Children's Guardian v BRL
[2016] NSWSC 1206
•18 August 2016
|
New South Wales |
Case Name: | Children’s Guardian v BRL |
Medium Neutral Citation: | [2016] NSWSC 1206 |
Hearing Date(s): | 17, 18 August 2016 |
Date of Orders: | 18 August 2016 |
Decision Date: | 18 August 2016 |
Jurisdiction: | Common Law - Administrative Law |
Before: | Fagan J |
Decision: | 1. The summons is dismissed. |
Catchwords: | ADMINISTRATIVE LAW – appeal against decision of Civil and Administrative Tribunal – decision to set aside refusal by Children’s Guardian of a working with children clearance – whether applicant posed a risk to safety of children – whether hearsay evidence of untried allegations admissible – absence of witnesses for cross-examination – rules of evidence not applicable – denial of procedural fairness |
Legislation Cited: | Administrative Decisions Review Act 1997 (NSW) |
Cases Cited: | BRL v Children's Guardian [2016] NSWCATAD 27 |
Category: | Principal judgment |
Parties: | Children’s Guardian (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2016/074948 |
Publication Restriction: | 1. Pursuant to s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) (a) the defendant is to be referred to in the title of these proceedings only by the initials BRL; (b) the publication of the evidence in the proceedings in this court or information about that evidence or the transcript of the proceedings or any record of submissions is prohibited except that the judgment of the court in determination of the summons may be published; (c) the grounds of making the order are that in its absence publication of the proceedings to the extent which is referred to would likely cause distress and/or embarrassment to a person who was a complainant in criminal proceedings concerning charges of a sexual nature. |
JUDGMENT
The plaintiff has appealed by summons filed 9 March 2016 from a decision and orders of the Civil and Administrative Appeals Tribunal made 10 February 2016. The appeal is limited to a question of law by force of Sch 3 cl 17(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).
The Tribunal's decision was made in an application under s 27 of the Child Protection (Working with Children) Act 2012 (NSW) (the "Working with Children Act"). The defendant had been refused a "working with children check clearance" under s 18 of the Working with Children Act. The decision maker was the plaintiff, the Children's Guardian, appointed under s 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The error of law asserted by the plaintiff is that the Tribunal excluded certain documentary hearsay evidence which the plaintiff contends it was bound to receive. The documents the subject of the Tribunal's ruling were four police statements made in 1998 which formed part of a case for prosecution of the defendant on charges laid under s 66C(1) Crimes Act 1900 (NSW) in the form in which that section then stood. That is, they were charges that the defendant had had sexual intercourse with a child between the ages of 10 and 16 years. These four statements were in fact admitted into evidence but only for the limited purpose of proving that the allegations they contained had been made. The plaintiff contends they should have been received as evidence of the truth of the assertions.
The events which have brought the case to the Tribunal and then to this Court commenced in April 1998. At that time the defendant lived in a town in northern New South Wales with his wife and 2 children who were both under 10 years old. His wife's brother, N, lived in the same town. The brother has two daughters, one of whom was 12 years old in 1998 and the other 17. Both of these children were his by a former relationship which had ended in the late 1980s. I will refer to the second daughter, the 17 year old, as R. The 12 year old daughter was the complainant in respect of the criminal charges to which I have referred. She usually resided with her mother in another town whereas the R usually resided with her father, N.
Around Easter 1998 the then 12 year old complainant came to stay with her father and her sister, R. This was a holiday visit. The complainant alleged that during this holiday she went on a number of occasions to the home of the defendant and his wife (they being her uncle and aunt) in the same town. On each of the 10th, 17th and 22nd of April 1998 she said the defendant sexually assaulted her in his home. Full penile-vaginal penetration was alleged.
R made a statement to police on 25 April 1998 to the effect that the complainant had told her of these sexual assaults on the day after the last of them is alleged to have occurred, that is on Thursday 23 April 1998. R said in her statement that complaint was also made in her presence and on the same day to an older stepsister, D. R's statement recorded that the defendant was confronted with these allegations the day they were made by the complainant, 23 April 1998, and that he denied them.
On Friday 24 April 1998 the complainant was introduced to police in the town where the defendant lived, where the complainant was at that time staying with her father and where the offences were said to have occurred. A record of interview was conducted over 2 hours and 20 minutes in which she detailed her allegations. These were incorporated into a police statement that day. A further record of interview was conducted on 27 April 1998 over two and three-quarter hours and incorporated into a second police statement. The information provided in the second statement was to the same effect substantially as that in the first. The stepsister D made a statement to police on 13 June 1998 confirming that the complainant had reported her allegations of sexual assault to herself and R on Thursday 23 April 1998.
These four police statements, two of the complainant, one of R and one of D, are the subject of the plaintiff's contention in this Court that the purpose for which they were received in the Tribunal was erroneously limited.
The complainant was medically examined on 25 April 1998. The examining doctor reported that her hymen was perforated consistently with but not conclusive of sexual intercourse with an adult male. The doctor said that in a girl of her age the hymen may have perforated from other causes.
Charges were laid by police and the defendant was committed for trial. On an indictment upon which the defendant was arraigned in the District Court of New South Wales in 1999 he faced four charges under s 66C(1). The complainant was called in the Crown case. At an early stage of her evidence she refused to continue. There was consequently no case to answer. The trial judge discharged the jury without taking a verdict.
In early 2014 the defendant wished to obtain employment in "child related work" within the meaning of the Working with Children Act. He wished to work as an ambulance officer. He applied to the Children's Guardian under s 13(1) of the Act for a check clearance as required by s 8. The prosecution of the defendant in 1999, although it terminated favourably to him, constituted the commencement of proceedings for an offence specified in Sch 2, cl 1(h) of the Working with Children Act. That event was therefore "an assessment trigger" by force of s 14 and Sch 1 cl 1(b).
The "assessment trigger" required, by the operation of s 15(1), that the Children's Guardian conduct a risk assessment "to determine whether [the defendant] poses a risk to the safety of children". This test has been interpreted in Commissioner for Children and Young People v V [2002] NSWSC 949 with respect to its use in predecessor legislation in the following terms:
“[42] … [O]ne does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". …”
The Children's Guardian obtained from the Local Court documents relating to the committal proceedings in respect of the charges against the defendant and from the Director of Public Prosecutions further documents relevant to his prosecution in 1999. This material included the indictment and the four witness statements which are now in issue. It also included the report of the medical examination of the complainant. In addition the Children's Guardian obtained from New South Wales Police a printout of their intelligence holdings with respect to the defendant and a report apparently prepared for the purposes of the Children's Guardian's investigation pursuant to the "assessment trigger". These documents set out in second-hand hearsay form summaries of what the complainant and her sister and stepsister had said in their statements in 1998.
During 2014 and early 2015 the Children's Guardian sought and obtained the defendant's response to the 1998 allegations which, put shortly, was a denial. He said his niece, the 12 year old complainant, had falsely accused him. He claimed that he had an alibi for one of the occasions on which she alleged that an offence had occurred. For that he relied upon one of the witness statements which was amongst the papers obtained from the Local Court and from the Director of Public Prosecutions.
The Children's Guardian was "satisfied that [the defendant] poses a risk to the safety of children" within the meaning of s 18(2) and therefore refused to issue a clearance certificate in accordance with that subsection. The defendant applied to the Tribunal for administrative review of the Children's Guardian's decision under s 27(1) of the Working with Children Act. Subs (4) of s 27 required that the defendant "must fully disclose to the Tribunal any matters relevant to the application". Section 58 of the Administrative Decisions Review Act 1997 (NSW) required that the decision maker, the Children's Guardian, should lodge with the Tribunal inter alia “a copy of every document or part of a document that is in the possession, or under the control, of the [Children's Guardian] that the [Children's Guardian] considers to be relevant to the determination of the application by the Tribunal.”
The Children's Guardian complied with this. The documents it lodged naturally included the four witness statements which had been made to police in 1998 and all of the secondary police reports, intelligence holdings and the like which summarised the statements and referred to their contents.
The Tribunal was required by s 63(1) of the Administrative Decisions Review Act "to decide what the correct and preferable decision is having regard to the material before it". Section 30 of the Working with Children Act sets out a list of things which the Tribunal "must consider in determining such an application". They include at subpar (a) of subs 1 "the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of clearance or imposition of an interim bar" (emphasis added). Paragraph (k) of subs 1 of s 30(1) required the Tribunal to consider "any other matters that the Children's Guardian considers necessary" (emphasis added). Section 38(2) of the Civil and Administrative Tribunal Act provides:
"The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice".
At a preliminary hearing on 28 July 2015 the defendant made a formal written application to the Tribunal that it should not receive the four statements of the complainant and of R and D respectively "for the purpose of relying on them to prove the existence of asserted facts". It had been made clear in a letter of 2 June 2015 from the defendant's solicitors to the plaintiff's solicitors that the defendant did not object to reception of the documents as evidence of the fact that the allegations were made, the date they were made and the detail in which they were made. The limited nature of the objection taken was also clearly articulated in oral argument before the Tribunal at the preliminary hearing.
On 28 July 2015 the Tribunal, constituted by a senior member, gave its decision on this application and its reasons in these terms:
“This is the decision. What I propose to do is exclude the formal tender of the four statements, essentially for the reasons given by the Supreme Court in FZ v Commissioner for Young Children and Young Persons [2010] NSWSC 1144 and restated on appeal to the Court of Appeal in the decision of Commissioner for Young Children and Young Persons v FZ [2011] NSWCA 111.
In addition in my view, procedural fairness and natural justice would still be afforded to both parties to the proceedings in respect of the material that those statements relate to which is before the tribunal and not sought to be excluded, and the fact that the applicant and another maker of a statement at the time of those charges will be available to give evidence and be cross-examined if required in respect of those matters. There is abundant material on file for the tribunal to consider in significant, if not complete detail in respect of the facts as provided, and the other material provided under section 58 by the respondent.
Whilst this is protected jurisdiction, the application is brought by the applicant, and the onus is on the tribunal to determine whether the decision of the respondent is the correct and preferable decision. It’s the tribunal’s view that in this case without having the details of the four statements for the factual matters about the nature of the evidence and the way the hearing will be conducted, there will be sufficient material both in documented form and responses to questions by way of evidence at the hearing for the tribunal to make the appropriate decision.”
Because of the use of the word "exclude" in these reasons it is not apparent on the face of them that the Tribunal intended by its decision that the documents should be received for the limited purpose of proving the fact of the allegations having been made. However, I was informed on the hearing of this summons that the statements remained part of the materials from the Children's Guardian which were before the Tribunal at the final hearing. The transcript of cross-examination of the defendant at that final hearing shows he was cross-examined on the detail of the allegations in the statements. Final written submissions by the Children's Guardian relied upon paraphrased parts of the allegations in the statements to an extensive degree.
The Tribunal's reasons for its final decision on the review under s 27 of the Working with Children Act, given on 10 February 2016 and reported as BRL v Children's Guardian [2016] NSWCATAD 27, included the following paragraphs:
“[31] The applicant’s substantive application was heard on 8 October 2015. Prior to that hearing the Presiding Member heard an application by the applicant’s legal representatives to limit the scope of the evidence and material sought to be tendered by the respondent.
[32] On 28 July 2015 the preliminary application was heard. The application concerned an objection to the tender of four Police records of interviews in relation to the charges that constitute the risk assessment triggers. The records of interview related to the alleged victim’s two interviews and an interview with each of two sibling witnesses. This preliminary hearing focused on the applicant’s intention to rely on the records to prove the existence of asserted facts (denied by the applicant). It was also on the basis that these witnesses were not to be called by the respondent, and that they were unavailable (on the parties submissions) to give evidence at the hearing, that objection was made.
[33] After hearing the submissions of both parties, and considering the superior court cases relied upon by the applicant, which they stated were on point, the Tribunal gave an ex-tempore decision excluding the four statements in respect of any use to prove the asserted facts.”
On the first day of the hearing of the summons in this Court it was unclear to me from the transcript of the decision given orally on 28 July 2015 quoted at [19] whether the Tribunal had received the documents for the limited purpose in which the defendant acquiesced or whether it had excluded them altogether. In that state of uncertainty I invited the plaintiff to expand its grounds of appeal to include, as an additional point of law, failure at the Tribunal to give adequate reasons. However, when leave was granted to add this additional ground and when it was argued on the second day of the hearing Ms Andelman, who appeared for the defendant, demonstrated by reference to the course of the final hearing and by the terms of pars [31] – [33] of the final decision (see [21] above) that the meaning of the Tribunal's ruling, its reasons for that ruling and the way in which the ruling was applied could be sufficiently gathered from the entirety of the record. Namely, the four statements were received for a non-hearsay purpose.
The plaintiff contends that the Tribunal erred in law in limiting the use it would make of the statements. From the Tribunal's reference to the decisions of Harrison J in FZ v Commissioner for Children and Young Persons [2010] NSWSC 1144 and of the Court of Appeal in Commissioner for Children and Young Persons v FZ [2011] NSWCA 111 it is clear that the reason for the Tribunal deciding to limit the purpose for which it would receive the statements was that procedural fairness would be denied to the defendant if they were taken as evidence of the truth of the allegations. This was because the Children's Guardian did not intend to call the makers of the statements for cross-examination and their allegations therefore could not be tested.
Of course, it would have been open to the Tribunal to take the statements as evidence of the facts asserted in them but this would be subject to consideration of how much weight should be attached in circumstances where they are were not tested. Although not referred to in the reasons, it is understandable that the Tribunal would not have been willing to do that where the Children's Guardian had tendered no evidence on the preliminary application to explain why the makers of the statements were not to be called for cross-examination on their allegations; nor did the Guardian indicate that it intended to call such evidence at the final hearing.
In fact, as I was informed on the hearing of the summons, the Children's Guardian has not attempted to contact the makers of the statements to ascertain their willingness or ability to attend to give evidence, or to ascertain their reasons for not being so willing or able if that is the case. The complainant herself would by now 30 years old and there is no evidence either before me or the Tribunal of any reason why an inquiry could not or should not be directed to her. If inquiry were made there could well be sound reasons why she would not be willing to attend, give evidence and be subjected to cross-examination on these old allegations but that has simply not been ascertained nor any attempt made in that direction.
The plaintiff has made no inquiry as to why the complainant would not continue with her testimony at the defendant's trial in 1999. Nor, so far as the evidence shows, has the plaintiff made any inquiry of the investigating police as to their knowledge of why the complainant refused to testify at the trial. In the absence of any of these inquiries, of course, no evidence to explain the circumstances was before the Tribunal.
The issue before the Tribunal, as before the Children's Guardian at an earlier stage, was whether the defendant "poses a risk to the safety of children" (s 18(2)). Given the absence of a conviction or finding by any competent tribunal that the alleged sexual assaults actually occurred, the primary sub-issue for the Tribunal was whether either (a) the assaults had actually occurred or (b) there was a real and appreciable risk that they had occurred. A second issue was whether, if they did occur or there was a real and appreciable risk that they had, there was also a real and appreciable risk that the defendant would commit a sexual offence in the future or that he had a tendency towards such conduct or other sexual misconduct.
I consider that there was no error in law in the Tribunal receiving the statements for the limited purpose that it did. I reject the plaintiff's submission that because the rules of evidence do not apply in the Tribunal it was bound to take in the statements for all purposes. That does not follow. Being at liberty not to apply the rules of evidence by virtue of s 38(2) the Tribunal had the power by force of the concluding words of that subsection to consider the denial of natural justice which would result if it should act upon statements of this kind in proof of such serious allegations without the defendant having an opportunity to test them.
In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the complainant and other witnesses cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none).
If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant’s refusal to testify in 1999 and of the Children’s Guardian’s failure to call her in 2015 or 2016.
It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.
What might well have made a difference to the plaintiff's case regarding the gravity of the risk that these allegations may be truthful would have been some evidence tendered to the Tribunal to explain why the complainant would not testify at trial. The possibilities include, on the one hand, that the allegations were false. At the opposite extreme is the possibility that family pressure was exerted on the complainant, given that the complainant's father was the brother-in-law of the defendant. It is possible that at the least she was unsupported by her father in coming forward with the complaints. These competing possibilities, and others which may be imagined, remain matters of speculation, because the Children's Guardian has not inquired into, let alone adduced evidence of, the reasons for the complainant’s conduct. If either of these latter possibilities had been supported by investigation on the part of the Children’s Guardian and by the tendering of evidence, a case could have been made for receiving the statements for all purposes (even without opportunity to cross examine) and then discounting their weight.
I reject the plaintiff's contention that s 30 of the Working with Children Act required the Tribunal to receive the four statements as to the truth of their contents. It was argued that the statements were "matters that caused" the refusal of the clearance in this case, within the meaning of subpar (a) of subs (1) (See [17]). I interpret "matters" in that part of the statute as meaning the substantive issues of concern or allegations of past conduct, not the individual documents considered by the Children's Guardian. Even if subpar (a) of s 30(1) should be interpreted as referring to all of the documents considered by the Guardian when it acted as primary decision maker, s 30(1) would not have the effect, on my reading of it, that the Tribunal should take in all such documents as proof of the truth of assertions in them, thereby losing its power and duty to ensure procedural fairness in accordance with s 38(2) of the Civil and Administrative Tribunal Act.
I consider that the word "matters" in subpar (k) of s 30(1) of the Working with Children Act (again, see [17]) has a similar connotation. That is, it refers to issues, incidents or conduct of concern, not to individual pieces of evidence. Therefore, I do not think that subpar (k) required the Tribunal to receive these statements for all evidentiary purposes just because the Children's Guardian had considered them (I assume as evidence of the truth of their contents) and submitted that the Tribunal should take them into account for this purpose as well.
Section 27(4) of the Working with Children Act, requiring full disclosure by the defendant to the Tribunal, was not infringed by the defendant’s resistance to the use of the four statements as proof that he had sexual intercourse with his 12 year old niece in 1998. There was compliance as to disclosure because the statements of the four witnesses went to the Tribunal; the allegations against the defendant were thereby made known to the Tribunal. The Tribunal's decision to limit their use, upon the application of the defendant, does not equate to non-disclosure by the defendant.
I have considered carefully the reasons of Harrison J and of the Court of Appeal in the two FZ decisions earlier cited. My decision that the Tribunal has not erred in law by receiving these documents upon the limited basis which it did is in accordance with the principles and reasoning of those authorities. The decisions, both at first instance and on appeal, in the FZ case were made upon the predecessor legislation, the Commissioner for Children and Young People Act 1998 (NSW) (the “1998 Act"). I do not see anything in the differences between the Working with Children Act and the 1998 Act which would displace the application of the principles expounded by Harrison J and by the Judges of Appeal.
A difference between the two Acts which was relied upon by the plaintiff on the hearing of this summons is that the 1998 Act precluded a person from working in "child related employment" only in the case of conviction of certain offences. A person so prohibited – referred to in the legislation as "the prohibited person" – could apply to the Commissioner or to the Administrative Decisions Tribunal for an order declaring that the prohibition was not to apply to him or her in respect of a specified offence.
The 1998 Act did not prohibit work in child related employment on the ground of a charge which had been laid but had not proceeded to conviction. It did not contain the two-stage process by which an initial decision would be made (as by the Children's Guardian under the current Act) with the availability of a review by the Tribunal. There was no equivalent in the 1998 Act of s 30 of the Working with Children Act. I do not consider that these differences provide any relevant distinction which would permit me not to apply the reasoning of the Court of Appeal and of Harrison J in the FZ decisions. I take that view particularly because I consider that s 30 does not have the effect contended for by the plaintiff in the proceedings before me, as referred to at [33] and [34].
In the FZ proceedings, the prohibited person had pleaded guilty to one offence of a sexual nature committed when he was 17 years old. That was the basis upon which he was “a prohibited person” for the purposes of the 1998 Act. Subsequently an allegation had been made against him of sexual misconduct with a young person referred to in the proceedings as KB. It was established in the Tribunal hearing in that case that if the early offence to which he had pleaded guilty was the only matter then he did not pose a risk to children. On the other hand, if the allegations of KB were correct the risk assessment changed significantly, adversely to the applicant. The Tribunal had received hearsay evidence of KB’s allegations and she was not called to be available for cross-examination.
The decisions at first instance and on appeal in that case therefore concerned a situation where, in the assessment of Harrison J and accepted in the Court of Appeal, the hearsay evidence which the Tribunal had received over the objection of the “prohibited person” was at the core of the issues. In that respect the present case is the same. Where the Tribunal has refused to treat the four contentious witness statements as evidence of the truth of their contents, the allegations in them constituted the entirety, or at least a critical part, of the Children's Guardian's objection to the defendant obtaining his clearance certificate.
At [26] of the judgment of Harrison J at first instance his Honour said:
“[26] The true basis for KB’s non-attendance was, or should have been, an important issue to be determined, if it was to any extent to have been used to inform or to support the decision either that she would not be required to attend or the decision to receive her record of interview in evidence without providing the plaintiff with an opportunity to cross-examine her. There was no suggestion that she should, for example, give evidence by video link, as occurred in the case of her mother VB.”
The subject of the failure of the Commissioner in that case to adduce evidence explaining the non-attendance of the witness was returned to later in his Honour's judgment:
“[44] …KB’s allegations were unsworn and untested. They had inexplicably not been pursued as support for a case against the plaintiff in any court. The plaintiff denied them. They were unarguably critical to the Tribunal’s decision. The plaintiff’s application on one view would have succeeded ‘but for’ the allegations. The truth of the allegations was essential to the Tribunal’s determination and so KB’s credit was crucial to the defendant’s case in the way identified in both Hayes and Ramsay [Australian Postal Commission v Hayes; (1989) 23 FCR 320 and Ramsay v Australian Postal Commission [2005] FCA 640; (2005) 147 FCR 39]. However, the Tribunal did not sufficiently distinguish between the making of the allegations in the record of interview and the truth of the allegations once they were made. This was a denial of procedural fairness of a most fundamental kind. There were no demonstrated or acceptable reasons for not requiring KB to face her contradictor, particularly when the product of an unquestioning acceptance of her allegations had the potential to sound in such important consequences for the plaintiff.”
In par [45] of his Honour's judgment reference was made to the materials and circumstances upon which the prohibited person would have been able to cross-examine KB if she had attended. In the present case, similarly, there are indicia that counsel representing the defendant before the Tribunal would have had not insubstantial lines of cross-examination of the complainant. To some extent these considerations are summarised in the no bill application which was made on behalf of the defendant by his solicitors in a letter dated 4 November 1998 addressed to the Director of Public Prosecutions, particularly at pars [3] – [11] of that letter.
This is not to say that I make any prediction as to whether or not, if the complainant had attended for cross-examination, she would likely have been believed by the Tribunal. It is simply to observe that as in the FZ case the denial of procedural justice which would have resulted to the defendant if the complainant's allegations and those of her witnesses had been relied upon for the truth of their contents without cross-examination, is not to be waved away as insubstantial.
At par [50] of his judgment Harrison J referred to deficiencies in the Tribunal's reasoning in that case with respect to what weight it would attribute to the untested allegations. In the present case it is difficult to see how the Tribunal could have attributed any weight to these allegations if they had been received without testing by cross-examination in the absence of explanation as to why these serious matters had not been pressed by the complainant in 1999 and in the absence of any explanation of why she was not willing to come forward in 2015 or 2016.
I have dwelt upon the reasons for decision of Harrison J because they contain detailed findings as to the factual circumstances of the FZ case. The comparison of those circumstances with those of the present case is a close one. In the absence of any material difference between the legislation I am to apply and that which was in force at the time of the FZ cases, I can see no basis upon which I could justify failing to apply the principles applied by Harrison J and approved in the Court of Appeal.
Given the very close similarity of the circumstances which arose in the FZ case with those in the present it is inexplicable that the authority of that decision would not have caused the Children's Guardian in the present case to make inquiries of the type to which I have referred. For the purposes of the Children’s Guardian’s first instance decision under s 18 I would have thought the Guardian would see the need to inquire why the complainant had refused to testify, and whether she adhered to her allegations at the time of the Guardian’s inquiry. Sound decision making would depend upon such inquiries. If the complainant would not speak, R or D or the investigating police or the Crown prosecutor might be able to say why she withdrew – or at least what she said were the reasons for her withdrawal.
Once the matter came to the Tribunal, sound decision making by that body would depend upon these inquiries having been made by the Guardian and upon evidence being brought before the Tribunal to substantiate the Guardian’s inability to call the complainant and if possible to expose the reasons why her evidence was not pursued in 1999 and why she would not come forward in 2015 or 2016. These considerations are self-evidently relevant to the degree of risk that her allegations may have been truthful.
The submissions to this Court on behalf of the plaintiff sought to explain the absence of any such inquiries by repeated citation of s 4 of the Working with Children Act which stipulates that in the working of the Act the safety, welfare and well-being of children is the paramount consideration. This does not displace the need for the Children’s Guardian diligently to make inquiries relevant to its own decisions and to place the product of those inquiries before the Tribunal in the event of a review under s 27. On the contrary, in the pursuit of the welfare of children and the avoidance of risk of harm to them from a possible potential abuser, the “working of the Act” required in relation to the defendant investigations of the kind to which I have adverted. Such investigations might have shown that the circumstances of termination of the 1999 prosecution indicated residual risk. Without investigation one would not know. More to the point for present purposes, without the results of such inquiries being placed before the Tribunal it acted correctly in law, according to the FZ decisions, in receiving the four witness statements as evidence only of allegations.
The orders of the court are:
(1)The summons is dismissed.
(2)The plaintiff is to pay the defendant's costs.
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