BVT v Children's Guardian (No. 4)

[2018] NSWCATAD 153

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BVT v Children’s Guardian (No. 4) [2018] NSWCATAD 153

Hearing dates:

29 May 2018

Date of orders:

29 May 2018

Decision date:

19 July 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Roberts, Senior Member

Decision:

(1) The applicant is not to be treated as a disqualified person for the offence of assault with intent to rape in 1973 under the Crimes Act 1900 (NSW).

 

(2) The applicant’s application for an enabling order is granted.

 

(3) Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant a working with children check clearance to the applicant.

 (4) Suppression Order made in regards to the name of the applicant, the applicant's partner, the child referred to in the proceedings, and the victim of the 1973 offence or any evidence given or received in the Tribunal hearing or in relation to proceedings which is likely to identify the person.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – disqualified person – disqualifying offence of assault with intent to rape in 1973 - statutory presumption the applicant poses a risk to the safety of children – whether applicant discharged his onus to rebut the statutory presumption that he poses a risk to the safety of children – onus discharged

Legislation Cited:

Child Protection Legislation Amendment Act 2015 (NSW)
Child Protection (Prohibited Employment) Act 1998 (NSW)
Child Protection (Working with Children) Act 2012 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Commission for Children and Young People Act 1998 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:

ADV v Commission for Children and Young People [2012] NSWADT 8
AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69
BFC v The Children’s Guardian [2014] NSWCATAD 115
BJB v NSW Office of the Children’s Guardian (No. 2) 2014 NSWCAT 164
BKE v Children’s Guardian [2015] NSWSC 523
BVT v Children’s Guardian [2016] NSWCATAD 12
BVT v Office of the Children’s Guardian [2016] NSWSC 1169
BVT v Children’s Guardian (No.2) [2016] NSWCATAD 266
BVT v Children’s Guardian (No.3) [2017] NSWCATAD 111
BVT v Office of the Children’s Guardian [2017] NSWSC 1763
Commissioner for Children and Young People v FZ [2011] NSWCA 11
Commission for Children and Young People v V [2002] NSWSC 949
R v Anunga 1976 11 ALR 412 (NTSC)

Texts Cited:

D Eades, “Aboriginal English and the Law”, Continuing Legal Education Department, Queensland Law Society 1992
D Eades, “Taking evidence from Aboriginal Witnesses speaking English: some sociolinguistic considerations”, Precedent, Issue 126, January/February 2015

Category:

Principal judgment

Parties:

BVT (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
Mr Jake Harris for the Respondent
Solicitors:
Mr Matthew Butt, Legal Aid Commission NSW (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2016/00378319

Publication restriction:

Section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) – Restriction against the publication or broadcast of information that will identify the applicant, any victims, witnesses or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Introduction

1. The applicant, referred to as BVT, is a 63 year old Aboriginal man from the Kamilaroi nation. The applicant applied for a Working with Children Check clearance (“a clearance”) on 5 September 2013. On 20 November 2013, the respondent refused the application on the basis the applicant is a disqualified person under subsection 18(1) of the Child Protection (Working with Children) Act 2012 (NSW) (the Act) by reason of his conviction in 1973 of the offence of assault with intent to rape. On 17 April 2015, the applicant sought an enabling order pursuant to section 28 of the Act declaring he not be treated as a disqualified person so that he can be granted a clearance. The Tribunal extended the time for the applicant to file the application.

2. The applicant seeks a clearance because without it he cannot have unsupervised access with C, the granddaughter of his partner, D, nor can C have overnight stays with BVT and D.

3. On 13 January 2016, the Tribunal (differently constituted) refused BVT’s application: BVT v Children’s Guardian [2016] NSWCATAD 12 (“BVT (No.1)”). BVT appealed that decision to the Supreme Court of NSW. On 23 August 2016 the appeal was allowed; the Tribunal’s decision set aside and BVT’s application remitted to the Tribunal for determination: BVT v Office of the Children’s Guardian [2016] NSWSC 1169 (Adamson J) (“2016 Supreme Court BVT Decision”). Upon its remittal to the Tribunal, the matter was allocated to be heard by the same Senior Member who determined BVT (No.1) and a different general member.

4. On 22 November 2016, the Senior Member published reasons for refusing an application by BVT for him to recuse himself on the grounds of apprehended bias: BVT v Children’s Guardian (No.2) [2016] NSWCATAD 266 (“BVT (No.2)”). On 6 April 2017, the Tribunal refused BVT’s application for an enabling order: BVT v Children’s Guardian (No.3) [2017] NSWCATAD 111 (“BVT (No.3)”).

5. BVT appealed the decisions in BVT (No.2) and BVT (No.3) to the Supreme Court of NSW. On 15 December 2017, Beech-Jones J allowed BVT’s appeal against the decision in BVT (No.3); set aside the decision in BVT (No.3) and remitted BVT’s application for an enabling order to the Tribunal for determination: BVT v Office of the Children’s Guardian [2017] NSWSC 1763 (Beech-Jones J) (“2017 BVT Supreme Court Decision”).

6. On 29 May 2018, I heard BVT’s application as a single member pursuant to section 27(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”).

7. The question to be determined in these proceedings is whether BVT poses a real and appreciable risk to the safety of children. The order, if granted, would enable the applicant to work in any child-related work or child related role.

8. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the CAT Act, that the name of the applicant and any child referred to in the evidence before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the evidence is not to be published or broadcast without the leave of the Tribunal.

The Evidence

9. At the hearing, the applicant relied upon the following material:

1. Affidavit of BVT dated 28 February 2018 (Exhibit A1);

2. an Updated Psychological Report dated 8 March 2018 by Ms Caroline Hare, Forensic Psychologist (Exhibit A2); and

3. an Agreed Bundle of Exhibits from NCAT Proceedings No. 15/10210 (the file number for BVT No.1) (Exhibit A3).

10. The applicant relied upon written submissions dated 23 April 2018 and Mr Butt made oral submissions on 29 May 2018.

11. The applicant gave oral evidence in chief and was cross examined by Mr Harris, Counsel for the Respondent.

12. Ms Caroline Hare gave oral evidence for the applicant and was cross examined by Mr Harris.

13. The respondent relied upon a bundle of documents titled Documents filed by the Respondent pursuant to Section 31 of the Administrative Decisions Review Act 1997 (Exhibit R1). The respondent also relied upon written submissions dated 27 April 2018 and Mr Harris made oral submissions on 29 May 2018.

14. There was no objection by either party to the receipt of this evidence by the Tribunal.

Other material before the Tribunal

15. I also had before me the decisions in BVT (No.1); BVT (No.2); BVT (No.3) and the 2016 BVT Supreme Court Decision and the 2017 BVT Supreme Court Decision.

Approach taken by the parties in these proceedings

16. The respondent supported the application that BVT be granted a clearance. The parties agreed in all relevant respects as to the findings of fact to be made from the evidence as well as the interpretation and application of the relevant law.

17. I acknowledge the considerable assistance provided by the representatives for the applicant and respondent in the provision of the material filed prior to the hearing and in the presentation of their respective cases before me on 29 May 2018.

The Legislative Scheme

18. The Act makes provision for the regulation of those persons who can engage in or continue to engage in “child related work”. The objects of the Act are:

The object of this Act is to protect children:

(a) by not permitting certain persons to engage in child-related work; and

(b) by requiring persons engaged in child related work to having working with children check clearances.

19. 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 the Act.

20. It follows that the jurisdiction of the Tribunal is protective and not punitive in nature: see Commissioner for Children and Young People v FZ [2011] NSWCA 11 (Young JA) at [61]. That is, the object of the Act is not to impose additional punishment on a disqualified person but to eliminate possible risks to the safety of children.

21. “Children” is defined in subsection 5(1) of the Act to mean persons under the age of 18 years of age. It follows that the word ‘child’ has the same meaning.

22. Subsection 8(1) of the Act prohibits a person from engaging in “child related work” unless (a) the person holds the relevant clearance or (b) there is a current application, by the person, to the Children’s Guardian for the relevant clearance. Contravention of this provision is an offence carrying a maximum penalty of 100 penalty points or imprisonment for two years or both.

23. The Act contains a similar prohibition on an employer, employing or continuing to employ a person in ‘child related work’ where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant clearance or there is no current application by the person for such a clearance.

24. Subsection 10(1) of the Act provides that all adults living in the residence of an authorised carer are required to hold a clearance. Tamworth Armidale Aboriginal Children’s Service requires BVT to hold a clearance to have unsupervised access to C including her staying overnight with D and BVT.

25. As referred to above, subsection 18(1) of the Act states that the respondent must refuse an application for a clearance where the applicant is a disqualified person by reason of having been convicted of an offence within the meaning of Schedule 2 of the Act. The term “conviction” is defined in subsection 5(1) of the Act to include “a finding that the charge for an offence is proven or that a person is guilty of an offence even though the court does not proceed to a conviction”.

26. Section 22 of the Act provides that a clearance ceases to have effect five years after it was granted unless it is cancelled or suspended prior to that time (see section 23 of the Act).

27. As referred to above, a disqualified person may make an application to the Tribunal for an enabling order. Where such an application is made, section 28 also provides:

28 Orders relating to disqualified and ineligible persons

(1) …

(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.

28. The meaning of the word “risk” was previously considered in Commission for Children and Young People v V [2002] NSWSC 949 (Young CJ); 56 NSWLR 476. That consideration was made in the context of section 9(4) of the former Child Protection (Prohibited Employment) Act 1998 (NSW). His Honour said at [42]:

“One does not define risk as meaning minimal risk. One would… 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 word ‘risk’ with the words that follow, namely ‘to the safety of children’…”.

29. These observations by Young CJ continued to be cited with approval by the former Administrative Decisions Tribunal in interpreting the meaning of “risk” as it appeared in subsection 33J(1) of repealed Part 7 of the Commission for Children and Young People Act 1998 (NSW): see ADV v Commission for Children and Young People [2012] NSWADT 8. The remarks have also been cited with approval in AYU v NSW Office of the Children’s Guardian [2014] NSWCATAD 69; BFC v The Children’s Guardian [2014] NSWCATAD 115; BJB v NSW Office of the Children’s Guardian (No. 2) 2014 NSWCAT 164 at [33]; and BKE v Children’s Guardian [2015] NSWSC 523.

Onus of proof

30. 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.

The circumstances of the index offence

31. The applicant and the respondent agree on the circumstances of the index offence, assault with intent to rape, committed by the applicant in 1973 that results in him being a disqualified person under the Act.

32. The applicant told the Tribunal he does not have an independent memory of the event given he was heavily intoxicated at the time but states what he told the police at the time would have been the truth. I take into account the material set out in the police facts, BVT’s record of interview and the witness statements as to the following circumstances of the offence (see the 2016 BVT Supreme Court Decision at [58]):

1. the female victim was departing Newtown Station with a male friend when they were followed by BVT and another male. BVT produced a knife and threatened the male friend who fled to get police assistance;

2. BVT and the other male followed the victim towards her home and BVT assaulted her by holding her tightly by the neck; putting his hand down her blouse; ripping her blouse and telling her, he would kill her if she did not let him have sex with her. BVT had a knife at the victim’s throat; slapped her on the face twice, kissed her and felt her crotch through her pants. BVT asked her for money and she gave him 30 cents. The victim screamed when a car drove past. BVT hit her again and then ran off when the car stopped to offer assistance;

3. BVT was arrested on the night of the offence; accepted the victim’s account (other than saying she gave him 50 cents) and admitted the offence; and

4. BVT pleaded guilty to the offence and was sentenced to five years imprisonment with a non-parole period of 18 months. BVT was released after 18 months but breached his parole and returned to prison to serve the remainder of his sentence.

Other relevant evidence

33. Other information relevant to these proceedings are summarised in the 2016 Supreme Court BVT Case as follows ([16]-[21]):

“16. The plaintiff worked as a labourer and on farms for most of his life until his retirement at the age of 55. He drank alcohol heavily on a daily basis from the age of 15 until about 2005, except for periods spent in prison. He did not seek professional help for alcohol abuse but stopped drinking in 2005 when his general practitioner advised him that it would otherwise affect his life expectancy.

17. The plaintiff was married aged 21 and divorced aged 26. Subsequently, he met his current partner, D, with whom he has now been in a relationship for 26 years. The plaintiff helped to raise three of D’s children.

18. D’s granddaughter, C, who was born in 2009, was placed under the parental responsibility of the Minister. The plaintiff and his partner did not find out about C (who was the daughter of D’s son) until she was two years old. They sought to have her placed in their care. As part of their application, in June 2012 … Assessments Australia conducted an assessment and recommended that they be considered as authorised carers. However, it was decided that C ought remain with her existing carer, with whom she had been living since she was nine months old and to whom she had formed an attachment. From January 2013 the plaintiff and D provided respite care for C, including overnight contact.

19. On 15 April 2013 Family and Community Services received a report that the plaintiff had hit C. C was interviewed and stated that the plaintiff hit her with a spoon on more than one occasion. However, Family and Community Services did not consider there to have been a sufficiently clear version given by C. There were no apparent injuries and no further action appears to have been taken. The material also contains an allegation that “Nan” (the plaintiff’s partner, D) hit C over the head. D also reported that C told her that her mother hit her with a spoon.

20. In about October 2014 the plaintiff was informed by Family and Community Services that they would no longer be managing C and that she would be managed by the Tamworth Armidale Aboriginal Children’s Service. The transfer of responsibilities appears to have occurred in December 2014. When the plaintiff went to the usual changeover location to meet C just after Christmas 2014, C was not there. The plaintiff later discovered that the Tamworth Armidale Aboriginal Children’s Service had decided that he would no longer be permitted to have unsupervised contact with C unless he could obtain a Clearance.

21. The plaintiff applied to the Children’s Guardian for a Clearance under s 13(1) of the Child Protection Act. As he was a disqualified person because he had been convicted in 1973 of assault with intent to rape (an offence specified under Sch 2 of the Child Protection Act), the Children’s Guardian was obliged to refuse the Clearance. Overnight contact between C and D and the plaintiff continued until 1 January 2015, including after the Children’s Guardian refused the plaintiff a Clearance. Since January 2015 then the plaintiff has seen C on a supervised basis.”

Required considerations

34. Section 30 of the Act sets out how an application under section 28 is to be determined by the Tribunal:

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.

35. Section 30 was amended with effect from 2 November 2015 by the Child Protection Legislation Amendment Act 2015 (NSW) to include section 30(1A). This amendment is not relevant in these proceedings given the application was filed with the Tribunal on 17 April 2015.

35. The Act specifically provides that an enabling order may not be made subject to conditions (section 28(8) of the Act) and that an applicant is required to fully disclose any matters relevant to the application for an enabling order (section 28(5) of the Act).

Consideration of section 30(1) factors

37. The relevant evidence and the Tribunal’s findings are now considered under each of the subsection 30(1) factors.

(a) The seriousness of the offences with respect to which the applicant is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar

38. The applicant has been convicted of a very serious offence as reflected in the five year prison term imposed on sentencing.

(b) The period of time since those offences or matters occurred and the conduct of the applicant since they occurred

39. The index offence occurred 45 years ago.

40. BVT’s full criminal record is set out below at [51]. BVT’s offences since 1973 are with respect to assault; motor vehicles and theft. BVT did not commit any offences from 1980 (when he was 25 years old) until 1990 when he was convicted of prescribed concentration of alcohol charges. In 2016, the applicant was fined twice for driving an unregistered vehicle.

41. BVT states in his first affidavit (forming part of Exhibit A3) that he “worked really hard to turn my life around after getting out of gaol for the 1980 offences”. He formed a de facto relationship with his partner, D, in 1989 and assisted in raising her three children who were approximately five, seven and nine years old when they started their relationship. BVT states his family life has given him a lot of stability and support. He is currently involved in caring for D’s grandchildren, including C, and niece.

42. As stated above at [33], BVT’s family life has also involved connecting with C, D’s granddaughter, who is in foster care after being removed from her mother at the age of approximately nine months. BVT and D were assessed as part of an Authorised Relative and Kinship Carer Assessment (“Attachment Assessment”) by the Department of Family and Community Services (FACS) during the court proceedings that resulted in C being placed under the care of the Minister. The Attachment Assessment for C dated 17 February 2013 (see Exhibit R1) states BVT is “the family member who provides [C] with activities and stimulation and her attachment to him is strong” and “[D] and [BVT should] be given every opportunity to participate in [C’s] social and educational activities and participate in her cultural identity.”

43. BVT states he and D would very much like C, who is now eight years old, to live with them. BVT describes himself as a “proud Aboriginal man” and wants to assist C in knowing her kin and cultural identity. He gave evidence that his relationship with C is “deadly” (defined in the Macquarie Dictionary as an Aboriginal English word meaning “very good, cool, great”).

44. BVT denied the allegations made by C referred to at [33] above and it appears no further action was taken by FACS in relation to them. Material obtained from FACS and put before the Tribunal (see Exhibit R1) also refers to other allegations made by C from 2013 to 2015 that BVT hit D; BVT pushed C and slapped her face; BVT smacked C and BVT dropped her on her head and that she does not like him. There were either no injuries recorded in relation to these allegations and/or an investigation by FACS did not substantiate the reported issues.

45. BVT has continued to have fortnightly contact with C during the long course of these proceedings. BVT gave evidence C does not misbehave when she has contact with him and that he has never smacked or hit her. He said if C did misbehave then he would give her “time out” for five to ten minutes but he has never had to do so.

46. BVT states he drank alcohol heavily from the age of 15 years. He gave evidence he gave up drinking alcohol in 2005 (he also gave evidence it was approximately 10 years ago) when he needed to have a stent inserted in his heart. BVT said he:

“made a decision that I needed to stop drinking to make sure I can live a long, healthy life.”

47. BVT said he has not had a drink since and does not have cravings for alcohol and.

(c) The age of the person at the time the offences or matters occurred

48. BVT was 18 years old at the time of the index offence.

(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 victims

49. The victim according to her statement to police at the time of the index offence was 21 years old. There is no evidence of her having any particular vulnerabilities though in her statement she says she has epilepsy and asthma.

(e) The difference in age between the victims and the applicant and the relationship (if any) between the victims and the person

50. The victim was approximately three years older than the applicant and there was no relationship between them.

(f) Whether the applicant knew, or could reasonably have known, that the victims were children

51. The victim was not a child.

(g) the person's present age

52. The applicant is presently 63 years old.

(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

53. BVT’s criminal record is as follows:

14 Apr 1969   Break enter & steal (vehicle)      Committed to institution

24 Jun 1971   Malicious injury            Committed to institution

23 May 1972   Receiving: Break enter & steal (vehicle)    Probation 2 years

24 Oct 1972   Break enter & steal            Committed for sentence

17 Mar 1973   Assault with intent to rape         5 years custody

17 Mar 1975   Malicious injury x 2; larceny      15 months custody

14 Feb 1978   Steal vehicle x 2            15 months custody

14 Feb 1978   Attempt to steal petrol; stealing      18 months custody

6 Oct 1990   High range PCA            Fine and disqualification

54. In 2016, the applicant was fined twice for driving an unregistered vehicle. The applicant’s conduct since the offences occurred is summarised above at paragraphs 41 to 45.

(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition.

55. BVT in his oral evidence to the Tribunal said he was “stupid to do” the 1973 index offence and he “feels sorry” for the victim. BVT does not believe he poses a risk to children.

56. The applicant has provided the following psychological reports from Ms Caroline Hare, Forensic Psychologist:

1. a report dated 2 September 2015;

2. an addendum dated 8 December 2015 to the report dated 2 September 2015; and

3. an updated report dated 8 March 2018.

57. Ms Hare also provided oral evidence to the hearing on 29 May 2018.

58. Ms Hare’s written evidence may be summarised as follows:

Report dated 2 September 2015

1. Ms Hare assessed BVT on one occasion in person and on another occasion over the telephone;

2. Ms Hare concluded BVT posed a low overall risk of engaging in future sexual violence;

3. Ms Hare concluded the risk BVT presents to children’s safety is commensurate with the risk of any adult member of the community (ie a non-offender) harming a child; and

4. Ms Hare noted that although she did not undertake any formal testing of BVT’s intellectual functioning, she formed the opinion BVT is functioning in the “below average range” as he struggled to understand some questions; tended to agree or state he could not remember when he was unsure what was being asked of him. She said BVT’s insight into his behaviour was limited and he was an inconsistent historian. However, Ms Hare concluded this appeared to reflect memory difficulties and an absence of understanding the question content at some points rather than a conscious attempt to mislead.

Addendum dated 8 December 2015 to the report dated 2 September 2015

1. Ms Hare provided an Addendum to her report dated 2 September 2015 due to her receiving additional material (being section 58 documents from the District Court) that revealed BVT had provided her with an account of the index offence inconsistent with events outlined in the additional material;

2. Ms Hare states that the new material leads to her add “anti-social and narcissistic personality traits” in BVT as a risk factor at the time of the index offence;

3. Ms Hare adds that BVT experiences shame and remorse for his actions during the index offence and she suspects BVT’s:

“inconsistent and minimised account of his trigger offence provided to me in interview was motivated by his continuing shame…”.

4. Ms Hare remained of the opinion that BVT poses an overall low risk of engaging in sexual reoffending; and

5. Ms Hare did not interview BVT for the purposes of preparing the Addendum.

Updated report dated 8 March 2018

1. Ms Hare assessed BVT again in person;

2. Ms Hare states BVT endorses turbulent, narcissistic and antisocial personality patterns at a higher frequency than would be considered a “normal style” but not at a frequency found in individuals with a personality disorder and BVT:

“does not evidence mental illness or personality disorder that would render him susceptible to unpredictable behaviour, markedly poor judgement or significant self control concerns.”

3. Ms Hare administered the Wechsler Abbreviated Scale of Intelligence to assess BVT’s level of cognitive functioning and his score places him in the extremely low to borderline range of intellect. These results are suggestive of BVT having a:

“possible mild intellectual disability – and borderline intellectual functioning at best.”

4. Ms Hare stated that BVT’s:

“intellectual deficits certainly provide context for his limited verbal abilities observed during the present and previous assessments and his limited psychological insight.”

5. Ms Hare retracted her assertion in her report dated 2 September 2015 that BVT presents a moderate-low risk of sexual recidivism. This is on the basis that she is now aware neither the Static 99 risk assessment tool nor the Static-99R assessment tool should be applied where an offender was released from the index sexual offence more than 15 years ago. Ms Hare concluded BVT’s risk of engaging in future sexual offending is low (with low being the lowest rating);

6. Ms Hare concluded there are moderate protections against BVT engaging in future sexual or violent offending due to a number of factors including his self control (and associated sobriety); his stable intimate relationship with D and his steady income and sound financial situation;

7. Ms Hare remains of the opinion that BVT poses to same risk to a child commensurate with that of a non-offender; and

8. Ms Hare assesses BVT’s insight into his past sexual offence as limited but given his extremely low to borderline intellectual functioning, expectations as to his ability to articulate risk management strategies should be tempered and greater weight should be placed on his behaviour as evidence of his ability to avoid causing harm to a child.

59. Ms Hare’s oral evidence in chief, cross examination and in response to my questions included the following views:

1. BVT’s guarded response to questions about the 1973 index offence and inconsistencies between his version of events and those on the record may be attributed to his intellectual disability; feelings of shame and his level of intoxication at the time;

2. Ms Hare could envisage a scenario where BVT may pose a risk to a child if he had been drinking heavily; had an argument with D and a child was present in these circumstances – though she noted many persons could pose a risk to a child in these circumstances when they would not normally do so; and

3. the assessment tools administered by Ms Hare do not permit any allowances being made for a person’s cultural background or level of education.

(j) Any information given by the applicant in, or in relation to, the application.

60. This information has been set out with respect to the above factors.

(k) Any other matters that the Children’s Guardian considers necessary

61. The respondent filed material relating to allegations that BVT had physically abused C. As noted above, BVT denies the allegations; C was interviewed only in relation to one allegation and none of the other allegations were investigated by FACS; none of the allegations were substantiated by FACS nor did the allegations result in FACS changing the contact arrangements between C and BVT.

Submissions of the parties

62. I was assisted by thorough and helpful written and oral submissions by the representatives for the applicant and respondent. These submissions were in favour of a finding on all the evidence that BVT has rebutted the statutory presumption he poses a real and appreciable risk to the safety of children.

Tribunal’s consideration of the evidence and findings

63. I found BVT to be a credible witness who gave his evidence to the best of his ability. He has acknowledged his wrongdoing by pleading guilty to the 1973 index offence as well as stating in his evidence to the Tribunal he felt sorry for the victim.

64. I accept Ms Hare’s evidence that BVT’s poor recollection and inconsistencies as the circumstances of the index offence can be explained by his intellectual disability; his level of intoxication at the time and his shame about the incident. He acknowledged he could recall very little at this point in time of the circumstances of the index offence but confirmed what he told the police on the night of the offence would have been the truth.

65. I observed during his evidence that BVT at times appeared to agree prematurely with statements put to him during his evidence in chief and cross examination when in fact he may have been unsure what was being asked of him. I did not see this as impacting negatively on his credibility as a reliable witness. I note the acceptance by the judiciary and in academic literature of the incidence of “gratuitous concurrence” in communication with Aboriginal people: that is, the pattern of saying “yes” at times in answer to a question (or “no” to a negative question) regardless of actual agreement due to a cultural preference for not contradicting another during an interaction so as to be perceived as being obliging and socially amenable: see the “Anunga Rules” formulated by Foster CJ in R v Anunga 1976, 11 ALR 412 (NTSC); D Eades, “Aboriginal English and the Law”, Continuing Legal Education Department, Queensland Law Society Inc. 1992 at 26; D Eades, “Taking evidence from Aboriginal Witnesses speaking English: some sociolinguistic considerations”, Precedent, Issue 126, January/February 2015 at 47.

66. In determining BVT’s application, I accept and place particular weight on Ms Hare’s evidence that the risk BVT presents to children’s safety is commensurate with the risk of any adult member of the community (that is, a non-offender) and her assessment that BVT’s risk of engaging in future sexual offending is low. I agree with the submission of Mr Harris for the respondent that due to the long running nature of these proceedings, BVT’s behaviour has effectively “been under the microscope” for almost five years. He has been assessed by Ms Hare twice during this period (at an interval of almost two and a half years) and her view has not changed that BVT is not a risk to children. I also accept C’s allegations that BVT has physically disciplined her are unsubstantiated and FACS is satisfied it is appropriate for BVT to continue to have contact with C.

67. I also accept and place weight on the evidence that almost 45 years have passed since BVT committed the index offence as an intoxicated youth; his extended period of non-offending and the stability brought to BVT’s life through his 30 year relationship with D and his sobriety of more than 10 years. As Adamson J stated in the 2016 Supreme Court BVT Case at [72] with respect to these matters:

“The cumulative effect of these matters was such as to lead to an inference of successful rehabilitation as well as a distinction between youthful conduct characterised by crime and intemperance, on the one hand, and more recent adult conduct characterised by emotional stability, temperance and a positive contribution to the caring of children (through his assisting in the raising of his partner’s own children and, more recently, her grandchildren), on the other.”

68. I am satisfied on the basis of the above findings that BVT has rebutted the statutory presumption he poses a real and appreciable risk to the safety of children. BVT should not be treated as a disqualified person and the respondent should grant him a clearance.

Orders

69. I make the following orders:

1. The applicant is not to be treated as a disqualified person for the offence of assault with intent to rape in 1973 under the Crimes Act 1900 (NSW).

2. The applicant’s application for an enabling order is granted.

3. Pursuant to s.28(6) of the Child Protection (Working with Children) Act 2012, the Children's Guardian is to grant a working with children check clearance to the applicant.

4. Suppression Order made in regards to the name of the applicant, the applicant's partner, the child referred to in the proceedings, and the victim of the 1973 offence or any evidence given or received in the Tribunal hearing or in relation to proceedings which is likely to identify the person.

**********

​

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: 19 July 2018