DEO v Children's Guardian

[2018] NSWCATAD 54

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DEO v Children’s Guardian [2018] NSWCATAD 54
Hearing dates:	4 December 2017
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant, Senior Member S Davison, General Member
Decision:	The applicant’s application for an enabling order is dismissed.
Catchwords:	ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant a disqualified person by reason of a conviction for an indecent assault – whether applicant has discharged the onus of proof – onus of proof not discharged
Legislation Cited:	Administrative Decisions Review Act 1997 Child Protection (Prohibitive Employment) Act 1998 (Repealed) Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Crimes Act 1900
Cases Cited:	BHA v Children’s Guardian [2014] NWCATAD 161 BHA v Children’s Guardian [2014] NWCATAD 161 BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 CHB v Children’s Guardian (2016) NSWCATAD 214 CMA v Children’s Guardian (2016) NSWCATAD 264 Commission for Children and Young People v FZ (2011) NSWCA 111 Commission for Children and Young People v Y [2002] NSWCA 949 Director of Public Prosecution v Smith (1991) VR 6 Smith v Commissioner Police 2014 NSWCATAD 184.
Category:	Principal judgment
Parties:	DEO (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: Applicant (self-represented) Ms McDonald (Respondent)   Solicitors: Crown Solicitor’s Office (Respondent)
File Number(s):	2017/ 00268593
Publication restriction:	With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. 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.

REASONS FOR DECISION

Overview

1. The applicant, known in these proceedings as ‘DEO’, is a 74 year old man who is seeking an enabling order to allow him to obtain a Working With Children Check clearance (‘clearance’).

2. The applicant has been a volunteer worker at a charitable organisation for the last nineteen years. The organisation recently changed policy and required all volunteers to obtain a clearance. The Children’s Guardian refused the clearance due to the applicant being convicted in 1993 of an indecent assault charge. This is a disqualifying offence and prevents the Children’s Guardian from granting a clearance. During the hearing, a number of volunteers and managers from the charitable organisation gave evidence of the applicant’s good character and his excellent work record. However, after considering all the evidence the Tribunal is not satisfied that the applicant has discharged the required burden of proof under s 28(7) of the Child Protection (Working with Children) Act 2012 (the Act). Accordingly, the application for an enabling order is refused and the decision of the Children’s Guardian to refuse him a clearance is confirmed. The reasons are set out below.

3. Due to the sensitive nature of these proceedings the Tribunal has made an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 requiring that names of the applicant and his family, as well as the name of the victim of the 1993 offence and the name of the alleged victim of the 2014 notification to the Department of Family and Community Services, are not to be published without leave of the Tribunal. To give effect to this order, the pseudonym ‘DEO’ has been used for the applicant’s name.

The disqualifying offence

4. There is very little information about the facts of the disqualifying offence. The Crime Information report records the following narrative:

The victim [18-year-old school student] had been at a party at the offender’s home during the evening of 30.1.1993 and early morning of 31.1.1993. She left, and commenced to walk home. The offender followed her on the pretence of walking home with her, and when walking through the park, forced her onto the ground and had sexual intercourse with her against her will. Offender did not ejaculate. Victim then ran home. Sometime later she told a friend, but did not report matter to police until 29.3.1993.

5. DEO was initially charged with sexual assault without consent and aggravated indecent assault. The matter was before the Local Court on 28 June 1993 and committed to trial in the District Court. It appears that those charges were amended with DEO being found guilty of indecent assault by the District Court on the 2 November 1994. There is no information on what facts DEO was found guilty on and how the facts differed to the above narrative contained in the Crimes Information record. DEO was sentenced to a recognisance pursuant to s 556 of the Crimes Act 1900 without surety, and to be of good behaviour for a period of 18 months.

Applicable law

6. The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; Section 3 of the Act.

7. The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; Section 4 of the Act.

8. As stated, DEO was found guilty to the offence of indecent assault. This offence is listed as a disqualifying offence under s 1(e) of Schedule 2 of the Act. Subsection 18(1) of the Act states the Children’s Guardian must not grant a clearance to a person convicted of a Schedule 2 offence. A conviction also includes a finding of guilt.

9. Subsection 28 (1) of the Act provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person. This is called an enabling order.

10. Subsection 28(7) of the Act places the onus on the Applicant to satisfy the Tribunal that he does not pose a risk to the safety of children.

11. The meaning of the word “risk” in the previous child protection legislation was considered by his Honour Young CJ in Commission for Children and Young People v V (2002) NSWSC 949. He stated the word 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”.

12. The issue for the Tribunal to decide is whether DEO has discharged the presumption under s 28(7) of the Act that he poses a risk to the safety of children.

13. In determining this issue, the Tribunal must first have regard to the factors set out in s 30(1) of the Act. If the Tribunal is to then consider making an order enabling an applicant to work with children, we must then consider the two-part test set out in s 30 (1A) of the Act.

Consideration of s.30(1) factors and Findings

Seriousness of any matters that caused the assessment in relation to the person

14. DEO was found guilty of the offence of indecent assault. Unfortunately, a record of the facts upon which the finding of guilt was based was not available to the Tribunal. That is, there was no transcript of the sentencing proceedings nor a summary of the findings of fact available to the Tribunal. Further, no brief of evidence or witness statements could be located. The Tribunal only had the narrative contained in the Crime Information sheet. The Tribunal could not, therefore, be sure if these facts were the same facts upon which the finding of guilt was based or if they had been amended or changed at trial. DEO was originally charged with sexual assault without consent and aggravated indecent assault but these charges were later amended to indecent assault.

DEO’s response to the 1993 offence

15. DEO was not legally represented in these proceedings, however he was assisted by a friend during the hearing. He provided a letter to the Tribunal but it did not address the 1993 offence. He was cross-examined about the matter by the respondent’s counsel. His evidence about the matter was, at times, confusing. He acknowledged that he was charged with assaulting a woman about 25 years ago and was subject to court proceedings. He also remembered that he was represented at the hearing by a lawyer. He stated that at the time of the offence that he was “an alcoholic”. He now states that he does not remember much about the offence or what happened in court. He was then pressed further by counsel and stated that the act with the woman was consensual and “if he’d known all this was going to happen, he would have pleaded not guilty”. He was not able to provide any further information, stating that he could not remember.

16. The facts referred to in the Crime Information record are serious. They involve a sexual offence against an 18-year-old female victim, who was still a school student at the time of the offence. DEO was 50 years old and approximately 32 years her senior. It was alleged that DEO indicated to the victim that he would walk her home from a party and the offence then took place in a public park in a residential area after midnight.

17. While it was in evidence before the Tribunal, DEO appeared to disagree with the finding of guilt. The Tribunal noted he was legally represented during the criminal proceedings.

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

18. The offence occurred in January 1993, some 25 years ago.

19. DEO has not subsequently been charged or convicted of any similar offences. However, in 2014, he was accused of indecently assaulting a 14-year-old child.

2014 report of incident involving a 14-year-old girl

20. The offence was alleged to have occurred on 4 March 2014 whilst DEO was working in the public shop of the charitable organisation. The matter was investigated by the Child Abuse Squad of the NSW Police, however, the case was closed on 29 April 2014, as the victim (referred to hereinafter as ‘Ms XY’) did not wish to make a statement. The COPS report (made on the 10 April 2014) contains the following narrative:

The victim in the matter is [Ms XY] and the accused is [DEO], 71 years old. The accused is a worker at [charitable organisation and location], along with the victim’s grandmother. The victim attends [charitable organisation] two to three times per week with her grandfather to pick up her grandmother. The accused has been a friend of the victim and her grandparents. On 4th March 2014, the victim has attended the [charitable organisation] with her grandfather. Whilst she was there, her grandmother has told her to help herself to a drink in the kitchen. As the victim, has walked to the kitchen, the accused has followed her. As she reached the kitchen and stopped the accused has come up behind her, placed one hand on each of her shoulders and slid his hands down her arms. At this time he was holding her arms tightly and had his body pushed up against the victims (sic) back.

The accused has then proceeded to kiss the victim on the neck and cheek area. At this point the victim has walked free of his hold and left the kitchen, avoiding the accused until she left with the grandparents.

At the time the victim felt scared that the accused was going to harm her. The victim has seen the accused person since the incident and has tried to avoid him as she has felt fearful. The victim does not wish to proceed with formal police action, however police feel that an apprehended violence order (AVO) is necessary to ensure the victim’s safety and well-being, due to the age difference and the fact that the victim has had regular contact with the accused.

21. A provisional AVO was obtained on 24 April 2014 and a final AVO was made on the 6 May 2014.

22. Family and Community Services (FACS) produced documents concerning the 2014 incident which indicate that Ms XY had an eating disorder, had self-harmed in the past and had a high level of anxiety. The FACS record also contains a narrative of the 2014 incident consistent with the COPS entry and that the girl was “very upset by the incident”. The FACS record also contains the following account:

[Ms XY] said she had known [name of accused] for about 6 years as he works at [name of organisation]. [Ms XY] disclosed when she was in the kitchen at [name of organisation], POI came up behind her held her arms around the bi-cep area and kissed her neck, she could feel his belly on her back. [Ms XY] said she was shaking & could not tell how long it went on for or what made him stop.

23. There are no other allegations or claims made against DEO that he has engaged in any other inappropriate conduct towards adults or children. A letter from the manager of the charitable organisation dated 10 November 2017 indicates that DEO has not been the subject of any other complaints or disciplinary proceedings during his 19 years of voluntary employment.

Evidence of Victim’s grandmother

24. The victim’s grandmother, (referred to hereinafter as Mrs BB) gave evidence in support of DEO’s application. She worked with DEO as a volunteer at the organisation. She was asked questions about the 2014 incident by respondent counsel. She stated in relation to the incident, “I knew something had happened but didn’t think it was very serious”. She stated, “this day Ms XY was very restless. She goes to the kitchen, gets a drink, gets a biscuit. This day she came back quickly. She said nothing. It wasn’t until sometime later I found out [DEO] was charged. Ms XY’s mother was in deep stage of depression and in and out of hospital… Ms XY did not speak to me, probably cos she was torn between DEO and myself…he [DEO] is a hugger. I imagine what happened he saw Ms XY and gave her a hug”. In answer to respondent counsel’s questions as to whether this was appropriate she answered, “Probably not, but that is what [DEO] does and Ms XY was going through a terrible time”. Mrs BB confirmed that Ms XY does not come to the shop anymore while DEO is there.

25.    DEO’s response to the 2014 incident

26. DEO did not provide any written statement to the Tribunal, however he was cross-examined by respondent’s counsel about the matter. His evidence was again confusing. He initially agreed he did give the girl a cuddle but there was no intent in it. He stated that he was good with kids and “kids don’t annoy him”. In response to further questions he denied giving the girl a cuddle but he agreed he had spoken to the victim and “had had talks with her”. He stated that while he did not agree that he had assaulted the victim he did agree to the AVO as he had too much respect for the victim’s grandmother and he did not want her to go through any more pain. He also agreed that he had not spoken to the victim since the incident.

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

27. DEO was 50 years of age at the time of the disqualifying offence. He was 71 years of age at the time of the 2014 incident.

The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.

28. The victim of the disqualifying offence was 18 years and 5 months. The victim was still a school student at the time of the offence. The victim of the 2014 incident was 14 years of age at the time of the offence. She had known DEO for some time and the evidence suggests that she is likely to have trusted DEO, given his friendship with her grandmother.

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

29. The difference in age between DEO and the victim of the disqualifying offence was approximately 32 years. In relation to the 2014 incident the difference in age was approximately 57 years.

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

30. The victim in the disqualifying offence was 18 years old and not a child. The victim in the 2014 incident was 14 years old. DEO would have known she was a child given he had known her for some years and he had worked with her grandmother for many years.

The person’s present age

31. The present age of DEO is 75 years of age.

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

32. DEO has no criminal history other than the disqualifying offence and a drink driving charge, in relation to which no conviction was recorded. As stated above, DEO was accused of indecently assaulting a 14-year-old girl in 2014 but the police did not pursue the matter as the victim did not wish to give a statement.

The likelihood of any repetition by the person of the offences or the conduct or any other matters that caused the assessment and the impact on children of any such repetition

33. DEO did not tender an expert’s report as to his risk of reoffending.

34. DEO points to his lack of any other criminal convictions in the period prior to and after his disqualifying offence. The CEO of the charitable organisation where DEO has volunteered for 19 years stated in a letter to the Tribunal dated 10 November 2017 that the organisation has no record of any complaints of disciplinary proceedings involving DEO.

35. DEO also relied on 6 character witnesses who gave sworn evidence to the Tribunal and all spoke of their positive experience working with DEO for many years. They regarded him very highly and had not observed him acting inappropriately to women or children. They did not believe that DEO posed a risk to the safety of children.

36. Any repetition of the offence of indecent assault, if perpetrated against a child, has the potential to cause significant harm to the child. There are numerous case studies that have documented the often devastating and lasting impacts of child sexual abuse on children and how this can continue into adulthood.

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

37. DEO had 6 character witnesses who gave sworn evidence.

• Mrs AA was a volunteer at the organisation and has known DEO for 18 years. She spoke of DEO’s previous problems with alcohol and how he had been a sober man for 18 years since working at the shop. In her view, he was a “gentleman of the highest regard”. He “always had a high respect for women”. She described him as an “icon” to the customers and staff in the shop and stated that “people felt safer by his presence in the shop”.

• Mr AB has had a 35-year association with the charitable organisation. He has worked as a volunteer at the organisation and previously worked as a school teacher and principal. From his work with the organisation he has known DEO for the last 18 years. He stated that DEO has always been respectful and cooperative with people. Mr AB has never observed DEO hug anyone or act in an improper way towards anyone.

• Mrs BC works as a volunteer with her husband, Mr AC, and both have been working there for 8 years. She has often worked with DEO and sees him as a very private man. She described him as “an absolute gentleman” and stated that she “trusts him implicitly”.

• Mr AC gave evidence supporting DEO’s application and stated that he never observed him do anything inappropriate. He did not believe DEO was a risk to children.

• Ms CA is the current treasurer of the organisation. She believed DEO would never do anything to hurt or harm a child. She has seen him with children in the shop. For example, she remembered him when he wore a Santa hat with the children around him in the shop and he was always appropriate. She has seen him hug other people but it has always been appropriate. She also stated how important DEO has been in helping other members of his cultural group to enter the shop and engage with the services.

j1) Any relevant information in relation to the person that was obtained under section 36A

38. No such information was provided to the Tribunal.

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

39. The respondent’s counsel asked DEO questions about hypothetical scenarios involving a risk to children and what action he would take in such scenarios. He appeared to be confused by this line of questioning and the Tribunal was not persuaded that he understood the abstract nature of the questions. Therefore, the Tribunal gave little weight to this evidence. The respondent’s counsel also asked DEO about his views on some child safe practices. He again struggled with this line of questioning but did state that he agreed with corporal punishment. He related it back to his own childhood when his parents used physical punishments on him and it ‘never did him any harm’.

Consideration

40. In relation to the 1993 offence, DEO was found guilty of indecent assault in criminal proceedings before the District Court. In these proceedings, he was legally represented. The Court imposed a penalty on DEO being an 18-month good behaviour bond. From his evidence before the Tribunal it is difficult to assess DEO’s insight and understanding on whether he viewed his actions in 1993 as wrong. That is, his evidence is confusing. He admitted he was charged with an assault and went to Court. He admitted the offence occurred at the time he was an alcoholic and has therefore little memory of it. He then stated the sexual act with the woman was consensual and had he known the consequences of a finding of guilt, he would have pleaded not guilty. The Tribunal finds DEO’s explanation of events in 1993 confusing and unsatisfactory. However, the Tribunal also acknowledges the offence occurred 25 years ago and DEO has not been charged with any similar offences in that time.

41. In relation to the 2014 incident, DEO denies the allegation of indecent assault and denies that he acted inappropriately towards the 14-year-old victim. In his letter to the Tribunal dated 6 November 2017 “I do not know how all this happened but I can honestly say I never did anything wrong because I have too much respect for women and children”. In evidence before the Tribunal, he contradicted himself as to whether he cuddled the victim but he was clear that he had no intention to hurt or harm the victim.

42. Unfortunately, the charitable organisation failed to investigate the matter. One of the character witnesses gave evidence on this point. He had been involved with the organisation for 35 years. He stated that at that time the organisation did not take the complaint of the 14-year-old victim seriously and, therefore, did not consider that it justified an investigation. He believed the organisation has now improved its child safe practices and the complaint would be treated differently today. Another volunteer worker, stated that she did not pay the complaint a lot of notice as “this was not [name of DEO] that I knew”.

43. The approach the Tribunal should take to untested allegations was considered by Beech-Jones J in paragraph [33] of BKE v Office of the Children’s Guardian [2015] NSWSC 523 as follows:

“...it may be that NCAT can be satisfied that [on the evidence] an allegation of sexual abuse against an applicant is established [to the requisite civil standard]. Equally NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in 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 an 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.”

44. As there was no investigation of the 2014 complaint, there was no record of any statements made by the victim or any information about potential witnesses and their statements or persons in the shop at the time of the incident and their statements. There was no detailed statement taken from DEO and his response to the complaint. There was no assessment of the evidence and no recommendations. The lack of evidence causes a difficulty for the Tribunal. That is, while it does not make a positive finding that the assault occurred, the surrounding circumstances of the incident means that the existence of a risk to a child has not been disproven. The surrounding circumstances include the contradictory evidence of DEO, the detailed report made to police which is also consistent with the report made to FACS, the police taking an additional step of applying for and obtaining an AVO against DEO and the evidence of the victim’s grandmother that she “knew something happened” and, further, that the victim wishes to have no further contact with DEO.

45. The Tribunal is aware that the safety, welfare and wellbeing of children and in particular, protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. Having regard to this principle, the Tribunal cannot be satisfied that the applicant, DEO has discharged his onus to prove he is not a risk to children. Accordingly, the application for an enabling order is refused.

Order

1. The applicant’s application for an enabling order is dismissed.

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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: 09 March 2018