CJS v Children's Guardian

[2017] NSWCATAD 55

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CJS v Children’s Guardian [2017] NSWCATAD 55
Hearing dates:	15 July 2016
Date of orders:	16 February 2017
Decision date:	16 February 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member B Field, General Member
Decision:	(1) The decision of the Children’s Guardian dated 3 December 2015 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance.  (2) Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person
Catchwords:	Administrative law – review under section 27 Child Protection (Working with Children) Act 2012 Working with children check – clearance – protective jurisdiction – safety and well- being of children- Applicant found by reporting body to have engaged in sexual misconduct - whether Applicant poses threat to safety of children
Legislation Cited:	Child Protection (Working with Children Act) 2012 NSW Crimes Act 1900 NSW Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Commission for Young Children and Young People Act 1998 NSW Family Law Act 1975 (Cth) Evidence Act 1995 NSW
Cases Cited:	YG & GG v Minister for Community Services [2002] NSWCA 247 Commission for Children and Young People v V [ 2002] NSWSC 949. ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140] RV v Commission for Children and Young People [2007] NSWADT 299 Commissioner for Children and Young People v FZ [2011] NSWCA Briginshaw v Briginshaw (1938) 60 CLR 336 Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Category:	Principal judgment
Parties:	CJS (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: C McGorey (Applicant) M Neville (Respondent)   Solicitors: Marsdens Lawyers (Applicant) Crown Solicitor’s Office (Respondent)
File Number(s):	1510820
Publication restriction:	See Order 2

reasons for decision

The application

1. On 9 June 2015 the Applicant, who is referred to in this decision as CJS, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children’s Guardian.

2. The Respondent conducted a risk assessment as required under legislation and determined that CJS is a risk to the safety of children and refused to issue a WWCCC. The Respondent notified the Applicant of this decision on 3 December 2015.

3. In an application filed on 30 December 2015 pursuant to s.27(1) of the Child Protection (Working with Children) Act, CJS seeks a review of the decision of the Children’s Guardian to refuse him a WWCCC.

4. There is no dispute that the Tribunal has jurisdiction to hear and determine the application.

The “trigger matters”

5. Section 14 of the Child Protection (Working with Children) Act 2012 establishes that an “assessment requirement” arises where any of the matters specified in Schedule 1 of that Act apply.

6. Clause 1(1)(a) and (b) of Schedule 1 of the Child Protection (Working with Children) Act provides that an assessment requirement trigger includes proceedings that have been commenced against a person for:

1. An offence specified in clause 1 of Schedule 2, if the offence was committed as child (whatever the outcome of the proceedings); or

2. An offence specified in clause 1 of Schedule 2 if the offence was committed as an adult and the person is not, because of those proceedings, a disqualified person.

7. Clause 1 of Schedule 2 includes offences under s.61J and 62M of the Crimes Act 1900, NSW.

8. The matters that trigger the need for an assessment in this case are that on 9 July 2007 the Applicant was indicted on charges of:

1. Three counts of aggravated sexual assault of a victim under the age of 16 years (s.61J, Crimes Act 1900);

2. One count of aggravated indecent assault of a victim under the age of 16 years (s. 61M Crimes Act 1900).

9. Section 18(2) of the Child Protection (Working with Children Act) 2012 provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. As noted above, having conducted a risk assessment the Children’s Guardian formed the view that CJS did pose a risk to children and refused to grant him the WWCCC.

10. The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian. (section 63 Administrative Decisions Review Act 1997 (NSW); YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25]).

11. Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013 NSW, prohibiting the publication of the name of the Applicant and the name of any alleged victim or child referred to in the material before the Tribunal or of information that would lead to the identification of those persons.

12. In these Reasons the alleged victim is referred to XY.

The relevant law

Child Protection (Working with Children Act) 2012

13. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance.

14. The Act was amended by legislation that came into force in November 2015. However CJS’s application was made prior to the commencement of the amended legislation and the Tribunal applied the legislation as it stood at the time of the application.

15. Section 4 of the Act provides that the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.

16. The words “well-being” of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children.

17. The Act adds to those words, that “in particular” protecting children from “child abuse” is the paramount consideration.

18. The Act does not define “abuse”. However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows:

"the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."

19. Section 4(1) of the Family Law Act 1975 defines "abuse” as including:    

“causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence”

20. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from “any possibility of abuse”. At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant:

“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.”

21. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]).

22. Taking into account all of these matters, it is our view that the meaning of “risk” is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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.

23. The Tribunal’s review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are:

1. 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

2. The period of time since those offences or matters occurred and the conduct of the person since they occurred,

3. The age of the person at the time the offences or matters occurred,

4. 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,

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

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

7. The person’s present age,

8. The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

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

10. Any information given by the Applicant in, or in relation to, the application,

11. Any other matters that the Children’s Guardian considers necessary.

24. Subsection 27(4) of the Child Protection (Working with Children Act) 2012 requires that an Applicant must fully disclose to the Tribunal any matters relevant to the application.

25. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on an Applicant but to minimise possible risks to the safety of children.

26. In this administrative review, neither party bears the onus of proof. There is no presumption that the Applicant poses a risk to children, as would be the case pursuant to s. 28(7) of the Act if he were a disqualified person.

27. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account:

1. the nature of the cause of action or defence, and

2. the nature of the subject-matter of the proceeding, and

3. the gravity of the matters alleged.

28. In BKE v Office of the Children’s Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]:

[29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (“Briginshaw”) in the above passage from IK (at [68]). I share his Honour’s misgivings. Briginshaw warns about the use of “inexact proofs” in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw’s admonitions might give rise to an appeal on a “question of law”. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an Applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J).

[31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made “unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw” (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ):

“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.”

[32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists “an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access” (M v M at p 78).

[33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.

29. The Tribunal notes that in this matter, unlike the matter in BKE v Office of the Children’s Guardian, the Applicant does not bear the onus of proof.

30. The approach outlined above was considered in respect of an application under s.27 (1) of the Child Protection (Working with Children) Act in the recent matter of Office of the Children’s Guardian v CFW [2016] NSWSC 1406. In that matter Harrison J considered an appeal by the Children’s Guardian against a decision of the Tribunal. His Honour decided to set aside the orders of the Tribunal and remitted the matter to the Tribunal for consideration to be dealt with according to the law. In reaching his decision His Honour states:

16 Even if not positively satisfied that the acts occurred on the balance of probabilities, if “a lingering doubt or suspicion remains” then this should count against the defendant, although it is not necessarily fatal to an Applicant’s efforts to obtain a clearance: see for example BSR v Office of the Children’s Guardian [2015] NSWCATAD 264 at [41].

…

23 In my view the Tribunal has misapplied the test articulated in M v M in the context of s 18(2) of the Act. The inability to exclude the “possibility” of relevant unlawful or inappropriate conduct may, depending upon the particular facts and circumstances, indicate that the requisite degree of risk exists. Having determined that the veracity of the allegations made against the defendant “remain[ed] open”, the Tribunal should then have asked itself how that “open” conclusion, together with all of the other material before it, bore upon the question of risk

…

24 That was the point made by Buss JA in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at [85], where his Honour said in the context of the equivalent Western Australian legislation:

“[85] Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the Applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an ‘unacceptable risk’ of the kind I have described… The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an ‘unacceptable risk’, to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.”

…

30 There is nothing in the Tribunal’s reasons to indicate that it approached its task in the manner identified in these authorities. Its “open conclusion” suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or “inappropriate conduct”. That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children. This is particularly so having regard to the Tribunal’s earlier observation at [97] that the Local Court found that the defendant’s actions were “very suspicious”, notably an observation that the Tribunal did not question.

31 In my opinion, the Tribunal failed properly to have regard to or to assess those matters that it considered to be “open”. In doing so it misapplied the statutory test in s 18(2) of the Act, thereby failing to discharge its statutory functions and duties conferred or imposed by Part 4 of the Act and s 63 of the Administrative Decisions Review Act.

…

48 The possibility that the defendant had engaged in the relevant criminal or inappropriate conduct … were necessarily bound up in the mandatory consideration of the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition … That demonstrates the importance of undertaking the analysis identified by Buss JA in Grindrod (No 2): weighing all such reasonable suspicions in the process of determining what might happen in the future. The Tribunal instead put to one side its “open” finding and correlative suspicions and thereby failed to satisfy the statutory command that it “must consider” the matters identified in s 30(1).

The Evidence

31. The Applicant tendered the following documents in support of his application:

1. The application filed on 30 December 2015

2. An affidavit of CJS dated 11 April 2016 with annexures

3. A reference in the form of an affidavit dated 2 April 2016

4. A reference in the form of an affidavit dated 4 April 2016

5. A reference in the form of letter from dated 10 May 2016

6. A report dated 26 May 2016 from Dr Jonathon Adams, a Forensic Psychiatrist

32. The Respondent tendered the following documents:

1. Section 58 material – filed on 29 January 2016

2. Section 58 material – filed on 29 January 2016

3. Section 58 material – filed on 16 April 2016

4. Section 58 material – filed on 29 April 2016

5. Section 58 material – filed on 17 June 2016

6. Section 58 material - filed on 22 June 2016

The Indictment and the Police Facts

33. The indictment against CJS was in the following form:

1. Between 26 June 1996 and 27 July 1996 at Engadine in the State of New South Wales, he had sexual intercourse with XY without the consent of XY, knowing he was not consenting and in circumstances of aggravation, namely, that said XY was under the age of 16 years.

2. Between 27 September 1999 and 1 November 1999 at Engadine in the State of New South Wales, he had sexual intercourse with XY without the consent of XY, knowing he was not consenting and in circumstances of aggravation, namely, that said XY was under the age of 16 years.

3. Between 19 April 2000 and 25 April 2000 at Sutton in the State of New South Wales, he had sexual intercourse with XY without the consent of XY, knowing he was not consenting and in circumstances of aggravation, namely, that said XY was under the age of 16 years.

4. Between 1 April 2000 and 27 September 2000 at Engadine in the State of New South Wales, he assaulted XY in circumstances of aggravation, namely, that said XY was the under the age of 16 years, and at the time of that assault committed an act of indecency on the said XY.

34. The police facts include the following:

1. On 24 March 2004 XY made allegations to police about the alleged matters that comprise the indictment. He also alleged that other assaults had occurred but due to the alleged frequency and similarity of the events, XY was not able to particularise the allegations other than the ones that comprise the indictment. He alleges that the assaults continued until late 2001 when CJS married XY’s sister and moved out of the house of XY’s family.

2. The family of CJS and the family of XY were friends and CJS was a frequent visitor to the house of XY and from 1996 began staying at the house of XY approximately twice a week. At these times he would sleep on a fold out futon in the upstairs lounge room. In September 1999 CJS moved into the house of XY’s family permanently and slept in a spare bed in XY’s bedroom.

3. It is alleged that CJS wrote a letter to XY telling him that he loved him and that what they were doing was not wrong. It is alleged that XY’s mother found the letter and read it and later telephoned CJS’s cousin to whom she later gave the letter. The cousin of CJS later died and it is not known what happened to the letter.

4. The first matter is alleged to have occurred when XY was aged 10 and CJS was aged 17 and to have taken place on the futon on the upstairs lounge room. It is alleged that CJS put his hand into the front of XY’s boxer shorts and caressed his penis and then moved his face into the groin area of XY and put XY’s penis into his mouth and commenced to perform oral sex for the next five to ten minutes.

5. The second matter is alleged to have occurred when XY was aged 14 years and CJS was 20 years old and to have taken place in in the bedroom of XY where, by then, CJS was sleeping in a spare bed. It was alleged that XY awoke to find that CJS had taken his penis into his mouth and was performing oral sex on him. After a short time CJS started kissing XY’s groin area, blowing on his crotch area, kissing his chest and caressing his body. He then moved back under the covers and put XY’s penis into his mouth and started to move his tongue around. He then started kissing XY around the groin area and put XY’s penis into his mouth several times. The incident lasted about half an hour.

6. The third matter is alleged to have occurred when XY was aged 14 years and CJS was 21 years old. XY and some of his family members had travelled to Canberra where they stayed in a caravan park where the cousin of CJS lived. It is alleged that XY and CJS slept in a car and that XY awoke to find CJS sucking his penis and caressing his body.

About one week later at a caravan park it is alleged that XY was sleeping in a bed in a double decker bus and that woke to find that CJS was sucking his penis. CJS then started to caress XY’s body with the back of his knuckles.

7. The fourth matter is alleged to have occurred in the winter of 2000 and XY alleges he woke to find CJS in his bed fondling his penis. It is alleged that CJS then kissed XY on the back of the neck and glided his knuckles across his back. XY’s father is said to have come into the room and the next day to ask where CJS slept. XY said that he “covered up” and told his father that he and CJS had been watching television together.

8. The sister of XY stated to police that in April 2001 CJS told her that he might be gay because he had feelings for XY and he also told her that he and XY used “muck around”. When she asked him what he meant by that he said that used to “wank together” and that she thought it was a “boy thing”.

9. In 2002 XY confided in a friend about the assaults.

The statement to police of XY

35. In a statement to police dated 25 March 2004 XY:

1. Provides information that he has known CJS since a very young age and about the friendship between his family and that of CJS.

2. Provides information about the circumstances under which CJS spent time at his house and later lived in that house and shared a bedroom with CJS.

3. Describes the alleged behaviours in detail, and states that as he got older he “yelled at him to get out of my bed” and that is why he thinks CJS stopped the behaviours.

4. States that in the first half of 2001 CJS wrote him a letter about his feelings for XY, including saying “I love you” and that the letter was found by XY’s mother who asked XY what it meant.

5. States that over the years that the alleged behaviours occurred he was diagnosed with Attention Deficit Hyperactivity Disorder and was being treated by a child psychologist.

6. States that in early 2002 he told a family friend about CJS’ actions because they were affecting his relationship with his girlfriend.

7. States that when his mother asked him about the allegations she said that the family friend had told her the “basis of the story” and that he did not want to speak to her any further about it.

The statement to police of the father of XY

36. In a statement to police dated 30 March 2004 the father of XY makes statements to the following effect:

1. When CJS went out he would take XY with him, but not XY’s brother (who was two years younger than XY).

2. He recalls one night that he saw XY and CJS lying in the bottom bunk under a blanket and did not think anything of it. He could not recall the date or year of this incident but thinks it was three years before his statement.

3. He never saw CJS exhibiting any “abnormal sexual behaviour” other than on one occasion when he saw him “browneye” the older children.

The statement to police of the mother of XY

37. In a statement to police dated 11 May 2004, the mother of XY makes statements to the following effect:

1. She first found out that “something was going on” between XY and CJS when in the summer of 1999 she found a letter from CJS to XY. The letter said “what we are doing is not wrong, I am teaching you, what we shared was special”. She “never asked (XY) what was in it because (she) had already read it” and she did not talk to XY about the letter because he “wasn’t a child you could talk to”.

2. She confronted CJS about the letter and he broke down and cried.

3. CJS told her that he had been sexually abused by his cousin.

4. CJS and XY were “great mates” but when CJS became engaged to XY’s sister she noticed that they started to have a lot of disagreements.

5. At the end of 2002/beginning of 2003 a family friend rang her and said that XY had told her that he had been abused by the cousin of CJS and that XY “had more to tell her”. However when she tried to talk to XY about the matter he said he would talk when he was ready, but he had not done so.

6. Once CJS had said that he was homosexual she had “put two and two together” and remembered some “snide comments” that XY had said to CJS. She thought that CJS had sexually abused XY but did not push XY to talk about it.

The statement to police of the sister of XY

38. In a statement to police dated 20 May 2004, XY’s sister makes statements to the following effect:

1. She never saw the letter said to have been written by CJS to XY but she knows that her mother “confronted” CJS about it, and that it was discussed “a number of times”.

2. In April 2001 CJS told her that he might be gay because he had feelings for XY. They discussed this and “put it down to Chris was like a brother to him”. CJS also told her that he and XY used “muck around” meaning that they “used to wank together”. She thought it was part of “growing up” and as far as she was aware they were not “wanking each other”. She states that she “thought it was a boy thing”.

3. In March 2003 CJS “had a breakdown” about his work, and his past “history” with his cousin who he said had sexually assaulted him. CJS and was seeing a psychologist and after a session with the psychologist, when they were talking about the assaults by his cousin, CJS told her that he was afraid to have children in case he did something to them.

4. CJS left the marriage saying that he “could be gay” and needed time to think. They officially separated in January 2004.

5. The first time she found out about the allegations was the day XY went to the police station.

Statement to police of a family friend

39. In a statement to police dated 15 December 2004, a friend of XY’s family makes statements to the following effect:

1. After Christmas 2001 XY telephoned her and said that there were “things going on”. After New Year’s Eve in 2001/2002 he visited her and told her that “some things had happened with (CJS)” and whilst he did not go into detail, said it was “abuse” and that he had also been sexually abused by the cousin of CJS.

2. It was “not long after that” that CJS told his mother about the alleged behaviours. She states that she knows that CJS and his mother were driving the car when CJS told his mother about the matters.

3. She knows that the mother of XY found a letter written by CJS because XY’s mother contacted her and told her she had found it.

Affidavit of CJS dated 11 April 2016

40. In his affidavit CJS states that he does not remember writing a letter to XY, that he does write letters to people from time to time and that if he did write a letter it may have been to support XY who was having difficulties with his school and his behaviour. He denies writing the words cited by XY’s mother. During the hearing CJS gave evidence to similar effect as the evidence in his affidavit on this matter.

41. In the affidavit CJS denies that he had a conversation with the sister of XY in which he admitted to having feelings for XY. When asked about this matter during the hearing CJS said that having seen the transcript of his trial he was of the view that he might have said that he had feelings for XY “as a brother”.

42. CJS states that he was seeing a psychologist to deal with issues at work and that after he married the sister of XY he told her about the abuse perpetrated on him by his cousin. However he denies that he ever told her that he was afraid of having children in case he abused them.

43. CJS states that he started his relationship with the sister of XY prior to 200 and he proposed to her in early 2000. They were married in October 2001. In late December 2003 he told his then wife that he was homosexual and he moved out of the house the next day. Sometime after moving out he received a letter from a solicitor acting for the family of XY demanding that he pay money said to be owed by him. He thinks they were of the view that he should pay them rent for the time he lived with them. He thought they were upset and angry about the breakdown of the marriage and blamed him for it.

44. In respect of his scouting involvement CJS states that:

1. He has a long history in the scout movement commencing when he was eight years old. Between 1997 and 2004 he was a Rover Scout and was involved in a range of activities including an annual camp held over Easter and in which Rover scouts were responsible for three to four “venturer” scouts.

2. Between 2009 and 2015 he was involved in a Scouts group that stages dramatic productions and his role was that of a production assistant. In addition to weekly rehearsals the group would hold two to three weekend camps per production.

3. From 2008 until 2015 he was involved in a musical society where his role has been a resident scenic artist and the social convenor for the society. In 2013 he received an award for going above and beyond his responsibilities in respect of his role in the society.

4. In 2015 he was member of another musical society.

5. In 2015 the Scouts Association required him to obtain a WWCCC and he was suspended from scout activities when the Children’s Guardian issued an interim bar.

45. CJS makes statements to the following effect regarding his employment since the time of the alleged matters:

1. He is a qualified chef and between February 2000 and August 2004 he worked as a chef for an employer for whom he again worked from 2006 to 2012.

2. Since 2012 he has been employed as a driver and then as a coordinator/customer service representative on a casual basis, though he usually works full time hours.

46. In respect of his history of relationships, CJS states that since the end of his marriage with the sister of XY his relationship history comprises:

1. From June 2004 to December 2006 he was in a de facto relationship with a partner who had many nieces and nephews whom he and his partner would take on outings and who would sometimes stay over at his house.

2. From April 2007 to June 2011 he was in a de facto relationship and from October 2011 to the current time he has been in a de facto relationship with his current partner.

47. On 30 March 2006 CJS was fined $400 and entered a recognizance to be of good behaviour in respect of an offence of making a false statement to obtain money. In his affidavit, CJS comments to the effect that his memory of the offence was that he allowed his then partner to misuse his identification to buy furniture. He pleaded guilty to charge because he knew he should not have allowed the matter to occur.

References

48. The s.58 material tendered by the Children’s Guardian indicates that it was provided with references from people who had worked with CJS in his volunteer role with Scouts and musical societies. The references were:

1. A reference dated 17 August 2015 from a person who states that he has known CJS for 15 years through the dramatic fellowship associated with the Scouts and that over that time CJS has “never” demonstrated inappropriate behaviour towards a child.

2. A reference dated 17 August 2015 from a person who states that he has known CJS for 20 years through the dramatic fellowship associated with the Scouts and a musical society and that over that time he has not known CJS to demonstrate inappropriate behaviour towards a child.

3. A reference dated 21 August 2015 from a person who states that he has known him CJS 1993 and that he believes that CJS supports the Scouting Code of Conduct that requires that an adult is never to be left alone with a child and that CJS has not demonstrated inappropriate behaviour to a child.

49. Further “Employer references” provided in the s.58 material are to the following effect:

1. A reference dated 17 October 2015 from the president of a musical society who comments to the following effect:

1. CJS had been involved in the musical society from 2007 to 2014 and had worked alongside children in set design and as cast member. He has always interacted positively with children and she always believed that children were safe in his presence.

2. She had never seen CJS acting inappropriately towards children and had never suspected him of doing so.

3. In her opinion CJS is “honest and ethical” and she has no reservations in recommending him for child related work.

2. A reference dated 21 October 2015 from the Chairman of the Scouts dramatic group who comments to the following effect:

1. CJS has been responsible for the welfare of children and has always acted in a professional manner.

2. He has never seen CJS act inappropriately in respect of children.

3. A reference dated 29 October 2015 from a Director/Stage Manager of a musical society who comments to the following effect:

1. She has worked with CJS on productions that have involved children and has not observed CJS to be “untoward”.

2. In her view there are no indications that there would be any issues with CJS working with children. She is a teacher and runs a tuition company for children aged 4 to 18 and she would not hesitate to hire CJS to work in that company

50. The Office of the Children’s Guardian sought additional information about CJS from the Scouting dramatic fellowship referred to by CJS. The response is in the form of an email dated 6 March 2016 and includes comments to the following effect:

1. CJS has been an active member of the group for the past 25 years.

2. CJS has had a leadership role in the group since 2003 which has included responsibility for supervision of young people during rehearsals and overnight camps, including, where necessary, dealing with welfare issues that arise.

3. The author, who has been the chairman of the group since 2007 has never had any reason to discipline CJS and considers him a reliable and trusted member of the team and he would not hesitate to place him in a position of responsibility regarding youth members of the group.

51. CJS provided the Tribunal with personal references regarding his conduct since the matters alleged. The Respondent did not require the referees to attend for cross-examination.

1. In an affidavit dated 2 April 2016 the referee, who is the author of the reference referred to above in paragraph 48(2) makes statements to the following effect:

1. He is aware that CJS has been denied a WWCCC and that he has previously been charged with sexual assault of child and was found not guilty.

2. He has known CJS since 1991 through membership of the Scouts Association and sees him about once a fortnight through the involvement in scouts and a musical society.

3. He has seen CJS interacting with children aged between 10 and 17 through the Scouts and the musical society.

4. He trusts CJS around children and every now and then CJS cares for his (the referee’s) children and he would not hesitate to leave his children with CJS.

5. CJS has never given him any reason to believe that he would be a risk to children.

2. In an affidavit dated 4 April 2016 sworn by the person who provided the reference to the Children’s Guardian which is referred to at sub-paragraph 48(3) above, the referee makes statements to the following effect:

1. He has known CJS since 1993 and has worked with him in a voluntary capacity. He was a character referee for CJS at the time of his trial for the trigger matters and has no hesitation in supporting CJS and does not believe that he is a risk at all to children or others.

2. In the 1990s the referee was an Area Commissioner for the Scouts and oversaw all youth programs in that region of Sydney.

3. He has been involved in four to five dramatic productions with CJS with cast members aged from 10 years to 70 years.

4. He has observed CJS working with children between the ages of 10 and 17 years during the rehearsals which sometimes involve overnight stays at Scout campsites.

5. Since the early 90s the Scouts has had a strict code forbidding members over the age of 18 years being left alone with any child and as far as he is aware CJS has never breached that rule.

6. He has never had any concerns about CJS being around, working with or mentoring children. He has no children of his own but he would trust CJS with his godchildren.

3. In a statement dated 10 May 2016 a referee makes statements to the following effect:

1. She is a primary school teacher with two children aged 18 years and almost 14 years.

2. She is aware the CJS has been acquitted of sexual assault charges and she is also aware of the offence for which he received a good behaviour bond.

3. She has known CJS for three years since they were both in a musical production together.

4. On many occasions she has invited CJS to her home for social gatherings.

5. When her mother-in-law died the previous year CJS assisted by looking after her children and preparing their meals.

6. She is “always delighted” to welcome CJS into her home and believes he is an “honest, trustworthy citizen”.

The evidence of Dr Jonathon Adams

52. A report dated 26 May 2016 compiled by Dr Jonathon Adams, a Forensic Psychiatrist, includes information and opinion to the following effect:

1. CJS said that he experienced periods of intermittent distress during his teenage years when he was concealing who he was in terms of his sexual orientation.

2. CJS also said that he experienced work related stress in the early 2000s and consulted with a psychologist for approximately six sessions.

3. CJS denied a history of regular intoxication with alcohol or problematic use of alcohol.

4. CJS reported that the longest he had been without work was for one or two months and that he had never been dismissed and denied any history of performance management or disciplinary issues

5. CJS reported having been sexually abused by a cousin approximately 30 times up until the age of 12 or 13 years. The abuse took the form of being required to perform oral sex. He reported that in his early childhood he understood that his sexual orientation was homosexual but his first serious relationship was with a female when he was aged 14 to 16 and they had sexual intercourse. His second serious relationship was with the sister of XY.

6. CJS said that he has viewed homosexual pornographic material but has not done so over the past three years.

7. CJS denied any sexual fantasies or urges in relation to children and said he has no sexual interest in bondage, discipline or sadomasochistic activities and denied ever experiencing features consistent with sexually inappropriate behaviours such as exhibitionism, voyeurism and frotteurism.

8. CJS denied ever having had any sexual urges or fantasies in relation to XY.

9. CJS said that he feels some animosity to those who brought the charges but denied any persistent of intrusive concerns in that regard.

10. CJS said that the reason he was seeking the review was that he was keen to continue in his work with the scouting movement and in theatre. In the meantime he has not been involved in any theatrical productions involving children.

11. There was no evidence of any abnormality in CJS’ cognitive functioning and no evidence of thought disorder or inappropriate sexual thoughts. CJS had good insight into his psychological condition.

53. Dr Adams states that he spoke with the sister of CJS who made comments to that were consistent with those of CJS and in particular she commented to the following effect:

1. CJS was not prone to behaviour that was aggressive or irritable; his emotional state was stable and she believed that he controlled his emotions well.

2. CJS had some occasional relationship difficulties and short periods of distress but had no history of an emotional disorder.

3. She had never known CJS to use illicit substances or drink alcohol excessively.

4. She had witnessed CJS relating well to children and she had no concerns about his interactions with children.

54. Dr Adams completed a Risk of Sexual Violence Protocol (RSVP) on CJS which indicated the following:

1. There was no evidence that CJS has a sexual violence history.

2. There was no evidence that CJS has psychological adjustment issues such as extreme minimisation or denial of attitudes that support or condone sexual violence, problems with self-awareness or problems with stress or coping. He does not appear to have experienced problems resulting from the sexual abuse committed on him as a child.

3. There is no evidence that CJS has sexual deviance, a psychopathic personality disorder, major mental illness or problems with substance misuse or violent or suicidal ideation.

4. There was no evidence to suggest that CJS has problems with intimate or non-intimate relationships, or problems with employment or non-sexual criminality.

5. There was no evidence to conclude that CJS has problems with planning, treatment or supervision.

55. In respect of his opinion about the risk posed by CJS, Dr Adams comments to the following effect:

1. CJS provided a history of longstanding involvement with the scouting movement and theatre productions and there was no evidence to suggest that CJS has maladaptive though processes in respect of children or that he has a psychosexual disorder such as paedophilia.

2. There was no evidence that CJS harbours pathological thoughts about the allegations though he found the trial process and the WWCCC process to be distressing. There is no evidence of mental illness or of a significant impact on his emotional state or level of functioning.

3. In his opinion, there is no evidence to suggest that CJS manifests any significant risk factors that are related to sexually inappropriate behaviour or sexual offending and in his view, CJS would fall into a group that has minimal risk of engaging in sexually inappropriate behaviour. He found no evidence of any attitudes that would be considered to support or condone sexual violence.

4. There is no evidence to suggest that CJS has ever had substance use disorder.

5. CJS described a supportive current relationship.

6. CJS does not manifest any risk factors related to sexually inappropriate behaviour and does not require any specific input from mental health services.

56. Under cross examination from Counsel for the Respondent, Dr Adams said words to the effect that:

1. When in his report he refers to risk of sexual violence he is referring to the general risk of sexual offending.

2. He did not examine specific scenarios of possible risk because in his view, there was no evidence that CJS had any symptoms of psychosexual abnormality.

3. From what he knew about CJS, he was no different from members of the general population.

4. He had based his assessment on the fact that CJS had been found not guilty of the alleged matters. If CJS were guilty, that would change the assessment but he was not able to indicate how his view would change without exploring those matters with CJS.

5. There is some relationship between a person being a victim of sexual assault and becoming a perpetrator, but this needs to be considered on a case by case basis, and in the case of CJS there was no evidence that he has a psychosexual disorder and no evidence of a relationship between his previous experience of sexual assault and the possibility that he would be a perpetrator of sexual assault.

Consideration of s.30 (1) matters

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

57. The Tribunal is satisfied that the matters alleged are serious assaults on a young person that, according to the allegations, were committed under circumstances where the young person had a right to believe he was safe in his home or with an older established family friend.

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

58. The first matter is alleged to have occurred in June/July 1996 which is more than 20 years ago and the most recent matter is alleged to have occurred in mid 2000, which is approximately 16 years ago. XY alleged that the assaults continued into 2001 which was 15-16 years ago.

59. In his report Dr Adams refers to CJS having periods of “intermittent distress” during his teenage years as a result of hiding his sexual orientation and during the hearing CJS states that he was aware of, but concealed, his sexual orientation from a young age. CJS married the sister of XY in 2001 and they separated at the end of 2003/beginning of 2004 when he told his then wife that he was homosexual. He has been in long-term adult relationships since that time. The Tribunal is of the view that the evidence supports a conclusion that since the time of the alleged matters CJS has come to terms with his sexuality in contrast to his position prior to his marriage.

60. Following XY’s statement to police in 2004, the NSW Department of Family and Community Services (FACS) received risk of significant harm reports in respect of two of XY’s siblings. There is speculation in the reports that those children might have been assaulted by CJS. The FACS material indicates that the children were interviewed by FACS and made no disclosures of harm. The Respondent provided the FACS documents as part of the s.58 documents but Counsel for the Respondent conceded that the Tribunal should place little weight on them in assessing the risk of harm posed by the Applicant.

61. Documents provided to the Respondent by CJS’s former employer indicate that there were two disciplinary matters on his personal file. They are dated 15 October 2003 and 6 December 2004. The latter is a record of conversation in which CJS agrees that he sent emails to his employer that threaten to report the employer to health authorities. CJS is told by the site manager “I have no choice in the matter but to dismiss you from the company” and is told to pick up his personal belongings and hand back company property. There is a disparity between the circumstances referred to in these documents and the claim by CJS to Dr Adams that he had never been subject to a disciplinary interview or dismissed. The inconsistency was not put to CJS during the hearing. The Tribunal is of the view that the matters disclosed in the documents do not reflect on matters related to child safety and as the inconsistency was not put to CJS during the hearing the Tribunal does not place weight on this matter in an assessment of his possible risk to children.

62. The s58 material includes a copy of an email received from the Administration and Customer Service Manager of CJS’ current employer which indicates that he has been employed in a number of different capacities since 2012 until the current period and that he is a “highly regarded employee”.

63. CJS’ involvement with the Scouts organisation has been since his childhood. The Tribunal considers it likely that over that period others who have worked with him in that organisation have had opportunity to observe his interactions with others, including with children

64. The references outlined under the hearing “References” above, are from people who have known CJS over a long period of time and are also familiar with his work and interactions with children. They are also people who have experience in working with children in a voluntary or paid capacity as teachers or in the scouts or musical organisations. A number of the referees indicate that they know of the allegations made against CJS. The referees indicate that they have no concerns about CJS working with or having access to children. The Tribunal is satisfied that it should place weight on their views.

65. The Tribunal is of the view that CJS’ unblemished record in respect of working with children in a voluntary capacity is of weight in assessing any future risk he might pose to child.

The age of the person at the time the offences or matters occurred, 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, The difference in age between the victim and the person and the relationship (if any) between the victim and the person, Whether the person knew, or could reasonably have known, that the victim was a child.

66. At the time of the first alleged matter, CJS was aged 17 and XY was aged 10. At the time of the most recent alleged offence, CJS was aged 21 and XY was aged 14 years. XY alleged that the assaults continued into late 2001 by which time XY would have been 16 years old and CJS would have been almost 23 years old. The age difference was 7 years.

67. At the time of the first alleged offence CJS was himself a child, even though there was a considerable age gap between him and XY.

68. XY was a child and was known to CJS as a friend of the family. CJS knew that XY was a child.

69. In respect of XY’s vulnerability, he was of a very young age at the time of the first allegation, his family was friends with the family of CJS and CJS came to be invited by the mother of XY to live in their house and to share the bedroom of XY.

The person’s present age

70. CJS is now 38 years old.

71. The Tribunal was not provided with any expert evidence on the effect of the maturation process, but is of the view that it is possible that CJS’ behaviour of at age 17 to 23 years might not be indicative of his behaviour at age 38 years, particularly taking into account the evidence to the effect that CJS was then, but is not now, struggling with his sexual identity.

72. The seriousness of the person’s total criminal record and the conduct of the person since the offences occurred

73. As noted above, on 30 March 2006 CJS was fined $400 and entered a recognizance to be of good behaviour in respect of an offence of making a false statement to obtain money. In respect of that offence he entered a recognizance to be of good behaviour.

74. The Tribunal is of the view that in allowing CJS to enter a recognizance to be of good behaviour in relation to that offence, the court was satisfied that the offence was at the less serious end of a spectrum of seriousness.

75. The Tribunal is also of the view that the nature of the offence is not such as to add to any risk posed to children by CJS.

76. Taking into account the matters referred to in the preceding two paragraphs, the Tribunal is satisfied that the commission of this offence does not increase the assessed risk to children posed by CJS.

77. Apart from the matter referred to in the preceding paragraphs, and trigger matters, the Tribunal has not been advised that CJS has come under any adverse police notice. The Tribunal is of the view that his relatively unblemished criminal record is in his favour.

Any information given by the Applicant in, or in relation to, the application

78. In his oral and written submissions, Counsel for the Applicant made submissions to the following effect:

1. Whilst the FACS material submitted as part of the s58 documents indicates that reports were made to FACS in which concern was expressed that CJS might have assaulted siblings of XY, it was never concluded that the children were assaulted, let alone by CJS.

2. Approximately 15 years had passed since the allegations and no one apart from XY had made allegations of abuse by CJS.

3. CJS has been extensively involved in child related activities before, during and after the alleged matters and his interactions with children have been observed by numerous people.

4. CJS was acquitted of the charges on the indictment and was not convicted of the statutory alternatives which required only that on the named dates he had sexual intercourse with XY, and did not require proof of lack of consent by XY. The acquittal on all matters indicates that the jury was not satisfied that sexual intercourse had taken place.

5. Since the acquittal CJS has not come under any police notice.

6. CJS has submitted a reference for his current employer confirming that he is a highly regarded employee.

7. The Applicant’s application for a WWCCC was made because the Scouts Association was responding to the requirement that all volunteers possess a WWCCC and was not because the organisation held any concerns about CJS.

8. A number of people who have known CJS though his involvement with Scouts and the musical societies, where he has had contact with children, have provided references confirming that he has not acted inappropriately towards children.

9. Dr Adams concluded that there is no evidence to suggest that CJS has maladaptive thought processes in relation to children, or that he suffers a psychosexual disorder such as paedophilia.

10. Based on his clinical assessment, Dr Adams found no evidence to suggest the Applicant manifested any significant risk factors related to sexually inappropriate behaviour or sexual offending.

11. In Dr Adams’ opinion, the Applicant is assessed as being at a minimal risk of engaging in sexually inappropriate behaviour.

12. The best indicator of the Applicant’s appropriate functioning is that he has maintained long-term employment, he has maintained long-term adult relationships, he has been engaged for the long term in child related activities without incident, and has not come to the attention of police in the nine years since his acquittal.

Any other matters that the Children’s Guardian considers necessary.   

79. In her written and oral submission, Counsel for the Respondent makes submissions to the following effect:

1. The Children’s Guardian is of the view that the statements made by witnesses in respect of the trigger matters are corroborative and that:

1. Having regard to the totality of the witness statements and the available transcripts of evidence in the criminal proceedings, there is some significance in the number of witnesses prepared to give evidence in the criminal charges and the details in the statements given in particular by XY, his mother, sister and family friend and the corroborative features of this evidence.

2. Whilst the report of Dr Adams is significant for the Tribunal’s determination on the issue of risk, it is not clear whether Dr Adams had access to the entirety of material available in relation to the criminal charges, including the witness statements. In relation to this matter:

1. He does not appear to have considered the issues raised by the number of people who would have to have been convinced to make false statements to the police.

2. He has not raised with CJS the reasonableness of such a proposition.

3. The Applicant stated to Dr Adams that he felt some animosity towards the person who had brought the allegations and questioned their motive and suggested that the complaints were related to him ending his marriage with XY’s sister. In relation to that matter:

1. If the person who caused the matter to be brought to police was XY, there is no adequate explanation as to why the end of CJS’ marriage to XY’s sister would have motivated XY to make the complaints.

2. If another person caused the matter to be brought to police, there is no adequate explanation as to how that person managed to get a number of XY’s family and a family friend to make false statements to police.

4. Applying the principles set out in the matter of BKE, (supra) even if the Tribunal is not satisfied that the allegations have been proved to the civil standard, the matters raised in the preceding paragraphs mean that the Tribunal cannot be affirmatively satisfied that the behaviours did not occur.

5. It is “very difficult” to determine the likelihood of any repetition of conduct by the Applicant.

6. Having regard to statements by XY about the effect of the matters on him, any repetition of the alleged behaviour would be devastating for children.

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

Consideration of the possibility that CJS committed the alleged offences

80. CJS was acquitted of the charges. The transcript of the trial indicates that the Judge directed the jury to return a “not guilty’ verdict in respect of the first three matters on the indictment because he was not satisfied that the prosecution had elicited evidence in respect of lack of consent by XY. However it was left open to the jury to find CJS guilty of a statutory alternative offence, being that he had sexual intercourse with XY on the named occasions in circumstances of aggravation, namely, that XY was under the age of 16 years. The jury did not convict CJS of those alternative offences.

81. In respect of whether the Tribunal is able to exclude a conclusion that CJS committed the matters alleged, or the statutory alternatives that were allowed to go to the jury, the Tribunal places weight on the fact that the matters went to a jury which had the benefit of hearing and assessing the evidence. The Tribunal has not had that benefit. However the jury applied the criminal standard of proof whilst the standard of proof applied in the Tribunal is the civil standard, or the balance of probabilities.

82. The Tribunal is of the view that the following matters might support a conclusion that CJS did behave in the manner alleged in the indictment:

1. The extended time period over which the behaviours are alleged to have occurred, including allegations that additional matters occurred but were not charged because of lack of specific detail due to the number and similarity of events.

2. The detail in the allegations made by XY.

3. CJS’ evidence that around the time of the alleged behaviours he was concealing his homosexual orientation.

4. The fact that CJS had been the victim of sexual assault and the evidence of Dr Adams that there is some acknowledged relationship between being a victim of sexual assault and becoming a perpetrator.

5. The evidence of CJS’ ex-wife and sister of XY that in 2001 CJS told her that he had feelings for XY and that they had “wanked” each other. Whilst CJS initially denied this conversation, when reminded of his testimony during the trial, he gave evidence that he might have said he had brotherly feelings for XY. However he does not explain why his feelings for XY were worthy of comment compared to his feelings for the other siblings of XY.

6. The evidence that despite a seven-year age difference, CJS spent considerable time with XY, including watching television with him whilst under a blanket. XY’s father commented in his statement that CJS took XY with him on outings, but did not take XY’s younger brother. During the hearing when asked by Counsel for Respondent, CJS had no comment to make about the appropriateness of that behaviour.

7. The evidence of a family friend that XY told her that CJS had sexually assaulted him.

8. XY alleged that there were a number of matters in addition to the matters charged but he was not able to specify them due to their number and similarity. If this is the case, then CJS has been successful at concealing from those in very close domestic circumstances that he has been committing sexual assaults consistently over a lengthy period. This would reduce the reliance that could be placed on CJS’ referees who attest to knowing him over a long period and having no concerns about his activities with children.

9. If the matters occurred as alleged, then it is possible that CJS has been able to arrange matters so that he has been invited into the home of XY in a trusted position that has given him access to XY in circumstances that provided the ideal situation for him to commit the assaults.

10. A number of witnesses have given evidence in relation to the letter in which CJS was said to have spoken of his feelings for XY and have also said that, in hindsight, they believe that CJS committed the alleged acts.

11. CJS’ view that the family of XY was upset and angry at him because he had had divorced XY’s sister and also that he had been requested, and had refused, to pay rent retrospectively for the time he had lived at the house of XY might be considered an inadequate explanation of the motives of the witnesses.

83. In the matter of BKE (supra) in discussing the Briginshaw (supra) warnings against the use of inexact proofs in the context of making serious findings, Beech-Jones J expresses the view that “NCAT would be well advised to have regard to them if it was considering making a positive finding that an Applicant sexually abused a child in circumstances where they were not convicted of doing so”. In the current matter, the Tribunal is of the view that whilst the matters outlined above might suggest that CJS did behave in the manner alleged, they are of insufficient probative value to support a conclusion that it is more likely than not that CJS did behave as alleged.

84. Even if the Tribunal is not satisfied to the civil standard that it is more probable than not that CJS behaved in the manner alleged, the decisions in M v M (supra), BKE (supra) and CFW (supra) establish that where the Tribunal cannot exclude the possibility that he committed the offences, or retains a “lingering doubt” that he might have committed the behaviours, then this counts against the Applicant and the Tribunal must conduct “a close analysis of the possibilities and the probative value of the doubts or suspicions” (see CFW, supra) which should take into account “all of the information and material properly before the Tribunal” (Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASC 28 at [85] as cited in CFW (supra).

85. Whilst the matters raised in paragraph 81, might result in a view that it was possible that CJS committed the acts as alleged, there are some other matters that weaken that magnitude of that possibility.

Witness statements

86. The Tribunal conducted a close analysis of the witness statements in the context of the overall evidence.

87. The statement of XY to the police is detailed and coherent. However, during the trial the police officer who recorded the statement of XY agreed that the statement was taken over three days, commencing on 25 March 2004 and ending on 30 March 2004. She also agreed:

1. That XY’s sister was in the room for some of the time on the first day of the statement.

2. The statement is not a verbatim record of what was said, but is her compilation of what was said over the three days, arranged by her so that it formed a sequential account.

88. The Tribunal is of the view that the arrangement of the statement by the police officer reduces the weight that should be placed on its coherence.

89. In her statement dated 11 May 2004 XY’s mother stated to police that in 1999 she found a letter allegedly written by CJS in the room of XY and that the contents of the letter made her “sick in the stomach” and that she did not ask XY what was in the letter because she had read it. In respect of the letter:

1. In his statement XY states that the letter was left in his bedroom in 2000 and that his mother asked him what it meant.

2. In her statement XY’s sister states that she recalled the letter being found in 2001. Whilst she says she never saw the letter she states that she knows it was discussed “a number of times”. It is not clear from her statement whether the letter was discussed with her or in her presence.

3. If the letter was found in 1999 or 2000 there is no explanation provided as to why, after the letter was found, CJS was permitted to remain in the house, sharing a bedroom with XY.

4. The father of XY stated that he saw XY and CJS in a bed together about three years prior to his statement (which was made in 2004) and in the trial of CJS it was alleged that this incident was the occasion of the matter alleged in the fourth indictment which was alleged to have occurred between April 2000 and September 2000. The question arises as to whether it is reasonable to expect that the mother of XY would have discussed the letter with the father of XY and this would have caused him some concern when he observed them in the bed together. However, in his statement to police he states that he thought nothing of that incident.

5. The sister of CJS does not state that she discussed the letter with CJS in the context of them becoming engaged in 2000 and married in 2001 and the Tribunal is of the view that if she did so it is reasonable to assume that she would have mentioned this in her statement to police. There is no explanation as to why the letter was not discussed in detail before the engagement and the marriage.

90. The existence of the letter alleged to have been written by CJS to XY would support the view that despite the decision of the jury, it possible that CJS committed the offences as charged. However that letter has not been produced. In her statement the mother of XY states that the letter was given to CJS’ cousin who later died and the letter has not been located.

91. During the trial there was discussion as to the weight that the Tribunal should place on the evidence about the content of the letter:

1. Counsel for the Applicant submitted that if the Respondent was seeking to rely on the contents of the letter, it should have provided the mother of XY as a witness and drew the Tribunal’s attention to the matter of Commissioner for Children and Young People v FZ [2011] NSWCA 111 (9 May 2011) in which the Young JA stated:

[70] The real question is whether to admit the evidence of a witness on a core matter when the tribunal knows that it cannot be tested by cross-examination and may deny the applicant a fair trial. It may be that even when there is a clear and compelling reason why that witness is unavailable, the Tribunal might still consider it appropriate not to receive the evidence.

2. Hodgson JA and Handley AJA agreed with the judgement of Young JA in the FZ matter but placed more emphasis on whether the witness was truly unavailable.

3. Counsel for the Respondent submitted that for policy reasons it is not appropriate to require evidence from persons involved in the initial trial who have no connection with the WWCCC application.

92. The Tribunal is of the view that it can place little weight on the alleged content of the letter for the following reasons:

1. The letter was not produced at the hearing or at the trial of CJS.

2. No witnesses were called to provide evidence about having seen the letter.

3. There are discrepancies amongst the statements to police as to when the letter was found.

4. There are questions that it would be reasonable to put the mother of XY about her reactions to the letter and her subsequent actions in respect of XY.

5. There are questions that it would be reasonable to put the sister of XY about her reactions to the letter and her subsequent actions in respect of XY.

6. It has not been possible to put these questions or to examine the discrepancies in the statements to police because the people who made the statements were not made available to provide evidence.

93. There is no evidence that any person witnessed the matters referred to in the indictment or any of the other assaults that were said to have occurred, but were not made the subject of specific allegations, or that that there was any attempt to remove CJS from the home of XY. In relation to his matter:

1. Counsel for the Respondent submits that the bedroom provided an ideal setting for the abuse to occur without detection by other members of the family and that XY alleged that CJS had instructed him in effect to deny and cover up about the behaviour.

2. If CJS did act in the manner alleged then this would significantly reduce any weight could be placed on references from people who have known CJS in his volunteer work involving children because, if CJS managed to conceal his actions from co-residents, then he could be expected to successfully conceal his actions from others who were volunteering with him.

94. In respect of the possibility that CJS committed the acts alleged, but was able to conceal them from co-residents:

1. It was accepted into evidence during the trial that over the period of the alleged assaults, a number of people lived in XY’s house.

2. It was conceded by XY at the trial of CJS that any person could have walked into the lounge room in which it was alleged that that count 1 on the indictment, and a number of similar matters, took place.

3. Other matters were alleged to have taken place in bedroom 2 and bedroom 5 in the upstairs part of the house. The evidence at the trial was that there were no locks on any of the bedroom doors and that anyone could have entered the bedrooms.

4. During the trial XY agreed that his father worked into the night and into early morning hours and that his brother, who was tow truck driver, would receive call-outs at night and any of them could have entered the rooms where the behaviours were alleged to have occurred.

5. The allegations spanned four years and it is alleged there were numerous incidences in addition to those charged. These factors increase the likelihood that someone in the family would have had suspicions about unacceptable behaviour if it were occurring.

6. There was evidence that XY’s father had walked into bedroom 5 and had seen XY and CJS in the bed together. This is on the occasion that is alleged that the fourth matter on the indictment occurred. However XY’s evidence was the assault that was the subject of the final charge took place in the top bunk. In his statement, XY’s father states that he saw them in the bottom bunk and that he “didn’t think anything of it”.

95. In her statement to police, XY’s sister, who had lived in the same house as XY and CJS, states that CJS told her that around April 2001 that he “had feelings” for XY and that they used “muck around’ and “used wank together”. However she said she though it was a “boy thing”. She later married CJS. The Tribunal is of the view that if she or any family members had concerns about CJS’ behaviour around XY this matter would have been more thoroughly explored at the time she was contemplating marriage to CJS.

96. In his statement to police, XY states that over the time of the alleged matters he was exhibiting behavioural problems and was diagnosed as having Attention Deficit Hyperactivity Disorder and was placed on medication to control his behaviour. However there is no evidence that during this time that he disclosed the abuse to any health or medical practitioners.

97. In a statement to police, a family friend states that over the 2001/2002 New Year period, XY told her he had been sexually abused by CJS and also by CJS’s cousin. In respect of this matter:

1. XY has never made an official complaint of abuse by the cousin of CJS.

2. In her statement to police, XY’s mother states that around the end of 2002 and the beginning of 2003, the family friend told her that XY had been abused by the cousin of CJS and that XY had more to tell her. However when she asked XY he said he did not want to talk about it.

3. There is a discrepancy in the statements about when CJS confided in the family friend in that she and CJS state that it was in the 2001/2002 New Year period, but CJS’ mother states that it was in the 2002/2003 period.

4. In her statement, contrary to the statement of XY’s mother, the family friend does not state that she told XY’s mother about the allegations. She states that XY told his mother about the allegations after returning home from visiting her in the new year of 2002.

5. There is no explanation provided as to why, if the family friend told XY’s mother about the allegations against the cousin of CJS, she would not have told her about the allegations against CJS.

6. CJS did not separate from the sister of XY until late 2003. It is reasonable to assume that if, by then, XY had confided about the alleged matters, they would have been raised in the context of the marriage breakdown. However in her statement to police, the sister of XY states that she was not aware of the allegations until XY attended the police station to make his complaint.

7. Taking these matters into consideration the Tribunal is of the view that there are inconsistencies in the evidence and a number of matters that are unexplained such that the probative value of the witness statements is reduced.

98. Having closely examined the witness statements the Tribunal is of the view that whilst there remains a “lingering doubt” as to the possibility that CJS acted as alleged, the magnitude of that doubt is reduced by the questionable probity of the evidence as canvassed in the witness statements to police.

99. Counsel for the Respondent submitted that Dr Adams’ report might be less weighty because he did not put to the Applicant the detail of the witnesses’ statements or challenge the Applicant to explain the number of and consistency between the witnesses. As noted above, the Tribunal is of the view that there are a number of inconsistencies in the witness statements. Further, in respect of this submission:

1. The Tribunal is of the view that it is unreasonable for the Applicant to be expected to know about the motivation of those making the allegations against him.

2. The Tribunal is of the view that in criminal matters there are often witnesses for the prosecution whose evidence was considered sufficiently weighty to take the matter to trial, even where a person is found ‘not guilty’.

Conclusion and orders

100. The Tribunal is of the view that the matters alleged are serious and if there were a repetition of the alleged matters, they would have a harmful effect on a child victim.

101. This is a finely balanced issue. Having considered all of the evidence, the Tribunal retains a “lingering doubt” that CJS might have acted as alleged, but the Tribunal is not able to assert that there is a strong possibility that he acted as alleged.

102. The Tribunal has reached its decision taking into account its “lingering doubt” and its conclusions reached in relation to the s. 30(1) matters as outlined in preceding sections of these Reasons. In particular, regarding the future risk to children, the Tribunal concludes:

1. The matters alleged are serious but none were substantiated.

2. The matters alleged were in circumstances very different from those currently applying to CJS.

3. At the time of the first matter alleged CJS was himself a child as was the victim who was 7 years younger. CJS is now aged 38.

4. At the time of the alleged matters CJS had not accepted his sexual orientation. Since the time of the alleged matters CJS has accepted his sexual orientation and has enjoyed relatively stable adult relationships.

1. Dr Adams is of the view that CJS’ mental health status is no different from that of the general population and that he does not have any paraphilias or anti-social sexual interests or attitudes. Whilst CJS was an adult at the time of the subsequent alleged actions, there appears to be no other evidence that he has a paedophilic disposition.

2. The matters were alleged to have occurred some 15 to 16 years ago. CJS has not come under police notice since he was acquitted of the offences.

3. CJS has been involved in a volunteer capacity with children over an extended period and apart from the alleged matters there are no indications of concerns about his conduct over that period.

4. People who have known CJS over lengthy periods and who have observed his interactions with children have attested to their view that he does not pose a risk to children.

103. After considering the paramount objective of the Act, namely the safety and welfare of children, and in particular protecting them from abuse, the Tribunal is of the view that the totality of the evidence does not establish on the balance of probabilities that CJS poses a real and appreciable risk of harm to children that is greater than the risk posed by any other person.

104. It follows that the orders of the Tribunal are:

1. The decision of the Children’s Guardian dated 3 December 2015 to refuse to grant the Applicant a Working with Children Check Clearance is set aside. In substitution for the decision the following decision is made: The Applicant is granted a Working With Children Check Clearance.

2. Disclosure of the name of the Applicant and of any alleged victim or child is prohibited. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person

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

Registrar

Decision last updated: 16 February 2017