant and their (sic) has been no foreseeable domestic violence/abuse since the common assault”. The reference is of very limited weight because it appears that the pastor has only had dealings with the Applicant since about December 2013 and he does not have knowledge of the allegations made in August 2008.
There is a reference of the chairman of Sierrah Unite Incorporated, Again the writer does not disclose that he has any knowledge of the assault conviction or of the extensive allegations made by the alleged victim.
There is also the reference of Manpreet Singh Bains. Although Mr Bains says he has known the applicant since 2010 as his employee taxi driver and describes him as hard working, a good friend, “a man to stand behind his words”, a reliable employee, “family oriented” “and “not a harmful or troubling man”, Mr Bains does not say he has any knowledge of the conviction for common assault, or the allegations of the applicant’s first wife, his separation from his second wife, or the various damaging admissions made by the applicant. Mr Bain’s opinions as to the applicant’s character and history cannot be given any significant weight because it appears he has little or no knowledge of significant matters relevant to forming such opinions.

The Likelihood of Any Repetition by the Applicant of the Offences or Conduct or of Any Other Matters That Caused the Assessment and the Impact on Children of Any Such Repetition.

The applicant has not expressed any acknowledgment of the likely adverse effects on the victim of the common assault or of the sexual assault alleged by his former wife or of some of the conduct he conceded himself, such as threatening that if she did not have sexual intercourse with him, he would take another wife. (His evidence is that his father had 15 wives.) Nor did he express or demonstrate any regret for such conduct.
Those matters suggest he does not understand the likely effects on a victim of controlling behaviour or other abusive behaviour. That suggests that if he did have sexual intercourse with the alleged victim without her consent, he is more likely to repeat such behaviour. Such a conclusion is also supported by the absence of any evidence that he has sought any therapy of other professional assistance about his relationships and dealings with others, including wives.

Any Other Matters That the Children’s Guardian Considers Necessary

The Children’s Guardian opposes the application. As was submitted for the Children’s Guardian, the Applicant failed to engage with or provide any evidence or submissions to the Children’s Guardian’s enquiry in relation to the triggering matters and in these proceedings his evidence was unsatisfactory. He repeatedly has contradicted other versions of events given by him. Indeed within minutes during cross examination he testified that on 22 August 2008 he removed the victim’s pants and underpants, denied he told the police he did, and when asked again whether he didn’t tell the police he took off her underpants, responded, “I can’t remember”.
The Applicant often avoided a question and also volunteered unresponsive statements.
Neither the alleged victim nor any witness for the Children’s Guardian was required by the applicant for cross examination.
Overall the Applicant presented as an extremely unreliable witness. He was not convincing. He impressed at times as “making it up” in his various versions of what happened on 22 August 2008. The Statements of the alleged victim, in contrast, were generally consistent and convincing. She was not called to give evidence, and not cross examined.
Unlike an application section 28 of the Act by a disqualified person for an enabling order where subsection 28(7) applies and there is a presumption that the applicant poses a risk to children, there is no such presumption in a review application under section 27 of the Act such as these proceedings.
Neither party has an onus of proof in these proceedings.

CONCLUSIONS

Section 5 of the Act defines ”Children” as “persons under the age of 18 years” The applicant has never been convicted or charged for any offences against a child. There is no evidence before the tribunal that he has ever abused a child, whether physically, sexually or emotionally.
The issue is not whether the evidence proves that the Applicant did commit the offences with which he was charged in 2008, but whether he presently presents a real and appreciable risk to the safety of children.
In Commission For Children and Young People - v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers, that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section:

"One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42]
"One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the `risk' with the words that follow, namely, 'to the safety of children' .”

Similarly the High Court has held that in dealing with an allegation of sexual abuse of a child in the custody or access context, if the allegation is not established on the civil standard of proof (having due regard to the seriousness of the allegation) the Court should instead decide whether there is an unacceptable risk of sexual abuse if Custody or access is granted (M v M (1988) 166 CLR 69)..
The alleged victim’s allegations are not just allegations of assaults on 22 August 2008. There were also allegations of physical and sexual assaults on previous occasions, including physical assaults intended to force the victim to have sexual intercourse with him.
The evidence is that the applicant’s marriage to the alleged victim ended in acrimony and he has since separated from his present wife and children. His evidence “All my life is just about having a fight with people” indicates that his conflicts with others are more extensive than just those with his wives.
Because of his poor credit and the absence of independent evidence of whether he has other criminal charges or convictions in Kenya, or in Australia under his other surname, the Tribunal is not satisfied whether the 2 trigger matters are the only criminal charges or convictions he has.
The evidence establishes a real and appreciable risk that the Applicant will engage in conflict with other persons (including children) and in that conflict use force against the other person. That risk includes a risk to 17 year old female children that he may seek to have sexual intercourse with such a child against her wishes and may do so or use force against her in attempting to have sexual intercourse.
The Tribunal acknowledges the seriousness of the finding, but it is therefore satisfied on the balance of probabilities that the Applicant poses a risk to the safety of children. The correct and preferable Decision is therefore that the granting of a Working With Children Check Clearance be refused.

Non Disclosure

Pursuant to s64 of the Civil and Administrative Tribunal Act 2013 the Tribunal is satisfied that by reason of the nature of the evidence concerning allegations of assaults on his first wife by the Applicant there should be an order prohibiting broadcast or publication of the names or other identifying information in relation to the Applicant or the first wife.

ORDERS

Accordingly the orders of the Tribunal are:

The decision of the Children’s Guardian refusing to grant the applicant a Working With Children Check Clearance is affirmed;

The application by the applicant filed 22 October 2014 is otherwise refused and dismissed; and

Broadcast or publication of the name or other identifying information of the applicant, or his former wife who is the complainant in respect of alleged offences of the Applicant on 22 August 2008, is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

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

Amendments

21 January 2016 - Anonymisation of party details

20 October 2015 - Anonymisation of party details

Decision last updated: 21 January 2016

Medium Neutral Citation:	BNM v The Children’s Guardian [2015] NSWCATAD 179
Hearing dates:	23 April 2015
Decision date:	25 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	G Mullane, ADCJ (Principal Member)
Decision:	1. The decision of the Children’s Guardian refusing to grant the applicant a Working with Children Check Clearance is affirmed. 2. The application by the applicant filed 22 October 2014 is otherwise refused and dismissed. 3. Broadcast or publication of the name or other identifying information of the applicant, or his former wife who is the complainant in respect of alleged offences of the Applicant on 22 August 2008, is prohibited.
Catchwords:	Review of decision of Children’s Guardian refusing to issue the applicant Working with Children Check Clearance – conviction of Common Assault in November 2008 – charges of Sexual Intercourse Without Consent November 2008 withdrawn – held to be risk to the safety of children.
Legislation Cited:	Child Protection (Working With Children) Act 2012 Crimes Act 1900 Administrative Decisions Review Act 1997
Cases Cited:	Commission For Children and Young People - v- V [2002] NSWSC 949; M v M (1988) 166 CLR 69;
Category:	Principal judgment
Parties:	BNM (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent) Solicitors: BNM (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1410594
Publication restriction:	Per order 3