CBK v Children's Guardian

[2016] NSWCATAD 123

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CBK v Children’s Guardian [2016] NSWCATAD 123
Hearing dates:	18 January 2016
Date of orders:	20 June 2016
Decision date:	20 June 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member M Bolt, General Member
Decision:	(1) The applicant’s application for an enabling order is refused.
Catchwords:	CHILD Protection – Working with children – Real and appreciable risk – Addressing conduct since offence – Minimising conduct of offence – Duty to disclose – Quality of evidence in support – Incomplete disclosure in support
Legislation Cited:	Child Protection (Working with Children ) Act 2012 Child Protection (Prohibited Employment) Act 1998 Civil and Administrative Tribunal Act 2013 Commissioner for Children and Young People Act 1998 Crimes Act 1900
Cases Cited:	BJB v Office of the Children's Guardian [2014] NSWCATAD 111 AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 Commission for Children and Young People v FZ [2011] NSWCA 111 R v Commission for Children and Young People [2002] NSWIR Comm 101 BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 Re Control Investments Pty Ltd v Australian Broadcasting Tribunal (No. 2) (1981) 3 ALD 88 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 ADV v Commission for Children and Young People [2012] NSWADT 8 BFC v The Children's Guardian [2014] NSWCATAD 90 Fox v Percy [2003] HCA 22 BFX v Children's Guardian [2014] NSWCATAD 115
Category:	Principal judgment
Parties:	CBK (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Lowson (Respondent)   Solicitors: CBK (Applicant in person) Crown Solicitor’s Office (Respondent).
File Number(s):	1510356
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant, any witnesses or evidence given and received in the hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

1. The Applicant in these proceedings is referred to as "CBK". CBK is the applicant's pseudonym used in these proceedings.

2. On 13 August 2015 an order was made under section 64 of the Civil and Administrative Tribunal Act 2013 restricting publication 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.

3. The jurisdiction of the Tribunal under Part 4 of the Child Protection (Working with Children) Act 2012 ('the Act') is protective and not punitive in nature, as set out by the Court when considering section 28 of that Act: Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]. The purpose underlying the analysis of the evidence is to achieve that protective goal: see sections 3 and 4 of the Act.

3 Object of Act

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 have working with children check clearances.

4 Safety, welfare and well-being of children to be paramount consideration

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

4. These proceedings arise because on 27 May 2015, the Children's Guardian made a decision to refuse to grant CBK a Working with Children Check clearance. On 22 June 2015 the applicant CBK applied to the Tribunal for an enabling order pursuant to section 28 of the Act.

Background

5. On 21 February 2015 the applicant, applied for a Working with Children Check clearance from the respondent. The applicant requires a Working with Children Check clearance due to his volunteer involvement in children’s sport in the areas of coaching and administration in his local community.

6. On 27 May 2015 the respondent finalised the working with children check and the applicant was refused a clearance.

7. As a result of the refusal of the clearance the applicant is unable to engage in child related employment or child related work as defined in the Act. Under section 5 of the Act a worker extends to a volunteer. The definitions of child related work in section 6 include under section 6 (2) of the Act:

(2) The work referred to is work for, or in connection with, any of the following that is declared by the regulations to be child-related work:

…..

(d) clubs or other bodies providing services for children

clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children,

8. On 22 June 2015 the applicant initially lodged an application for administrative review before the Tribunal. The application was subsequently amended to a general application seeking an enabling order in accordance with section 28 of the Act. The grounds of the application are (in summary) that: ‘The offence was 10 years ago, this was a one off isolated incident with no other incidence, and the applicant believed that he has discharged his onus’.

9. The issue now to be decided by the Tribunal is whether (having regard to the material before the Tribunal) the applicant should be granted an enabling order.

The working with children legislative scheme

10. The object of the Act is to protect children by not permitting disqualified persons, or persons without clearances, to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (See section 3 of the Act).

11. 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. (See section 4 of the Act).

12. Section 8(1) of the Act prohibits a person from engaging in child-related work, unless the person holds the relevant working with children check clearance or there is a current application by the person to the Children's Guardian for the relevant working with children check clearance. A breach of section 8(1) is an offence.

13. The definition of "child related work" includes a "worker engaged in work in a child related role referred to in subsection (3)." (See section 6(1) (b) of the Act). A child related role is set out in section 6(3) of the Act.

14. Section 13 of the Act provides that a person may apply to the Children's Guardian for a working with children check clearance.

15. Section 18(1) provides that the Children's Guardian must not grant a clearance to a person who is a 'disqualified person'. The section provides:

18 Determination of applications for clearances

(1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons):

(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,

(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.

16. Subsection 18(1) provides 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 falling within Schedule 2 of the Act.

17. In 2006 the applicant was convicted of the offence of 'Assault with act of indecency’'. It is because of this conviction for indecent assault that under the legislation the applicant is rendered to be a "disqualified person".

18. The offence of indecent assault is an offence under section 61 L of the Crimes Act 1900. Schedule 2 Clause 1 (e) provides:

Schedule 2 Disqualifying offences

1 Specified offences

(1) The following offences are specified:

….

(e) an offence under section 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O or 61P of the Crimes Act 1900,

19. Part 4 of the Act deals with reviews and appeals. Section 28 makes provision for review, by the NSW Civil and Administrative Tribunal, of decisions that a person is a disqualified person, by declaring that they are not to be treated as a disqualified person.

20. Section 28 provides:

28 Orders relating to disqualified and ineligible persons

(1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.

(2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.

(3) A disqualified person may make an application under this section only if:

(a) the person has been refused a working with children check clearance, or

(b) the person's clearance has been cancelled,

because the person is a disqualified person.

(4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.

(5) An applicant must fully disclose to the Tribunal any matters relevant to the application.

(6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance.

(7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(8) An enabling order may not be made subject to conditions.

21. Section 30 sets out how an application under section 28 is to be determined by the Tribunal. The section provides that:

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.

Burden of Proof

22. The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110] AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

23. The Act is silent as to where the onus lies in relation to an application for administrative review under Part 4 of the Act. It has been held that neither party bears an onus of proof in relation to an application under section 27 of the Act; BJB v The Children's Guardian (No. 2) [2014] NSWCATAD 164 at [32].

24. However, in this case there is a presumption that the applicant poses a risk to children as the applicant is currently a disqualified person seeking an enabling order pursuant to section 28 of the Act. The applicant is according to the legislation presumed to be a risk to the safety and well-being of children and young persons. (s-28 (7) ).

25. In this application, the issue for determination is whether the applicant, on the balance of probabilities, poses a risk to the safety of children. In that regard, the Tribunal is required to have regard to the matters contained in section 30(1) of the Act in deciding this issue. (See paragraph 21 above).

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

'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". ...'

27. These observations of Young CJ (in Equity) had continued to be cited with approval, by the Administrative Decisions Tribunal, in construing the meaning of 'risk' as it appeared in section 33J(1) of the repealed Part 7 of the Commission for Children and Young People Act 1998: see ADV v Commission for Children and Young People [2012] NSWADT 8.

28. 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 90, BFX v Children's Guardian [2014] NSWCATAD 115 and also in BJB v NSW Office of the Children's Guardian (No 2) 2014 NSWCAT 164 at [33] before this Tribunal.

The Issue to be decided

29. The primary issue before the Tribunal in this application as outlined at paragraph 9 above, is having regard to the material before the Tribunal, in whether the applicant should (or should not) be granted an enabling order.

The Hearing

30. The applicant's application was heard on 18 January 2016. The applicant was not legally represented. The respondent was represented by Counsel. At the conclusion of the hearing the Tribunal reserved its decision.

31. As outlined above, there is a presumption under section 28 of the Act that the applicant poses a risk to children as the applicant is a disqualified person (seeking an enabling order) under the Act.

32. Material was tendered at the hearing by both parties with the respondent tendering a significant amount of material. The applicant tendered detailed written statements and signed references. The applicant also provided a significant amount of the material served on him by the respondent in his own tender bundle. In addition the applicant provided an expert report from a Clinical and Forensic Psychologist.

33. The respondent tendered a large volume of material which ran to approximately 700 pages. Most of the volume concerned material obtained under section 31 of the Act by the respondent. In addition written submissions were filed by the respondent.

34. The applicant and his expert P Pusey, and one of his referees gave oral evidence at the hearing. No other witnesses gave evidence.

Applicant's Evidence.

35. The applicant gave oral evidence at the hearing. The applicant advised that his sole intention in obtaining the clearance was to be able to coach the local under-10 soccer team. He stated to the Tribunal that he believes that he possesses the necessary insight into his prior offending so as to not pose a risk to the safety of children and young persons.

36. The applicant submitted to the Tribunal that he ‘no longer was the person that he was’ when the offence and other allegations occurred. The applicant suggested that he was previously ‘flirtatious’ due to ‘workplace boredom’. The applicant gave evidence about what he described as ‘two serious conduct beaches’ whilst employed as a Train Guard on the Railways.

37. In respect of a 2004 allegation where the applicant was alleged to have had sexual intercourse with a member of the public (which was alleged to be without consent), the applicant’s evidence was that the act was consensual. In evidence before the Tribunal the applicant stated that he never denied having sex with a female passenger but that the behaviour (whilst on duty performing the important safety role of a Guard) was totally unacceptable. In response to the allegation and consistent with his view that the activity was consensual the applicant advised how he voluntarily provided a swab to investigating police.

38. The applicant advised the Tribunal that he had not provided significant statements or submissions about the allegations and the offence, as in his understanding the Tribunal was considering his conduct since the disqualifying offence.

39. The applicant in his evidence stated that he understands that at the time of the serious allegations and conduct he was in a position of trust and that he (by his actions) abused that trust.

40. At the conclusion of his evidence in chief the applicant stated that he had an issue with a number of the matters relied upon by the respondent and various assertions arising from their material. In addition the applicant advised the Tribunal that he resigned from his training position in 2009 (not 2010 as stated), as this occurred when he and his family re-located to Tamworth from Sydney. The applicant gave evidence that he had not coached for a number of years and recently only 2015 had involved some coaching.

41. The applicant was asked various questions in cross-examination by counsel for the respondent. Under cross-examination the applicant confirmed that whilst he was first married in August 2003, he had separated by December 2004. The divorce of that marriage was formalised around 2006. In answers to questions about how he had responded to various adverse matters the applicant maintained that the disqualifying offence was a one off isolated incident, and that this was in his view borne out by there being only one conviction.

42. When questioned about the 2004 allegations involving a female passenger ‘M’, the respondent took the applicant to various documents, which had been served on him and filed with the Tribunal. However the applicant stated in his evidence that he had not seen the Transport or Police reports prior to the section 31 documents being served on him in these proceedings. It was put in evidence that there were approximately 1,000 SMS contacts between the applicant and ‘M’. The applicant stated that there was a history of behaviour between the parties with ‘M’ having exposed her breasts to him whilst he was on duty on prior occasions.

43. The applicant denied that he said anything to do with the term ‘flirting’ in respect of the disciplinary inquiry, and his evidence to the Tribunal was that he was sanctioned merely because of the breach of the procedural rules and requirements of not allowing a member of the public to enter the Guard Compartment, and not in respect of any consensual sexual intercourse.

44. In respect of the 2006 incident involving the victim ‘C’ (indecent assault disqualifying offence) the applicant did not concede certain aspects of the evidence that was before the Court. He denied that he had unbuttoned his own trousers and or fly, and that he had placed his hand up inside ‘C’s’ clothing and touched her breast.

45. In cross-examination there were a number of propositions put to the applicant. It was put to him that it was totally inappropriate to allow someone to travel in the guard’s compartment. Evidence was given concerning kissing and cuddling ‘C’ which were matters previously denied in evidence by the applicant. The applicant had previously denied ever letting the victim ‘C’ into the guards compartment, but now gave evidence that he was kissing and cuddling ‘C’ but that was occurring in the external door of the guard’s compartment (to the outside of the train carriage).

35. Of some debate during cross-examination was an admission by the applicant that some aspects of his evidence before the Court had been less than accurate.

36. The applicant gave evidence concerning the fact that he had been on the Sex Offenders Register for the last nine years and this situation had limited his ability to work with children or volunteer for the last nine years. The applicant was questioned about his initial treatment / counselling following his conviction, and whether through that process he had addressed issues relating to the notion of consent. The applicant was familiar with the idea that in some instances ‘yes’ meant ‘no’ and his evidence was that one should not ever place themselves in a situation where one might take advantage or be taken advantage of.

37. The applicant provided an insight into the fact that his parenting role (with his step daughters) extends to working with children. When asked whether he agreed that the behaviour in respect of the assault matters was predatory, the applicant now accepts that his actions at least in respect of the 2006 incident were ‘predatory’ in nature.

38. The applicant gave evidence that he started dating his current spouse in mid- September 2006 after the matters that he had been convicted of involving ‘C’ had taken place. He had met his spouse through a mutual friend.

39. Following an adjournment it was put to the applicant that he had been untruthful to the Court in his evidence about the victim in the Guard’s Compartment. The applicant answered that such behaviour was in part because back in 2006 or thereabouts, all matters were about himself, and he had a selfish disposition. Since having children he has realised how his behaviour was self-centred and the ensuing insight into his behaviour and the need to set a good example and send the correct message to his children, has changed him. The 2006 conduct, the applicant submitted, was selfish. Now the applicant tries to only assist children, as evidenced in his recent sporting involvement and references. The applicant submitted that he only provides a positive influence to children, and does not have a negative impact on children.

40. In closing the applicant stated in evince that ‘what is different today is the person that I am. Socially in particular with women and with children.’

The evidence of the Expert Witness

52. Dr P Pusey Clinical and Forensic psychologist gave evidence by telephone in the hearing. Dr Pusey advised that there was a very limited likelihood of a conviction for the 2004 incident and that this was based on a consideration of the facts as advised by the applicant. It was put to the expert as to whether he proceeded with his assessment on the basis that the 2004 and 2006 incidents were not part of a pattern. The expert witness answered that the two incidents involved a long period in between without any incidents coming to attention, but conceded that they involved two very similar sets of behaviour. However the witness opined that these did not (in his view) constitute a pattern of conduct or behaviour.

53. The expert when asked during examination advised that the applicant had not told him of the prior sexual activity with his spouse in the Guards Compartment. The witness accepted that there were similarities in all of these instances of conduct. The expert also agreed with the proposition that the applicant had abused his position as a train guard and that the contact was inappropriate. This inappropriate characterisation was both from a legal and a social / personal perspective.

54. Dr Pusey gave evidence that earlier on the day of the hearing he was advised by the applicant of aspects of his earlier evidence before the Tribunal. Dr Pusey outlined that approximately 30 minutes prior to his giving evidence, the applicant had telephoned him concerning the arrangements to give evidence over the telephone. During the conversation the applicant had told Dr Pusey that he had advised the Tribunal specific circumstances concerning activity within the Guard’s Compartment, and that this was different to the version he had provided during his initial assessment. When asked whether new evidence would change his assessment the witness advised that ‘any assessment turns on the veracity of the individual that you are assessing and the ability to test those matters.’

55. The witness was questioned concerning matters relating to the applicant’s insight into his behaviour. The expert’s opinion differed from that being put by the respondent in that it was suggested that the applicant was exhibiting empathy towards his victims, whereas there was also evidence that the applicant was still denying any issue concerning inappropriate actions and as a result was minimising his behaviour. The expert answered by suggesting that the applicant’s behaviour post 2006 was the test by which his suitability to work with children should be assessed. Concerning the ‘disclosure’ of the applicant’s earlier evidence to the Tribunal, the expert advised that the applicant told him about the change because he did not want Dr Pusey to be ambushed with it during his evidence.

56. The expert witness advised the Tribunal that he did not particularly have a lot of faith in how much of what he had been told was true and how much is not. He was unsure of what can now be made of his report’s conclusions and agreed that aspects of it (as suggested by Counsel) could now be viewed as questionable. It was put to the expert by Counsel that as a general proposition he is unable to stand by the conclusions in the report. The expert witness answered that he was not confident with the conclusions of the report, but maintained the view that the post 2006 behaviour was the relevant focus.

Evidence of witness Mr J.

57. Mr J gave evidence in support of the applicant in the hearing. His evidence was that in March or April 2015 he was made aware of the circumstances of the 2006 incident and the matters involving the respondent, after the applicant’s initial working with children clearance was rejected.

58. The witness had authored a detailed character reference dated 30 September 2015 in support of the applicant. In evidence before the Tribunal he stated that ‘he stands by everything in the reference’. Mr ‘J’ is an office bearer / official in the local sporting club with which the applicant is heavily involved and seeks the clearance in relation to that involvement.

59. Counsel for he respondent asked the witness whether he was aware of the serious incidents prior to the imposition of the bar on the applicant. The witness answered that he was not aware at that time. Nor was he aware that the applicant was listed on the ‘sex offender register’, and required to report any significant change of location movements etc.

60. When asked what the witness knew of the 2006 incident the witness advised that the applicant had told him that he had not touched the victim’s breast, and that he did not undo his trousers. Generally the witness conceded that the applicant did try to place himself in a better light and that the applicant had not indicted that the victim rode with him secluded within the Guard’s Compartment of the carriage.

The Respondent's evidence and submissions

61. The respondent filed written material as set out at paragraph 33 (above). In oral submissions the respondent submitted that a significant question of credit had been raised. The applicant had admitted in his sworn evidence before the Tribunal that he had lied on oath during the Local Court proceedings. It was put to the Tribunal that this has had the effect of undermining his own expert report commissioned for these proceedings and tendered in evidence. This it was submitted was a particularly significant matter as in a section 28 application for an enabling order, the applicant bears the onus.

62. It was submitted that the applicant’s expert evidence can no longer be relied upon in respect of the applicant’s level of risk. In respect of the 2004 incident the applicant has insight, but then at times he does not. He portrays himself (it was submitted), as someone that wants the Tribunal to accept that he understands his wrongdoing.

63. The respondent submitted that the applicant did not show any insight as to how the power imbalance between himself and his victims drove his behaviour, and the impact that this had on his victims. The respondent stressed that during both his evidence in chief and cross examination, the applicant spoke only about the impact that the incidents had on him, and he made such statements over and over with no regard to the impacts on others.

64. The applicant had asserted in his evidence and material that in respect of the 2004 incident he had done nothing wrong, other than give the victim access to the guard’s compartment.

65. The respondent submitted that it was open to the Tribunal to conclude that the applicant tells the truth when forced to, that is, when he is confronted with unassailable evidence. In other aspects his fresh evidence as to what transpired are inconsistent and somewhat fanciful. It was submitted that this was not a case where the findings of the primary decision maker (Magistrate) should be tampered with because of some compelling fresh evince such as the that considered in the case and now referred to as Fox and Percy type evidence. (In that case the physical evidence on appeal was in direct contrast to the evidence of witnesses re: a vehicle accident). This new evidence (version of events) of the applicant is was submitted should not disassemble the findings of fact below.

66. The respondent submitted that the applicant had in effect let his evidence and information out ‘bit by bit’. It was submitted that whilst the applicant had stated that no one had advised him that he would lose his job due to travelling with a member of the public in the Guard’s Compartment, on the contrary he said that the possibility of losing his job was his motivation for lying in the earlier context.

67. A submission was made in respect of the investment that the referees had in the applicant succeeding in his application.

68. In Fox v Percy HCA [2003] 22, Gleeson CJ, Gummow J and Kirby J referred with approval to a trilogy of earlier cases, as to the correct approach of an appellate court where findings of fact based on credibility are challenged:

66. Mason CJ, Deane, Dawson and Gaudron JJ, the other members of the Court, agreed with my judgment. Abalos was applied in Devries v Australian National Railways Commission where Brennan and Gaudron JJ and I said[72]:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. [See Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; Jones v Hyde (1989) 63 ALJR 349; Abalos v Australian Postal Commission (1990) 171 CLR 167.] If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ [SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.] or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”

69. In respect of the proceedings in the Local Court, the Magistrate was particularly impressed by the evidence of the complainant. The matter was heard and the evidence of both the applicant and the complainant was tested. The Magistrate noted that the demeanour of the complaint had not changed throughout the hearing.

70. Of particular weight to the applicant’s credibility was the reference in the evidence before the Court to the text message sent by the applicant to the complainant / victim immediately after the incident. Other than a statement of general regret before the Tribunal, the applicant has been unable to explain the contents and basis of the message when contrasted with the evidence of the witnesses in the Local Court and his answers under cross examination in these proceedings.

Applicant's submissions

71. The applicant provided detailed written statement and submissions addressing section 30 (1) considerations under the Act. Under section 30 (1) (a) the applicant submitted that the reduction of penalty by the District Court on appeal was of significance.

72. Under 30 (1) (b) reference was made to the lack of offending since 2006 and the successful completion of the pre-sentence imposed counselling. In respect of the 2006 victim being a child, the applicant submitted that as he had seen her smoking a cigarette, then he assumed that she was 18 years old or older. In addition reference was made under section 30 (1) (j) to the three references (including Mr ‘J’) and the applicant’s coaching qualifications and his personal statement.

Section 30 (1) considerations

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

73. The applicant was charged and convicted of the offence of indecent assault. The offence was committed against a seventeen year old female who was travelling alone to commence an early retail shift in the dawn / pre-dawn period. The applicant was performing an official role for the Railways being a Train Guard on duty at the time of the incident. The role of Train Guards is (amongst other things) to provide a safety hub or point of contact for passengers. The role involves both trust and responsibility.

74. Whilst the circumstances of the offence on the facts and evidence before it are not the most serious, neither is the offence at the bottom of the range. We note that there was heated debate between the Local Court Magistrate and the applicant’s legal representative as to the seriousness of the assault (having regard to what took place and the context). It involved a serious breach of trust. Having regard to the range of charges available in respect of assaults generally, and noting that the preferred charge appears to be the most appropriate, in our view the circumstances are at the middle to slightly above of the range of objective seriousness.

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

75. The applicant's offending occurred approximately 9 years and seven months prior to the hearing. In respect of the applicant’s conduct in the community and compliance with the law, there is nothing controversial in the intervening close to ten-year period.

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

76. The applicant was approximately 27 years old when the when the disqualifying offence occurred. In respect of ‘matters’ as referred to in the section the earlier allegations took place a couple of years prior.

(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.

77. The victim was legally a child even though she was 17 years of age at the time of the offence committed against her. The victim in respect of the earlier allegation was a young woman.

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

78. The victim of the offence was ten years younger than the applicant. There was no pre-existing social relationship between the victim and the applicant. As outlined in paragraph 73 (above), the applicant was in a position of some authority over the victim due to his official position. The victim (and others where required) would reasonably have expected and relied on the applicant to behave professionally, appropriately and assist if necessary. The evidence tested to the higher standard in the Court found that the applicant initiated the contact with the victim and then isolated the victim from potential witnesses (by going into the Guards Compartment). The Tribunal notes that there were very few passengers on the train in any event due to the very early hour of the journey.

(f) Whether the person knew or could reasonably have known, that the victim was a child.

79. The victim was a child. The applicant submitted that because he had seen the victim smoking he assumed that she was an adult. (the Tribunal notes that the smoking age in NSW was raised from 16 to 18 in 1991). In any event it was clear that the victim was a young woman or older adolescent.

(g) The person's present age.

80. The applicant was 37 years old at the time of the hearing.

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

81. The relevant criminal record comprises the disqualifying offence. In our view this means that his overall criminal record is not significant. We do note however that because of his record the applicant is on the Sex Offenders Register. The disqualifying offence is a serious offence attracting a possible penalty of 5 years imprisonment. The applicant’s police history (as opposed to his criminal record) includes the more serious allegations from the 2004 incident which involves a similar pattern of conduct (as alleged). In that case the applicant admitted to having sexual intercourse with a young adult female passenger on the train (whilst he was on duty). It appears from our analysis of the applicant’s evidence and other material filed by the parties that on that occasion charges were not preferred due to concerns about the likelihood of a successful prosecution having regard to the applicant’s version that the (inappropriate) conduct was consensual in a legal sense.

82. We have already commented on the applicant’s conduct since the disqualifying offence at paragraph 75 (above). The applicant has provided references and letters of attestation as to his credentials, experience, reputation, standing in the local volunteer sporting community, and asserted suitability to work with children. All of these matters are current, and in part compliment the lack of any formal instances of coming to adverse attention in the intervening decade.

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

83. A risk assessment was provided by the applicant in respect of his application and an assessment of his real and appreciable risk of reoffending or behaving in a manner detrimental to the safety and well-being of children. The report whilst indicating a low to moderate risk, was significantly diminished by the lack of disclosure and other matters coming to light during the hearing. At the conclusion of the evidence the Tribunal notes that the report carries less weight (for those reasons) than it did at the commencement of the hearing. (see paragraph 56 above).

84. Clearly if the applicant re-engaged in similar behaviour to the 2006 offence it would have a negative impact on a child victim. The victim in the 2006 matter, was a child for the purpose of the definition in the Act, and on our assessment of the material tendered in the criminal proceedings, was clearly upset, and distressed after the incident. (Evidence of victim’s demeanour when she arrived at her employment a few minutes after the incident).

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

85. The applicant has provided a Psychologist report (see above), and a number of personal statements, and references by friends and associates. In his evidence before the Tribunal the applicant stressed that he was in effect a changed person since the incidents and believed that he should be judged on his conduct / behaviour since the cessation of offending at the time of the disqualifying offence. However the references provide little information or insight into the circumstances of the disqualifying offence, and this observation (in our view) also carries over to the applicant’s own evidence. There is no reference to the earlier more serious 2004 allegations.

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

86. The Children's Guardian submitted that the applicant had not admitted to the 2006 offence (prior to the hearing) in any of his written statements. In that regard we infer that whilst the applicant admits to being convicted of that matter, he does not agree that he committed any offence. The respondent submitted that this shows a lack of insight into the matter, or any feelings of remorse and statement of regret. We note that there was some contrition in his evidence before the Tribunal but that appeared to be mainly focused on the damage that the matters have caused him.

87. The respondent submitted that as in these proceedings under section 28, the applicant bears the onus of proving that he is not a risk to children, because of his failure to be fully rank about the 2006 offence, and his initial non disclosure of the 2004 reports, the behaviour of the applicant is troubling and have undermined his efforts to discharge the onus.

Consideration

88. We have carefully considered all of the material submitted by the parties in these proceedings. Whilst we note that the applicant is a disqualified person, the task of the Tribunal is to ascertain whether the applicant is a real and appreciable risk to the safety and well-being of children and young persons.

89. There are many cases which address the issue of how risk should be considered and what findings if any can be made on such matters in the context of this jurisdiction. In the current case the findings as to the conduct in respect of the two offences are clear. The findings were established by guilty pleas, and any minor deviation from certain facts are in our view of little consequence when the totality of the evidence and material is considered.

90. In the case of BFC v The Children's Guardian [2014] NSWCATAD 90 His Honour Judge Mullane considered the issue of risk in respect of an enabling order application. At paragraphs 57 to 58 His Honour considers the conclusion of the expert witness and the meaning that this carries in respect of risk. At paragraph 58 reference to Young J's comments in the case of 'V' are considered.

57.Overall, the Tribunal finds that Ms Howell's conclusion is reliable and therefore the Tribunal accepts that the Applicant does not pose a real risk to children. It should be noted, however, that this is not a finding that the Applicant is no risk at all. Theoretically, most adult males pose some risk, but it is well established that the risk to be considered is a real risk, rather than a theoretical risk.

58.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 [At par 41] and [at par 42]:

"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".

"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'".

91. We have carefully considered all of the evidence and submissions given, and material filed by the parties even if we have not referred to every aspect of it specifically in these reasons.

92. Having regard to the material before the Tribunal, in our view there is sufficient evidence and material to make a finding that the applicant poses a real and appreciable risk to the safety and well-being of children and young persons. In making this finding we have had particular regard to the applicant’s admissions concerning previous misleading or false statements before the Court and the Tribunal. Whilst the applicant is clearly significantly rehabilitated from his aberrant behaviour and predilections in his behaviour towards females when in his twenties, we are not satisfied that there is no longer any real and appreciable risk.

93. The circumstances of the matters in question, his minimising behaviour in respect of disclosures and nature of his responses to the Tribunal, cause us to view that there remains a real and appreciable risk, of the kind referred to by Young J in paragraph 90 (above).

Conclusion

94. For the reasons set out above, and specifically having regard to the matters as set out in section 30 of the Act, we reach the following conclusion.

95. The evidence and material referred to in these reasons establishes that the applicant poses a real and appreciable risk to the safety of children.

96. Therefore in our view the evidence and material received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to the safety and wellbeing of children.

97. In expressing these views above we note that the safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.

98. In our view having regard to all of the material before the Tribunal, the applicant does pose a risk to the safety of children.

99. It therefore follows that the Tribunal should not make enabling order in accordance with section 28 of the Act.

Orders

1. The applicant’s application for an enabling order is refused.

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: 20 June 2016