CDL v Children's Guardian - [2016] NSWCATAD 251

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CDL v Children's Guardian [2016] NSWCATAD 251
Hearing dates: 18 March 2016 & 22 August 2016
Date of orders: 09 November 2016
Decision date: 09 November 2016
Jurisdiction: Administrative and Equal Opportunity Division
Before: Mullane ADCJ, Principal Member
R Royer, General Member
Decision:
(1) The decision of the Children's Guardian of 4 August 2015 refusing [CDL] a Working With Children Check Clearance is affirmed.
(2) Publication or broadcast without the leave of the Tribunal of the name or other identifying information of [CDL] or any child referred to in these proceedings is prohibited.
Catchwords: Working with Children Check Clearance – Review of refusal, allegations of past serious violence,- allegations of sexual assaults on child, decision affirmed.
Legislation Cited: Child Protection (Working With Children) Act 2012
Cases Cited: Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: CDL (Applicant)
Office of the Children's Guardian (Respondent)
Representation:
Counsel:
V Hartstein (Respondent)
Solicitors:
Lambton Law (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s): 1510530
Publication restriction: Order 2 above.

REASONS FOR DECISION

Introduction

In November 2013, [CDL] applied to the Children's Guardian for a Working with Children Check Clearance under the Child Protection (Working with Children) Act 2012 (“the Act”).
The Children's Guardian requested various information from [CDL] and obtained other information from public authorities and others.
On 4 August 2015, the Children's Guardian wrote to [CDL] notifying him that his application for a Working with Children Check Clearance was refused. The letter set out reasons.
On 1 September 2015, [CDL] filed his application in the Tribunal seeking a review of the decision to refuse him a Working with Children Check Clearance.
This was the hearing of that review.
The hearing commenced on 18 March 2016. At the hearing, [CDL] relied upon evidence by a counsellor, Mr David Bulbert who has qualifications by way of a Diploma in Couple Therapy, a Bachelor Degree in Social Science, and an Associate Diploma in Social Science. He had provided some counselling to [CDL] in 6 sessions in the period from 24 September 2015 to 12 October 2015, after [CDL] had received notice of the decision refusing his application.
With the hearing of the proceedings listed for 18 March 2016, in January 2016 [CDL] attended on a forensic psychologist, Dr Vincent Cook, for the purpose of obtaining a risk assessment to assist him in the proceedings.
The risk assessment was focussed on assessing risk of violent behaviour towards children. The report is dated 19 February 2016. Dr Cook had interviewed [CDL] on four (4) occasions for a total of about 6 hours.
In his report, Dr Cook recommended that [CDL] attend a Cognitive Self Change program designed to reduce violent behaviour and recidivism in offenders with a pattern or anti-social behaviour and criminality. But at the hearing on 18 March 2016, [CDL] had not made any arrangements to attend any such course.
After cross examination of Dr Cook, and in submissions by the solicitor for [CDL], [CDL] sought an adjournment of the hearing to enable him to attend a course such as that recommended by Dr Cook.
The proceedings were adjourned to a date after 30 June 2016 to enable [CDL] to do this. The hearing resumed on 22 August 2016. At the end of the hearing, and with written and oral submissions by both parties, the Tribunal reserved its decision.
The Tribunal has determined that the decision of the Children's Guardian to refuse the Check Clearance was the correct and preferable decision. Accordingly, the Tribunal has affirmed the decision. These are the reasons for the Tribunal decision.

Relevant Law

On 28 September 2015 the Child Protection Legislation Amendment Act 2015 (“the Amendment Act”), which in Schedule 2 set out amendments to the Act, was assented to. It provided that it commenced on subsequent dates by proclamation. The first of those proclamation dates was 2 November 2015. The relevant amendments to the Act in the Amendment Act do not apply to this application because the application for a Working with Children Check Clearance was made on 26 November 2013 before the commencement of any of the amendments in the Amendment Act.
Accordingly the relevant parts of the Act applied as before the Amendment Act amendments and the following discussion proceeds on that basis.
Section 4 of the Act provided:

“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 provided that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.
Section 8 required that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.
Section 9 provided that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Section 11 of the Act applied to any person who submits an application to adopt a child under the Adoption Act 2000. It provided in s11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant [CDL] for a Working with Children Check Clearance of any class. Subsection 11(3) required the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work.
Section 12 provided that there are two classes of Working with Children Check Clearances which are:

(a) Volunteer – authorising workers to engage in unpaid child-related work; and
(b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work.

Section 13 provided for applications to be made to the Children's Guardian for a Working with Children Check Clearance.
Subsection 18(1) of the Act prohibited the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provided that one category of disqualified persons is “a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult”. Section 4 defined “conviction” as including a finding that the charge or offence is proved, even though there is no conviction.
The Act defines an “adult” as “a person who is 18 years of age or older”.
Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. The Children’s Guardian asserts that the trigger for an assessment falls within clause (1)(6) of schedule 1, which provides:

(6) A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children

The Children’s Guardian described the trigger matters in an annexure to its letter of 1 August 2015 as follows:

”your overall criminal history is considered serious as it demonstrates a pattern of violent behaviour from 2003 – 2007 perpetrated towards adults and children aged 14 – 17 years. In 2003 you were charged and convicted of 2 counts of "robbery in company" where you physically assaulted 2 victims aged 14 & 15 years old, with 1 victim sustaining 2 broken teeth, having a nerve exposed and sustaining injuries to the face. In 2005 you were charged and convicted of "assault with intent to rob in company", "affray", where you punched the victim into their right eye and the victim sustained soreness and redness to the eye?".
"In 2005 you were also charged with, "hinder investigation", "affray", "Conceal Serious Indictable Offence of Another Person" and Murder. These charges relate to the same incident. Though you were not convicted of these offences, it has been alleged that you were part of the group who formed the circle around the victim who was assaulted to death, essentially providing a level of support and encouragement. Whilst you have informed OCG you were not there at the time of the incident, and there are people who can confirm this, little weight is placed on this statement as the OCG is more persuaded by contemporaneous records that indicate there were witnesses suggesting your involvement. Therefore, the OCG has taken these charges into consideration due to the serious nature of the incident as it resulted in the death of an individual".

Section 15 requires that the Children’s Guardian conduct a risk assessment of an applicant for a working with children clearance who is subject of an assessment requirement. The risk assessment is “to determine whether [CDL]…poses a risk to the safety of children”.
The Children’s Guardian undertook an assessment.
Under Section 16 the Children’s Guardian may request further information from an applicant for a clearance related to an offence or other matter related to the application or clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request.
The Children’s Guardian requested [CDL] to provide further information, which [CDL] provided.
Section 27 is in Part 4 of the Act and provides that a person refused a Working with Children Check Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4)of the Act provides: “An applicant must fully disclose to the Tribunal any matters relevant to the application.”
Subsection 30(1) of the Act applies to this review. It provides:

30 (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 [CDL] in, or in relation to, the application,
(k) any other matters that the Commission considers necessary.

Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides:

63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an 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 or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

The role of the Tribunal in this review is not to decide whether the Children’s Guardian erred but to determine the issue of risk on the basis of the evidence before the Tribunal. A literal interpretation of “a risk assessment … to determine whether [CDL] … poses a risk to the safety of children”, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some 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”. He 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’.

The Seriousness of any matters that caused a refusal of a clearance.

The convictions and proceedings that constituted an assessment requirement under Section 14 were matters under sub-clause 6 of Clause 1 of Schedule 1, which is in the following terms :

A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children".

Discussion of the matters which came within that provision and the relevant evidence now available to the Tribunal follows:

(1) 1.1 5 July 2003. [CDL] aged 15. The circumstances of the offence were that the 2 victims (boys aged 14 and 15) were at a convenience store when [CDL] and 3 other young males (Y, C and W) approached them and asked about where they had been. The victims then walked to a bus stop. [CDL] and his company then approached the victims at the bus stop. [CDL] demanded the victims empty their pockets and hand over phones and money. Victim 2 declined.

1.2 Y produced a replica hand gun from the front right pocket of his pants, pointed it to the left side of the Victim 2's head, and demanded the victims empty their pockets and hand over $20. Both the victims reluctantly turned out their pockets to show that they did not have any property. [CDL] then assaulted Victim 2 by punching him in the head a number of times with his fists. W and C also punched Victim 2.

1.3 Y punched Victim 1 to the cheek and mouth. The blow to the mouth caused Victim 1 to be knocked to the ground. [CDL] assaulted Victim 1 by striking him to the head on 2 further occasions.

1.4 Victim 1 sustained 2 broken teeth, had a nerve exposed and received injuries to his face comprising a sore right cheek, sore lips, split to the top lip and headaches. The impact on victim 2 has not been disclosed.

1.5 The offenders ran off when a member of the public called out to stop. After their arrest that night [CDL] and his co-offenders each refused to participate in any form of interview or identification parade.

1.6 The 2 charges of robbery in company were dealt with in the Children's Court early in 2004. [CDL] was legally represented admitted the charge and a facts sheet was tendered by the police. [CDL] was placed on probation for one year and the conditions of that were that he be of good behaviour, he enrol in and attend at school regularly and that he also reside with his mother, his grandmother, or his maternal aunt. The probation expired in January 2005.

1.7 The evidence does not disclose that [CDL] at any stage of his arrest and the Children’s Court proceedings contradicted any aspect of the Facts Sheet relied upon by the police or the above description of the relevant circumstances of the offence in 1.1 to 1.5.

1.8 Nor did he do so in the statutory declaration of 22 April 2015 he provided to the Children’s Guardian in support of his application for a clearance. Nor did he do so in his application for review commencing these proceedings or his statement of 26 November 2015 in these proceedings made after he had been served with the Respondent’s Bundle of documents filed on 7 October 2015 which contained all of the evidence relied upon by the Respondent as to the facts of this matter.

1.9 The Tribunal therefore finds on the balance of probabilities that the facts of the offence are as set out in subparagraphs 1.1 to 1.6 above.

(2) 2.1 11 February 2005. [CDL] aged 17. The offence was committed in company with C, who was already an adult. The offence occurred less than 1 month after the probation in respect to offence (1) expired. The offenders approached the victim, who was waiting outside a hotel attempting to hail a taxi. The victim was asked first for change of $20 and he said that he could not provide it. [CDL] demanded that he hand over his money and C stood in front of the victim and shaped up to him. [CDL] then swung a punch at the victim connecting with his right eye.

2.2 Two police were passing in an unmarked vehicle and witnessed the assault. They stopped and alighted and the 2 offenders ran from the police down a laneway, pursued by the victim and the police. The police eventually caught C and arrested him. They returned with C to the scene of the assault. While they were obtaining detail from the victim, [CDL] came back along the street and stood across the street watching the police. He started calling out to C. The victim could see [CDL] clearly in street lighting and identified him to the police as the other offender. The police then also arrested [CDL].

2.3 Both C and [CDL] refused to make a statement or participate in an electronically recorded interview. [CDL] had a Salvation Army Chaplin attend as a support person.

2.4 In respect of the offence (2) of assault with intent to rob in company, he said in a Statutory Declaration of 22 April 2015 he provided to the Children’s Guardian more than 10 years after the alleged offence:

“The next charge was to (sic) of my so called mates. Both tried to rob a bloak (sic) right out the front of my mate (sic) house. Police seen the fight and chased. One of my mates got away. I went to my mates(sic) place and there were police and him. I asked him what happened and before I knew it I was on the ground . In Court the officer that grabbed me lied on the stand and said he saw me. The friend that it really was never came forward and we don’t talk any more……….…… I was found guilty and copped it on the chin”

2.5 [CDL] was legally represented throughout these proceedings. He was served with the bundle of documents filed by the respondent on 7 October 2015 on about that date; more than 5 months before the hearing commenced on 18 March 2016. The findings in 2.1 and 2.2 are based upon those documents. [CDL] did not dispute any of that evidence or the version of facts in 2.1 and 2.2 in his statement of 26 November 2015. He did not give any oral evidence in chief on 18 March 2016. In cross examination he said that in accordance with the conditions of his probation after Matters (1), he went in 2004 and lived with his grandmother in Queanbeyan. He completed year 10 at high school there.

2.6 He returned to Sydney in January 2015 and lived with his mother. He then “got back “with the same friends he had associated with when he committed offence (1). He confirmed the charge of “Assault with intent to rob” on 11 February 2005, but did not claim that he did not commit the offence or that he pleaded not guilty. It was only in re-examination that in answer to a question about the matter he said, “I wasn’t there. I arrived after and the police arrested me”. In Mr Cook’s report of 19 February 2016 there is at para 20 a statement “He also noted on the assault with intent to rob charge that he was not present at the time of offence but had committed other offences and in some way these offset each other.”

2.7 Mr Cook reported in his report of 19 February 2016 that [CDL] told him that he was “not present for this offence” and was charged because of his vicinity to his friend. In the hearing on 22 August 2016 when it was put to him that he “pleaded guilty” of the offence in the Children’s Court at the hearing of the charge he denied that and said “I pleaded not guilty.”

2.8 The Children’s Court records disclose that the matter was dealt with in the Children's Court at a hearing in May and June 2005. The offence of "assault with intent to rob in company" was found proved. That evidence persuades the Tribunal that the charge was defended, there was a denial of the charge and there was a defended hearing. However, neither the transcript of that hearing nor the Magistrate’s reasons is in evidence. It is not open to infer from the finding of the magistrate that the offence was proved, that the police facts should be seen to be admitted or proved. All that can be inferred from that finding standing alone is that [CDL] committed the offence of “assault with intent to rob in company”.

2.9 But on all the evidence, the only defence [CDL] raised to the charge was that he was not present. The evidence does not disclose any other defence he relied on. Accordingly, the finding of the Children’s Court that the offence was proved implies a rejection of that defence by findings that it was satisfied beyond reasonable doubt that he was there and he did commit the offence. As to the details of the offence, the only evidence is in the documentary evidence before the Tribunal and the Tribunal finds that the matters in 2.1 to 2.3 have been proved on the balance of probabilities.

(3) 3.1 18 November 2005. The term of probation for matter (2) still had 7 months to run. [CDL] was 18 years of age.

3.2 On the afternoon of 18 November 2005 Y was riding a motor cycle on the footpath when he was confronted by the victim on the footpath about the dangerous manner of riding. The victim’s partner and young children resided with him.

3.3 At about 11.00 pm that night Y went to the home of the victim with Y’s brother, C, E and others. The group of young males numbered 7 or more.

3.4 Y, his brother and a third male went to the door of the Victim’s house.

3.5 When the victim came to the door, one of the group shouted, “get him boys”. He was punched and stabbed numerous times to the chest and back by the 3 males at the door. He sought to run from the offenders but fell to ground on the footpath. He was surrounded by the group and kicked and punched and his head was stomped on while he lay on the gravel footpath.

3.6 Neighbours witnessed the attack and some called out to the group to stop. The group then ran off. When an ambulance arrived the victim could not be revived. The victim died from 2 fatal wounds to arteries in the heart and abdomen.

3.7 In his statutory declaration dated 22 April 2015 and provided to the Children’s Guardian for the assessment, all that he said in relation to the incident of 18 November 2005 is “Then one of the older locals that I knew was murdered. I was charged and jailed for another crime I had nothing to do with.”

3.8 After the refusal decision of the Children’s Guardian of 4 August 2015, he addressed the matter in his application for review of 1 September 2015. He said he was not guilty of the murder charge and had always intended to contest “the charges” (apparently also referring to other charges that arose during the murder investigation). He said “I was not present as initially charged and I was mistakenly charged”. He attached a statement of witness O (who had previously given the police a statement identifying [CDL] as one of the group on 18 November 2005). In the statement he attached she withdrew that evidence and said she had been “confused” and she had not seen [CDL] that night. He stated in his application, “There was no other evidence to suggest that I was involved in the incident and the charge was withdrawn”.

3.9 The only other written evidence he provided to the Tribunal in relation to that incident and associated events and charges was contained in his statement of 26 November 2015. He repeated the same denials in relation to the murder charge and also relied upon a copy of a statement provided to the police by a person who will be referred to as “witness”. Apparently referring to the original statement of O, he said “I confirm that there was no other evidence to suggest that I was involved in the incident and the charge was withdrawn”. He said “I was never involved in this offence”, “I was not present” and “there was no other evidence to suggest I was involved in the incident”. But there was evidence by witnesses that [CDL] was one of the group.

3.10 Also on the day after the murder the police obtained a written statement from the person referred to in these reasons as “witness”. The relevant evidence of witness in his statement follows in this and subparas 3.11 to 3.17. He stated that at about 9.00 pm or 9:30pm on 18 November 2005 he was at home in his house when B and L came to the door and asked him "can you come up here and back us up". They then took him to a location where a man about 30 years of age, was sitting on a wall in a laneway. Whilst he was looking at this man, he saw E approach the man from behind with a half brick in his right hand. As E was swinging the brick straight at the man's head, witness called out "No. No. No. No. No. Don’t". The male turned and E stopped the brick short of the man's face. E then accused the man of trying to “pick up” some young girls. The man denied this. After further verbal exchanges, L told him to "fuck off before we smash ya".

3.11 A fight then developed between the man and witness. L, E and another young boy then commenced punching and kicking the man while he and witness continued exchanging blows. The man broke free and ran away. He shouted, “I’m coming back. You are fucking dead.”

3.12 L, E and the other young boy then went with witness to his home, which was 4 doors from E’s home. Witness obtained a baseball bat from his home and then witness, E and L went back to where the fight had occurred. They saw the man across the road. L grabbed the baseball bat from witness and walked half way across the road saying “I’ll fucking smash him”. Witness told him, “Don’t worry about it. There are too many witnesses, there are too many people. I don’t want to get charged.” He took the baseball bat from L.

3.13 [CDL] then arrived on the scene and witness which way the man had gone. After some discussion witness, L and E then went to a nearby street. There the witness had a discussion with some female persons he knew. After this he went home.

3.14 Witness said he then had a shower and then sat in his lounge room “for some time”. He decided then to look for the man he had fought with. He stated “I thought if we fought one on one, it would all be sorted”. He first went to E’s house. E and L were there and he talked with L about the fight with the man. He did not say [CDL] was there.

3.15 Witness said that he then walked around the neighbourhood looking for the man. He then returned to E’s house. E and his brother and another young man were there. They talked for a while and then witness resumed walking around the neighbourhood looking for the man he had fought.

3.16 He stood for about 10 minutes at a corner. Then he said he saw a group of “six or seven young males walking south along the street”. They passed him on the other side of the street about 10 metres from him. They were walking quickly. He followed the group. It was dark. He did not identify any of those people, but he subsequently from about 50 metres away witnessed the group stop outside the victim's home. He knew the victim and his home. He then saw the victim "go flying away from the building". He said he started to go "towards the fight" and saw "a male running through a gauntlet of other males who were punching him". He recognised the victim, but he said he wasn’t close enough to recognise any of the offenders. He said that the victim "looked like he got ankle tapped from behind or tripped over". He said that the group surrounded him and "started to kick into him".

3.17 He said the group continued to kick the victim "for about 10 – 15 seconds". He crossed to the footpath where it was happening and "I started seeing the group stomping on [the victim's] head and body". He observed that the victim “did not cover up or protect himself”. He said he started to yell at the group "get off him, he's fucking had enough. Fuck off". He did not identify any of the group. Witness said that when he got to the victim his eyes were open but he appeared to be unconscious. He was unresponsive.

3.18 On 15 December 2005 in a conversation on his mobile phone [CDL] said:

"…I don't care if this phone is tapped …. If any of your dopy friends have given up on me, you'd better tell them to watch their faces and their houses… Yeah, I'm just saying the D's have been to my house. Just tell your little friends I swear to god, I don't care if the phone is tapped…..I don't care if I get done for conspiracy, the mother-fucking dogs. That's what I was thinking. They are not going to lock me up for assault."

3.19 From 23 December 2005 calls to or from [CDL’s] mobile telephone were recorded. In a conversation on his mobile on 16 January 2006, he said:

"…cause the fucking bitch who has given me up probably knows my face… nah ….they only know me as [his first name]; not [full name] so they can go fuck off and when they find out that my last name has been mentioned that's when they can speak to me. But until then they can go drop dead and die…. My last name hasn't even been dropped ….I swear I had better not find out who it is, I swear on that …I seriously hope I don't find out. Cause if I find out who it is I will ……… fucking evil things will happen. I will get charged with something else".

3.20 On 9 January 2006 [CDL] was interviewed by police and said that he had returned home at 7:30pm on 18 November 2005 and after that had spoken only to a female person M, his mother and his brother. (He had used M to provide an alibi for the time witnesses said he was seen in the street.) But his mobile phone records were produced to him and included a call to him from the telephone number of Y's brother at 10:40pm on 18 November 2005 and the call lasting for 25 seconds. He then admitted that Y called him and asked what he was doing that evening, and he said he told Y that he was watching television. He did not account for the remaining time spent on the call and denied that Y had told him that the victim was to be assaulted.

3.21 He told the police on 9 January 2006 that he was at home at the time of the murder and left afterwards to collect a DVD from C. He said that he had previously gone to C's home at 7:30pm, but C was not home when he knocked on the door. C, when interviewed by police, said that he was sitting on the curb in front of his home drinking until 8:00pm. This conflicted with [CDL’s] version. The evidence of witness is that he did not first leave his home till about 9.00pm or 9.30 pm that night and when he saw [CDL] in the street it was after various subsequent events. From that evidence it appears the witness saw [CDL] after 9.30 pm. The evidence of the witness conflicts with [CDL]’s statement to the police that he was home after going to C’s home at 7.30 pm.

3.22 On 2 February 2006 in a conversation on his mobile phone [CDL] said:.

"…there are supposed to be 14 of us that are suspects. I know about 10 of us. I don't care, they can try and lock me up if they want. Come and catch me nigger".

3.23 Then later the same day during another telephone conversation he said:

"…someone's been arrested in the murder. Don't say nothing. You don't know nothing at all, right?. Just watch the news. And then don't say nothing. But one of the boys has been arrested in the murder. I'm so upset".

3.24 And again later that day he said in a conversation on his mobile phone:

"…if a witness picks me out I'm fucked. I will be charged with murder and I didn't even do it…"

3.25 Blood stains on the socks of Y and the belt of his brother matched the DNA of the victim. Other evidence was obtained against Y and against Y’s brother. On 2 February 2006 Y was arrested and charged with murder. On 6 February his brother was arrested and charged with murder.

3.26 The statement of Detective Sergeant McQueen of 18 July 2007 records that [CDL], C and their associate A approached one female witness, S, requesting that she provide evidence that they were not in the street on the night of the murder, contrary to evidence she had previously provided. This occurred on or before 7 February when [CDL] was taken into custody.

3.27 Police attended at the home of [CDL] on 7 February 2006. They identified themselves. He began yelling at the police, and calling them "fucking dogs". He then punched the door of the house with his right fist. He was arrested. [CDL] was charged with murder, ”hinder investigation of a serious indictable offence of other”, “conceal serious indictable offence of another person”, and affray. He was refused bail.

3.28 [CDL] participated in an electronically recorded interview on 7 February and, whilst making no admission about any offence, he admitted to lying about a number of incidents in his previous interview on 9 January and also of lying during that interview on 7 February. He said that he had gone to a convenience store after the murder by himself. But CCTV footage shown to him showed that he was with E when he went to the convenience store after the murder. He then admitted to lying. He said that he did it because he did not want to bring E into “it”. He also said that contrary to his previous statement, he did not speak to his friend M that night.

3.29 He was read transcript of a telephone conversation between him and M where on 5 January he instructed her what she was to say to police in order to provide him with an alibi for the events on 18 November.2005 When confronted with this he admitted to lying, and said that he told her because M “would not have remembered”.

3.30 C was also arrested on the morning of 7 February 2006 and he was charged with the murder in February after being identified by witnesses as part of the group that surrounded the victim after he fell to the ground and while he was kicked, punched and stomped on.

3.31 C too had been refused bail. Records of the Department of Corrective Services record that while [CDL] was in gaol he was in February 2006 sharing a cell with C.

3.32 On 1 March 2006, during the police investigation L, an associate of [CDL], attended the street where [CDL] lived with a baseball bat making a number of threats to the residents in regard to them giving evidence about the alleged murder. He used the baseball bat to damage the windows of 2 houses and the doors of 2 other houses. He directly threatened 2 residents. He was subsequently convicted of these offences.

3.33 At least 3 witnesses to the events of 18 November 2005 asked the police to be moved to another area. One witness had to be spoken to on at least 10 occasions by police before she would provide a statement. Virtually every resident indicated some fear of retribution from the street gang which frequented the area.

3.34 On 25 September 2006 in the Central Local Court the charges against [CDL] of murder and conceal serious indictable offence of another were withdrawn and dismissed. [CDL] had spent about 8 months in prison on remand before these charges were dismissed. It appears he was then granted bail in respect of the remaining charges.

3.35 On 20 July 2007, a witness, Ms O, who had previously given the police a statement indicating that she had seen [CDL] as a member of the group on the night of the murder, provided the Director of Public Prosecutions with a statement saying that she had been confused earlier and "[[CDL]] wasn't there on the night of the murder. I did not see him that night".

3.36 In the District Court on 25 July 2007 there was a preliminary hearing in relation to objections to reliance by the prosecution on evidence of the contents of recorded telephone conversations in December 2005 and January 2006. That evidence was ruled inadmissible. The Director of Public Prosecutions then elected to not proceed with the remaining charges of Affray and hindering the investigation of a serious indictable offence of another and both charges were dismissed. The latter charge alleged he had provided misleading information to the police and had requested a person R to provide misleading information to the police “intending to hinder the investigation of a serious indictable offence committed by [Y], namely murder.”

3.37 The evidence before the Tribunal establishes on the balance of probabilities that [CDL], despite his denials, was present as a member of the group of young males that were involved in the attack on the Victim. On the balance of probabilities [CDL] did not stab victim. The evidence does not enable the Tribunal to make a finding whether [CDL] was or was not one of the 3 who went to the victim’s door and dragged him out. He may have been. The evidence is such that the Tribunal finds on the balance of probabilities that he was one of the group that surrounded the victim lying on the ground, but there is no evidence sufficient to make a finding on the balance of probabilities that [CDL] did or did not himself punch, kick or stomp on the victim. On the evidence there is a real possibility that he did.

3.38 On the balance of probabilities [CDL] refused to provide the police information about the events leading to the victim’s death, such as the identity of other persons present who were known to him and what he observed happen.

3.39 On the balance of probabilities [CDL] in concert with others pressured witnesses, including S and O to have them withdraw evidence given in statements to the police that they observed [CDL] present as part of the group on 18 November 2005.

(4) 4.1 4 October 2007. At the time [CDL] was 20 years of age. The offences, of which he was later convicted, comprised offensive behaviour and affray. The offences were serious. He was outside a McDonalds Restaurant in the city. He was loitering there with a male companion. He argued with a female patron at the door of the restaurant and yelled abuse towards her. She walked away with a group of people. A security guard was standing in the door of the store with the store manager. The argument continued out into the street, and the guard and several taxi drivers stepped in between [CDL] and the group to diffuse the situation.

4.2 [CDL] and his co-offender then focussed their attention on the Security Guard. [CDL] verbally abused the Security Guard. He yelled out "we are going to beat you up. We are going to bash you. You fat cunt. You dog". [CDL] walked to within a metre of the security guard and the guard pushed him backwards a few steps. [CDL] then yelled at the security guard "C'mon. I will fight you. Come on you dog cunt". The security guard did not move.

4.3 A crowd was starting the gather and people were telling [CDL] to go home. He then left with his co-offender and they walked away. They subsequently returned and [CDL] was carrying a piece of clear sharp plastic in his right hand. They again approached the security guard and yelled abuse at him and jabbed him with the piece of plastic. [CDL] said "I'm going to kill you. I'm going to fucking kill you. Next week I'm going to bring my mates down here and I'm going to fucking kill you. You fat cunt. You're a dog. You're a fat dog". [CDL] kept moving back and forth towards the security guard with his co-offender standing behind him yelling abuse. A crowd started to gather again. People were yelling at [CDL] to go home and [CDL] responded by saying "C'mon. I will fight you".

4.4 The security guard started to move away as one of the males in the crowd yelled abuse. Then the co-offender and the other person started fighting. [CDL] threw the plastic object at the two of them. Several other male persons from the crowd stepped in, and the co-offender was knocked to the ground as [CDL] ran off. The co-offender was bleeding from the face. Members of the crowd came to his aid and [CDL] returned to the scene with a plastic garbage bin in his hand swinging it around and abusing the security guard and people helping the co-offender. Shortly after, an ambulance and police arrived. [CDL] was still observed to be yelling abuse at the security guard when the police arrived and he had to be removed.

4.5 CCTV footage from inside the McDonalds Restaurant showed that earlier the accused was being aggressive towards patrons and at one stage was threatening patrons while he had a broken wine bottle behind his back. [CDL] refused to be interviewed by the police.

4.6 On 19 December 2007 in the Local Court at Liverpool St, Sydney [CDL] pleaded guilty and was convicted of offensive behaviour and fined $100. He also pleaded guilty and was convicted of affray and the sentence was suspended upon the condition that he enter into a bond to be of good behaviour for a period of 18 months, appear for sentence if required by the Court upon a breach the bond, and attend counselling in relation to anger management. He was ordered to pay court costs of $70. The Court was told in a reference from the Youth Team Leader of the Woolloomooloo Youth Service offered in support of [CDL], that he had expressed interest in accessing counselling in relation to alcohol use and anger management.

4.7 The records of the police and the Court and other evidence does not disclose that [CDL] contradicted the version of the facts set out in paras 4.1 to 4.6 between his arrest and his conviction. He declined to be interviewed by the police after his arrest.

4.8 In his statutory declaration of 22 April 2015 given to the Children’s Guardian in support of his application for a clearance, the only relevant material is that he said, “I tried to fight a security guard and when police came I went off at them as they were Kings Cross Police in the city. They said to me they seen me walking and started to follow me.” In his application commencing these proceedings he did not give evidence as to the facts of this occasion. Nor did he in his statement of 26 November 2015. But in November 2015 he wrote with the assistance of a counsellor the following passage about the occasion:

The next part will be regarding my last charge the affray.
On a another drunk night out me and a friend got into an argument with another group a security guard come over and tried to stop it we starting abusing him someone in the group we were arguing with before knocked my mate out I had a glass bottle in my hand at the time. I didn't really have any remorse for this until my recent counselling session with David he got me think about how the security guard was only doing his job and the public around when I had the bottle it got me to think about what I did that night and really it wasn't right I always regretted it but didn't really think about it much but now I think what if that happened to me while I was at work I wouldn't like it his only doing his job we should of just walked away. I know my behaviour was stupid, be childish but most of all violent and I do regret my younger actions but really am very remorseful of what I done on both these occasions.

4.9 In cross examination on 18 March he said “Me and different friends got into an argument with another group and it escalated”. He did not give evidence that he disagreed with the police version which was in evidence. He conceded that he had been in gaol for 8 months and didn’t want to go back. It was put to him in cross examination that he knew he would “get into trouble” for such behaviour and he answered, “I was drunk.”

4.10 Although since October 2015 he has had a copy of the records of the police facts relied upon in the Local Court when he was convicted, as these were in the section 58 bundle, in the hearing [CDL] did not contradict that version in these proceedings.

4.11 The Tribunal finds that the version of the events on 4 October 2007 in 4.1 to 4.6 are proved on the balance of probabilities by the evidence.

The matters found above on the evidence are very serious and indicate that [CDL] had for at least the period from July 2003 to October 2007 an extremely serious problem of abusive and violent behaviour towards others. It was on occasions associated with drunkenness.

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

The most recent of those matters occurred on 4 October 2007, 9 years ago. There is no evidence of [CDL] committing any offence involving violent or other abusive behaviour in that period.
It was a condition of [CDL's] good behaviour bond into which he entered in December 2007 that he would attend counselling for anger management. On the evidence it appears [CDL] did not attend any such counselling, although he did locate providers of such courses at Kings Cross and Bondi and in December 2007 he was waiting for the next available vacancy. His evidence is that he felt no remorse about his abusive behaviour to others until past year when he had counselling with Mr Bulbert. He attended that counselling to obtain a report to assist him in these proceedings; not because he perceived he might have any behaviour problem, whether associated with alcohol use or otherwise and whether or not he had an anger management or abusive behaviour problem.
During that 9 years [CDL] since late 2013 has been residing in the Newcastle area in full time employment.

The age of the person at the time the offences or matters occurred

[CDL's] age at the time of the matters was:

Robbery in company (2 counts) almost 16 years;

Assault with intent to rob in company 17 years;

Murder and other charges 18 years;

2.7 Affray and offensive behaviour 20 years.

Age of each victim of any relevant offence or conduct and any matters relating to the vulnerability of the victim

The ages of the victims:

Robbery in company (2 counts) 2003:

Victim 1 – 14 years;

Victim 2 – 15 years.

Assault with intent to rob in company. It appears the victim was an adult;

Murder and other charges. The victim was an adult;

Affray and offensive behaviour. The security guard victim was an adult.

The robbery in company was against 2 other children, but was done in company with 3 other persons. The Assault with intent to rob in company was done in company with C. The fact that these offences occurred in company rendered the victims more vulnerable.
In relation to the alleged murder and affray offences in November 2005, [CDL] was a member of the group. The cause of death was stab wounds. There was no evidence capable of proving the murder charge against [CDL]. But there was evidence of [CDL] being a member of the group that assaulted the victim after he was stabbed. The victim was vulnerable because he was far outnumbered by the group. The victim’s vulnerability was heightened by being wounded, falling and then being surrounded and assaulted by the group while he was lying wounded on the ground.
In relation to the affray and offensive behaviour in 2007, for part of the time he was accompanied by another young man. That rendered the security guard more vulnerable. Also his carrying of a broken bottle, then a shard of broken plastic, and later a garbage bin also contributed to the vulnerability of the security guard and others present.

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

None of the victims had any relationship with [CDL]. It appears that they were strangers.
The difference in age with victim 1 in the robbery in company was about 2 years, and with victim 2 was about 1 year.
In relation to the assault with intent to rob, [CDL] was 17 and the evidence does not disclose the age of the victim, except that the victim was an adult.
The age of the victim on 18 November 2005 is not in evidence but he was an adult.
The evidence does not disclose the difference in age between the security guard and [CDL] at the time of the offences of affray and offensive behaviour in a public place.

Whether the person knew or could reasonably had known that the victim was a child

In relation to the 2 counts of robbery in company (Matter (1)), from the evidence before the Tribunal it is clear that on the balance of probabilities [CDL] knew that the victims were not adults.
In relation to the other victims, the evidence does not establish that the victim was a child.

The person’s present age

[CDL] is now 29 years of age.

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

In addition to convictions described above, [CDL]’s Criminal Record includes convictions on 14 August 2007 for an offence on 2 February 2006 of possession of an illegal drug (cannabis) and conviction for an offence on the same date of receiving stolen goods.
In the early hours of 2 February 2006 an unmarked police vehicle was broken into whilst parked, locked and unattended. Two police “Sevir” bullet resistant vests, two police reflective vests, one police "miesop" containing police procedures, and one roll of police crime scene tape were stolen from the vehicle. Police intercepted a telephone call between [CDL] and C at 12.26pm on the following day, 3 February 2006 in which [CDL] disclosed knowledge of that incident.
He talked during the call about items he obtained the previous night (not disclosing that he had taken them from the police car) and said that he had to "get rid of the back pack". The “Full Facts” prepared by the police sate that [CDL] told C that the bullet proof vests could be sold for $1,500 and said "I reckon you could do armed robberies with them".
Police obtained search warrants and during the search of [CDL]'s premises at 6.55 pm on the evening of 3 February 2006, they located the reflective vests and 2 empty back packs that had previously contained the bullet proof vests. They also found in his room a re-sealable plastic bag containing about 32gm of cannabis.
On 14 August 2007 in the Local Court, [CDL] pleaded guilty to both offences. He was convicted of both matters. No other penalty was imposed. He was ordered to pay court costs of $70.00. On the evidence [CDL] knew the items involved belonged to the Police. The offence was a serious one.
The police facts prepared by the police for the hearing are in evidence and were served on [CDL] on about 5 October 2015 as part of the section 58 bundle. There is no evidence that [CDL] in the criminal proceedings disclosed how he obtained the items stolen from the police car. [CDL] did not refer to the offence in his statutory declaration of 22 April 2015 given to the Children’s Guardian in support of his application for a clearance. He did not make disclosure of the matter or of the cannabis conviction in his application commencing these proceedings or in his statement of 26 November filed in support of his application. There is no mention of these offences in the report of Mr Bulbeck or the letter of reflection and remorse. [CDL] disclosed the convictions to Mr Cook prior to his report of 19 February 2016, but didn’t disclose how he came into possession of the stolen police items to Mr Cook.
In cross examination on 18 March 2016 and referring to the conviction, [CDL] said, “I let myself be involved with bad friends and stealing from a police car as I thought we could make money out of it.” The evidence does not include any other evidence of [CDL] giving an explanation as to how he obtained the stolen items. Given that evidence, the short time between when the items were stolen and when [CDL] disclosed he had them and the absence of any other explanation by [CDL] for his receiving the items, the tribunal is satisfied on the balance of probabilities that he (alone or in company) stole them from the police vehicle.
The criminal record of [CDL] does not include any conviction relating to the murder and associated events. However, it is a very serious criminal record. It covers a period of more than 4 years when he was aged from 15 – 20 years and the conduct in relation to those criminal matters demonstrated a strong tendency to violence and other abusive behaviour to other people, strangers, and combining with others in criminal and anti-social conduct.
It is nearly 9 years since any offence of which [CDL] has been convicted. In 2008 [CDL] obtained employment as a wardsman at a Private Hospital in Sydney. His evidence in his statutory declaration of 22 April 2015 is that he worked there for 5 years. It appears from the evidence that he worked there from 2008 to about October 2013 and then commenced working in a similar role at a private hospital in Newcastle on 4 November 2013 and continues in that role, primarily as a Sterilising Technician.
Neither of the hospitals for which he has worked have any criticisms or complaints in relation to his performance or other conduct. The reference he relies upon the private hospital in Sydney is dated 27 January 2014. The writer states that [CDL] was found not guilty of the charges of Murder and concealing a serious indictable offence and refers to “acquittal”. This information is incorrect the charges were withdrawn. The writer refers to no other offences. The reference is quite positive.
The reference from the Newcastle employer is dated 2 June 2015. It refers to none of the criminal charges and is very positive. It does not disclose whether the writer was aware of any of the charges and is therefore of little assistance.
[CDL] has been cohabiting with P since before he moved to the Newcastle area. According to his evidence in about 2013 they purchased their home in the Newcastle area in both names. In his Statement of 26 November 2015 he says that he met P after he obtained employment at the private hospital in Sydney. He started there in 2008. In his statutory Declaration of 22 April 2015 he stated that he already had a relationship with P before he obtained that job and he sought the job at the private hospital in Sydney as P’s mother was working there as a nurse. In that declaration he also said that he met P “not long after” the offences (4) of 4 October 2007. He did not in his Statement say precisely when they met or when they commenced cohabitation.
There is an issue as whether P was only 15 when he started a sexual relationship with her raised by evidence at tab 12 of the section 58 bundle. In oral evidence in March 2016 he said they have cohabited for 8 years and the offences of October 2007 occurred when “we had just started getting together”. In oral evidence in August he said they had cohabited for “6 or 7 years, I’m not sure”. In answer to questions on 18 March he denied they had a sexual relationship before she was 16 and said they did not have sexual intercourse until New Year’s Eve of 2007.
The tab 12 evidence is records of the Department of Family and Community Services of a mandatory report from the Sydney Central Sexual Health Clinic on 21 September 2007. From that report of P and [CDL] presenting together for sexual disease testing and the information they provided to the clinic, P and [CDL] had commenced a sexual relationship in about mid-August 2007 but had not in September 2007 commenced cohabitation. P told the clinic staff she had been sexually active since she was 13. The Tribunal concludes from what she told the clinic staff that they had commenced a sexual relationship in about mid-August 2007 when P was 15. She did not turn 16 until 6 November 2007. [CDL] had turned 20 years of age 4 months earlier. The evidence establishes on the balance of probabilities that they commenced cohabitation more than 8 years ago in early 2008 when [CDL] was 20 and P was 16.
P did not give evidence in the proceedings or attend either day of the hearing. When asked, [CDL] said that he didn’t ask P to make a statement for the proceedings. He said she offered to. When asked why she didn’t he said “I didn’t ask her. I don’t know.” Given the problem [CDL] had with violence and other abusive behaviour, it would be obvious that someone who has lived with him for more than 8 years would be able to support his application if such problems with his behaviour have not continued. [CDL] has had the benefit of legal advice and representation since before he filed his application on 1 September 2015 commencing these proceedings. The Tribunal has concluded that P was not asked to make a statement, although she offered, because [CDL] or his solicitors considered her evidence would not have assisted the application.
There is no corroboration for [CDL’s] evidence that he has not been violent to anyone since 4 October 2007.

Alcohol and drugs

[CDL]’s evidence is that his mother was a drug addict and he in his “early years” sat with her while she sold drugs. He told Mr Cook she “lived a life in trying to maintain her drug habit”, he had seen her attacked with a machete as a result of drug debts, and she died “due to her dependency on drugs”. It appeared that she continued to be a drug addict till her death in 2012.
Throughout his 8 months in gaol he smoked marijuana. After his release he started to take Ecstasy regularly. Elsewhere he said after he was released from prison “I turned to drugs and alcohol”. He told Mr Cook that after release from prison in September 2006 he used ecstasy regularly from September 2006 onwards. This continued until 2012 when his mother died, 6 years after he was released from prison.
It appears that he was also using other drugs besides cannabis and ecstasy in the period from 2006 to 2012, because he related to Mr Cook that when his mother died he "stopped most drugs" but not cannabis.
But he continued using marijuana, until, he said, he stopped in 2015. If he had stopped in 2015, his use of marijuana had continued for 9 years. On 22 August 2016 he was asked when he last used drugs and he replied “18 months or so ago”. But he conceded in cross examination in August 2016 smoked Marijuana “a couple of months ago”. That was in April 2016. He told the tribunal that on that occasion he used it “as a reward for doing so well”(i.e. being drug free for 18 months).
In answer to further questions he also said friends from Sydney came to stay and brought marijuana. He and his partner also smoked it. He said it happened on 14 April 2016 when these proceedings were part heard and he was part of the way through a Cognitive Change Programme with Mr Cook that ran from 31 March to 22 June. He said he thought such conduct was alright at the time. He did not tell Mr Cook of him using it. He told Mr Cook that he doesn’t obey some rules because they aren’t “serious”. On 22 August he told the Tribunal he doesn’t believe it is alright to use marijuana “because it is illegal”.

His use of marijuana has occurred from early 2006 to April 2016, a period of more than 10 years and P has recently used it with him and so did the friends from Sydney who brought it with them. [CDL] has a history of using illegal drugs for more than 10 years.
Mr Cook reported in his first report at paragraph 22 that [CDL] told him he started using alcohol at about age 15 years, and he "used to drink to get drunk". He told Mr Cook that when he is intoxicated with alcohol that "is when his anger surfaces and he is more likely to get into trouble". In cross examination Mr Cook said that alcohol is "a disinhibitor for him".
[CDL] did not disclose the level of his use of drugs or alcohol in his statement to the Tribunal of 26 November 2015. He did not give evidence that he has ceased or reduced his consumption of alcohol since the offences (4) in October 2007).
The work references he relied upon from 2014 and 2015 contained no reference to his alcohol consumption or his sobriety.
[CDL] did not give evidence at the hearing in March 2016 or in August 2016 that he had ceased consuming alcohol or has reduced his consumption of alcohol since the offences that gave rise to the assessment by the Children's Guardian. In cross examination on 18 March 2016, he conceded that he has never attended any drug and alcohol counselling.
There is no evidence by his partner or any other witness about his observed level of alcohol consumption or of his observed behaviour as regards violence or other abuse to other persons in the last 9 years. .
Mr Cook did not include in his first or second report any comment as to whether [CDL] continues to use alcohol or and as to whether his use of alcohol has been reduced. In oral evidence in March he said that [CDL] had told him he had stopped drinking and drugs, had removed himself from the bad group, has a handle on his stress and has support. Mr Cook did not have any record in his notes of [CDL] telling him he had stopped drinking alcohol. In August said that to the best of his recollection [CDL] told him “alcohol was no longer a problem”.
In cross examination on 18 March [CDL] conceded that he has never been to any drug or alcohol counselling. There has been no investigation of his recent or current level of consumption of alcohol or other drugs and there is no evidence by anyone that he has been seen by any medical practitioner in that regard.
If [CDL] has ceased using alcohol or has been able to manage his use of alcohol in the last 9 years, as is submitted on his behalf, then clearly his partner could have corroborated that evidence. [CDL] chose not to give that evidence and not to have his partner give evidence in the proceedings.
The problem then is that in the absence of direct evidence from [CDL] as to any change in his alcohol consumption, and of any evidence by any other witness to that effect, the poor credit of [CDL] is such that the Tribunal could not rely upon only the inconsistent evidence of Mr Cook of what [CDL] told him. It is also clear that a lot of other matters that he told Mr Cook were untrue.
There were several issues arising from his evidence about the use of cannabis this year. One is that he says his partner also used it on that occasion. Another is that cannabis was brought to their home by friends from Sydney who came to stay. The friends were not identified. There was no evidence as to whether or not those friends were people with whom he previously associated with in Sydney whilst engaging in criminal or antisocial activities.
From Mr Cook's evidence it appears that those matters may be relevant.
Mr Cook's assessment of the risk [CDL] poses to children is based upon an assumption that [CDL] is not involved in illegal drugs and [CDL] does not abuse alcohol. There is no direct evidence to support those assumptions and the partner of [CDL], as an obvious witness, could have given such evidence or corroborated such evidence by [CDL]. [CDL] chose not to rely in evidence from her.
The Tribunal does not therefore accept that [CDL] does not still abuse alcohol or that [CDL] is not continuing to use cannabis.

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

A relevant factor is the issue of what insight [CDL] has into his past criminal conduct, why it is illegal, why he committed that conduct, the impact on victims and himself of such conduct and what he should do to ensure he does not repeat such behaviour.
In relation to offence (2) the 2 years of probation was ordered to be supervised by the Department of Juvenile Justice. The records of the Department that from the decision on 16 June 2005 through to March 2006 [CDL] was grossly unco-operative with the officers of the Department. The Department was endeavouring to assist and supervise his compliance with his probation. He failed to maintain contact with the office. He failed to attend numerous appointments that were made for him. He often did not respond to letters sent to him or phone messages requesting him to contact the office. He failed to respond to letters asking him to contact the office and make an appointment.
In December 2007 as part of the conditions of the good behaviour bond, he was required to attend Counselling for Anger Management. It appears from the evidence that he located 2 services (one at Bondi and one at Kings Cross) and he was waiting for a vacancy. After he applied for a Check Clearance he told the Office of the Children’s Guardian that he had attended such a course, but provided no detail of the course. He produced no documentary proof of such attendance and the extensive evidence obtained by the Children’s Guardian provided no corroboration of him attending any such course.
Neither of the reports of the counsellor Mr Bulbert and the forensic psychologist Mr Cook, both of whom he engaged to assist him in these proceedings, recorded that he said he had attended an anger management course. On the contrary Mr Cook reported that [CDL] told him that he went to Mr Bulbert in the hope “that this would meet the standard regarding the anger management he was required to do”. He also conceded on 18 March 2016 that he had never complied with that condition imposed in December 2007. He said that he was then in gaol. But he was released from Gaol in September 2006. He said he was “young and Immature”, and then he said “I wasn’t asked to attend anger management”. Clearly he didn’t see the importance of complying with the Court imposed condition and he didn’t recognise the seriousness of his behaviour problem and of his need to overcome it.
He has had 9 years since the condition was imposed by the Court, for him to recognise that his abusive behaviour was a curse on his life that he needed to extinguish and such counselling was likely to assist him do that. The Tribunal finds on the balance of probabilities that despite the condition of his bond that he do so, he failed to attend counselling for anger management and he didn’t adequately recognise the seriousness of his abusive behaviour and the possible long term benefit that such counselling might be to him or potential victims.
Indeed he did not recognise any need for him to attend any serious counselling until after the Children’s Guardian on 4 August 2015 refused him a Clearance. Then from 24 September 2015 he had 6 one hour sessions of counselling with Mr Bulbert, but not specifically anger management counselling or counselling focussed on his problem of abusive behaviour. Mr Bulbert does not disclose in his report any qualifications, training of experience in anger management counselling or therapy for people with problems with violent and other abusive behaviour. His qualifications comprise a diploma in couples therapy, a B.S.Sc (Counselling and Mediation), and a degree of Ass Dip Social Science.
Then, even having prepared with Mr Bulbert’s assistance the Letter of Reflection and Remorse, [CDL] still did not recognise he had a need for any therapeutic assistance for anger management or abusive behaviour. He consulted Mr Vincent Cook, but not for any therapy; to obtain an assessment for these proceedings of the risk of violence, if any, that he poses for children. The first report of Mr Cook is dated 19 February this year. Mr Cook reported that as at 19 February 2016 [CDL] “has the attitude that he is willing to participate in any treatment that he is required to do to continue the employment that that he has been enjoying over the last several years”. Again he did not recognise that he has a history of very serious violent behaviour and he might need professional help to completely overcome that. Even then [CDL] proceeded with the hearing on 18 March without having recognised any need for him to seek any therapeutic assistance in relation to any tendency to violent and other abusive behaviour towards others.
By then [CDL] had had more than 8 years since his most recent charge involving violence and abusive behaviour to others to reflect upon his tendency to violence and other abuse to others and the curse it had been to him and others. But it appears he still did not recognise that it would be wise for him to obtain some professional assistance to avoid further such conduct.
The report of Mr Bulbert does not disclose what documents and other information were provided to the report writer. For example, it does not detail what information he was given in relation to criminal offences or in relation to the murder and other associated charges.
Mr Bulbert's report is less than 2 pages in length and concludes with:

"…it appears [[CDL]] has shown sincerity in wanting to address his former ways and live a productive and responsible life, whilst contributing to the wider community".
"[[CDL]] feels the counselling has been very helpful and if he ever needs it again I would be more than happy to work with him again. I wish him all the best for his future"

As a result of that counselling and with Mr Bulbert’s guidance, [CDL] produced what is described as a "letter of reflection and remorse" which is in the following terms.

"I [CDL] am writing this letter in reflection of my past crimes. My first charge relates to an assault and robbery of two teenage boys at ... . On this night me and four friends went to … while there we followed two teenage boys aged 15 I think or around this age, from a shop to a bus stop this alone would have be scary for these kids. I have than confronted them and asked them for their property and when they declined we began to assault them one of the boys I was with pulled out a replica firearm being a cap gun with the orange tip taken off and put it to one of the kids head there was people standing around watching what happened we ran off and was arrested shortly after. I think about what the two young boys went through and it was horrible and probably life changing for them not only the physical damage but emotional damage we caused, upon these kids, these two kids would have been terrified with being bashed and then a gun pulled on them after being followed tor a short time. One of the boys suffered damage to his teeth this would have been hard for him and his family they would have had to pay for dental treatment to repair what damage could be repaired and emotionally damage probably been a lot worse. The people standing around that seen it would have been affected as well I feel so much guilt and remorse over my actions and the others in my group I feel ashamed at the trauma we caused on a drunk night out. I do want to say I was very young myself with no good roll (sic) models around me I didn't sit back to think of what my actions will do in the long run and now that I'm older I know that what I did to these boys is inexcusable if I had the chance to talk to both of the boys involved I would love to make amends if I knew no more trauma would be caused to these guys.
The next part will be regarding my last charge the affray.
On a another drunk night out me and a friend got into an argument with another group a security guard come over and tried to stop it we starting abusing him someone in the group we were arguing with before knocked my mate out I had a glass bottle in my hand at the time. I didn't really have any remorse for this until my recent counselling session with David he got me think about how the security guard was only doing his job and the public around when I had the bottle it got me to think about what I did that night and really it wasn't right I always regretted it but didn't really think about it much but now I think what if that happened to me while I was at work I wouldn't like it his only doing his job we should of just walked away. I know my behaviour was stupid, be childish but most of all violent and I do regret my younger actions but really am very remorseful of what I done on both these occasions.
My first offence was in 2003 and my last in 2007 with one conviction recorded on my record the others non convictions recorded. I know that my recorded (sic) is violent but I was a (sic) angry kid taking it out in the wrong way. I know what I did was wrong and I take responsibility for my actions. I am very remorseful .I am very very sorry to the people I have wronged and I have changed for the better I am not the person I was 12-8 years ago but who is really"

As regards his insight, there is also an issue of him quite recently denying and minimising his abusive conduct and allegations of abusive conduct against him. The above “letter of reflection and remorse” is an example. In that document his description of his conduct comprising the offences and surrounding them, considerably understates those matters. He attributes part of the blame for the two incidents referred to to alcohol consumption. He does not acknowledge his conduct in item (2) or acknowledge any problem conduct in relation to item (3).
He told Mr Cook in January 2016 that the police singled him out for “special” attention by stopping him and his friends. But he blamed this on the reputation his mother and brothers had with the police. He apparently did not contemplate that his own antisocial and criminal conduct may have contributed to such conduct by police.
He has falsely denied the Offence (2) and being involved in the events of 18 November 2005 and even now continues those denials.
An area where [CDL] has minimised/denied offences is where a charge has been withdrawn or not proceeded with and he has alleged to others that he was found by a court to be “not guilty” or “innocent”.
It appears that the documents provided by [CDL] to Mr Cook were less than adequate, particularly in relation to the murder investigation and events associated with that. In relation to offence (2) and the occasion of the murder, he told Mr Cook he was not there. Mr Cook relied upon that false information.
In cross examination on 18 March [CDL] said that it wasn’t until “the last couple of years” that he had reflected on “my juvenile ways”, which itself is a serious understatement of his violence and abuse of others.
He testified in March that when he went to the Sexual Health Clinic with P on 21 September 2007, "she had told me she was 17" but, he said, she was 16. In August he testified that she told him she was 16 and he volunteered that he stopped seeing her “for a couple of months” when he found out she was only 15.
In answer to further questions from the presiding member on 22 August 2016, he said that they met at a mutual friend's house. He had said in March 2016 that they had been living together for 8 years. When asked on 22 August how long they had been living together he said "6 or 7 years – I'm not sure". He said they first started cohabiting at Kings Cross in premises that his brother had been leasing. When asked how long he had known P at the time they commenced cohabiting, he answered "not too long". He said he couldn’t recall when they commenced cohabiting. When asked how long they had been in a romantic relationship when they commenced cohabitation, he answered, “maybe a year. I’m not 100% sure.” He denied that she told him when she had left school, but he said that she was at TAFE "doing year 11 and 12" and said that she told him that she had completed year 10 at school. The Tribunal members found him to be dishonest about the age of P when they commenced a sexual relationship and what she had told him was her age. On the balance of probabilities he knew she was 15 when they commenced the sexual relationship and he knew that was prohibited by law.
In January this year [CDL] consulted Mr V Cook, a forensic psychologist. Mr Cook saw his role as being to prepare a report in order to "help the Guardianship Tribunal in making an informed decision regarding [CDL’s] risk of violence, and particularly risk of violence to children".
Mr Cook interviewed [CDL] on 4 occasions for a total of about 6 hours in the preparation of his report. The report is dated 19 February 2016. So far as can be determined from the report, Mr Cook was provided only with the report of Mr Bulbert, [CDL]'s criminal record, some police facts documents, and the 2 page Notice of Proposed Refusal of Application of 3 July 2015 of the Children's Guardian to [CDL].
It is noted that the material which the Children's Guardian relied upon in making the decision to refuse the Working With Children Check Clearance was much more extensive. It comprised 294 pages of material.
Mr Cook assessed [CDL's] intelligence as in the average range, above his verbal scores that were in the "borderline functioning range", better than 7% of the population. He attributed the latter result to his poor attendance at school and lack of interest in schooling.
Mr Cook also assessed [CDL’s] personality using a personality inventory. The results indicated that his verbal capacity is borderline, but he was able to read, and it appeared that he had an appropriate understanding. The scores suggested that to some degree he presented himself in a favourable light, but the profile was considered to be valid.
The results also indicated that [CDL] presented "with anti-social and histrionic personality factors prominent with Dependent and Drug Dependence as being present".
Mr Cook noted that [CDL] scores for Drug Dependent and anti-social personality functioning were not surprising given his history, and that individuals who respond similarly to him present as individuals who engage in avoiding the disapproval and indifference of others. "They tend to lack self-confidence and seek this from others".
Mr Cook relied upon the Violence Risk Appraisal Guide which he described as "an actuarial tool used for the prediction of violent recidivism and was utilised to predict the possibility of re-offending violently within the next 10 years". It is an actuarial risk assessment using 12 variables. [CDL] scored on 10 of the 12 variables at the time of his last offence. That indicated that he was in the 7th of 9 categories and was of "elevated" risk (a 64% chance) of committing an offence of violence within 10 years of his most recent violence offence. According to the evidence his most recent such offence was in October 2007.
But taking into account that he has not re-offended in 7 years and the assessment tool takes into account that 55% of offenders reoffend within 7 years, he is in a group of whom only 9 of every remaining 45 will re-offend within the 10 years. That is a one in 5 chance (20%) that he will reoffend within the 10 years. To be able to better predict which of those people are more likely to reoffend, dynamic (changeable) factors are taken into account. Mr Cook said in his report that there are “2 aspects of changeable factors. Those which are stable and enduring but nevertheless changeable and those that change the risk picture dramatically and quickly. An example is an offender who offends when drunk, begins to drink alcohol and so their risk elevates immediately.”

Mr Cook then used a different tool, the Historical Clinical Risk – 20 (“HCR 20”) which he said is “a check list of risk factors for violent behaviour. It incorporates a blend of historical or static (Unchangeable) variables and dynamic (changeable) variables.” [CDL] scored an “elevated” score on historical items. There were 5 clinical items and in those he had half scores on insight, negative attitudes and treatment responsiveness. Mr Cook considered that his insight into his behaviour and violence “has some restrictions.” He also scored for issues of poor risk management such as inadequacies in “feasible plans, personal support, compliance with remediation attempt, and (currently) dealing with stress”. Mr Cook said “He states that he was prepared to do whatever is required regarding intervention and at present it is evident that this process of the WWCC is causing him some distress.” But Mr Cook said he didn’t consider the score for inadequate risk management to presently be “elevated”.
Mr Cook concluded that his potential for violence using the HCR-20 is either at the level of Moderate or Moderate/High. Either level presents a real and appreciable risk.
Mr Cook identified as potential dynamic risks “potential exposure to de-stabilising factors such as negative peers, family or alcohol”. In his conclusions, Mr Cook stated that if "criminogenic individuals came back into [CDL's] life due to relationship breakup or other exigent circumstances" the risk management would likely elevate.
Mr Cook concluded there was a 1 in 5 chance of him offending over the next 3 years that was diminished by clinical and risk management strategies "that are already in place".
He concluded that [CDL]

"does not emotionally identify with children, hold hostile attitudes towards children, or have a lack of concern for others. The antecedents to offending relate to his belonging and his offences are in general in company of other anti-social, more domineering individuals. Should he offend, it is likely to be in company with others, the target of the offence is likely to be chosen by the other, and it is unlikely to be in the workplace."

Mr Cook also said that although historically [CDL] "presents as an elevated risk of offending violently", in general, he presents as being able to regulate himself. This has been evident over the last 7 years”.
He said that the dynamic factors that need to be considered over time relate to alcohol and other drugs, negative peers, and the effect that these may have on anti-social attitudes. He said that none of these are currently of a concern for him, and therefore he considers that his chances are 4 in 5 of not reoffending. That is a 20 % chance that he will reoffend.
Mr Cook recommended "should the Guardianship Tribunal wish to deal conservatively with [CDL's] case to ensure further that he does not become 1 of the 5 who is likely to reoffend in the next 3 years, a cognitive based program that will help [CDL] make decisions, contrary to those he has previously made, will need to be completed. Exposure and completion of such a program is likely to protect [CDL] from making inappropriate decisions in the future".
The program recommended was described by Mr Cook as "Cognitive Self-Change" designed to reduce violent conduct or re-conviction in offenders with patterns of anti-social behaviour and criminality by changing individual patterns of anti-social thinking that lead to criminal behaviour. Mr Cook gave the opinion that [CDL] "reports and presents as being capable of completing such a program".
Mr Cook was cross examined at the hearing on 18 March 2016 and at 12:45pm [CDL] applied for an adjournment of the proceedings part heard with a view to him engaging in a program such as that proposed by Mr Cook. The adjournment was not opposed by the Children’s Guardian and was granted.
In his oral evidence on 22 August 2016 [CDL], particularly when cross examined about inconsistencies with his prior evidence, was assertive, sometimes argumentative and sometimes denied giving earlier evidence, to adopt a version more favourable to him.
Pursuant to the adjournment, [CDL] attended a Cognitive Self-Change program with the forensic psychologist, Mr Cook. Mr Cook did not receive any additional material in relation to [CDL's] criminal record or history between 18 March 2016 and his report of 22 July 2016.
[CDL] attended 12 sessions with Mr Cook as part of the program from 31 March 2016 to 22 June 2016.
The report notes that [CDL] completed homework set for him and attended every session. It says that he presented "as insightful and was able to quickly pick up the philosophy of the program and complete each step within a reasonable timeframe"
Mr Cook says in the report that [CDL] was requested to complete the program "as a result of his prior criminal thinking and actions in order to further establish that he no longer uses this style of thinking in his everyday activities".
The program "aims to change criminal behaviour by adversing the criminal thinking, or anti-social attitudes that contribute to individuals committing crime".
The steps of the program were described as follows:

Step 1 introduced [CDL] to the thoughts, feelings and the underlying rules that contribute towards his anti-social behaviour and rule breaking.

Step 2 got [CDL] to recognize how step 1 applies to him and how thoughts, feeling, rules and principles contribute to committing offences.

Step 3 enabled [CDL] to find new ways of thinking that will not lead him to do crime or violence, but also provide him with a sense of self-efficacy.

Step 4 is where [CDL] was able to demonstrate in a real life circumstances that the new thinking has been internalized and is able to be used in circumstances where it counts.

For each step [CDL] was required to demonstrate that he completed the task by showing an understanding, completing homework and being tested during the treatment session.
The steps were applied to previous more serious criminal thinking, and also to examples of more recent rule breaking identified. The more recent rule-breaking behaviour established by the evidence before the tribunal included [CDL] not stopping at "stop" signs, riding on a train with his feet on the seats, not wearing a seatbelt when riding in motor car, taking too long a break at work, and smoking cannabis. [CDL] did not disclose his recent illegal use of cannabis to Mr Cook or the visit and stay of his Sydney friends who supplied the cannabis. He did disclose to Mr Cook his behaviour of not wearing a seatbelt while riding in a car, but Mr Cook did not refer to it in his report.
Mr Cook also reported:

[CDL] was able to demonstrate the thinking that contributes to breaking rules (both serious breaches of criminal behaviour and more recent rule breaking behaviour), he was able to demonstrate in his thinking reports the risky thoughts which contributed to more extreme behaviour and was able to come up with appropriate replacement thinking. Importantly he demonstrated thinking that presented him with alternatives and also allowed him to feel good about himself despite not acting in previous aberrant or anti-social ways.

The final demonstration that he was able to put his newly honed skills into practice was our final session. [CDL] had been informed that we were near the end of sessions and on what happened to be the last session he was informed that it was impossible to complete the programme due to a requirement to demonstrate his skills of change over an extended period. He was clearly disappointed & frustrated to a point where previously he would have acted aberrantly. On this occasion despite realizing that this process could no longer help him in the timeframe he had, he was able to demonstrate appropriate affect and thinking and he responded appropriately noting "I'll just have to change my career... I know it's not your fault... losing my job isn't that bad... I've been through worse... I can look to do that carpentry apprenticeship I used to think about" were some of the automatic thinking that he provided.

[CDL] was then informed of his graduation, namely that he had demonstrated the automatic alternative thinking required in the programme, was able to think positively about new behaviours and had not reverted to risky anti-social thinking. Of note, when [CDL] was prompted to access the risky thinking it did not present as automatic and it took some probing to access it. He noted that his previous thinking would have led to him leaving the session in a barrage of vitriol.

Opinion

[CDL] has demonstrated a change in his behaviour over the last few years. He has managed to hold down a job for a number of years and remains offence free,

In the last few months [CDL] has been able to demonstrate the ability to automatically make the choice for alternate thinking regarding situations where previously he may have taken antisocial choices. He is able to do this on lower grade activities such as stopping at 'STOP' signs and more difficult circumstances such as being told accessing his Working With Children Check was insurmountable.

It is my opinion that [CDL] has provided me with sufficient evidence during treatment sessions that he has completed the CSC programme and he is able to access appropriate self-efficacious new thinking when presented with difficulties or rules which he could break.

It was my opinion in the last tendered report that [CDL] was likely to be one of the 4 of 5 offenders who were unlikely to offend. As a result of this treatment this opinion is significantly reinforced.

Mr Cook was further cross examined on 21 August 2016. In oral evidence in chief he said that [CDL's] completion of the course had reinforced his belief that "he is one of the 4 in 5 violent offenders who will not reoffend". He said "sometimes people have an event that changes their thought process". He said that he had not been aware that [CDL] had known that he was breaking a rule of law by not wearing a seatbelt when travelling in a car. It was then put to him that in the week before [CDL] had smoked marijuana with his partner and friends and had testified that he thought he deserved a "treat" because he had been drug free for 18 months. Mr Cook conceded that he wouldn’t have liked his children to be present if [CDL] was minding them and was smoking marijuana with others. But he said that although he had said in cross examination earlier that he wouldn't exclude [CDL] from "caring for his children because of his background", had said this being unaware of [CDL] having recently used marijuana with his partner and friends.
He conceded that he could not "know whether [CDL] will still break rules in the future". He said, "The course gives better choices about the rules they break”. He conceded that he couldn't know that [CDL] wouldn't do something similar in the future.
The Tribunal has concluded that the risk [CDL] poses to children is significantly greater than Mr Cook opined. There are numerous reasons for this which are:

Mr Cook wrongly accepted [CDL]'s instructions that he was not involved in matters (2) and (3) leading to the assessment;

The information Mr Cook relied upon did not include various adverse findings that the Tribunal has reached as to the circumstances in matters (1), (2), (3), and (4), and the involvement of [CDL] in each of them and other findings about other criminal conduct;Mr Cook concluded that [CDL] is genuinely insightful and remorseful in relation to his past criminal conduct, but the Tribunal, given his continuing denials and minimisations of such, and his failure to recognise any need for therapeutic assistance over the last 9 years does not accept he is insightful. Nor does the Tribunal consider he has genuine remorse, but finds his consultations with Mr Bulbert and Mr Cook and the Cognitive Self Change programme were not motivated by any genuine remorse or desire to avoid violent or other abusive behaviour, but by a determination to obtain a clearance to work with children, so he could continue his employment;

Mr Cook had assumed that [CDL] now has considerable insight into his past criminal and antisocial behaviour. But this opinion of Mr Cook has arisen from information given to him by [CDL], which has involved considerable denial, minimisation and omission of his past criminal and antisocial conduct.

Mr Cook did not recognise or make allowance for [CDL]'s extensive use of dishonesty and deceit.

In addition, for many years, [CDL] has not recognised that either his violent conduct or his consumption of alcohol or drugs is serious enough for him to undertake therapeutic intervention in respect to violence and other abusive conduct, or in respect to alcohol or drug consumption.

Mr Cook in his assessment of risk assumed that the relationship by [CDL] and P is a secure and supportive relationship. He said in paragraph 46 of his first report "in more recent times [[CDL]] has moved his desire to be accepted by his peers and he is currently gaining solace and security in his de facto relationship. Whilst his relationship is secure and remains intact, it is unlikely that he would engage in antisocial behavior". P did not attend on Mr Cook with [CDL] on any occasion, and particularly when Mr Cook was obtaining instructions for the first report. P did not give any evidence in the proceedings or file any statement in the proceedings or attend the hearing;

There was no corroboration by P or anyone else of the claim by [CDL] that the relationship is secure and supportive.

In making the assessment of risk, Mr Cook relied upon assumptions (at paragraph 49 of the first report) that:

"the …… factors that need to be considered with regard to him offending relate to alcohol and other drugs, negative peers and the effect that these may have on antisocial attitudes. None of these are currently a concern for him.”

The evidence before the Tribunal does not satisfy the Tribunal that [CDL] has ceased to use alcohol or has managed his alcohol consumption without violence. It does not satisfy the Tribunal he has ceased to use cannabis. It does not satisfy the Tribunal he has abandoned and avoided "negative peers", and particularly there is no evidence about the friends from Sydney who provided the cannabis in April 2016, and particularly as whether they have a background of antisocial or violent activity.
Given these matters, the Tribunal was not satisfied that the risk of [CDL] committing a violent offence within the next 3 years is less than 20% (1 in 5).

Any information given by [CDL] in or in relation to the application

[CDL] provided to the Children's Guardian references from an officer of each of the hospitals where he has worked. Both references are positive. The reference from his present employer did not disclose what information, if any, had been given to the person in relation to the criminal background of [CDL]. The reference from the private hospital in Sydney referred only to the murder charge and described the outcome as him being "found not guilty" and "acquittal". It stated that "the witness had not identified the correct group of individuals". This reference is dated January 2014, and it also refers to "a criminal record which was expunged which may now ruin his whole life".
Those references are somewhat irrelevant, given that the people who provided them were not aware of the full extent of [CDL's] criminal record or of the findings of the Tribunal in respect to the various matters.

Any other matters that the Commission considers necessary

Matters that the Children's Guardian considers necessary have already been referred to.

Other relevant matters

On 9 October 2015, 2 months after the refusal of [CDL]’s application for a clearance, the Children's Guardian filed a document recently received from the NSW Police Force which was classified by the police as "protected” and had not been provided previously to the Children's Guardian.
The body of the document, which has been redacted by the police, reads as follows:

POI: [CDL]
VIC: Female aged 7, 10, 11 at the time of each offence.
Date 1: Unknown month, 2000. Date 2: Midyear 2003. Dates 4: Mid April 2004
LOC: [details removed] VIC: [details removed] POI: [CDL] DOB: [CDL’s date of birth] Address: The victim is currently [details removed] years of age and list at [details removed].
About 7:20pm on Wednesday 18/10/2006 the victim approached an off duty officer at the Shell Service Station [details removed] and enquired whether a person could be charged if the incident occurred 2 years ago. The victim did not wish to discuss the matter at this time however mentioned that it involved sex and [CDL]. She also told the officer that she had told her mother and that she would attend the Police station the following day to make a report. About 1:45pm on Thursday 19/10/2006, the victim attended [details removed] Police Station with her mother, she told police that the victim has seen a psychologist the previous afternoon for ongoing and unrelated mental health issues and afterwards, asked her if "she remembers [CDL] coming around two years ago and [details removed]". The victim went on to tell her mother that the POI had "touched her" on this occasion and told her he would bash her up if she didn't give him oral sex. The victim did not wish to give further details about the incident with her mother present so she left the room and the following allegations were recorded.
Mid-April 2004. The victim was in her pyjamas at her home. Her parents left the house to go to the shops. She can't remember if her sisters were asleep in bed or at [details removed] place. The victim opened the front door to the POI after he said he had bumped into her parents at the shop and that they told him he could go and "look after her". He was holding [details removed]. The victim asked what they were for and the POI said "I'll show you" and walked upstairs to her parent's room which faces onto [details removed]. The POI [details removed]. He has then opened a drawer beside [details removed] bed and took out a pornographic magazine. The POI opened it to a picture of a female performing oral sex on a male. The POI said "Look at this". The victim glanced at the picture by immediately looked the other way. The POI and victim were sitting next to each other on the bed at this stage when he said, "Do this to me or bash you". The victim said "No." The POI said, "Do it or I'll throw [details removed] at your head. "The POI had his pants pulled down at this time. The victim did not state whether his penis was erect or not. Fearing the POI would assault her, the victim leant over and "did oral sex on him." At the same time, the POI placed a hand down her underpants and "touched her" in between her legs. This continued for about 5-10 minutes. During this time, the POI has allegedly said, "Keep going, keep going". They both stopped when they heard her parents coming through the front door.. The victim said they both walked down stairs and the POI walked out after commenting to her parents that "they had just been listening to some music".
MID YEAR, 2003 - "Night time". The POI had come around and they were both in the victim's room listening to music. The victim thinks Mum and Dad were home. "Same thing happened but he didn't touch me. He' made me do oral on him and said if I told anyone he would bash me."
YEAR 2000 (victim was 7 years old [details removed]. Victim stated that this was the first incident involving the POI. The victim stated, "We had sex but we had clothes on. Then we had sex with no clothes on and the other stuff I just said (oral sex). Victim went on to say that the POI lied on her with his clothes on, then told her to take her clothes off. The POI took his clothes off as well and "he put his hands down there” and "his thing as well". (Pointed towards crutch). The victim was obviously uncomfortable with talking about genitals/sex etc however only wished to talk with the author at this stage. The victim stated she told [details removed] about the last incident in 2003 and that he told her to tell his mother. The victim was worried about reprisals and did not tell anyone else until yesterday when she told her psychologist, mother and police. The victim is enrolled at [details removed] however her attendance history is poor. She said she did not go to school on this date because she felt sick. She said she last saw the POI last week at the [details removed] however he did not talk to her or approach her. The victim stated she does not want the POI or anyone else to know about the allegations because she is scared she'll "get bashed up". She was advised that police would keep her updated with any action that may follow, including DoCS / JIRT which she said she was comfortable with.

The POI's status in the above event is listed as 'not known at this stage'. Linked to Case Reference [details removed]. This case was suspended on 15/12/2006 due to the victim not wanting any police intervention. It would appear that the POI was not spoken to regarding this allegation.
END OF REPORT

The complainant was 13 when she made the complaint and alleged she saw [CDL] the previous day (18 October 2006).
Although a copy of this document was served on the respondent on about 9 October 2015, more than 5 months before the hearing commenced, he did not file any statement or documentary evidence responding to the allegations. At the hearing on 18 March 2016, he was asked in oral evidence in chief about the allegation and said "I don't know who the allegation is made by. This is the first I have heard about it. I know nothing". He did not subsequently provide any statement or oral evidence addressing the detail in the document.
That situation continued at the hearing on 22 August 2016. When asked then about the allegations by the presiding member after cross examination, he was asked whether, after a further 5 months to think about the allegations, he had any idea who may have made such an allegation to the police. He said he didn't. He was asked whether any similar allegations had been made against him and denied that any had.
The allegations of sexual assaults were of assaults on a child. Such assaults would not be consensual because a child of that age does not have the capacity to consent. The allegations are of aggravated sexual assault because the allegations include threats of violence.
One of the alleged sexual assaults is alleged to have occurred in mid-April 2004. In answer to questions [CDL] he said that pursuant to a condition of his probation during 2004 he lived with his grandmother in Queanbeyan and attended year 10 of high school that year. He completed the HSC that year. But he conceded that on some weekends in 2004 he returned to Sydney "now and then” to see his mother.
In 2004 there was a school holiday period for public schools in NSW, including the high school [CDL] attended in Queanbeyan, that commenced on Good Friday (9 April 2004) and concluded on 26 April 2004. It is possible [CDL] was in Sydney staying with his mother in mid-April 2004.
The police record was created on 19 October 2006. At that time [CDL] was 19. He had been released from prison (where he had been held after bail was refused) in September 2006. At the time of the alleged offence in 2000, [CDL] would have been about 13 years. At the time of the alleged offence in 2003, [CDL] would have been about 16 years. At the time of the alleged offence in mid-April 2004, he would have been 16 years.
It is relevant to these allegations that in August 2007 when he was 20 years, [CDL] formed a sexual relationship with P, who was a child of 15 years.
The complainant was aged 13 years when she made the complaint to the police. The Tribunal could not be satisfied on the balance of probabilities that any of the sexual assaults alleged by the anonymous complainant occurred. The Tribunal, given the problems of [CDL] in relation to credit on other issues and the very limited response he has made to the allegations, could not be satisfied that any of the sexual assaults alleged by the complainant did not occur. On the evidence it is possible they did.

Conclusions

There is at least a 20% risk that [CDL] will commit a violent offence against a person within the next 3 years. There is no evidence that this risk is specific to adults. The Tribunal concludes that there is a real and appreciable risk of [CDL] being violent to a child.
In relation to the risk of sexual assault on a child by [CDL], the Tribunal has found that [CDL] formed a sexual relationship with a child of 15 years in August 2007 when he was 20 years of age.
One or more of the allegations raised by the anonymous 13 year old complainant may be true. [CDL] has made no serious attempt to respond to them.
The Tribunal is satisfied that [CDL] also poses a real and appreciable risk to the safety of children by way of a risk of sexual assault.
The Tribunal therefore affirms the decision of the Children's Guardian to refuse [CDL] a Working With Children Check Clearance.
To protect the privacy of children referred to in the proceedings, and [CDL] here should be an order prohibiting the publishing or broadcast of the name or other identifying information of [CDL] or any child referred to in the proceedings without the leave of the Tribunal.

Orders

Accordingly, the orders of the Tribunal are:

The decision of the Children's Guardian of 4 August 2015 refusing [CDL] a Working With Children Check Clearance is affirmed.

Publication or broadcast without the leave of the Tribunal of the name or other identifying information of [CDL] or any child referred to in these proceedings is prohibited.

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: 09 November 2016

Medium Neutral Citation:	CDL v Children's Guardian [2016] NSWCATAD 251
Hearing dates:	18 March 2016 & 22 August 2016
Date of orders:	09 November 2016
Decision date:	09 November 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Mullane ADCJ, Principal Member R Royer, General Member
Decision:	(1) The decision of the Children's Guardian of 4 August 2015 refusing [CDL] a Working With Children Check Clearance is affirmed. (2) Publication or broadcast without the leave of the Tribunal of the name or other identifying information of [CDL] or any child referred to in these proceedings is prohibited.
Catchwords:	Working with Children Check Clearance – Review of refusal, allegations of past serious violence,- allegations of sexual assaults on child, decision affirmed.
Legislation Cited:	Child Protection (Working With Children) Act 2012
Cases Cited:	Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CDL (Applicant) Office of the Children's Guardian (Respondent)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: Lambton Law (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510530
Publication restriction:	Order 2 above.