CPO v Children's Guardian

[2017] NSWCATAD 149

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	CPO v Children’s Guardian [2017] NSWCATAD 149
Hearing dates:	15 December 2016
Date of orders:	11 May 2017
Decision date:	11 May 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby Senior Member P Foreman General Member
Decision:	1. The decision of the Children’s Guardian dated 1 September 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 not guilty of trigger matters- 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:	CPO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: L Doust (Applicant) V Hartstein (Respondent)   Solicitors: Spooner & Hall (Applicant) Crown Solicitor's Office (Respondent)
File Number(s):	1610355
Publication restriction:	See Order 2

reasons for decision

The application

1. On 10 April 2015 the Applicant, who is referred to in this decision as CPO, applied for a Working with Children Check Clearance (WWCCC) from the Respondent, the Children’s Guardian.

2. On 1 September 2015 the Respondent advised that pursuant to s.18(2) of Child Protection (Working with Children) Act it had refused to grant the Applicant a WWCCC on the basis that the Applicant poses a risk to the safety of children.

3. On 27 May 2016 pursuant to s. 27 of the Child Protection (Working with Children) Act, CPO filed an application seeking a review of the decision of the Children’s Guardian. The application was filed outside the 28-day period allowed. However an order extending the time was made by consent on 7 July 2016.

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

The trigger matter

5. In 2000 the Applicant was charged with aggravated sexual assault of a female child victim aged 10 years pursuant to s.61M(1) of the Crimes Act 1900 (NSW). CPO was aged 16 at the time of the alleged offence which was dismissed in February 2001 in the Children’s Court.

6. 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.

7. Clause 1(1)(a) 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 an offence specified in clause 1 of Schedule 2, if the offence was committed as child (whatever the outcome of the proceedings).

8. Clause 1(1)(e) of Schedule 2 includes an offence under s.61M of the 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 CPO did pose a risk to children and refused to grant him the WWCCC.

The relevant law

Child Protection (Working with Children Act) 2012

10. 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.

11. The Act was amended by legislation that came into force in November 2015. However CPO’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.

12. 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.

13. 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.

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

15. 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."

16. 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”

17. 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.”

18. 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]).

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. In BKE v Office of the Children’s Guardian [2015] NSWSC 523 (the BKE matter), 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.

26. The Tribunal notes that in this matter, unlike the BKE matter the Applicant does not bear the onus of proof.

27. 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 (the CFW matter). 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 court proceedings. 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.

31In 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

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

1. The application filed on 30 May 2016 seeking a review of the decision of the Children’s Guardian to refuse to provide him with a WWWCC.

2. Affidavit of CPO dated 22 July 2016 with annexures

3. Report of Dr Olav Nielssen dated 28 June 2016 and resume of Dr Nielssen

4. Affidavit of referee Ms C

5. Affidavit of referee Mr D

6. Letter dated 29 June 2016 from Spooner & Hall solicitors

7. Applicant’s written submissions filed on 12 December 2016

29. The Respondent tendered the following documents:

1. Section 58 material – filed on 16 June 2016

2. Further documents – filed on 18 August 2016

3. Further Documents – filed on 16 September 2016

4. Further Documents - filed on 26 October 2016

5. Respondent’s written submissions filed on 1 December 2016.

30. Counsel for the Respondent objected to the admission of the report of Dr Nielssen on the basis that it does not constitute an expert report within the Expert’s Code of Conduct for the following reasons:

1. In his report Dr Nielssen has not abided by the requirement that he assist the Tribunal impartially on matters relevant to his expertise and instead had become an advocate for the Applicant.

2. Dr Nielssen misstates the tests as set out in s.30 of the Child Protection (Working with Children) Act which he purports to apply.

3. Dr Nielssen was not given all of the s.58 documents and his comments regarding additional allegations are not based on his independent knowledge but on what was told to him by the Applicant.

4. Dr Nielssen has misstated the test regarding whether or not the Applicant poses a real and appreciable risk to children generally as opposed to children placed in his care.

5. Although Dr Nielssen is an experienced psychiatrist he has no experience in risk assessment

31. In the alternative Counsel for the Respondent submits that the Tribunal should place little weight on the report of Dr Nielssen.

32. On the question of admissibility of the report of Dr Nielssen, Counsel for the Applicant submitted on his behalf:

1. Dr Nielssen has lengthy specialist experience and knowledge as a psychiatrist working with sexual offenders including at the Long Bay Correctional Complex.

2. Dr Nielssen’s reports include his assessment of the Applicant with respect to a Mental State Examination and his conclusions about risk posed by the Applicant to children placed in his care. Whilst the contextual reference to “children placed in his care” is not squarely in accordance with the test to be applied by the Tribunal, Dr Nielssen’s opinion is relevant to an assessment of the risk that CPO might pose to children.

3. The Applicant would not press the Tribunal to place weight on the views expressed by Dr Nielssen regarding the interests of justice.

4. Further evidence could be sought from Dr Nielssen during his oral testimony including by cross-examination.

33. In response to the submissions of counsel for the Applicant, Counsel for the respondent submitted that:

1. It is not sufficient that the Applicant does not press the Tribunal to place weight on the views expressed by Dr Nielssen regarding the interests of justice because those views taint the whole of the report.

2. It was insufficient to offer that further evidence could be sought from Dr Nielssen during his evidence in chief because his report should speak for itself.

34. According to his resume:

1. Dr Nielssen’s qualifications include a Master of Criminology completed in 1997 and Fellowship of the Royal Australian and New Zealand College of Psychiatrists since 1993.

2. Dr Nielssen’s medical employment history includes:

1. 1992-1993 Fellow in Forensic Psychiatry at Maudsley Hospital, London and UCLA in Los Angeles;

2. 1993 staff specialist in psychiatry, Corrections Health, NSW;

3. Visiting psychiatrist employed by NSW Justice Health between 1993 and 2008.

35. The Tribunal accepts that Dr Nielssen has specialised knowledge of sexual offending based on his training and experience. The Tribunal determined to accept his evidence to the extent that it relates to sexual offending but that his views regarding the interests of justice and conclusions affected by those views are not within his area of expertise and were not admissible as the evidence of an expert witness.

36. Counsel for the Applicant objected to the admission of the following evidence:

1. Material included in the bundle of documents of s.58 material filed on 16 June 2016 being:

1. Statement of a constable of police dated 13 June 2000;

2. Transcript of an interview with the alleged victim conducted on 28 February 2000;

3. Statement of a Chatswood Joint Investigation Team member;

4. Doctor’s Certificate;

5. Transcript of an interview with the sister of the alleged victim;

6. Police Service Event Records related to the Applicant and file as pages 141-143 of the s.58 material;

7. Documents provided by the Department of Education and Communities and filed at pages 144 to 376 of the s.58 material including:

1. A Brief of Evidence in respect of the charge against the Applicant incorporating statements of a police officer, witnesses, the alleged victim and a doctor;

2. Notes from a Police Service Duty Book;

3. A reference regarding the Applicant;

4. An undated statement addressed “to whom it may concern” signed by the Applicant.

8. Police Service Event Records related to the Applicant and filed as pages 408 to 412 of the s.58 material;

9. Documents provided by the Department of Youth and Community Services and filed at pages 413-439 of the s.58 material including Notification and Intake and Assessment notes and notes from the Joint Investigation Team;

10. Police Service Event Records related to the applicant and filed as pages 457 to 461.

2. Documents included in the bundle of Further Documents filed by the Respondent on 18 August 2016 being:

1. Copies of the documents listed a paragraph (1)(a) to (e) above;

2. NSW Police Breach Report containing details of the allegations against CPO;

3. Statement of a constable of police dated 13 June 2000;

4. Statement by the mother of the alleged victim;

5. Statement by the father of the alleged victim;

6. NSW Police Duty Book extract;

7. Transcript of interview with the alleged victim on 31 March 2000;

8. NSW Police COPS Database event reference;

9. Transcript of an interview with the sister of the Applicant;

10. The Applicant’s School Reports from Year 9 and Year 10;

11. Printout of Chat room entries filed at pages 272 to 406.

37. Counsel for the Applicant made submissions to the following effect regarding her objections to admission of the evidence listed above:

1. The material includes allegations relating to the trigger matter and other allegations and the Respondent had no intention of calling as witnesses the persons who had made the statements.

2. The Applicant objects to the admission of hearsay evidence. Although the Tribunal is not bound by the rules of evidence it has an obligation to comply with the requirements of natural justice, including that the Applicant have an opportunity to challenge material that is adverse to his case. The Applicant was denied that opportunity as the makers of the allegation were not made available for cross-examination.

3. The material includes statements by the alleged victim, her mother, and sister and another complainant and the allegations included in those statements are referred to expressly in the submissions of the Respondent and goes to the critical issue of whether the applicant engaged in the allege conduct.

4. No explanation was provided as to the failure to call relevant witnesses and as such the material would form only a weak basis for an affirmative conclusion that there is a risk that the alleged offence occurred and would be of negligible weight if admitted (as per Fagan J in Children’s Guardian v BRL [2016] NSWSC 1206 at [29]-[31] (the BRL matter).

5. Some of the material, including material in the statement by the brother of the alleged victim, represented hearsay many steps removed from its original source.

38. The matter of Commissioner for Children and Young People v FZ [2011] NSWCA 111 (9 May 2011) (the FZ matter) included consideration of the acceptance into evidence of a hearsay statement by a person referred to as KB, who alleged indecent assault by an Applicant for which he had never been charged.

39. In the FZ matter Young JA stated:

[64] … the Tribunal, if it considered that it was appropriate to do so and that it could do so with fairness to each party, was entitled to look at allegations as well as proved facts in making its determination of the vital issue.

[65] …if one gets a report from a child in Tweed Heads that the applicant behaved inappropriately to her and a child in Albury makes an exactly similar complaint as does a child in Broken Hill and there is clearly no association between the three children, the fact that three independent allegations are made may well, in the absence of proof to the contrary, be sufficient to say that the applicant has not shown himself to be no risk to children.

[69] There was discussion before us as to what should have happened, had the evidence before the Tribunal disclosed that KB had died or was physically incapable of attending for cross examination …

[70] I believe this may be the wrong way of looking at the problem. 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 court proceeding. 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.

40. 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.

41. Counsel for the Respondent conceded that much of the material to which objection was taken is hearsay and that it was not the intention of the Respondent to call the persons who made the statements.

42. Counsel for the Respondent submitted that if not admitted as evidence of the truth of the matters contained in the material, the material should be admitted to show that the allegations were made.

43. The fairness of admitting hearsay evidence of persons not called to give evidence to the Tribunal was considered by Fagan J in the BRL matter. In that matter the Applicant for a WWCCC had been previously been arraigned in the District Court where he faced four charges of sexual intercourse with a child aged 10 to 16. The jury was dismissed without coming to a verdict when the complainant refused to continue at an early stage of her evidence. The documents to which objection was taken were four police statements of which two were taken from the complainant and one from each of her sister and stepsister. At a preliminary hearing the Tribunal constituted by a Senior Member determined that the documents should be excluded as evidence for the events to which they referred, essentially for reasons given by the Supreme Court in the FZ matter, but agreed to the documents being admitted as evidence that the allegations had been made.

44. In his judgement Fagan J notes that the Children’s Guardian tendered no evidence as to why it did not intend to call the makers of the statements for cross examination. In respect of the failure to call the witnesses and in the absence of an explanation for the failure, Fagan J states:

[24] 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 the circumstances where they are 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 … to explain why the makers of the statements were not to be called for cross examination on their allegations …

[25] … the Children’s Guardian has not attempted to contact the makers of the statements to ascertain their willingness or ability to attend and give evidence, or to ascertain their reasons for not being so willing to able …

45. Fagan J concludes that there was no error law in the Tribunal receiving the statements for the limited purpose of evidencing that the complaints were made and states further:

[28] 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) (Civil and Administrative Tribunal Act) 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 the opportunity to test them.

[29] 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 the 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 transcripts of cross examination conducted on some other occasion (of which there was none).

[30] 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 approved 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 …”

46. Counsel for the Respondent advised that it was her intention to utilise the material to which objection was made to support submissions that the Tribunal should reach a conclusion she described as the “middle position” in the BKE matter (supra), that is that the Tribunal may not be satisfied that an allegation of abuse has been made out, “but could 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” and that this use of the material was consistent with the reasoning of Fagan J at paragraph [30] of BRL matter.

47. In the current matter Counsel for the Respondent acknowledged that it was not proposed to call the makers of the statements to which objection had been made and provided no detailed reasons for not doing so other than that the alleged victim was aged 10 at the time of the trigger matter.

48. As in the BRL matter the Tribunal does not have access to any cross -examination of the witnesses that may have taken place when the allegations against the Applicant were heard at the Children’s Court.

49. Objection was taken to a large amount of material and the Tribunal was of the view that taken as a whole the material to which objection was made provided important context necessary to consider the import of the allegations in respect of any risk posed by the Applicant. As indicated by Fagan J in the paragraphs cited above, in utilising the material to which objection had been made the Tribunal would be in a position to look at the presence or absence of internal consistency, consistency between the respective makers of the statements, the inherent probability or otherwise of the matters to which reference was made and the presence or otherwise of agreement with objectively approved surrounding facts and so on. In the absence of the material the Tribunal would be unable to properly assess any risk posed by the Applicant, including the possibility that the material did not support a conclusion that the Applicant posed a risk to children.

50. Taking into account the nature of the material, including that some of it included hearsay statements and other evidence by witnesses who were not intended to be called, the Tribunal determined that the documents to which objection was made should be admitted as evidence that the allegations and statements which they contain were made, but not as evidence of the existence of the matters claimed.

Matters considered by the children’s guardian

51. In its letter dated 1 September 2015 advising CPO of its decision to refuse him a WWCCC, the Children’s Guardian states:

The matters that have caused this assessment pertain to a serious dismissed criminal charge of Aggravated Indecent Assault against a ten year old victim in 2000. An Apprehended Violence order was issued against you and the victim and her family were referred for counselling following the victim’s decision. During the investigation, the victim gave a clear and concise disclosure of what happened. It is understood NSW Police discussed the … charge with the victim who declined to attend court and provide evidence in this matter. The offence was subsequently dismissed”.

…

“The alleged sexual assaults occurred on multiple occasions in 2000 which indicates that the alleged event was not an isolated incident and is considered to be of a serious nature”.

52. The charge against CPO was that between 1 January 2000 and 30 January 2000 he assaulted the alleged victim (called V in these Reasons) and committed an act of indecency by pushing his erect penis against her vagina in circumstances of aggravation being that at the time V was aged less than 16, actually being aged 10.

53. The facts alleged in the police statement of facts were that:

1. V and CPO’s brother were playing a chasing game and that as V ran past CPO’s bedroom he grabbed her by the shirt and pulled her into his room, telling her to be quiet. He covered her mouth with his hand, removed her clothes and his clothes and put V on his bed lying on her back. He then lay on top of her and pushed his erect penis against her vagina. He told her not to tell anyone.

2. On 27 February V informed her mother about the assault and police were contacted.

54. A Department of Community Services Assessment Report dated 27 February 2000 includes the following:

1. V presented as a “young child mirroring her mother’s distress at the allegations of sexual abuse” and repeatedly stated that she did not want to talk about the allegations.

55. Police and a Department of Community Services officer first interviewed V on 28 February 2000. The record of that interview includes matters to the following effect:

1. V and her 2 brothers like to sleep in their mother’s bed when their mother is out.

2. During the interview V spoke of being uncomfortable and finding the interview process hard.

3. V said that her mother had spoken to her and said that it was not her fault. When asked what her mother was referring to, she said “what the kid did to me” and named CPO as “the kid”.

4. She had told her mother the night before the interview that she did not want to talk about it.

5. She felt embarrassed. She also said she felt “really embarrassed” and “it’s too hard”. V asked the police officer if she wanted V to tell her about something that was worrying her.

6. When asked if she was concerned that it would be thought she had done something wrong, she said “no, I would be really embarrassed”. She also said that she didn’t feel like talking about it and that she had already talked about it and “couldn’t really tell Mum”. V also said “mum told me that I feel safe, I am safe …but I just don’t feel like, I’m too embarrassed to tell anyone … It was even hard for me to tell Mum”.

7. V recounts that she told her mother about the matter and her mother then went to try to speak to “him” and then her father called the police.

8. When asked if this “thing” had happened more than once V said that she did not want to say any more.

9. V said that the “thing” that worried her had taken place at the home of CPO and that she “wasn’t happy about it”. She said that “he took me downstairs” and that she was “trying to run off and he wouldn’t let me”. She named CPO and said he “just grabbed me”.

10. When asked if she thought the thing that CPO did was against the law she replied “yeah”.

11. When asked if what CPO did could only be done to a girl and if it hurt, V said she did to want to talk about it.

56. A record of interview on 28 February 2000 between a constable of police and V’s 14 year old sister includes matters to the following effect:

1. V’s sister said that she heard V telling their mother that CPO had sex with her.

2. When asked if she knew why she was being interviewed, she said “about my sister being raped”.

3. On one occasion when her family and family of CPO were on holidays she had gone to a bedroom to get CPO for breakfast. She saw CPO and his sister in the bed and the sister was underneath CPO. She says that she does not know if “that meant that he was having intercourse with her or was just fingering her or what was going on”. She states that CPO denied that the sister was there but upon pulling back the bed covers she saw her there. She states that CPO’s sister was dressed in a jumpsuit.

57. In a Certificate dated 29 February 2000, a Medical Practitioner with the Sexual Assault Service and Child Protection Service of Royal North Shore Hospital states that the examination of V neither confirmed nor denied that sexual assault had occurred.

58. A Department of Community Services Case Report dated 2 March 2000 includes the following comment:

“Concerns also held as to parents’ management of the situation and possible emotional response by child to mother’s level of anxiety. Remains unclear about term “sex” in notification, however (redacted) have informed a number of (professionals) that (redacted) has been raped. This has not been determined by JIT officers and the medical did not support that being the case.”

59. A further Department of Community Services Case Report dated 2 March 2000 includes a comment that the parents of V were “presenting as highly anxious and have made a number of threats to pursue litigation against Dept of Education, Police and DOCS …”.

60. In a Statement dated 3 March 2000 the mother of V makes statements to the following effect:

1. In 1998 her sons and CPO had a physical altercation.

2. Her daughter told her that CPO took pornographic material to school and that he had said that he had lost his virginity.

3. Her daughter told her that she had seen CPO in bed with his sister and she confronted CPO asking what he had been doing with his sister. He replied “nothing”. She said to CPO that her daughter had seen him and his sister and she also said “this has been going on hasn’t it” to which CPO responded “yes”. Following this incident she had resolved not to allow her children to be alone with CPO.

4. Around 10 or 17 February 2000 she was having tea with CPO’s mother and when she called V to come home the latter did not come and needed to be called a number of times. That night V wanted to talk to her about something but she was not able to because it was late.

5. Around this time V had complained of a sore vagina and also had blood-like stains in her underwear. V was also having nightmares and came into her parent’s bed. This was uncommon and in the past she had gone into her brother’s room to sleep if she had a nightmare.

6. On 27 February 2000 V said to her “(CPO) Is having sex with me”. V answered “yes” when asked if CPO had inserted his penis into her vagina and said that this had been going on for a year. The mother of V told her husband about the allegations and he called the police.

61. A Department of Community Services Case Report dated 24 March 2000 records that a meeting was held with the parents of CPO who advised that CPO had admitted to “grabbing” V but not to sexually abusing her.

62. A second record of an interview conducted on 31 March 2000 between a Constable of Police, a Department of Community Services District Officer and V includes matters to the following effect:

1. V said that CPO had grabbed her by the shirt and pulled her into his room and covered her mouth with his hand. She said that at the time of the alleged assault CPO took her clothes off her and took off his own clothes and put her on the bed. She said that at this time CPO’s penis was “hard” and he “put it into (her) vagina” and then lay on top of her.

2. V said that she was “really scared” because CPO lived close to her.

3. V said that this had happened three or four times.

4. V states that she had heard that “things had happened” with CPO and someone else before it happened to her.

5. The record of interview includes the following part written and part typed comment by V:

I said get it out … get more out than less …without them, you’re supposed to get more without them, like, the ones that … tell them before if you have to go to court for … he would just get a slap on the wrist”

This comment is followed by the police officer reminding V to only “tell about things that are truthful” and “I don’t want to talk about things that you think your Mum wants to talk about”.

6. V also states that her mother had said , “it’s best to get more out than just a little bit” and that her mother said to her “they need a victim like you have to tell them ‘cause you’re the victim …”. V said of her mother “she’s been telling me a lot and I just thought it’s better to get it out now”.

7. After stating that she saw CPO’s penis, V asks the interviewer “is that all I really have to tell you, or do you still need more? She also states that she previously seen her brother’s penis.

8. V states that CPO’s penis was hard and that he put it into her vagina. When asked what that felt like she said “it didn’t feel good. I didn’t really like it either and he wouldn’t listen to me”. She said that she was telling him to get off and leave her alone.

9. When asked how she knew that CPO’s penis was in her vagina V said that she could feel it. When asked where she could feel it she said “in my vagina. Is that all you needed to know?”.

10. V said that CPO was just lying on top of her. When asked what sort of motion his penis was doing or if she noticed anything happen to CPO’s penis, V said “no”.

11. She also said in effect that her mother would be “a lot happier” that she had provided the information in this interview because she did not want to come back again a third time.

63. A Department of Community Services Assessment report dated 11 April 2000 indicates that V’s mother had requested a second interview to be conducted with V who was then ready to make disclosures about the alleged abuse. At that interview she made the disclosures referred to above.

64. A Joint Investigation Team (JIT) Debriefing Form dated 18 April 2000 includes comments to the following effect:

1. V’s parents were “very distressed” with the situation. There had been “poor management of disclosure by parents” and it was apparent that V’s mother had “placed pressure” on her which “impacted upon the criminal evidence quality”.

2. The investigating officer had noted that V mirrored her mother’s distress and that there was “concern” regarding the mother’s needs versus V’s needs regarding the disclosure.

3. The JIT police had assessed that V’s evidence had been contaminated and there were concerns about V giving evidence.

65. A record of interview conducted on 5 May 2000 between the sister of CPO and a District Officer from the Department of Community Services, a Child protection Casework Specialist, and a school teacher includes matters to the following effect:

1. When an interviewer noted that they had been told that she was in CPO’s room and CPO was lying on top of her she said “I don’t know”. When asked if someone had told her to not to tell what happened she said “yes” and that it was not CPO who had said not to tell anyone.

2. When an interviewer said that they were told that when they were on holidays she and her brother (CPO) were in the bedroom and under the covers she said “no”.

3. When asked if CPO “did something” she nodded her head.

4. When asked of CPO touched her or made her do something she said “no”.

5. She said that about two years previously she had gone into CPO’s bedroom and saw him and V lying on the bed and V had told her “not to tell”. She also said that her mother told her not to tell anyone.

6. She said that what had happened with V had not happened with her. She denied that CPO had done something that she did not like and denied that he had touched her body.

66. A Police Event reference indicates that in 23 October 2000 a person had contacted police expressing concern that a brother of CPO had said that he was worried because CPO was having sex with his sister. The Event reference notes that the alleged victim had been interviewed twice and had made no disclosures. The Police Narrative states that this was the third notification in six months of which the second and third resulted in interviews and no disclosure and no criminal offence had been identified. It was not intended to further investigate the matter.

67. Department of Community Services notes about the October notification indicate that the first notification was related to concerns about sexualised behaviour by CPO’s sister.

68. Police notes record communication with the solicitor of CPO and advice to the effect that CPO did not intend to attend for a police interview.

69. The charges against CPO were dismissed at a Children’s Court in early February 2001. The Tribunal was not provided with any indication of the reason for the dismissal and in an email dated 15 June 2016 addressed to NCAT Assessment, an employee of the Parramatta Children’s Court advises that the recording of the proceedings has been destroyed in accordance with the approved retention period of three years for master tapes in the Local Court, including the Children’s Court.

70. An undated statement signed by CPO and bearing a facsimile stamp dated 22 February 2002 includes comments to the following effect:

1. He attended court on three occasions in respect of the charges.

2. His last appearance was over a period of two days where he was “cleared” due to what he believes was “inconclusive or inaccurate evidence”.

71. A letter dated 15 September 2016 from a Senior Constable of Police indicates that he had retrieved a case file relating to the allegations and had reviewed electronic records and was not able to indicate why the charges against CPO were dismissed.

Other matters ALLEGED

June 2015 Incident

72. A Police Event Reference records information to the following effect regarding an incident occurring between midnight and 6:30 am on a Monday morning in June 2015.

1. A group of about 30 people, including CPO had attended staff drinks. A female who had been at that event reported that on the next morning she found herself on a footpath where she was picked up and taken home by an unknown female. She thought her drink might have been “spiked” during the previous evening.

2. The next day the female’s mobile telephone was found to be with CPO.

3. Police questioned the female over possibly being the victim of sexual assault and explained the process for obtaining evidence regarding such a possibility. She denied feeling like she had been sexually assaulted but did not rule out that possibility since she had returned home without the pants she was wearing on the previous evening.

4. On the Tuesday morning the female was medically examined and the examination revealed abrasions and bruising and swelling to her vagina suggesting recent sexual penetration. She had no recollection of the event.

5. The female recalled that CPO had bought her some drinks on the night of the event.

73. The police records about the June 2015 incident note that CPO attended for an interview where he gave information including that to the following effect:

1. He and the female went home together to his house. They had been kissing in the taxi. At his home they went to his bedroom where they resumed kissing and removed each other’s clothes. He inserted his fingers into the vagina of the female and asked if she wanted sexual intercourse and she said yes. He attempted to place his penis in her vagina but he could not get an erection. He noted that she was starting to shut her eyes and appeared tired or affected by alcohol. They both fell asleep on his bed. Some time later he was woken by the sound of the female sobbing. He said that her condition escalated to hysterical. He offered to call her a taxi but she left the house in her underwear. He looked for her but could not find her and he went back to bed.

2. CPO stated that he would not object to providing a sample of his DNA to match to any semen or DNA found on the female.

74. The Police records note the case was suspended following the interview with CPO and when no semen was detected.

Workplace incident

75. In an email dated 6 July 2016 addressed to WWCCAssessment, a previous manager of CPO notes that CPO had been counselled for behaviour towards a female fellow employee that she found to be unwarranted and inappropriate (the workplace incident). In a further email he notes that the behaviour involved constantly calling the female on the phone and asking her out. The manager spoke to CPO and the behaviour ceased and CPO and female continued to work together for some months until she left to go interstate.

Disciplinary hearings

76. In a letter dated 29 June 2016 addressed to the Crown Solicitor, Spooner and Hall, solicitors, for CPO note that CPO was the subject of:

1. Three disciplinary hearings in relation to a Referee’s Association for not following procedure and constitutional requirements. The most recent decision was handed down in December 2015 and expires in June 2017;

2. Two disciplinary hearings for arguing with an umpire and breaching competition rules.

Report of Dr Olav Nielssen dated 28 June 2016

77. In his report Dr Nielssen states that in preparing his report he interviewed CPO in his office and on another occasion by telephone. He also read the following documents:

1. The Initial Triage Assessment dated 18 August 2014.

2. The report of termination of the WWCCC dated 16 February 2015.

3. The notice of decision to refuse a WWCCC.

4. An index to the Respondent’s s.58 documents filed on 16 June 2016.

5. The Police Facts in relation to the trigger matter.

78. Dr Nielssen recounts that CPO provided information to the following effect:

1. He denied committing the alleged offence and was not able to explain why the alleged victim would have made the complaint. He described the father of the alleged victim as domineering and intimidating and said that he believed this might have affected the alleged victim’s ability to withdraw the complaint.

2. He and the alleged victim gave evidence at the court hearing of the allegation.

3. The parents of the alleged victim had also alleged that he had interfered with his sister.

4. His family now no longer spoke to any members of the alleged victim’s family despite continuing to live within two doors of each other.

5. He has trained as a sports coach and has trained junior sports teams including girls’ and women’s teams and has also worked as a cellarman and an Uber driver.

6. Previously it had been sufficient for his employment to certify that he had no convictions. However the withdrawal of his WWWCC now prevented him from further coaching jobs after fifteen years of coaching.

7. There had been no complaints or suggestions of impropriety in his work as a sports coach. His experiences have made him very wary of any kind of closeness to children and he was careful to avoid any physical contact or perception of crossing professional boundaries.

8. He expressed an awareness that sexual offences against children could be very harmful to the emotional development of the child.

9. He reported intermittent use of alcohol and said he had no history of any other form of substance use.

10. In respect to his sexual interests and sexual development CPO said that he was exclusively heterosexual, was attracted to adult women and had never been attracted to children. He had found more mature teenage girls attractive but would never act on that attraction especially in a professional setting.

11. CPO said that he had never been subjected to any sexual abuse during his upbringing. He did not report any sexual experimenting, thought he had experienced puberty at a similar time as his peers and said that his first sexual experience was around the age of 16 with a girl of the same age. He has had several short-term relationships but no long-term relationships. He has used dating sites and as he is getting older is taking dating more seriously.

12. CPO reported that his early intellectual and physical development was normal and he was in the top third of his class for the most part.

13. When asked about depression CPO said that he left school suddenly and was not able to finish tertiary education or to hold down a job. He reported poor sleep, withdrawal from social contact, lack of motivation and weight gain as well as being easily moved to tears and he described thoughts of ending his life and researching ways of doing so.

14. He reported an overdose with 30 Panadol tablets in late adolescence the year after the hearing of the trigger matter and said that this was in response to school based rumours about the allegations.

15. Dr Nielssen advised CPO to seek treatment for depression, commencing with an online cognitive behaviour therapy program and if that did not achieve success to speak to his doctor about antidepressant medication.

16. Dr Nielssen notes that he did not identify any features of CPO’s clinical history or presentation that indicate any risk of harm to children placed in his care in the course of his employment or his activities as a volunteer sports coach and does not recommend any interventions to mitigate risk to children.

17. Based in the available information including a clinical evaluation of CPO, an assessment of his level of maturity and his conduct as a sports coach over the past fifteen years, in his opinion CPO’s continued work as sports coach would not affect the safety, welfare and well being of children placed in his care.

Oral evidence of Dr Nielssen

79. When asked to explain how he came to his opinion that CPO does not appear to have a disorder of abnormal sexual interest that might predict offences against children Dr Nielssen cited CPO’s denial of any such interests in addition to the absence of any history of sexual offences.

79. Dr Nielssen was asked why he had confined his comment to the effect that CPO posed no threat to children “placed in his care in the course of his employment or activities as a volunteer sports coach” Dr Nielssen said that he had stated his view in that way because he knew that CPO sought the WWCCC because he wanted to work as a coach. However he said that his assessment applied to CPO in any activity with children, including an activity such as babysitting. He said that in his opinion there was no indication that CPO poses a risk to children. He said that he reached that conclusion based on:

1. The absence of a pattern of behaviour that would indicate risk.

2. CPO’s attitudes and presentation.

3. The absence of any psychiatric disorder or indications of irrationality or instability.

4. The absence of other indicators of risk.

81. Under cross examination Dr Nielssen agreed that he had focussed on the fact that CPO had not been convicted of an offence and had not considered his overall conduct including the June incident and the workplace incident. Dr Nielssen said that he was not aware of the workplace incident and that he had learned about the June 2015 incident on the day before the hearing. However he said that as those matters involved adults he would not have considered them relevant to a risk posed to children by CPO.

82. Under cross-examination Dr Nielssen was asked about CPO’s statement that he was attracted to mature teenagers and said that it is normal for males to be attracted to post-pubertal females and a denial of such an attraction would, in some cases, constitute a lie.

83. Under cross examination Dr Nielssen said that if CPO had committed the trigger offence his assessment of him would be affected but in his view the behaviours and attitudes of a person at the age of 15, when the person is immature and lacking in confidence, are different from that of a 30 to 40 year old with a more mature brain and an understanding of the moral requirements of adulthood. He concluded that if CPO had committed the trigger offence that would not change his ultimate opinion of CPO’s current risk to children.

84. In respect of the allegation related to CPO’s sister, Dr Nielssen said he was aware of the allegations and understood they had not been proved. He said that if CPO had behaved as alleged this would be a cause for concern because it would appear to indicate some pathology at that age.

85. Dr Nielssen said that he was not concerned that at times CPO drank alcohol in binge type sessions so long as he did not do so when he was with children.

86. In respect of the disciplinary matters recorded against CPO in the sporting matters, Dr Nielssen said that had he been aware of those matter he would have noted them in his report, but he was not of the view that they were related to a risk to children. When asked if any irresponsible behaviour could constitute a risk to children Dr Nielssen said in his opinion that statement was too broad.

87. Dr Nielssen said that he had not conducted an actuarial assessment of the risks posed by CPO and was of the view that they are “mostly nonsense”. In any case as CPO had not been convicted of an offence he would have scored low on any such assessment. He agreed that if it was assumed that CPO had committed the trigger offence and the matter alleged regarding his sister then he might be scored as a moderate level of risk. However he said even then the statistical risk of him offending was low

88. Dr Nielssen said that in his opinion his clinical assessment was superior to an actuarial assessment and that he had taken into account matters such as CPO’s intelligence, lack of mental illness or brain injury. Whilst he had not conducted standardised tests of CPO’s truthfulness or personality he had assessed these matters with the aid of his 30 years of experience as a clinician and the lack of other indications of risk.

Affidavit of CPO dated 22 July 2016

89. In his affidavit CPO makes statements to the following effect:

1. He was born in June 1984 and at the time of the trigger matter he was aged 15, not 16 as is stated in the notice from the Children’s Guardian. He denies that he committed the trigger offence.

2. He has worked in the hospitality industry since 2006 and was currently employed as a cellarman. He had volunteered in different sporting codes at various clubs in roles including referee, coach, coaching director, board member, competition director and club president.

3. At the conclusion of the court hearing at which the charge was dismissed he consented to the making of an Apprehended Violence Order (AVO) naming the alleged victim as the protected person, without admissions, because he had no intention of engaging in the prohibited contact with the alleged victim. There had been no breach of the AVO and no request for its extension.

4. He does not know why the alleged victim made the allegation and then declined to give evidence.

5. Despite the Children’s Guardian’s reference in the letter dated 1 September 2015 to “multiple occasions” the charge was in respect of a single alleged incident and no other charges were brought.

6. He is aware that offences of the nature of the trigger matter would be harmful to children and he is “very conscious” of the importance of protecting children from abuse.

7. He has worked with children extensively in a volunteer capacity with sports organisations for 15 years and has never been subject to any disciplinary proceedings that relate to children. He has always treated children with care and respect and is conscious of the importance of children’s safety and protecting them from harm.

8. He did not reply to a Children’s Guardian email inviting him to submit material and did not submit references in support of his application because he had depression with which he has struggled for many years. Since the commencement of the WWCCC process he has been in a low mental state and had lost motivation and energy to engage with the process.

9. After receiving the notice of refusal of the WWCCC he became very depressed and lacked motivation to work and lost his job.

10. Attached to the Affidavit is a reference dated 12 May 2015 from the Head Coach of a sports organisation who states that:

• He has known CPO for 10 years.

• He has worked with CPO coaching junior teams and CPO is good at working with children, which he does in a professional and responsible manner.

• CPO toured to the USA as a coach with an under-16 team and his performance of that role was “first class”. To his knowledge, CPO has not demonstrated inappropriate behaviour or abuse towards children.

11. Attached to the Affidavit is a reference dated 30 July 2015 from the Vice President and Life Member of a Sports Referee’s Association who states that he has known CPO since the latter was 15 years old. CPO had coached a large number of under-18 year old teams and has not demonstrated inappropriate behaviour or abuse to young children. He had been complimented by parents regarding his involvement with the teams and he is well known and respected for his contribution to the game and the development of younger players and referees.

12. Attached to the Affidavit is a reference dated 31 July 2015 from the Executive Manager and Life Member of a sports Referee’s Association who states that:

• He has known CPO since 1999.

• CPO has mentored and developed new referees.

• CPO has not demonstrated inappropriate behaviour or abuse to young children and has always respected children he has dealt with.

13. Attached to the Affidavit is a reference dated 12 August 2015 from a fellow sports referee who states that he has known CPO for more than 10 years. CPO works “really well” with a group of teenagers that he was coaching to be referees and to his knowledge, CPO had not demonstrated inappropriate behaviour or abuse towards children.

The evidence of CPO at the hearing

90. CPO was asked by Counsel for the Respondent why he has said in his affidavit that V “declined” to give evidence, but had told Dr Nielssen that she gave some evidence. CPO said that he agreed that she had given some little evidence.

91. During cross-examination Counsel for the Respondent put to CPO the alleged facts of the trigger matter which he denied. She also put to him the allegations that when on holidays he was seen to be lying in a bed on top of his sister and he denied those allegations. CPO also denied the conversation recounted by the mother of V in which she alleged that she put to him the accusation that he had been lying on top of his sister and said “this has been going on hasn’t it” to which CPO responded “yes”.

92. Counsel for the Respondent asked CPO about June 2015 incident. CPO’s evidence was consistent with his statement to police as outlined above. He agreed that that he had attempted to make contact with the female via Facebook on a number of occasions after the event and had stopped because she did not want the contact.

93. Counsel for the Respondent asked CPO about the workplace incident. CPO agreed that he had telephoned the female but denied that his behaviour was “sexual”.

94. Counsel for the Responded noted that in his report Dr Nielssen states that CPO reported that there had been “no complaints or suggestions of impropriety in his work as a sports coach” and asked CPO why he had not told Dr Nielssen about the disciplinary hearings referred to in the letter of Spooner and Hall dated 29 June 2016. CPO replied to the effect that in his conversation with Dr Nielssen he was referring to complaints or suggestions of impropriety related to children and he did not think that the disciplinary matters related to the administration of the sport were relevant.

Affidavit dated 21 July 2016

95. This affidavit is sworn by a Sports Development Officer. He appears to be the same person who wrote the reference referred to above dated 12 May 2015. He states that he has known CPO since 2001 and makes statements to the following effect:

1. He is aware that CPO was charged with an offence of aggravated indecent assault in 2000, that the charge was dismissed and that a two-year AVO was made with the consent of CPO.

2. CPO was the witness’s coach between 2001 and 2003 in under-11, under-12 and under-13 teams.

3. From 2008 and 2015 he and CPO coached a number of teams together and from 2010 to 2015 they coached sports referees together.

4. CPO has had considerable contact with children during the coaching activities including seven hours per week coaching during the six months of the summer sporting season of one of the games as well as attending training for two hours twice a week and attending games for approximately three hours on weekends. In the winter six months season of the other game he would coach younger referees for approximately an hour each week and attend games on weekends for approximately 3 hours.

5. In 2014 the deponent accompanied the applicant in supervising a boys under-16 team of 16 players to the USA. The deponent was the Coach and CPO was the Assistant Coach and CPO “performed exceptionally well”

6. CPO is very good at working with children which he does in a professional, respectful and responsible manner.

7. He is of the view that CPO poses no threat to the safety and welfare of children.

Oral evidence of deponent

96. Under cross examination the deponent of the affidavit dated 21 July 2017 gave evidence to the following effect:

1. He was not aware of any allegations against CPO other than the trigger matter.

2. He was aware of the disqualification of CPO in respect of the refereeing matter and did not mention it in his affidavit because he had not thought it relevant.

97. Upon re-examination he said that as far as he was aware, the matter for which CPO was disciplined related to him providing recording equipment to a person who recorded comments made on the field that could then be heard when the video of the game was later placed on the social media. The deponent believed that CPO had provided the equipment so that the comments could be used as a training aid, and had not intended them to be publicly available.

Affidavit dated 25 July 2016

98. In this affidavit the deponent makes statements to the following effect:

1. She has known CPO since 2006 through involvement in sporting clubs. She has been president of a local sporting club since 2009 and the Junior Representative Coordinator of a district sporting association for five years.

2. She is aware that when he was 15 years old CPO was charged with aggravated indecent assault against a minor and that the charge was dismissed and that CPO agreed, without admissions, to an apprehended violence order for two years for the protection of the alleged victim.

3. In the time she has known CPO he has coached junior sporting teams and held committee positions including as president of a local club.

4. She has been the team manager of teams coached by CPO and has observed and worked closely with CPO over the past 10 years.

5. CPO has coached each of her three teenaged sons and is well respected by them.

6. CPO has had significant contact with children through his coaching. Over a season he would train his teams twice per week and attend games on weekends.

7. In 2014 she travelled to the USA with CPO with a junior sporting team. She was the manager of the team and CPO was the assistant coach. CPO was a “very responsible and professional supervisor” of the junior players.

8. CPO has been a valued member of the sporting code’s community.

9. CPO is good at working with children and has always conducted himself in a responsible and appropriate manner when coaching or otherwise engaged in the care of minors in relation to the sport.

10. She has never seen him display any inappropriate conduct towards children.

11. She believes that CPO poses no threat to the safety, welfare and well being of children.

99. In her oral evidence the deponent said that she was not familiar with the details of the matters alleged in the trigger matter and was not aware of any other matters alleged against CPO.

Submissions of Counsel for the Applicant

100. Counsel for the Applicant made written and oral submissions which were considered by the Tribunal and which were to the effect summarised below.

1. The Applicant denies the allegations of which he was acquitted. No witnesses to the alleged matter were called by the Respondent and there was no reason provided for the failure to call witnesses.

2. Following the decision of Fagan J in the BRL matter, the documentary material provided by the Respondent which contains witnesses’ statements unsupported by the oral evidence of those witnesses provides only a weak basis for concluding that there is risk that the alleged offence occurred and is of negligible weight if admitted as evidence of the truth of the allegations.

3. Dr Nielssen reports that he did not identify any features of the Applicant’s clinical history or presentation to indicate any risk of harm to children placed in his care.

4. The affidavits dated 21 July 2016 and 25 July 2016 indicate that the Applicant has many years of experience coaching children including accompanying a junior team on a three week trip to the United States. The deponents state that CPO has performed well in his coaching role and that there have been no allegations of inappropriate behaviour to children.

5. The disciplinary action taken against CPO in respect of his sports coaching was about an action that amounted to a misjudgement of what was appropriate in the context of the rules of the governing body and does not reflect any risk to children.

6. CPO’s witnesses were aware of the allegations made against CPO even though he had not told them all the details of the allegations or of the other allegations regarding his sister. He was under no obligation to tell them about the other allegations and their opinion regarding those allegations would be irrelevant. The value of their testimony was that they have had a long association with CPO and were in a position to reflect on his performance and conduct over those years.

7. When she was first interviewed by police on 28 February 2000, V made no mention of the allegation that comprises the trigger matter. She said on a number of occasions that she was “embarrassed” which would be consistent with being reluctant to repeat a story that she knew to be untrue. She also disclosed that from time to time she slept in her mother’s bed with her brothers.

8. In her statement to police V’s mother said that V would sleep with her brother if she had a nightmare.

9. The time between the first interview with V and the second interview on 31 March 2000 allowed ample time for her evidence to be influenced. During that interview she said that she had heard that things “had happened with (CPO) and someone else before it happened to me”. She also made statements such as “Mum said it’s best to get more out than just a little bit” and made the comment about “tell them before it you have to go to court for … he would just get a slap on the wrist”. This latter comment is met by a comment from the police officer that V should only tell about things that were truthful, which indicates that the officer thought her earlier statements did not present as truthful.

10. The Department of Community Services documents indicate that the Joint Investigation Team staff were of the opinion that V’s mother had placed pressure on her which impacted on the quality of the criminal evidence. V’s mother had an adverse view of CPO dating back to an altercation between him and her sons as described in her statement. Whilst the mother of V had said that she was wary of CPO after being told by her daughter that she had seen CPO in bed with her sister, in her statement she describes a situation in which she was having tea with CPO’s mother whilst her daughter was playing in the downstairs area of CPO’s home.

11. During the second interview with the police officer, V asked on several occasions if the information was all the interviewers needed – suggesting that she felt that she needed to provide answers or respond to an expectation rather than to provide her recollections. At the end of the second interview, V states that her mother would be a “lot happier”.

12. During the second interview V claimed that CPO placed his penis in her vagina and did not move it. However CPO was charged only with placing his penis against her vagina, suggesting that the investigating officers did not consider that V’s account of penetrative sex could be proved.

13. V alleges that assaults had taken place about three or four times previously. However that claim is difficult to reconcile with the idea that she had been the victim of a traumatic sexual assault. If that had been the case it is unlikely that she would have returned freely to the house to play.

14. In respect of any suggestions that CPO had sexually assaulted his sister, JIT officers interviewed the sister and she made no such allegations and ultimately no further action was considered necessary.

15. In respect of the workplace matter, the allegations amount to no more than him calling a work colleague and asking her out. The material available regarding this matter indicates that CPO and his colleague continued to work together for some time after CPO’s manager spoke to him about the incident. As CPO and his colleague were working at licenced premises his colleague must have been an adult and the fact that CPO asked her out indicates that he has an interest in adult women as described by Dr Nielssen.

16. In respect of the June 2015 incident CPO was cooperative with police even though he was under no obligations. There was no allegation that there had been any unwanted sexual contact with the woman or that her drink had been spiked. Whilst the documents refer to a blood test being conducted there was no mention of the results of the blood test. A sexual assault investigation had not revealed the presence of any semen. CPO’s involvement with the woman illustrates his interest in adult women as described by Dr Nielssen.

1. In respect of the allegations regarding V and CPO’s sister and the material admitted over the objections of Counsel for the Applicant:

1. That material was admitted only as evidence that the allegations had been made, not as evidence of the matters alleged.

2. Even taking into account the view expressed by Young JA in the FZ matter (supra) the allegations regarding CPO’s actions in respect of V and his sister both originated with members of V’s family and were not supported in the interview with the alleged victim.

3. JIT investigators were concerned the evidence of V had been contaminated by the mother of V and her sister who made the allegations regarding CPO actions towards his sister.

4. When V was first interviewed by police there were no allegations made about CPO’s sister. Those allegations were first made by V’s sister who also alleged that V had been “raped”. These circumstances are very far removed from the circumstances described by Young JA in the FZ matter.

5. Unlike the example given by Young JA, it not unusually coincidental that the allegations were made

6. On the basis of the allegations made about CPO’s behaviour towards his sister the Tribunal could not conclude that there is a risk that CPO assaulted his sister. To do so would be to descend to a point where the mere allegation is accepted as giving rise to a conclusion that there is a risk that the alleged behaviour occurred. However the task of the Tribunal is to assess the risk posed by CPO.

7. Even if the statement of V’s sister were accepted, in the statement she says that she did not know what was happening and indicates that CPO’s sister was clothed at the time. The statement regarding the possibility of intercourse or “fingering” illustrates a possible tendency of V’s sister to exaggerate. Had she been available as a witness at the current hearing her evidence could have been tested.

18. Even if the Tribunal were not able to exclude the possibility that the trigger matter might have occurred there is no basis to conclude that CPO poses a risk to the safety of children for the following reasons:

1. At the time of the trigger matter CPO was aged 15. The conduct of children is regarded and treated differently from that of adults.

2. The conduct alleged does not show a propensity to engage in sexual conduct against a child but rather should be regard as sexual contact between children.

3. More than 16 years have passed since the allegation without any further allegation of improper conduct by CPO in respect of children.

4. Dr Nielssen’s evidence was to the effect that CPO shows no signs of disordered sexuality regarding children and is not a risk to the safety of children.

19. Taking into account all of these matters, the Tribunal could not conclude that the allegations against CPO are truthful . Even if the Tribunal concluded that there was a risk that the allegations are true, the Tribunal could not be satisfied that the Applicant poses a real and appreciable risk to the safety of children.

Submissions of Counsel for the Respondent

101. Counsel for the Respondent made written and oral submissions which were considered by the Tribunal and which were to the effect summarised below.

1. The matters considered by the Children’s Guardian are serious.

1. In respect of the trigger matter, not all allegations about that matter were made by the family of CPO. When she was interviewed, the sister of CPO said that she had seen CPO on top of V and had been told not to say anything.

2. In addition to the statement of V’s sister that CPO had acted inappropriately to his sister:

1. In April 2000 the school notified DOCS of concerns about recent behaviour by CPO’s sister.

2. When interviewed, whilst CPO’s sister did not say that CPO had touched her, she said that she had been told not to tell anyone what had happened.

3. Police received a report that CPO’s brother had disclosed to a friend that he believed his brother was having sex with his sister. Counsel for the Respondent acknowledged that this hearsay evidence is of limited weight but submitted that it should be considered as an allegation made in respect of the alleged matters which was not an allegation made by a member of V’s family.

4. Regarding the workplace incident, CPO’s manager had counselled CPO regarding the behaviour the colleague had found to be unwarranted and inappropriate.

5. Regarding the June 2015 incident, CPO was implicated in the event in which a complaint was made by a 19-year-old woman who was unable to remember the events of the night before and feared that her drinks had been spiked. CPO said that the woman had slept with him and later became hysterical and ran out of the house. He said he was not able to have an erection and penile/vaginal penetration did not take place.

6. Disciplinary action was taken against CPO for providing a communication device that resulted in what the referee said being recorded, the recording was later placed on Facebook. CPO had been suspended for three years from holding an executive position in the club.

2. The report of Dr Nielssen should be given limited weight for the following reasons:

1. A number of his submissions are those of an advocate and are not in the area of his expertise. In his oral evidence Dr Nielssen displayed a bias towards the Applicant and his answers to questions asked in cross-examination were followed up by exculpatory comments.

2. Dr Nielssen mistakes the test set out in s. 30 of the Child Protection (Working with Children) Act in that he purports to consider only any offences committed by CPO rather than any matters that caused a refusal of the WWCCC and ignores that the trigger for assessment arises where proceedings have been commenced for an offence committed as a child whatever the outcome of the proceedings.

3. Dr Nielssen was not given the whole of the s.58 documents and his comments about additional allegations are not based on his independent knowledge but on what he was told by the Applicant.

4. Dr Nielssen misstates the test when he opines that CPO poses no threat to the well being of children placed in his care, when the relevant test is whether or not he poses a real and appreciable risk to children. If he were granted the WWCCC, CPO could be involved with children in any capacity.

5. Dr Nielssen did not conduct a risk assessment and his conclusion that CPO has no psychiatric illness that would indicate a risk is only a small part of an assessment.

6. Dr Nielssen agreed that if CPO had assaulted his sister that could indicate pathological behaviour

3. In his affidavit CPO does not mention the disciplinary action taken by his referees association.

4. The references annexed to CPO’s affidavit predated the disciplinary action taken by the Referee Association.

5. The reference contained in the affidavit dated 21 July 2016 has little weight because the deponent was not aware of the detail of the allegations made against CPO regarding the trigger matter and the allegations about his sister.

6. The reference provided by the deponent of the affidavit dated 25 July 2016 does not mention the disciplinary action taken against CPO by the association of which the deponent is a member.

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

102. In its Reasons for Decision for refusing to grant CPO a WWCCC, the Children’s Guardian refers to the charge of Aggravated Indecent Assault of V, who was then aged 10 and the issuing of the AVO protecting V and of the circumstances of that matter, including the allegation that the behaviour had occurred on multiple occasions.

103. The Tribunal is satisfied that the behaviour alleged in the trigger matter is serious.

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

104. The trigger matter was alleged to have occurred in January 2000 which was approximately 17 years ago.

105. It was alleged that around the time of the trigger matter, CPO had engaged in inappropriate sexual activity with his sister. In respect of that allegation:

1. No charges were laid.

2. The sister denied that CPO had touched her body.

3. The allegation was initially made by a sister of V when she was being interviewed by police about the alleged trigger matter. She was not made available for cross-examination and as submitted by Counsel for the Applicant. In respect of that record of interview the Tribunal is satisfied:

1. V’s sister does not describe any assaultive behaviour and describes V’s sister as being clothed.

2. V’s sister makes some speculative suggestions about what V might have been doing to his sister but does not describe anything she witnessed to support that speculation.

3. V’s sister’s readiness to speculate reduces the reliability of her evidence regarding what she actually witnessed.

4. Taking into account the matters outlined in the preceding sub-paragraphs, the Tribunal places little weight on the account of V’s sister, either as evidence of the matter it purports to allege or as a statement that could be considered amongst others to support a suspicion that CPO sexually assaulted his sister.

4. A police note records a report that the brother of CPO said that he was concerned that he was having sex with his sister. Police did not follow up this report having previously considered the allegation. The Tribunal is of the view this hearsay evidence far removed from its source is of very little weight in establishing that CPO sexually assaulted his sister and is of little weight even as evidence of statements by diverse people that could support a suspicion that CPO sexually assaulted his sister.

106. The Tribunal is of the view that the available evidence about the allegation that CPO sexually assaulted his sister is insufficient to sustain a suspicion that the alleged behaviour occurred.

107. Regarding the workplace incident, there is no evidence before the Tribunal about the nature or content of the material or contact by CPO that made his behaviour unwarranted or inappropriate. Taking into account that lack of evidence and that CPO and the work colleague who was the recipient of the communication, both of whom were adults, continued to work together after the incident, the Tribunal is not satisfied the matter is one that is of concern in respect of any risk posed by CPO to children.

108. In respect of the June 2015 matter, whilst the material provided to the Tribunal refers to a female thinking that her drink might have been spiked and to evidence of sexual penetration of her, and whilst CPO agreed that they had had sexual contact, there appears to have been no allegations made regarding either drink spiking or sexual assault. CPO cooperated with police regarding the matter and no further police action was taken. The Tribunal is of the view that the available evidence does not support a suspicion that CPO engaged in unwelcome sexual activity in respect of the woman or that the incident evidences behaviour by CPO that would represent a risk to children.

109. In his affidavit and the affidavits of referees, information is provided that CPO has had a long history of involvement with sports teams and referees and has coached young people in these endeavours, including accompanying young people on a trip to the United States. The Tribunal accepts the evidence of CPO and the deponents in relation to these matters.

110. The Tribunal accepts that CPO has been disciplined in respect of providing a communication device that recorded the comments of referees and that the recording was later made publically available via social media. The Tribunal is of the view that this matter does not disclose conduct that is of concern in respect of CPO’s risk to children.

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.

111. CPO was 15 years old at the time of the trigger matter. V was aged 10. The age difference was 5 years.

112. CPO was aware that V was a child.

113. CPO’s family and V’s family were friends who holidayed together and the children played together. The Tribunal is of the view that this arrangement placed V in a vulnerable position where it might have been difficult for her avoid contact with CPO.

114. The Tribunal is satisfied that the difference in maturity and strength of a 15-year-old boy and a ten-year girl is such that V was in a vulnerable situation.

The person’s present age

115. CPO is now 32 years old

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

116. The Applicant has no other criminal charges or matters recorded against him. The Tribunal is of the view that this is in his favour in an assessment of the potential risk he might pose to children.

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

117. 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”.

118. In the current matter the evidence was not sufficient to prove, to the criminal standard, that CPO committed the offence as charged.

119. In considering whether it is satisfied on the balance of probabilities that CPO committed the offence the Tribunal takes into account the following matters:

1. There is no evidence as to why the charge was dismissed and the transcript of the court hearing is not available.

2. Witness statements and records of interview have been tendered but the witnesses have not been available for cross-examination. The truth of their statements has not been put to the test and nor have they had the opportunity to explain any flaws or anomalies in their statements.

3. In her first record of interview V made no allegations of sexual assault by CPO. Her second interview was conducted after her mother contacted police stating that V was now ready to make a statement. JIT investigators commented on the reaction of V’s mother to the allegations including that she used the word “rape” when that had not been suggested by the facts. They were of the view that V was “mirroring” her mother’s concerns and that her mother’s actions might have contaminated V’s evidence.

4. The Tribunal is of the view that there that are substantial issues in the second statement of V that reduce the weight that can be placed on her evidence. In particular:

1. In her second interview V made allegations that included penis-vaginal penetration. However when asked how that felt she said “.. it didn’t feel good. I didn’t really like it either” but made no reference to pain as might be expected in such a circumstance.

2. CPO was not charged with penetrative sexual assault but with placing his erect penis against V’s vagina. Whilst there is no evidence as to why this is the case the Tribunal is of the view that had there been sufficient evidence of behaviour of the type alleged by V, the charge would have reflected those circumstances.

3. The Tribunal accepts the submission of Counsel for the Applicant as outlined at subparagraphs 100(9) and 100(11), above, that V’s comments, including asking interviewers if they “had enough”, that she had been told that they needed a victim, that CPO might only get a slap on the wrist, and her statement that her mother would be pleased with her after the second interview, support a possibility that her evidence had been contaminated and reduce the weight that can be placed on her statements during that interview.

5. A record of interview with CPO’s sister mentions that she saw CPO on top of V some years prior to the trigger matter. However she states that they had their clothes on and she does not provide further evidence of seeing any activity consistent with sexual assault. Whilst V said that similar assaultive behaviour had occurred three or four times there is no time frame provided and no evidence linking CPO’s sister’s comment to the allegations about the trigger matter said to have taken place some two years later. The Tribunal is of the view that CPO’s sister’s comment is relevant as an allegation coming from a source other than the family of V, but is of limited weight in supporting a conclusion that it is more likely than not that CPO committed the trigger offence.

120. Taking into account the available evidence the Tribunal is not satisfied on the balance of probabilities that CPO committed the trigger matter.

121. Even if the Tribunal is not satisfied to the civil standard that it is more probable than not that CPO committed the offence constituting the trigger matter, 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 offence, or retains a “lingering doubt” that he might have committed the offence, 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).

122. In accordance with the decision of Harrison J in the matter of Office of the Children’s Guardian v CFW, the Tribunal must consider those matters for which it is satisfied that CPO is responsible and also matters for which it is not satisfied that he is responsible, but for which it retains a “lingering doubt” that it is possible that he is responsible.

123. In respect of the material that includes allegations that the Applicant sexually assaulted the alleged victim and his sister, Counsel for the Respondent submitted that it was open to the Tribunal to consider the material as allegations made at different times by people independent of each other in circumstances similar to those described by Young J in the FZ matter. In making this submission, Counsel for the Respondent conceded that the people making these allegations are not as removed from each other as the hypothetical complainants referred to by Young J.

124. The Tribunal is of the view that the closeness of the relationship between the alleged victim of the trigger matter, her mother, father and her sister, is substantially different from that of the hypothetical complainants referred to by Young JA. The Tribunal does not accept that His Honour’s comments should be taken to apply to circumstances such as the present circumstances, where family members of the victim, who live with the victim, make similar allegations. Accordingly the Tribunal is not of the view that the allegations made by a number of family members of V are sufficient for it to believe that it is more likely than not that CPO might have committed the trigger offence or to have a lingering suspicion that he did so.

125. However despite its decision that the number of statements and records of interview do not sustain a lingering suspicion, the Tribunal nevertheless does have a lingering suspicion that CPO might have committed the trigger offence based on the following:

1. V was only 10 years old at the time she made the allegations. Whilst the Tribunal accepts that her evidence might have been tainted the Tribunal considers it unlikely that when interviewed by police she would have totally made up the alleged scenario.

1. CPO’s sister denied that he had sexually assaulted her, but said that she had seen CPO on top of V in his bedroom and that V had told her not to tell anyone.

2. The JIT was of the view that the allegations were capable of being sustained such that the matter should go to trial.

126. If there were a repetition of the trigger matter, there would be a seriously adverse impact on children.

127. There have been no complaints or charges against CPO alleging inappropriate activities with children since the trigger matter despite a long-term involvement with children in sports and referee coaching. He has provided references from people who have known him in those roles and travelled with him and children on an international trip and who attest to his professionalism and the appropriateness of his conduct with children.

128. Counsel for the Respondent has urged the Tribunal to place little weight on the report of Dr Nielssen. The Tribunal agrees that in his report Dr Nielssen does misstate the matters to be considered under s.30 of the Child Protection (Working with Children) Act and that he expresses a personal belief regarding his view of whether the Act provides for justice to be provided to applicants. However the Tribunal accepts that as a psychiatrist experienced with sexual offenders he is qualified to express the following opinions contained in his report or stated in evidence:

1. He did not identify any features of CPO’s clinical history or presentation that indicate any risk of harm to children. He reached this conclusion taking into account:

• The absence of a pattern of behaviour or other indicators of risk.

• CPO’s attitudes and presentation.

• The absence of any psychiatric disorder or indications of irrationality or instability.

• An assessment of CPO’s level of maturity and his conduct as a sports coach over the past fifteen years.

2. If CPO had committed the trigger offence his assessment of him would be affected but in his view the behaviours and attitudes of a person at the age of 15, when the person is immature and lacking in confidence, are different from that of a 30 to 40 year old with a more mature brain and an understanding of the moral requirements of adulthood. He concluded that if CPO had committed the trigger offence that would not change his ultimate opinion of CPO’s current risk to children.

3. If CPO had behaved as alleged this would be a cause for concern because it would appear to indicate some pathology at that age. However as noted, he is of the view that a person’s behaviours at the age of 15 should be distinguished from those of 30 to 40 year old.

129. These are finely balanced matters. For the reasons outlined the Tribunal retains a lingering doubt that CPO might have committed the trigger matter. However the Tribunal is of the view that the evidence that supports that lingering doubt is not of sufficient weight to elevate that doubt higher than a weak lingering doubt.

130. Against that lingering doubt are the following matters:

1. At the time of the trigger matter CPO was himself a child. If he committed the acts as alleged it was as a child. In respect of that observation:

1. Any sexual contact was child-child sexual contact, not adult –child sexual contact. In the absence of evidence to the contrary the Tribunal is not satisfied that the child-child sexual activity suggests a propensity to engage in harmful adult-child activity.

2. The Tribunal is of the view that the behaviours of a 15 year old in respect of sexual matters might not be an indication of the behaviours that are to be expected of that person when a mature adult.

2. There is insufficient evidence to support a suspicion that CPO was involved in untoward conduct with his sister around the time of the trigger matters.

3. Some 16 years have elapsed since the trigger matters. CPO has not been the subject of any criminal charges over that period.

4. The Tribunal is satisfied that the workplace incident and the June 2015 incident are not matters that cause concern regarding any possible risk posed by CPO to children.

5. Since the trigger matter, CPO has not been subject to any allegations of inappropriate acts towards children despite a long period of involvement in children’s sport. Others who have been involved with him in these endeavours have attested to his professionalism and appropriate conduct.

131. 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 CPO poses a real and appreciable risk of harm to children that is greater than the risk posed by any other person.

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

1. The decision of the Children’s Guardian dated 1 September 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.

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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

Amendments

03 August 2017 - Typographical error paragraph 3, change 2017 to 2016

28 July 2017 - typographical error paragraph 3

Decision last updated: 03 August 2017