CWZ v Children's Guardian

[2017] NSWCATAD 297

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CWZ v Children’s Guardian [2017] NSWCATAD 297
Hearing dates:	13 & 14 July 2017
Date of orders:	10 October 2017
Decision date:	10 October 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hon G Mullane (ADCJ) Principal Member; E Hayes General Member
Decision:	1.The decision of the Children’s Guardian of 22 November 2016 cancelling the Applicant’s Working with Children Check Clearance is set aside. 2.Broadcast or publication without leave of the Tribunal of the name or other information identifying the applicant or any person who has made allegations against the applicant and is referred to in these proceedings is prohibited.
Catchwords:	Working with Children - Check Clearance – Cancellation – Review of Decision
Legislation Cited:	Child Protection (Working With Children) Act 2012 ; Crimes Act 1900; Administrative Decisions Review Act 1997; Child Protection (Prohibited Employment) Act, 1998
Cases Cited:	Commission For Children and Young People –v- V [2002] NSWSC 949
Category:	Principal judgment
Parties:	CWZ (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: P Skinner (Applicant) A Douglas-Baker (Respondent)     Solicitors: Carrol & O’Dea (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	2016/00381666
Publication restriction:	Broadcast or publication without leave of the Tribunal of the name or other information identifying the applicant or any person who has made allegations against the applicant and is referred to in these proceedings is prohibited

reasons for decision

Introduction

1. The applicant applied to the Children’s Guardian for a Working with Children Check Clearance under the Child Protection (Working With Children Act 2012 ( “the Act”) on 17 February 2014. The Clearance was granted on 18 February 2014.

2. In 2015 the applicant was charged with four (4) counts of unlawfully and indecently dealing with a child under fourteen (14) and six (6) counts of an act of indecency with another male. All of the offences were alleged to have occurred in the period 1969 to 1972 at a Catholic Boarding High School for boys in a state other than New South Wales.

3. The Applicant was indicted on the 6 charges of Act of indecency with another male and on 6 August 2015 committed for trial on those matters. The 4 charges of unlawfully dealing with a child under 14 were discontinued on 7 August 2015. .

4. The applicant stood trial from 8 to 11 February 2016 and on 15 February 2016. The jury acquitted him of each of the 6 charges. Under the Act those charges and the decision triggered an assessment requirement for the Children’s Guardian to investigate and assess whether the applicant poses a risk to the safety of children.

5. The Children’s Guardian conducted the assessment, concluded on the balance of probabilities that the applicant poses a risk to the safety of children and cancelled his Clearance on 22 January 2016.

6. The applicant applied to the Tribunal on 20 December 2016 for a review of the cancellation decision. These are the reasons for the review decision.

Relevant Law

7. Section 4 of the Act provides:

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

8. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in “child-related work” for purposes of the Act.

9. Section 8 requires that a worker must not engage in child-related work unless the worker holds a “Working with Children Check Clearance” of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an “interim bar”.

10. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.

11. Section 12 of the Act provides that there are two classes of Working with Children Check Clearances which are:

a)    Volunteer – authorising workers to engage in unpaid child-related work; and

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

12. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance and requirements for the application. It provides:

13 Applications for clearances

(1)    A person may apply to the Children’s Guardian for a working with children check clearance.

(2)    An application must:

(a)    be in the form approved by the Children’s Guardian, and

(b)    be accompanied by any other information required by the Children’s Guardian, and

(c)    specify the class of clearance applied for.

(3)    The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force:

(a)    the conduct of a criminal record check in respect of the applicant,

(b)    the disclosure of the applicant’s criminal history,

(c)    other inquiries about the applicant relevant to the application or clearance,

(d)    without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement.

(4)    The regulations may:

(a)   prescribe the fee payable for an application and the manner in which it is to be paid, and

(b)    require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children’s Guardian.

(5)    An applicant may, at any time before the final determination of an application (including after receipt of notice of a proposed refusal), withdraw the application by notice in writing to the Children’s Guardian.

13. Section 18 of the Act provides:

18 Determination of applications for clearances

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

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

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

(2) The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

(3) The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.

14. On 17 February 2014 the applicant applied to the Children’s Guardian for a Clearance and the Children’s Guardian undertook an investigation, found “no records were revealed” and granted the applicant a clearance. Section 22 of the Act provides that unless a clearance is sooner cancelled or suspended, it has effect for 5 years.

15. Section 23 of the Act gives the Children’s Guardian power to cancel a clearance if the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

16. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. Para 1(1)(b) of Schedule 1 is situations where proceedings have been commenced against the person (whatever the outcome) for any “sexual offence committed against, with, or in the presence of a child other than an offence specified in Clause 1 of Schedule 2” and the person is not because of those proceedings a disqualified person.

17. Clearly, because he was not convicted, the applicant is not a disqualified person because of the prosecutions referred to. The alleged offences, however, would come within the description “sexual offence committed against, with, or in the presence of a child”.

18. Clause 1 of Schedule 2 in paras (a) to (y) lists offences, either by description or by Commonwealth or NSW statutory provisions. The statutory provisions of the state under which the applicant was charged do not come within any of those paragraphs. However, para (z) of clause 1 of Schedule 2 lists “an offence under a law of another state or territory. the Commonwealth or a foreign Jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause.”

19. In the period in which the offences charged were alleged to have occurred (1960-1972) the offences in New South Wales covering the offences charged in the other state were Crimes Act 1900 s 81 (indecent assault) and Crimes Act 1900 s 81A (act of indecency with another male).

20. Neither of those equivalent offences are listed in Clause 1 of Schedule 2 and accordingly para (1) (b) of Schedule 1 applies and the proceedings in the other state constituted, under s14 of the Act, a requirement for an assessment by the Children’s Guardian as to whether the applicant poses a risk to the safety of children.

21. Subsection 27(2) is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children’s Guardian may apply to this Tribunal for a review of the decision of the Children’s Guardian. Subsection 27(4) of the Act provides: “An applicant must fully disclose to the Tribunal any matters relevant to the application.”

22. Subsection 30(1) of the Act applies to reviews. It provides:

(1) The Tribunal must consider the following in determining an application under this Part:

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

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

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

(d)    the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,

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

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

(g)   the person’s present age,

(h)    the seriousness of the person’s total criminal record and the conduct of the person since the offences occurred,

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

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

(k)    any other matters that the Commission considers necessary.

23. A literal interpretation of “a risk assessment … to determine whether the applicant ….poses a risk to the safety of children”, is not what is intended by the legislature because logically it is impossible to prove any adult does not pose some risk to the safety of children.

24. In Commission For Children and Young People –v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation “not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children”. He held regarding the construction of the section:

“One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence”. [At par 41] and [at par 42]

“One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the ‘risk’ with the words that follow, namely, ‘to the safety of children’.

25. It is provided in subsection 30(1A) of the Act that:

1A) The Tribunal may not make an order under this Part which has the effect of enabling the person (the “affected person”) to work with children in accordance with this Act unless the Tribunal is satisfied that:

(a)    A reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

(b)   It is in the public interest to make the order.

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

63 Determination of administrative review by Tribunal

(1)    In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)    any relevant factual material,

(b) any applicable written or unwritten law.

(2)    For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)    In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b)    to vary the administratively reviewable decision, or

(c)    to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)    to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Evidence

27. The evidence before The Tribunal comprised:-

1. Application for Review filed 20 December 2016.

2. Letter dated 22 November 2016 advising applicant of cancellation of Clearance and providing reasons.

3. Section 58 Bundle of documents filed 28 February 2017 tabulated and indexed (224 pages);

4. Volume 1 of further documents filed by the Respondent on 12 May 2017 tabulated and indexed (58 pages);

5. Volume 2 of documents filed by the Children’s Guardian on 15 June 2017, indexed and tabulated including numerous statements by witnesses and numerous other evidentiary documents and comprising 396 pages;

6. Volume 2 of further documents filed by the Children’s Guardian on 15 June 2017 and comprising Transcript of Trial (484 pages);

7. Oral evidence of the applicant on 13 July 2017;

8. Oral evidence of Dr Andrew Ellis on 13 July 2017;

9. Oral evidence of Mr Marshall O’Brien on 13 July 2017;

10. Character Reference of Mr Seamus Rafferty dated 16 March 2016;

11. Report of Marshall O’Brien dated 10 April 2017;.

12. Character Reference of Major General Peter R Phillips (Ret’d) dated 21 March 2016; and

13. Exhibit “A1” report of Dr Andrew Ellis of 21 May 2017;.

The Seriousness of the Matters that Caused the Cancellation

28. On 6 August 2015 the applicant was indicted on six (6) counts of acts of indecency. The charges are summarised as follows:-

Alleged Victim	Age of Alleged Victim	Dates (Unknown Date Within Range)	Alleged Acts
1	NM	12 – 13 years	05.02.69 to 31.12.69	Procuring NM to masturbate applicant
2	GL	14 years	13.12.68 to 01.01.71	Masturbating GL
3	GL	14 years	31.12.68 to 01.01.71	Performing fellatio on GL
4	KRH	14 years	04.05.71 to 01.01.72	Masturbating KRH
5	NB	13 years	09.05.71 to 09.07.72	Masturbating NB
6	KMH	14 years	31.12.71 to 16.10.72	Masturbating KMH

29. They were very serious charges.

30. The initial complaint was made to Police in England by NM, where he was living in June 2011. When subsequently in 2013 the applicant was charged by Police in the Australian State where the school is located, there was publicity in the media and other complainants came forward and gave statements to the Police.

31. At the hearing of the criminal charges the applicant did not contend that the allegations that the former pupils had been sexually assaulted were inventions. The main issue taken was that if they were sexually assaulted, the applicant was not the perpetrator.

32. This avenue was addressed in various ways, which included:-

Evidence of the applicant that he reported to the Abbott while working at the school that the Rector (headmaster) had engaged in sexual activities with older boys and the Rector was removed. (No witness corroborated this claim and despite his seniority in the church no record of this was produced and there was no evidence that he sought any such record);

Errors and inconsistencies in the evidence of individual former students, particularly because their oral evidence came about 46 years after the alleged events;

The length of time since the alleged events and the difficulty any witness would have in recollecting detail after such a period;

Evidence that the Rector and a brother, who both taught in the school during the relevant period were the subject of alleged sexual assaults of pupils;

Evidence of the usual clothing worn by the applicant which was inconsistent with his status in the school at the time, such as evidence that he was wearing a brother’s habit, when he was never a brother and evidence of him wearing garb of a priest, before he became a priest in late 2001; and

Inconsistencies between statements given to police in the period 2011 – December 2014 and oral evidence given at the trial in February 2016.

33. It is not hard to see that in criminal proceedings, where the onus is on the prosecution to prove the offences beyond a reasonable doubt, the jury could have found that the prosecution had not achieved that level of proof.

34. However, in these proceedings the criminal onus of proof does not apply and the civil onus of proof on the balance of probabilities does apply.

35. There were five (5) witnesses who gave direct evidence in relation to the conduct the subject of the charges. At the trial each of them was adamant that the perpetrator was the applicant. For four of those, for at least one year the applicant was their dormitory master for a year or more. For all of them he was the master of discipline for the school for a year or more. For one of them he was the dormitory master for three years. He taught two of them as class teacher. He also taught another for a shorter period. NM, and RO, who also gave a statement to the police, both alleged that the applicant had given them sex education.

36. JG, who gave a statement to the police that did not give rise to any charge, .alleged in his statement that he was sick and was taken by the applicant to the applicant’s room and told to lie on the bed. He was laid out on his back and he alleges the applicant rubbed the sides of his stomach above his groin and then stopped and lifted him onto the applicant’s knee and cuddled the boy’s head into his chest. The boy then left.

37. NM also gave evidence of having received sex education from the applicant and being told at the sex education to ask the applicant any questions they had. He said he visited the applicant at his room at about 8:00 pm after “lights out” and it was in the applicant’s room that the conduct the subject of a charge occurred.

38. With each of NB, KMH, KRH and GL the alleged incident occurred when the boy had either abdominal problems or a groin injury. Three were in bed in the dormitory when no other student was present. Two of those moved at his request to the first aid room and two were assaulted in their beds in the dormitory when the other boys who slept in the dormitory were elsewhere. In each case the alleged victim said that the applicant commenced by removing clothing to permit a purported examination and poking/palpitating of the abdominal area or (in the case of GL, (who had sustained a groin injury) the groin area, before then introducing conversation about masturbation or touching the genital area after pulling down any further clothing necessary to expose the genitals.

33. In the case of KMH, it is alleged that he said before commencing masturbation of the boy:-

“I am not sure what is wrong. I need to take a semen sample.”

40. In the case of NB it is alleged that he said:-

“I am going to try something, bear with me.”

41. In the case of KRH the allegation was that after poking around the abdominal area asking:-

“Does that hurt?”

42. The applicant then pulled down the pyjama trousers to expose the genital area and then rubbed up and down both sides of the groin area, progressed to rubbing the testicles around between his thumb and forefinger and then moving to the penis and commencing to masturbate the boy.

GL alleged the applicant instructed him in the first aid room to remove his dressing gown and pyjama trousers and lie on the bed. It is alleged he then instructed the boy to remove his underpants and lie down on his back, subsequently felt around the groin area pressing with his fingers and asking whether it was sore, and then commenced masturbating the boy and performed fellatio on the boy.

43. No charge arose from his dealings with MY. He alleged that in 1968 when he was in Year 1 at the school, he was in the applicant’s room off the dormitory and he was talking with the applicant. He alleges the conversation turned to sexual matters and the applicant “asked me if I wanted to masturbate”. MY alleges that he responded and told him he couldn’t. He alleges that the applicant then told him:

“It was alright and that he had some dirty books.”

MY said the Applicant repeated that he could not do that and left the room.

44. There does not appear to be any evidence that any of the complainants colluded in their evidence. Nor was there evidence that any of them had a friendship with another after 1972. Although one other teacher at the school, a brother who was also the other Dormitory Master, was the subject of allegations of sexual conduct towards boys and observed to photograph boys naked in the showers at times, it seems unlikely that any of the boys could have mistaken that brother for the applicant because on the evidence they had quite different physiques and particularly the brother had prominent buck teeth, his nickname amongst the students was “Goofy” and he was remembered by the complainants in the trial who were asked about him.

45. But there appears to be patterns of commonality in the alleged behaviour of the applicant in the conduct the subject of the complaints, the places where it occurred and alleged conversations of the applicant.

46. The Tribunal could not be satisfied on the balance of probabilities that any one or more of the alleged sexual offences occurred, given that the Tribunal does not have the benefit of hearing any of the witnesses from the trial and witnessing their demeanour and particularly their cross-examination. The reluctance to make such findings is also because of the seriousness of the allegations.

47. On the other hand, The Tribunal certainly on the evidence before it could not be satisfied on the balance of probabilities that none of the allegations are true.

48. Overall, despite the matters which create doubts about the allegations, the Tribunal is satisfied that there is a significant possibility that one or more of the sexual offences alleged in the criminal proceedings did occur and the applicant was the perpetrator. The Tribunal is satisfied that the evidence in relation to those criminal matters standing alone would support a finding that the applicant poses a real and appreciable risk to the safety of children.

49. However, there is other material relevant to the decision as to whether there is such a risk.

The Period of Time Since Those Matters Occurred and the Conduct of the Person Since They Occurred

50. It is forty-six (46) years or more since the alleged matters. The applicant in that period has progressed in his career with the Catholic Church. He was a chaplain in Armed Forces until compulsory retirement in 2011. He was ordained as a bishop in 2003 and stood down from that role in April 2014 when the charges were laid against him. He participated in the risk assessment process with the Children’s Guardian but did not inform the Children’s Guardian of the charges laid against him in April 2014 until February 2016 after the criminal trial. He provided the Children’s Guardian with a copy of the judge’s summing up, but not the transcript of evidence of each of the complainants and the other witnesses.

51. Enquires by the Children’s Guardian do not reveal any complaint or adverse allegation about conduct of the applicant since the time of the alleged offences.

The Age of the Person at the Time the Matters are Alleged to Have Occurred

52. The applicant was aged 23 to 26 years of age in that period.

The Age of Each Alleged Victim of the Matters at the Time They Allegedly Occurred and any Matters Relating to the Vulnerability of the Victim

53. The victims were aged 12 to 14 years of age and were in the care and control of the applicant. They were boarders at a boys’ school located outside a major city and the applicant was the dorm master and a teacher at the school. He was also responsible for first aid in the absence of the school nurse and he was for some of the time the master of discipline at the school and administered corporal punishment such as caning.

54. As submitted by the respondent, each of the boys was especially vulnerable to an abuser because they relied upon the school to meet their needs and they were under the authority of the school and the church. None of the alleged victims made any complaint at the time of the alleged conduct. They said they did not expect to be believed and one’s evidence was that he was specifically intimidated by “going up against” the Catholic Church.

The Difference In Age Between The Victim And The Person And The Relationship (If Any) Between The Victim And The Person

55. The relationship between the victims and the applicant has been discussed above, but the applicant was also the dorm master of the alleged victims. He was 12 to 15 years older than the alleged victims.

Whether The Person Knew, or Could Reasonably Have Known, That the Victim Was A Child

56. The applicant knew that each of the alleged victims was a child.

The Person’s Present Age

57. The applicant is seventy-one (71) years of age.

The Seriousness of the Person’s Total Criminal Record and the Conduct of the Person Since the Offences Occurred

58. The applicant has no criminal record. He has not been involved in child-related employment since 1975. In 2002 he was involved with a Canberra school for boys as a chaplain of the school. The applicant has not been the subject of any other allegations of wrongdoing or any inappropriate behaviour since the decision in the criminal proceedings.

The Likelihood of any Repetition by the Person of the Alleged Offences and the Impact on Children of any Such Repetition

59. The emotional, physical, intellectual and social adverse consequences for a child victim of sexual abuse are very serious and can be life-long.

60. Since the cancellation decision the practitioner has consulted Mr Marshall O’Brien, a psychologist, and Dr Andrew Ellis, a forensic psychiatrist, for assessment and reports.

61. Mr O'Brien is not a forensic psychologist.

62. The applicant sought counselling from him and an initial consultation occurred on 5 October 2014. Mr O'Brien had known the applicant for some years when the applicant was the occasional chaplain for the staff, students and parents of a Catholic boys’ school.

63. He subsequently was contacted by the applicant about undertaking assessment interviews of men seeking to train for ordination to the Priesthood or Deaconate of the church. Mr O'Brien subsequently in 2009 and 2010 interviewed and reported on six (6) such men.

64. When the applicant contacted Mr O’Brien in 2014 it was in relation to distress he was experiencing because of the complaints that had been made of sexual assault by former students of the boys’ school.

65. The applicant undertook a series of psychological tests with Mr O’Brien on 5 October 2014 including the following:-

The Paulhus Deception Scale (“PDS”);

The Revised NEO Personality Inventory (“NEO-PIR”);

The Personality Assessment Inventory (“PAI”);

The Brief Symptom Inventory (“BSI”); and

The Personality Questionnaire Revised (“EPQR” & “IVE”).

66. The conclusions drawn from the testing are as follows:-

PDS: “He is aware of his shortcomings and he is insightful into himself, suggesting a good adjustment.”

NEO-PIR: He is “subject to physiological stressors as would be expected under the legal process he is faced with and the uncertainty this brings into his life, leading to anxiety, not only because of his own vulnerability and sensitivities, but because of the position he holds in the community. At this level of threat to his integrity and Ministering it is expected he will respond with self-defence in the form of anger, and given his inability to defend himself against charges he finds personally repugnant, this will create or contribute to the formation of depression, especially when the matters are drawn out over a long period of time”.

PAI: “Critical Item Score indicates traumatic stress in subject’s background. Subject is in the normal range for psychological functioning but high traumatic stress score suggests existence of a pre-existing stressor which might refer to the death of his father following a motor vehicle accident in which subject was the driver in his early 20’s. This will predispose subject to higher physiological arousal (stress) when confronted by any challenge where loss of control is a paramount feature.”

BSI: “These results which indicate very high level of distress in subject, leading to fear of recognition in the community, withdrawal from social interactions and participation in enjoyable activities, and changes in subject’s perception of self and loss of certainty.”

EPQR & IVE: “Subject is experiencing high levels of emotionality and is significantly introverted contributing to risk of acting out.”

67. Further to these tests, Mr O’Brien also assessed the applicant, without his knowledge, using actuarial based predictive questionnaires which, he says, research has demonstrated to offer more reliable risk evaluation.

68. HCR-20 is an assessment of risk based on historical items of offending, clinical item of psychopathology and risk items regarding personal and social items relying on statistical prediction rather than on clinical judgment. The result of 3/40 indicates low risk. The interpretation is that the likelihood that the applicant would assault others is very low.

69. He also used the Static 99 Actuarial Risk Assessment for sexual offenders to predict likelihood of recidivism. The result of 2/12 indicates, he said a moderate/low risk.

70. He said his interpretation of this was “whilst subject is not as a known sexual offender this suggests less likelihood of his offending behaviour being acted on”.

71. The general conclusions reached by Mr O’Brien from those results was that the applicant was “a person who was experiencing extreme psychological distress as a result of accusations which he stated were false; and, that which he believed he could do nothing to prove as false; and which caused him to step aside from his Ministry …..”

72. Mr O’Brien said that in diagnosis of paedophilia one indicator is the tendency of an offender to avoid discovery such as by personal defences to exclude awareness of wrongdoing, denial of the use of various mechanisms to gain access to potential victims, and/or threats to victims to avoid discovery. The second major area of indicative behaviour is denial or fabrication to avoid responsibility for the conduct so that the victim could be blamed. He noted that the applicant had not adopted either of these types of conduct.

73. He said also that during his conversations with the applicant, the applicant never doubted the complainants’ experience nor sought to discredit their descriptions of the assaults or their suffering, only that he was not the perpetrator.

74. The applicant also told Mr O’Brien about his action in reporting the Rector of the school in relation to sexual conduct towards some boys in the school, which led to the headmaster being removed. He considered such conduct relevant with assessing the likelihood of the applicant engaging in sexual abuse of children.

75. Further to this, he also relied on the fact that the applicant, when most depressed, during the assessment process invited Mr O’Brien’s clinical opinion as to the possibility that he could have committed such offences and then forgotten them. Mr O’Brien’s opinion that this was a very “extremely low probability of that”. Since the assessment, Mr O’Brien has continued to provide counselling and other support for the applicant’s anxiety and depression throughout 2015 and 2016. At one stage the applicant told him of a statement he would like to make public in the following terms:-

“First and foremost I am profoundly sorry for those offended against in any way. I am distressed that innocent persons who have every expectation for a good life full of hope for a bright and happy achievement should have been hurt so deeply. Nothing can ever excuse the behaviour they experienced and as I have said before I continue to declare that to offend others in this way is absolutely horrific and despicable. It should never have happened. Compounding my sorrow is an awareness that others close to victims have also been affected deeply and I acknowledge their righteous anger that this should have happened.

I encourage those who have been offended against to report the matter to the police in the first instance and to seek help to try to come to terms with their dreadful experience.

I wholeheartedly support any efforts made to ensure that this never happens again in the church and continue my commitment to do all in my power to do whatever I can to make sure that the Church will be a place of protection and safety for the most vulnerable in our community.”

76. Mr O’Brien, in concluding his report concluded:-

“There is insufficient evidence that [the applicant] has exhibited assaultive sexual behaviour in the distant past, and no evidence that he dones (sic) so over the extensive period since….”

And further concludes that from his extensive assessments and contact with the applicant he has formed the clinical opinion that:-

“The probability that [the applicant] is a person likely in the future to perpetrate a sexual assault on any person, is sufficiently low to be put aside as a concern for his ministry to the community, and particularly for children and vulnerable persons”.

77. The concluding opinions of Mr O’Brien were made without access to any of the documentary evidence available to the Tribunal other than a Section 58 bundle filed by the Children’s Guardian in February 2017 which did not include statements by any of the complainants or the transcript of the trial.

78. In cross-examination Mr O’Brien generally adhered to the opinions expressed in his report. When he was asked whether his concluding opinions assumed that the allegations against the applicant were not true, his response was vague and uncertain. The question was repeated and he said:-

“I don’t believe the allegations were untrue but I don’t believe it was him.”

79. The Tribunal has some concern as to whether for purposes of applying the Static 99 Actuarial Risk Assessment for Sex Offenders Mr O’Brien scored the applicant on the basis that the allegations were untrue. That would produce a lower score than if the assumption were made that the offences had occurred.

80. When Mr O’Brien was asked whether it changed his opinion of decreasing likelihood if in fact the applicant did commit the offences, he replied:

“No, once out of school he had more freedom and access ….”

When the presiding member repeated the question, he responded:

“I can’t say”.

but he then agreed with the proposal that a person who does commit such offences is likely to continue such conduct. It appears that he was admitting that proposition to support a reverse argument that because the applicant has not committed any such offences since 1972, it is less likely that he committed the alleged offences.

81. Dr Andrew Ellis is a forensic psychiatrist practising in Sydney and the applicant’s solicitors arranged for him to attend on Dr Ellis for an assessment and report.

82. There was no dispute about Dr Ellis’ expertise in forensic psychiatry. The first paragraph of his curriculum vitae is as follows:-

Dr Ellis is a formally trained forensic psychiatrist in public and private practice. He holds posts in NSW Justice and Forensic Mental Health as Senior Visiting Medical Officer to the Community Forensic Mental Health Service, Correctional Mental Health Service and the Forensic Hospital. He is the Senior Staff Specialist Director of Training. He holds a conjoint senior lecturer appointment with the University of New South Wales Medical Faculty, School of Psychiatry where he is the Academic Program Director for the Master of Forensic Mental Health Program. He is the Chair of Advanced Training in Forensic Psychiatry for the RANZCP. He is Consulting Psychiatrist to the NSW Police Negotiator Unit and Countering Violence Extremism Unit, State Protection Group. He is a consultant to the Royal Commission into Institutional Responses to Child Sexual Abuse. He is a tutor and lecturer for the NSW Institute of Psychiatry. He has a private medico legal practice.

83. Dr Ellis has also had professional experience with sexual offenders and in completing his psychiatric registrar training worked at both the Central Sydney Area Health Service and the Corrections Health Service. He is a fellow with the Royal Australian and New Zealand College of Psychiatrist and a Committee Member of the Faculty of Forensic Psychiatry. He holds full specialist medical registration in Australia and the United Kingdom and specialist registration in the UK in the sub-speciality of forensic psychiatry. He has previously held a position in the Justice Health Sexual Behaviour Clinic. He has extensively provided expert evidence in courts and tribunals in New South Wales, the ACT and the Northern Territory and also in county and crown courts in the UK. He is engaged in and has published research in the area of sexual offending, is a peer reviewer for academic journals and is an examiner for the RANZCP.

84. The report of Dr Ellis is dated 21 May 2017. He had available to him some limited documentation. It appears he did not have statements by the complainants or transcript of the trial. His report is detailed and thorough. Dr Ellis concluded that the applicant met the criteria for a major depressive episode with features of anxiety. His said that this condition had been improving with psychological therapy and is now “in early partial remission”. He said the prognosis of that condition “is good should psychological therapy continue given his motivation and the absence of any complicating medical or psychiatric conditions. Should his employment situation remain uncertain his improvement is likely to be slowed.” Dr Ellis reported “That other than the use of tobacco there is no evidence for a substance abuse disorder” and “No evidence for a cognitive or intellectual disorder. He shows good cognitive ability and flexible processing”. Dr Ellis concluded that there was no evidence for any personality disorder, the applicant had good impulse control and interpersonal relationships, evidenced by extensive positive character references. He found that the self-report scales administered by Mr O’Brien “are consistent with mature personality development”.

85. Dr Ellis also concluded that on the information available to him “There is no evidence for the diagnosis of a paraphilic disorder such as paedophilia”.

86. He noted that the applicant’s career had largely been directed to working with adults and he did not display “a salient unusually persistent interest in children”. He said that the applicant “did not express any attitudes that are consistent with paraphilic interest, such as common beliefs amongst persons with paraphilia that children are interested in sex, or unaffected by sexual activity with adults”. He noted also that the applicant’s attitude towards the charges and the victims did not display “evidence of psychological denial”. Dr Ellis, however, on page 9 of his report stated “as he has been acquitted on trial of the allegations, there is no evidence he has engaged in sexual activity with children”. This, of course, is not correct. The acquittal was on the basis that of the criminal onus of proof beyond reasonable doubt was not satisfied.

83. Dr Ellis administered the STATIC-99R² for assessment of the risk of sexual recidivism. He set out in his report the details of the administration of the test and the scoring. He scored the applicant on the basis of a hypothetical assumption that the applicant had previously committed sexual offences against male victims, such as those alleged in the criminal proceedings, and that those male victims were unrelated to the applicant. Under the instrument, the applicant scored one point for each of those matters and also for the fact that he had never lived with a partner for two years. The only other scored item of the ten (10) items in the instrument was whether he was of “young age” and he scored minus three for the fact that at the time of the assessment he was 71 years of age. The scoring then resulted in a total score of zero which placed him in the lowest risk category. The likelihood according to the instrument of him re-offending by sexual offences against another person is lower than the average risk for a male in the population.

84. Dr Ellis also reported that if it were assumed that the behaviour did not occur, there would be no positive scores other than one point for the fact that the applicant had never lived with a partner for two years and the overall score would be minus two, which also falls within the low risk category.

85. Dr Ellis also looked at the RSVP pool tool which “can identify empirically derived risk factors associated with future sexual offending to augment clinical evaluation”. That instrument identifies areas that can be associated with risk in order to more effectively manage them. He said that the potential risk areas for the applicant include his current diagnosis of depression, but this was not associated with the time period of the allegations and the applicant is currently responding to treatment. He therefore did not consider it relevant to current or future risk to children.

86. He also said that if the allegations did occur, “There was no escalation in the behaviour, the behaviour was not diverse and the behaviour has not recurred”.

87. Dr Ellis concluded that for most factors associated with future sexual offending the applicant “presents a positive profile”.

88. He said:-

“He has displayed stable employment, study and accommodation, support of a social peer group and no evidence of an anti-social personality style. He has good professional supports. There is no report of any sexual offending other than the allegations and no other offending history such as violent or property offences. He does not present with deviant sexual arousal (paraphilia). He does not have a substance abuse problem. He has satisfactorily complied with mental health treatment and supervision while on bail. His status shows good current coping and organisational skills. He displays attitudes that do not support sexual offending of any kind.”

93. Dr Ellis said that he had not identified “any psychiatric condition that might contribute to a risk of harm to children by inaction or a misguided wish to deal with problems ‘in house’ ”. He also found that the applicant did not express any attitude that might raise concern that he would not act if he became aware of concerns of the church or another organisation in which he is involved. He said:

“He does not condone corporal punishment or military hazing practices”.

94. Dr Ellis concluded in his report the following paragraph:-

“In considering actuarial, structured professional and clinical parameters, Mr Davis would fall into a group of persons with a risk for sexual offending or other offending towards children that is of the lowest order of frequency. The risk is not likely to be further reduced by additional measures than currently in place. The risk is not likely to be increased by employment involving children.”

95. The only Professional evidence in relation to likelihood of any repetition by the applicant of conduct such as that alleged in the charges against him is the evidence of Dr Ellis and Mr O’Brien. The Tribunal accepts the evidence of Dr Ellis and finds that the risk, even if the offences charged occurred, is of the lowest order. It is lower than the average risk for men in the community.

Any Information Given By the Applicant in Or In Relation To the Application

96. There are various positive character references relied on by the applicant. None of those persons has any expertise in the area of assessing the risk of the type in issue in these proceedings. However, their evidence has been relevant to the assessments and advice by the experts.

Any Relevant Information In Relation To the Person That Was Obtained In Accordance With Section 36A

97. The Tribunal has taken into account information that has been obtained from another State and also from Australian Capital Territory.

Any Other Matters that the Children’s Guardian Considers Necessary

98. There are no further such matters.

CONCLUSIONS

99. The Tribunal concludes that the applicant does not pose a real and appreciable risk to the safety of children.

Section 30(1A) of the Act

100. The Tribunal is satisfied that given the opinions of Mr O’Brien and Dr Ellis a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work.

101. The Tribunal is also satisfied that given the contributions the applicant has made to the public through the church, his involvement in public administration, and his involvement in other social and community organisations over more than forty (40) years, it is in the public interest that the applicant’s clearance be restored and he be able to continue such contributions with a working with children clearance..

CONCLUSION

102. The Tribunal is satisfied that the correct and preferable decision having regard to the material before the Tribunal is that the decision of the Children’s Guardian to cancel the applicant’s Clearance be set aside.

Privacy

103. Early in these proceedings at a directions hearing an order was made to prevent publication of names or other identifying information of any of the complainants or the applicant in these proceedings. There should be a continuance of those orders to protect the privacy particularly of the victims, but also of the applicant.

Orders

104. The orders of The Tribunal are:-

1. The decision of the Children’s Guardian of 22 November 2016 cancelling the applicant’s Working with Children Clearance is set aside.

2. Broadcast or publication without leave of the Tribunal of the name or other information identifying the applicant or any person who has made allegations against the applicant and is referred to in these proceedings is prohibited.

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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

Decision last updated: 10 October 2017