DKR v Children's Guardian

[2019] NSWCATAD 72

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DKR v Children’s Guardian [2019] NSWCATAD 72
Hearing dates:	13 November 2018
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member L Houlahan, Senior Member
Decision:	(1)   The decision of the respondent, made on 2 March 2018, to refuse the applicant application for a working with children check clearance is set aside. (2)   In substitution for the decision of the respondent, the following decision is made: the applicant is granted a working with children check clearance.
Catchwords:	CHILD protection – working with children – whether any real and appreciable risk to children – seven years ago the applicant charged with a number of offences of aggravated sexual assault and aggravated indecent assault – all charges dismissed at committal – no prior or subsequent reports of inappropriate conduct
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Child Protection (Working with Children) Act 2012 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 Commissioner for Children and Young People v FZ [2011] NSWCA 11 Commission for Children and Young People v V [2002] NSWSC 949 Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 M v M [1988] HCA 68; (1988) 166 CLR 69 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 Smith v Commissioner of Police [2014] NSWCATAD 184 ZZ v Secretary, Department of Justice [2013] VSC 267
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DKR (Applicant) Children’s Guardian (Respondent)
Representation:	Counsel: M C McGorey (Respondent)   Solicitors: G P King of APJ Law (Appellant)
File Number(s):	2018/00098046
Publication restriction:	Section 64 (1) Civil and Administrative Tribunal Act 2013 - Restriction on publication of information that will identify the applicant, any victims, witnesses or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

Reasons for decision

Introduction

1. The applicant, DKR, seeks administrative review of a decision of the respondent, the Children’s Guardian, to refuse his application for a working with children check clearance (WWC clearance, or clearance): see Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), ss 18(2) and 27. The applicant is 27 years of age with a passion for his sport and seeks a clearance so that he is able to coach young players in his chosen sport and pass on what he knows. There is no dispute that the applicant requires a WWC clearance in order to undertake this work, even on a voluntary basis: see WWC Act ss 6 and 7.

2. The applicant applied for a clearance in February 2017.

3. On receipt of the applicant’s application, the respondent was required to conduct a risk assessment because, in November 2011, he had been charged with a number of sexual offences under ss 61J(1) (aggravated and attempted aggravated sexual assault – three counts) and 61M(1) (aggravated indecent assault - five counts) of the Crimes Act 1900 (NSW): see WWC Act, s 14 and Sch 1, cl 1(1)(a). The charges related to an incident that occurred in the early hours of the morning on a day in August of that year. The incident involved, the applicant, a teacher from the local high school (Mr A), a friend of the applicant (Mr B) and a 16 year old school girl (the complainant) who had become friendly with the applicant.

4. Mr A and Mr B were also charged with offences relating to the incident.

5. For the purpose of the WWC Act, the complainant was a child: see WWC Act, s 5(1) which defines the word ‘children’ to be a person under the age of 18 years.

6. The applicant was 20 years of age at the time and has at all times denied the charges. In December 2013, following a committal hearing where the complainant gave evidence and was extensively cross-examined by counsel for the applicant, the charges against the applicant were dismissed.

7. At trial, Mr A and Mr B were found not guilty of the offences of which they had been charged.

8. The respondent was nevertheless required to conduct a risk assessment of the applicant because he had been charged with the abovementioned offences: see WWC Act, ss 14 and 15.

9. On 2 March 2018, having conducted a risk assessment, the respondent determined not to grant the applicant a clearance as she was satisfied that he posed a risk to the safety of children: see WWC Act, s 18(2).

10. There is no dispute that the applicant has a right to seek external review, by the Tribunal, of the decision of the respondent: see WWC Act, s 27 and the Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9.

11. In conducting this review, we are also required to conduct a risk assessment having regard to the material before us and ss 4 and 30 of the WWC Act.

12. Section 4 of the WWC 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 that Act. Section 30(1) sets out the matters we must consider in determining whether the applicant poses a risk to the safety of children if he were to be granted a working with children check.

13. If we are so satisfied we must affirm the decision of the respondent, as a clearance cannot be granted subject to conditions. If we are not so satisfied, before we can make an order setting aside the decision of the respondent, we must also be satisfied of the matters in s 30(1A) of the WWC Act; namely, 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.”

14. For the reasons that follow, on the material before us and the relevant provisions of the WWC Act, we are not satisfied that, as at the date of hearing, the applicant poses a real and appreciable risk to the safety of children. We are also satisfied that a reasonable person, having regard to material before us, would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant is engaged in child-related work. We are also satisfied that it is in the public interest to grant the applicant a clearance.

The WWC legislative scheme

15. The objects of the WWC Act are 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 a working with children check clearances: see WWC Act, ss 3, 8 and 9.

16. As we have noted above, the paramount consideration in the operation of the Act is the ‘safety, welfare and well-being of children and, in particular, protecting them from child abuse’: WWC Act, s 4. Hence, the jurisdiction of the Tribunal in reviewing a decision of the respondent made under that Act is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61].

17. As we have already noted, children in the WWC Act are persons under the age of 18 years: WWC Act, s 5(1).

18. The term ‘child abuse’ is not defined in the WWC Act and it is accepted that it should be given its ordinary meaning, including physical injury, sexual abuse and emotional, or psychological harm.

19. Child related work is broadly defines in ss 6 and 7 of the WWC Act.

20. Section 18 of the WWC Act sets out how the respondent is to determine an application for a clearance. For the purpose of this application, the relevant provision is as follows:

18 (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.

21. It is accepted that the word ‘risk’, in the context of the WWC Act, should be given the same meaning it was given by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949, at [42]. That meaning was in the following terms:

“What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children.”

22. Section 14 of the WWC Act provides that a person is subject to an assessment requirement under that Act if any of the matters specified in Schedule 1 apply to that person. As we have already indicated, the 2013 charges laid against the applicant were matters falling within cl1 of this Schedule. Section 15(4) of the Act sets out the matters the respondent may consider in making her assessment.

23. If granted, a WWC clearance is not granted for a specific category of child-related work. Once granted, it is a clearance for any child-related work: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [27].

24. Section 27(4) requires an applicant to fully disclose to the Tribunal any matters relevant to their application.

25. Section 30 sets out what the Tribunal must consider in determining an application for external review. That section relevantly provides as follows:

30   Determination of applications and other matters

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

(a)   the seriousness of the … matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

(d)   the age of each victim of any relevant … 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 criminal history and the conduct of the person since the matters occurred,

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

(i1)   any order of a court or tribunal that is in force in relation to the person,

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

(j1)   any relevant information in relation to the person that was obtained in accordance with section 36A,

(k)   any other matters that the Children’s Guardian considers necessary.

(1A)   The Tribunal may not make an order under this Part which has the effect of enabling a 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. We have dealt with the requirements of s 30 in more detail below, in so far as they relate to the material before us.

The material before the Tribunal

27. At the hearing, the applicant relied on a bundle of documents that he had filed and served. Included in that bundle was the following:

1. a chronology of events;

2. an undated statement of the applicant;

3. a psychological risk report of Andrew Fordyce, clinical psychologist dated 4 October 2018; and

4. a bundle of documents which included the written submissions of the applicant for the purpose of his committal hearing, a list of read and sent text messages on the mobile telephone number of the victim for the period December 2010 to September 2011, a few social media posts of the complainant and 15 references from family members, colleagues and others who know the applicant.

28. The respondent relied on the following material:

1. the s 58 documents, which included the information the respondent had obtained from the NSW Police Service and Family and Community Services, communications between the applicant and the respondent and a copy of the respondent’s risk assessment; and

2. a bundle of further documents, which included the transcript of the applicant’s committal hearing and the Police brief of evidence.

29. The applicant gave evidence at the hearing of this application and he was cross-examined by counsel for the respondent.

30. Both parties provided detailed written submissions.

31. At the end of the hearing, counsel for the respondent contended that the decision of the respondent was the correct and preferable decision: ADR Act, s 63(1). The applicant contended otherwise. We have dealt with these submissions below in so far as they are relevant to the matters the Tribunal must have regard to.

The allegations and the charges

32. The complainant, as we have noted, was 16 years of age at the time of the incident and a student at the local high school. Ten days after the incident, police conducted an interview with the complainant after a risk of harm report was made to the Family and Community Services Help Line.

33. During her interview with police, the complainant said she knew the applicant through the local football club. She said they began texting and talking to each other in the months prior to August 2011.

34. On the night in question, the complainant said she attended a birthday party of a friend. She said it was a Saturday night and that she had known the applicant since about April or May when he started texting her. She said she had seen him at football at weekends. She said that on the night in question the applicant was texting her. She said she did not know where he was, but she knew he was out at a Tavern ‘because that’s where he always is on a Saturday night’. She said that during the night the applicant telephoned her ‘to say to come and meet up with him he said he was out at a fiftieth or a fortieth or something at the Golf Club.’

35. The complainant said she wanted to meet up with the applicant and waited for his call. At around 2.00am she received a phone call from the applicant. She said he asked her where she was and that he would call her a taxi so that they could see each other, but he did not say where he was. She said he told her they were going to go ‘to his best’s house’ and the applicant arranged for a taxi to pick her up. She did not know where she was going. She said, when she was dropped off in front of a block of flats, the applicant was waiting for her. She said she thought that she and the applicant were going to go for a ‘walk or something’. The applicant paid for the taxi and they then walked up the street to the front of Mr A’s house. The complainant said she did not know it was Mr A’s house but she did recognise his car that was parked in the driveway.

36. The Police Fact Sheet describes what is alleged to have happened next as follows:

The [complainant] said that [Mr B] and [Mr A] were drinking alcohol when she arrived at the premises … no other persons were at the location.

The [complainant] sat down on the lounge with [Mr B] and [Mr A] offered the [complainant] a Vodka Cruiser, which she drank. A discussion took place within the group regarding concerns about a student being present at the school teacher’s house. [Mr A] has then commented ‘Youse two should kiss.’

The [complainant] and [the applicant] kissed. The [complainant] indicated that this kiss was consensual. Around this time [Mr B] sat next to the [complainant] on the lounge and rubbed her leg with his hand. While [the applicant] and the [complainant] were kissing, the other accused persons [Mr B] and [Mr A] allegedly cheered [the applicant] on.

[Mr B] moved his hand up the inside of [the complainant’s] leg. [The applicant] has said to [Mr B] ‘Mate, you should stop that.’ [Mr B] took his hand away for a short time and then placed it back on the [complainant’s] leg and commenced rubbing it again. The [complainant] has again asked him to stop.

The [complainant] alleges that [Mr B] and [Mr A] started to act sleazy. Comments were made about how good the [complainant] looked and that she had a good body for a 16 year old. Around this time [the applicant] suggested that the group have a spa.

[Mr A] and [Mr B] organised the spa bath that was located in the bathroom. [Mr B] and [the applicant] took off their clothing, leaving just their underpants on and entered the spa bath. About 10 minutes later the [complainant] decided to also get into the spa bath and has removed her clothing, leaving only her bra and underpants on. [The applicant] called the [complainant] over to him and they kissed. The [complainant] indicates that this kiss was consensual.

Around this time [Mr A] entered the bathroom and removed all his clothing. The [complainant] observed that [Mr A] had entered the spa bath naked.

The [complainant] stopped kissing [the applicant] and returned to the edge of the spa bath. [Mr B] rubbed the [complainant’s] leg. [The applicant] moved towards the [complainant] and kissed her. [Mr A] placed his hands on the complainant’s legs and thighs. …

37. According to the Police Fact Sheet, Mr A and Mr B continued touching the complainant’s legs, upper thigh and bottom. It is alleged that the applicant removed her underpants down to her knees and that Mr B unclipped her bra. Mr A is alleged to have been kissing her and indecently assaulting her. The applicant is alleged to have told the complainant to kiss Mr A and Mr B.

38. It was alleged that after her clothes were removed, Mr A dragged the complainant out of the spa and she was taken to a mattress that was on the lounge room floor where she was sexually assaulted by each of the accused; Mr A, Mr B and the applicant.

39. It was alleged that when the applicant, Mr A and Mr B had finished sexually assaulting her, the complainant went with the applicant into one of the bedrooms. The applicant made an attempt to continue to be intimate with her, but stopped when she said ‘stop’ and ‘it hurts’. Once the applicant was asleep the complainant left the bedroom to find her clothing. She put on her clothes, other than her wet underwear, and walked home.

40. During her interview with police, the complainant said that it was about 6.00am in the morning when she left. She said she was ‘really sore and tired and I was in so much pain, I was crying the whole time and it took me , like an hour to get home’.

41. Later that day and the following days, the complainant disclosed to close friends (including Mr X, a member of the applicant’s football team) about what she alleged to have occurred. In this disclosure she did not implicate the applicant. She only implicated Mr A and Mr B as having sexually assaulted her.

42. In her interview with police ten days later, the complainant said that the applicant had telephoned her the day of the incident and said he was sorry. She said: ‘he wouldn’t stop saying sorry the whole time’.

43. In the following days there were a number of text message exchanges between the applicant and the complainant. Some six days after the incident there was the following text message exchange between the applicant and the complainant:

Complainant at 7.59am –

‘Thing is, I really didn’t want to do the stuff I did with [Mr A] and [Mr B]. I felt so pressured into it. I ended up telling [Mr X] about it. So the stuff you thought he was carrying on about wasn’t about you’.

Applicant at 8.34am –

‘Why did you tell him?? … I didn’t think that was going to happen either you should have said no if you did not feel comfortable hey!! .. No I feel really bad .. So why last night was my name always being brought up?? …’

Complainant at 8.40am –

‘Cause I have massive bruises, like scratches and bite marks on me, and I felt he needed to know hey. Its so wrong though. Like im so upset and down on myself for being there and not being able to stop them (: . Like I don’t think they would fully stop if I said no. Cause I said no and stop a couple of times, but they didn’t stop if I said no. I honestly have no idea idea hey. Na I, so sorry’.

Applicant at 9.18am –

‘Really that’s terrible (: .. I promise they would have hey .. Everyone knows about it now as well … What do you want me to do about it?? I’ll do anything hey!! I feel so so bad for letting you get in the situation hey … I dunno what to do:) ..’

Complainant at 11.02am

‘Mm, well I thought you might have stopped it. But that shouldn’t be up to you, I should have said no more and yea. No one knows the full details like I just told you. Why are you embarrassed? But …, you make me SOO happy. I know we haven’t even seen each other that much but Fuck. If you want to keep talking its totally up to you. Don’t be sorry …! Please.’

44. There were further short text message exchanges between the applicant and the complainant on the following days and around midnight on the day before she was due to be interviewed by police, she sent a text message to the applicant to say she was going to be interviewed because ‘someone told’. The applicant deleted these text messages from her phone some time after this.

45. It was during that interview that the complainant implicated the applicant.

46. Two months later, the applicant was charged by police. Mr A and Mr B had also been charged. The applicant, Mr A and Mr B each declined to participate in a record of interview with police, which they were entitled to do.

The committal hearing of the applicant

47. The committal hearing of the charges laid against the applicant occurred during September and December 2013, before the Local Court of NSW. In September 2013, the complainant was cross-examined for two days by counsel for the respondent.

48. In September 2013, the Local Court Magistrate found, pursuant to s 62(1) of the Criminal Procedure Act 1986 (NSW) (as it applied in August 2011), that the prosecution evidence, as contained in the written brief of evidence of the police, was capable of satisfying a jury, properly instructed, beyond reasonable doubt that the applicant had committed the offences of which he was charged (at T 10/09/13, p 56). Under the Civil Procedure Act, this was the first sage of the committal procedure of which the Magistrate needed to be satisfied in order to proceed with the committal procedure. Had the Magistrate not been so satisfied, the Magistrate was required to dismiss the charges against the applicant.

49. In December 2013, the Magistrate went on to determine, under s 64 of the Criminal Procedure Act, whether the applicant should be committed to stand trial for the offences of which he had been charged or whether the charges should be dismissed (i.e. the second stage of the committal procedure in the event the charges were not dismissed in the first stage). In the applicant’s case, the Magistrate determined that, in his opinion, having regard to all the evidence before him (including the cross-examination of the complainant and other prosecution witnesses), there was not a reasonable prospect that a reasonable jury, properly instructed would convict the applicant of any of the charges (at T 18/12/13, p 22). Based on this finding, his Honour immediately ordered the applicant to be discharged in relation to the offences of which he was charged.

50. His Honour gave extensive reasons for his findings and found the following:

1. the complainant had good reason for not having raised a formal complaint for some 10 days after the alleged incident;

2. in her initial version of events to friends, the complainant had not implicated the applicant in the rape allegations – she said he was not there. She said he had left to take a phone call and was not present at the time;

3. as there was an inconsistency in the version of events given by the complainant, she had been called to give evidence to see whether there could be some explanation given for the inconsistent approaches she had taken – these were found not to have been explained satisfactorily;

4. there was a problem with the complainant’s change of story from the applicant not being involved to one where he had effectively raped her;

5. on the day the complainant was being interviewed by police, she was still texting the applicant, which she subsequently deleted. In cross-examination as to why she deleted these messages, the complainant gave answers in a way that was dismissive and did not really give a believable answer that was consistent with the prosecution case;

6. the complainant had responded ‘yes’ to a question asked of her in cross-examination as to whether she wanted to have sex with the applicant. However, when things started getting aggressive she said she expected the applicant ‘to sort it out, to do something about it’;

7. there was no ambiguity in the evidence of the complainant that Mr A and Mr B had raped her. Her inconsistent evidence related to the applicant only; and

8. in her text messages with the applicant after the alleged incident and four and two days prior to her interview with police the complainant spoke of her distress and spoke as if they were ‘best of mates, best of friends’.

51. His Honour (at T18/12/2013, p 5) summarised the complainant’s evidence in regard to the applicant’s alleged involvement in what occurred on the night in question as follows:

… [it] seems to me that at the end of the day she [the complainant] alleges rape against [the applicant] because he did not do anything to stop the conduct.

There is another possible interpretation on the evidence and that is that while she was desirous of having consensual sex with [the applicant] as soon as [Mr B] and [Mr A] started to behave in the way they did towards her, her views about having sex with [the applicant] changed and she no longer wished to have sex with [the applicant].

52. We understand that Mr A and Mr B were separately committed for trial, without a hearing, and that following a trial, in 2014, the jury made a finding of not guilty in regard to the charges laid against them. Mr A and Mr B both gave evidence at the trial. We understand Mr B denied the allegations made against him and said he was never present in the lounge room after they all left the spa. Mr A also denied the allegations made against him. He acknowledged he was in the lounge room lying on the mattress after they all left the spa. He said that after they left the spa, the applicant and the complainant were on the couch together and then rolled onto the mattress where they were having sex – he alleged that while this was happening, the complainant put her hand down his shorts and he ejaculated.

53. Mr A’s DNA was found on the complainant’s jeans. We understand other unidentifiable DNA was also found on the complainant’s jeans.

The applicant’s evidence

54. The applicant’s account of events on the night in question are those contained in his statement filed in these proceedings, some seven years after the 2011 incident. He does not deny he asked the complainant to meet him that night and that he called and paid for the taxi to bring her to Mr A’s house at about 2.30 to 3.00am that morning. He also conceded aspects of what the complainant had said in her interview with police, but denied he had sexually or indecently assaulted the complainant. His portrayal of the complainant is that she was the instigator of what occurred that night and the situation he found himself in after she had complained to police. In our opinion, for the reasons set out below, this aspect of the applicant’s statement is largely self-serving.

Consideration

55. In this application, the general principle of administrative review apply in that neither party bears a burden of proof in establishing that the decision was, or was not, ‘the correct and preferable’ decision: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]–[40]; BSR v Office of the Children’s Guardian [2015] NSWCADTAD 264 at [17] and BJB v NSW Office of the Children’s Guardian (No 2) [2014] NSWCATAD 164 at [32]. However, as noted by the Administrative Appeals Tribunal of Australia in Eckersley and Minister for Capital Territory (1979) 2 ALD 303; [1979] AATA 59 at [18]:

“… [when] either party to such an application [i.e. a review application] raises a specific fact for consideration, a situation can arise in which the responsibility of proving the existence of that fact must be accepted as falling upon the party who asserts its existence, in particular where that fact is, or has been, peculiarly within his own knowledge.”

56. It is accepted that where a matter requires proof, the Tribunal should have regard to the principles set out in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 at p362: see BKE v Office of the Children’s Guardian & Anor [2015] NSWSC 523 at [33]. That is, a matter requiring proof should be proved to the civil standard, on the balance of probabilities: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139, (1980) 44 FLR 41, [1980] FCA 85 at [15] per Dean J; BSR (supra) at [18]; BJB (supra) at [32] and Holbrook and Australian Postal Commission (1983) 5 ALN N46, [1983] AATA 40 at [23].

57. In criminal proceedings there is a higher standard of proof and the onus of proof is on the prosecution. That is, the prosecution must prove each element of the charge beyond reasonable doubt.

58. In BKE (supra) at [30], His Honour Justice Beech-Jones said, where there are allegations of sexual abuse by an applicant for a clearance, significant guidance as to the approach to be adopted when considering the allegation and risk can be derived from the High Court’s decision in M v M [1988] HCA 68; (1988) 166 CLR 69.

Consideration of the s 30(1) factors

(a) Seriousness of the matters that caused a refusal of the applicant’s application for a clearance

59. The offences of which the applicant was charged in 2011 were very serious in that they carried a maximum penalty of 20 and seven years imprisonment. Had the applicant been found guilty of these charges, his offending would also have been very serious. In such circumstances, the applicant would be a ‘disqualified person’ under s 18(1) of the WWC Act and presumed to pose a risk to the safety of children by reason of such offending: see WWC Act, s 28(7).

60. The applicant submitted that, based on his evidence, we would have little difficulty in concluding that he did not commit any offence on the night in question and, at the time of the incident, he was unaware of any concerns the complainant may have had about what had occurred.

61. The respondent submitted that it was open to us to find, on the material before us, that it was more probable than not that the acts and omissions the subject of the 2011 charges did in fact occur. In this regard the respondent contended that the complainant’s account of events should be preferred and accepted, as despite vigorous cross-examination during the applicant’s committal hearing and the trial of Mr A and Mr B, her account of events did not vary. While the accounts of the applicant, Mr A and Mr B differed from each other, in some respects the accounts of Mr A and Mr B provide some corroboration of the allegations the complainant made against the applicant. For example, Mr B’s evidence, in which he said the applicant had told the complainant to give him and Mr A ‘a go’ and Mr A’s evidence that the applicant had engaged in sexual intercourse with the complainant on the mattress.

62. In our opinion, there is no basis to depart from the detailed findings of the Magistrate in regard to the applicant’s alleged 2011 offending.

63. In deciding whether to commit the applicant to stand trial, s 64(1) of the Criminal Procedure Act did not require the Magistrate to determine whether, on the material before the Court, it was more probable than not that the allegations against the applicant were proven or likely to be proven to that standard (i.e. the civil standard of proof). A much lesser standard of proof was required, namely whether there was a reasonable prospect that a reasonable jury, properly instructed would convict the applicant of the charges. At the applicant’s committal the Magistrate was not satisfied that the evidence before it met this reasonable prospect standard. Hence, in the absence of the respondent placing before us any new evidence relevant to the 2011 incident, it is difficult to see how it could be argued that it was open to us to find that it was more probable than not that the applicant had committed one or more of the offences of which he was charged.

64. Nor has the applicant put on any evidence that would warrant us looking behind the findings of the Magistrate in regard to the complainant’s account of events, which were extensively tested by the applicant’s barrister. We note that the Magistrate did not make a finding that the complainant had fabricated her evidence or that she was lying. Yet the applicant appears to ask us to make such a finding, on the basis of his recent denials of any involvement in what the complainant alleged to have occurred on the night in question. In our view, while the applicant did not deny he arranged for the complainant to meet him that evening, his evidence, unlike the complainant’s evidence, could not be tested by her in these proceedings. Again, in our view, the more contemporaneous and tested account of events is to be preferred.

65. We accept that Mr A and Mr B were not found guilty of the charges laid against them. But this does not mean that the events as alleged by the complainant did not occur. As Mr A and Mr B are not applicants for a clearance in these proceedings it is unnecessary for us to determine this issue. However, we do note the allegations of the complainant in regard to Mr A and Mr B and accept something happened that night which caused the complainant to make her complaint to police.

66. In any event, the question we need to address is the seriousness of the 2011 charges which caused the refusal of the applicant’s clearance. For the reasons we have given, we accept the findings of the Magistrate and do not find, on the material before us, that it is more probable than not that the applicant committed the offences as charged.

67. While we do not find the 2011 charges proven to the civil standard of proof, in our opinion, the circumstances surrounding the incident nevertheless did give rise to an issue concerning risk to the safety of a child for the purpose of the WWC Act in that it was the applicant who:

1. invited the complainant to meet with him around 2.30am on the night in question with the intention of being intimate with her;

2. invited the complainant even though he had been drinking alcohol for many hours together with Mr A and Mr B;

3. arranged and paid for the taxi to bring the complainant close to Mr A’s home;

4. knew when he arranged for the complainant to meet him:

1. the complainant was a 16 year old student at Mr A’s school;

2. Mr A and Mr B were also present and awake at Mr A’s home; and

3. he, Mr A and Mr B were all adult men;

5. started kissing and being intimate with the complainant in front of Mr A and Mr B and willingly, at the suggestion of Mr B went into the spa with the complainant.

68. Although this conduct is not criminal, given the protective nature of these proceedings, the question is whether the existence of a risk of this kind continues as of today if the applicant were to be granted a clearance. We have dealt with this issue below.

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

69. Seven years have passed since the charges were laid against the applicant. There is no evidence of any reports of the applicant having engaged in any inappropriate conduct since that time.

(c) The age of the applicant at the time the offences or matters occurred

70. The applicant was 20 years of age at the time of the alleged offending. We accept the observations of Mr Fordyce, at [43] of his report, that the applicant and the complainant’s interaction on the night in question appeared to be ‘immature in nature’.

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

71. The complainant was 16 years of age at the relevant time. At [44] of his report, Mr Fordyce, observed that, based on the text messages the complainant had sent to the applicant on the days after the night in question, she acted and communicated in a manner he would expect of a girl her age.

72. At the hearing, the applicant said he did not think the complainant was vulnerable. He said that had he thought this to have been the case, he would have stepped in. He said he thought she was confident and was sexually active.

73. For the reasons we have given above, we agree with the respondent that at the time, the complainant was vulnerable in that the applicant had invited her to come and join him at Mr A’s home when he knew that the complainant was a student at the school where Mr A taught and that he, Mr A and Mr B had all been drinking for some hours. Yet he did not think twice whether it was appropriate to arrange for the complainant to meet him there. In his evidence before us the applicant acknowledged that in hind sight he now realises he should not have invited the complainant to join him at Mr A’s house that night.

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

74. There was almost four years difference in the age of the complainant and the applicant. Mr B, on the evidence of the applicant was also about four years older than the complainant. Mr A, on the other hand, was considerably older than the complainant. He was 33 years of age.

75. At [44], Mr Fordyce went on to say that given the applicant’s impression that the complainant was mature implied that, at the time, they were of similar psychosocial maturity.

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

76. The applicant either knew or could reasonably have known that the complainant was 16 years of age. He knew she was a school student and that she was in year 11.

(g) The person’s present age

77. The applicant is currently 27 years of age. In his report, at [61], Mr Fordyce expressed the opinion that the applicant’s psychosocial maturity had increased since 2011 in that he had developed a stable intimate partnership and a more stable lifestyle, including employment.

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

78. There is no evidence of the applicant having been charged, or come to the notice of police, or any other relevant authority, prior to the 2011 incident or thereafter.

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

79. The applicant relied on the risk assessment report of Mr Fordyce as to the likelihood of him offending or reoffending in the manner that gave rise to the 2011 charges having been laid against him.

80. Mr Fordyce’s approach was to assess risk on the basis of the complainant’s account being accepted and also on the basis of the applicant’s account of events given in these proceedings.

81. In his report, at [43] to [50], Mr Fordyce made a number of observations about the applicant from responses he gave to questions about the incident, which included the following:

1. a lack of understanding about the potential power imbalance where the complainant was in another person's home, with three significantly older males, one of whom was a teacher (at [45]);

2. while the applicant expressed feeling uncomfortable when Mr A and Mr B commenced acting in a sexual manner towards the complainant, he appeared to be reasonably accepting of what he stated to have transpired, as he did not immediately desist from his involvement in the activity (at [46]);

82. Nevertheless, at [48], Mr Fordyce said that the applicant evidenced an awareness of some risk management factors in relation to possible allegations of sexual misconduct when he said:

1. he should not have met with the complainant early in the morning or he should have ensured that the sexual interaction between them remained private;

2. since 2011, he become more cautious in his initiation of intimate situations, in order to prevent further allegations being made against him. He said he did not engage in ‘casual’ sexual partnerships, and focused instead on building a stable relationship with any potential sexual partner

83. At [49] of his report Mr Fordyce gave the following summary of the applicant’s account of the incident:

… he evidenced a pattern of sexualising the complainant and limited insight into a possible power imbalance, or concern for her wellbeing in the situation. However, I note that [the applicant's] level of insight was not unusual given his relative inexperience in intimate partnerships and lack of engagement in specialist treatment, and the significant negative effect that the allegations have had on his life. [The applicant] demonstrated some awareness of risk management issues, in that he expressed ways in which he could have acted differently to avoid the allegations being made against him and how he has changed his behaviour since the incident.

84. At [61], Mr Fordyce said that based on the applicant’s account, he:

… did not present with notable risks in relation to sexual deviancy. … [he] did not endorse a history of deviant sexual interests, hypersexuality, sexual preoccupation or sexual self-regulation issues. He demonstrated an age appropriate progression from more casual sexual partnerships to a stable intimate relationship. [The applicant] demonstrated a sound understanding of sexual consent and expressed attitudes which oppose sexual abuse. [The applicant] does not evidence a history of antisociality, and described a history of stable and prosocial functioning. To this end, it is my view that [the applicant's] accounts of events would be best explained within the context of situational factors, including his psychosocial immaturity, lack of a stable intimate relationship, disinhibiting effects of alcohol, influence of his peers, a sexualised view of the complainant and a lack of insight into a possible power imbalance in this situation. In my opinion, these factors, which were reportedly confined to the incident, have been moderated by his increased maturity, the development of a stable intimate partnership and a more stable lifestyle, including enjoyment.

85. At [67], Mr Fordyce concluded:

In relation to [the applicant’s] current risk of sexual violence, if the Tribunal accepts the complainant’s account, I consider that [the applicant’s] dynamic risk factors of extreme minimisation, attitudes which support his sexual violence and problems with self-awareness, would maintain his average risk of sexual recidivism. Although this would have been partially moderated by his time at liberty without further charges and protective factors. If the Tribunal accepts [the applicant’s] account of the incident, there is no evidence to suggest that he poses a risk of sexual violence. Furthermore, the factors which precipitated his involvement in the incident have been moderated by positive changes to his lifestyle and personal strengths.

86. We accept the abovementioned remarks of Mr Fordyce in regard to his observations of the applicant concerning the incident. However, this does not mean we accept the applicant’s denial of any involvement in what occurred on the night in question as alleged by the complainant.

87. We also agree with the conclusion of Mr Fordyce that, as at the date of the hearing, the likelihood of the applicant engaging in sexual violence in future is very low. He has not been convicted of such an offence in the past and there have been no further reports of the applicant having behaved in the manner he did behave and was alleged to have behaved in 2011. For the same reasons we are also satisfied that the applicant is unlikely to place himself in the same situation he placed himself in when he invited the applicant to join him on the night in question.

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

88. It is evident from the references written by family members of the applicant that the applicant has and continues to have their support. Many of those who gave references referred to the allegations of the complainant as being fanciful or a fabrication. The basis on which such remarks were made were not explained, but we doubt any of the applicant’s referees have actually read the transcript of the applicant’s committal hearing.

89. The remaining references were from people who had known the applicant since he was a child, at school or who had met him through work. Some noted that the 2011 charges laid against the applicant had been discharged, while others made no reference to the applicant having been charged. However, they all said he was of good character and a man of pride, and principle. He was honest, trustworthy, determined, hard-working and kind hearted. He was a talented sportsman in his chosen sport and deserves the right to be allowed the enjoyment of coaching and helping his community.

90. In his written submissions, the solicitor for the applicant contended that the applicant had shown a great level of insight when he consented, without admission, to a 2 year apprehended violence order being made against him following the dismissal of the charges. It was also submitted that the applicant had shown insight when giving his evidence in these proceedings.

(k) Any other matters that the Children’s Guardian considers necessary

91. Counsel for the respondent contended that on the material before the us, we could comfortably be satisfied that the applicant poses a risk to the safety of children if he were to be granted a clearance. Of particular concern to the respondent was the applicant’s ongoing lack of insight into his behaviour and the impact it had on the complainant. Instead he blames the complainant for what has happened to him since he was charged with the offences.

Can we be satisfied that the applicant poses a risk to the safety of children?

92. In determining whether we can be satisfied that the applicant poses a risk to the safety of children, we reiterate the paramount consideration in the operation of the WWC Act (i.e. ‘the safety, welfare and well-being of children and, in particular, protecting them from child abuse).

93. As we have noted, we must determine risk in the context of any child-related work and not in the context of the child-related work the applicant seeks to work in.

94. For the reasons set out above, we cannot be satisfied that the applicant poses a real and appreciable risk to the safety of children. While the offences of which the applicant was charged in 2011 were very serious, they were dismissed early, following a committal hearing where the complainant gave evidence and was extensively cross-examined.

95. Nor have we found, on the material before us that it is more probable than not that the applicant committed the offences as charged. Instead we accept the findings of the Magistrate, which did not go so far as to find that the complaint had lied or that her account of events had been fabricated. Nevertheless, we have some concerns about the applicant’s involvement in the circumstances giving rise to the 2011. We accept that while the applicant was an adult at the time he was immature for his age.

96. It is now seven years since the incident occurred. We accept the evidence of Mr Fordyce that, since that time, the applicant has matured and there are now many dynamic factors protective against a risk of offending in favour of the applicant. Hence, it is unlikely that he would in the future engage in conduct of the kind he was charged with in 2011, including placing himself in the same situation he placed himself when he invited the complainant to join him on the night in question.

97. We share the concerns of the respondent about the applicant’s apparent lack of insight into his involvement in the 2011 incident. However, as noted by Mr Fordyce, the applicant’s responses to what happened in 2011 need to be considered in their proper context. First, the applicant presented as a nervous and fairly serious person. And he, like many applicants who have been refused a clearance because of charges having been laid against them in the past, minimise their involvement in the incident the subject of the charges laid against them, as they see an application under WWC Act as being a trial of the charges, which were dismissed many years ago. It is accepted that minimisation and lack of insight into their involvement and the impact that had on the victim does not, on its own, give rise to a question of risk of harm to children today.

98. In our view, despite a lack of insight, when this is weighed against the many factors in the applicant’s favour, we remain of the view that, on the material before us, we cannot be satisfied that the applicant poses a real and appreciable risk to children as at the day of hearing.

Are we satisfied 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 affected person is engaged in any child - related work?

99. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the test requires:

… [the] application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.

100. In order to properly consider this test, a ‘reasonable person’ would need to know about the charges brought against the applicant in 2011, their dismissal at committal and the other material before us, including the report of Mr Fordyce.

101. For the reasons set out above, we are satisfied that a reasonable person, having knowledge of all the information that is before us, would allow his or her child have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child related work.

Is it in the public interest to make an order?

102. The public interest consideration in s 30(1A(b)) of the WWC Act is a broad concept giving priority to the broader interests of the community over private interests, including factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children (WWC Act s 3): see WWC Act, s 3, Smith v Commissioner of Police  [2014] NSWCATAD 184 and ZZ v Secretary, Department of Justice [2013] VSC 267, at [206].

103. In our view, it is in the public interest to make the order sought. The evidence is that, in all respects, the applicant today does not pose a real and appreciable risk to the safety of children and he has the necessary skills and experience to coach young players in his chosen sport.

Conclusions and Orders

104. For the reasons set out above, we find that we are not satisfied that the applicant poses a real and appreciable risk to children. We are also satisfied of the matters prescribed in s 30(1A) of the WWC Act. On this basis we also find that the decision of the respondent is not the correct and preferred decision and should be set aside. In substitution of that decision we make a decision that the applicant be granted a working with children check clearance.

105. For the reasons set out above, the we make the following order:

1. The decision of the respondent, made on 2 March 2018, to refuse the applicant application for a working with children check clearance is set aside.

2. In substitution for the decision of the respondent, 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

Decision last updated: 30 April 2019