DPO v Children's Guardian - [2019] NSWCATAD 127

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DPO v Children's Guardian [2019] NSWCATAD 127
Hearing dates: 13 March 2019
Date of orders: 27 June 2019
Decision date: 27 June 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: Hon G Mullane ADCJ, Principal Member
S Davison, General Member
Decision:
1. The Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of manslaughter of a child of which he was convicted by the NSW Court of Criminal Appeal on 22 june 1989.
2. The Respondent must grant the applicant a Working with Children Check Clearance.
3. Publication or broadcast without the leave of the Tribunal of the name or other identifying information of the Applicant, his son, daughter, former wife, or defacto wife, is prohibited.

Catchwords: CHILDREN PROTECTION – working with children – disqualified person – application for enabling order
Legislation Cited: Child Protection (Working with Children) Act 2012 (‘the Act”);
Child Protection (Prohibited Employment) Act 1998
Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949
Category: Principal judgment
Parties: DPO (Applicant)
Office of the Children's Guardian (Respondent)
Representation:
DPO (Applicant in person)
R Dart (Respondent)
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2018/320624
Publication restriction: Publication or broadcast without the permission of the Tribunal of the name or other identifying information of the Applicant, his son or daughter or his former wife or defacto wife is prohibited.

REASONS FOR DECISION

Introduction

On 16 April 2018 DPO applied to the Children's Guardian for a Working With Children Check Clearance to enable him to work with children.
DPO had seven convictions for manslaughter and one conviction for affray. The convictions were imposed by the Court of Criminal Appeal on 22 June 1989 in respect of conduct of DPO in 1984 when members of two motorcycle clubs fought at a hotel in Milperra. Of the seven people who died on 2 September 1984 four were members of the Comancheros Motor Cycle Club, two were members of the Bandidos Motor Cycle Club and one was a 14 year old girl who was an innocent bystander. The deaths were by firearms.
For the purposes of the Child Protection (Working with Children) Act 2012 (“the Act”) DPO is a “disqualified person” because of his conviction for manslaughter of a child, and the Act required that the Children's Guardian must refuse to grant him a Check Clearance.
On 3 August 2018 the Children's Guardian refused the application of DPO for a Working With Children Check Clearance, as the legislation required.
On 16 October 2018 DPO filed an application in the Tribunal for an enabling order pursuant to s28 of the Act to enable the Children's Guardian to disregard the disqualifying offence and provide him with a Check Clearance. He also filed an application for a stay of the existing refusal.
The application for a stay was subsequently heard on 7 November 2018 and refused.
This was the hearing of the application for an enabling order. The applicant did not have legal representation and appeared for himself.

Relevant Law and Legal Principles

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 Working With Children Check Clearances (s3 of the Act).
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.”

Section 6 of the Act defines who are workers “engaged in child-related work” for purposes of the Act.
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”.
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 the 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.
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.

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.
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.
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.

An offence specified in Schedule 2 of the Act at para (1)(b) is “manslaughter of a child (other than as a result of a motor vehicle accident)”. One of the 1984 convictions of the Applicant was manslaughter of the 14 year old girl and the death was not the result of a motor vehicle accident. The Applicant was an adult at the time. So that is why for purposes of the Act the Applicant is a disqualified person.
Part 4 of the Act is ss 26 – 30. Section 26 provides that a person convicted of one of the specified offences, committed as an adult, is not eligible to apply for a review or an enabling order if, inter alia, the person received a sentence of full-time custody for the offence. The specified offences do not include manslaughter or affray and the provision does not apply to the Applicant. The Applicant is therefore eligible to apply for an enabling order.
Section 27(4) of the Act provides: “An applicant must fully disclose to the Tribunal any matters relevant to the application.”
The jurisdiction of the Tribunal under s27of the Act is protective of children, and not intended to be punitive of the Applicant.
Subsection 28(7) of the Act provides:

In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

Subsection 28(8) prohibits the giving of a clearance that is subject to any condition.
Subsection 30(1) of the Act applies to applications for enabling orders. 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,
(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, and
(k) any other matters that the Commission considers necessary.

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

The Evidence

The evidence comprised:-

(a) Application of the Applicant with attached submissions and copy of letter from the Respondent of 3 August 2018 notifying refusal to grant a clearance;

(b) Bundle of documents filed by the Respondent on 24 October 2018 comprising:-

Notice to Disqualified Person;
Police iASK Response;
s31 Response from the Court of Criminal Appeal, Supreme Court of New South Wales;
s31 Response from Penrith Local Court; and
Criminal History Index.

(d) Reasons for Decision of the Tribunal on 7 November 2018 for refusal to grant stay of the determination by the Children's Guardian;

(e) Bundle of documents filed by the Children's Guardian on 15 November 2018 comprising:-

(a) NSW Police Force iASK AVO History (received 30 October 2018);

(b) Response from Ryde Local Court;

(d) Response from West Australian Police Force – Information Release Centre dated 6 November 2018; and

(e) Response from NSW Police Force – State Crime Command – Child Abuse and Sex Crimes Squad dated 7 November 2018;

(f) Documents filed by Applicant on 19 November 2018-

(a) Character reference from Mr P Lusted of 11 November 2018;

(b) Character reference from Lieutenant Colonel Murray Lott (Ret) dated 14 November 2018

(g) Letter from Applicant to the Tribunal dated 19 November 2018;

(h) Copy of Submissions on behalf of the Applicant to Defence Honours and Awards Tribunal (undated);

(i) Letter from Royal Australian Army Corps Association (NSW) Inc to the Defence Honours and Awards Appeals Tribunal supporting the Applicant being granted an Australian Defence Medal dated 28 August 2012;

(j) Letter of 7 August 2013 to the Applicant from the Director of Honours and Awards informing him of decision to award him an Australian Defence Medal;

(k) Copy of character reference of 14 June 2000 from Lecturer and Unit Coordinator of the Faculty of Communications, Health and Science of the Edith Cowan University in relation to Applicant’s work teaching in the Faculty in film and video;

(l) Character reference from the National Film and Sound Archive in relation to the Applicant’s service there in the period from 25 October 2007 – 14 October 2009;

(m) Character reference from the Portfolio Project Officer of the Australian Government Department of Human Services in respect of the Applicant’s work at TransACT Communications as “Head of the Television Division”;

(n) Character reference of 28 November 2018 from Anne Ward;

(o) Character reference from Henrik Anthony (undated);

(p) Further bundle of documents filed on behalf of the Respondent on 3 December 2018 being:-

(a) Response from Parramatta Local Court;

(b) s31 Response from Family and Community Services; and

(q) Outline of Submissions on behalf of the Respondent filed on 13 December 2018;

(r) Character references from Robyn Townsend, Carl Ruhen and Ann Goldwater filed by the Applicant on 19 December 2018;

(s) CV (“Profile”) of the Applicant filed 19 December 2018; and

(t) Oral evidence of the Applicant on 13 March 2018.

Sequence of events

The evidence relied on by the Applicant is that he left school at age 16 in 1978 and then was employed by a car yard and subsequently by the Commonwealth Bank. He joined the Army Reserve part time at 17 in 1979 whilst still employed by the Bank. The Applicant’s sister married the leader of the Comanchero Motorcycle Club in 1980. In 1982 the Applicant transferred to the regular Army full time.
In about 1982 he commenced cohabiting with his girlfriend. Their daughter was born in about February of 1982.
In his sentencing reasons the trial judge said the Applicant had become a member of the Comancheros 2 weeks before 2 September1984.
The evidence is that for a Comanchero to achieve membership and a ”patch” to wear signifying that, there were other required stages of involvement in the club required by the club rules to be completed before the Patch was awarded. The stages of achieving membership were:

Riding in Association: Through friendship/acquaintance with a full member, be introduced to the club by attending club activities and be assessed by members (It appears that because “runs” occurred only monthly, this stage probably took more than one month.)

Stripe: After being assessed the person may be given his stripe. It has “Comanchero” written on it to indicate he is associated with the Comancheros, but the person is not yet a full member. During this stage members assess the person for 3 months.

Horseshoe - The person is given a horseshoe shaped piece of cloth that is attached to his jacket on which “Comanchero” is written, signifying that he is now formally within the group, but not yet a full member and must wait at least another 3 months before full membership might be bestowed on him.

Patch - this indicates full membership and is a membership badge of an eagle on a motorcycle wheel.

A motorbike run, often lasting the weekend, usually occurred each weekend. A social activity would occur at the clubhouse, usually each Saturday night. Members were strongly loyal to each other and often gave practical assistance to each other, such as providing spare parts to each other. Members helped another member to install a swimming pool. A member with a van helped another to move house. They provided a “ready, reliable set of friends”.
Club activities regularly included families, and spouses were welcome at the clubhouse on Saturday night for drinks and sometimes accompanied their partners on weekend runs. Members’ parents sometimes attended club barbecues.
After the split there had been considerable hostility between the Comancheros and the Bandidos. Amongst the Bandidos there were allegations of a bashing by a Comanchero of a Bandido, who allegedly sustained a broken rib and a stab wound to the neck, and of Comancheros shooting at the Bandidos club house and at Bandido members. Amongst the Comancheros there were allegations of pursuit of Comancheros by Bandidos, shooting at Comancheros and their club house by Bandidos and that each club had taken steps for protection or fortification of their club house. There was serious ill feeling between the two clubs.
In a statement by the Applicant to a member of parliament after the Milperra incident he said that on a night several weeks before the Milperra incident the Comanchero President was run down whilst on his motorcycle near home and dragged about 50 metres along the road by a truck. The Applicant’s evidence is that on the morning of the Milperra incident some members of the Bandidos club drove their motorcycles past the Applicant’s home on their way to the hotel for the motorcycle show. The Applicant told police later that when they came past his house he knew they would be at the motorcycle show. He bought his Harley-Davidson Motorcycle in 1983 and at his brother-in-law’s suggestion he started to attend meetings of the Comancheros. He then went several times in 1983 to meetings at their clubhouse. He said he was attending club meetings of the Comancheros and the club was “friction-ridden”. This friction subsequently split the group in 1983 and those who left formed another motor cycle club and called themselves “The Bandidos”. He began riding with the Comancheros group in 1984.
The applicant continued to attend meetings and activities of the Comancheros towards achieving membership of the Club. He became a member in August 1984.
There were hard feelings between the two clubs after the split. On 2 September 1984 members of both clubs attended a motor cycle fair at Milperra. There was anticipation amongst the members of both clubs of a fight between the members of the two clubs and some took guns with them. The applicant attended and brought a sawn off shotgun with him and cartridges. There was a fight and 7 people were killed.
That day the Applicant was arrested by police and charged with affray and also with seven counts of murder, relating to the deaths of a 14 year old girl and six members of the motorcycle clubs. Upon his arrest, the Applicant was refused bail and was incarcerated.
In January 1986 his application to have boxing gloves in the prison for his own “personal use” was granted. In September 1986 the Applicant married his girlfriend in the prison.
The trial of the Applicant and others in respect of charges of affray and murder proceeded in 1987. On 26 June 1987 the Applicant and others were convicted by a jury on the count of affray and seven counts of murder. The trial judge in instructing the jury advised them that it was open to convict the applicant (and some others who participated in the affray) of murder even though they personally had not shot or injured anyone but had been part of a group that went to the motorcycle fair in a public place with the common intention of fighting members of the other motorcycle club with recklessness to the prospect that someone could be killed.
The trial judge sentenced the Applicant on 26 June 1987 to 10 year’s imprisonment in respect of the affray offence and life imprisonment in respect of each of the seven convictions for murder. He had already been incarcerated for nearly 34 months.
The Applicant and others decided to appeal their murder convictions. On 8 December 1987 he was granted bail pending hearing of the appeal. By then he had been in prison for about 40 months. There was a change of the bail legislation and on 18 December 1987 an application by the prosecution to review the bail decision pending the appeal hearing was successful and the Applicant was returned to prison.
By the time of the hearing in the Court of Criminal Appeal on 8 June 1989 the applicant and his wife were estranged. They have not resumed cohabitation.
The Court of Criminal Appeal on 22 June 1989 confirmed the conviction and sentence of 10 years for affray but allowed the appeal in respect of the murder convictions and substituted convictions for manslaughter for each of those. The basis of that decision was that the trial judge had misdirected the jury that a conviction for murder could be imposed where the accused did not intend the death but knew a death was a possible outcome of his conduct, whereas the correct direction would have been that a death was a “likely” or “probable” outcome. The applicant was sentenced to imprisonment for 12 years on each of the manslaughter convictions. The sentences were to be served concurrently and the non-parole period fixed was 7 years to date from 2 September 1984.

When remissions were allowed to the Applicant for his educational endeavours and good behaviour during his imprisonment, he was released from prison on parole on 7 July 1989. Although while in prison he had re-enlisted in the army for another 3 years, he did not return to the Army when released from prison and was given an honourable discharge.
The Applicant told the Defence Honours and Awards Tribunal that he moved to Canberra (presumably from Western Australia) in 2005. The Applicant formed an intimate relationship with another woman after his release from prison and their son was born in 2008.
The Applicant and his son’s mother separated in 2017 and the son has since resided with his mother.

Credit of the Applicant

The Applicant did not comply with his obligation under subsection 27(4) to disclose relevant matters. The disclosures of the applicant were grossly inadequate. When questioned about the offences in 1984 and surrounding circumstances much of what he did disclose was untrue. He seriously minimised his conduct on the day of the offences and his role leading up to and during the affray in which 7 people died. For example, he did not provide any adequate response to many questions about the allegations against him and many matters recorded in records in evidence.
In his application to the Tribunal he did not mention the name “Comancheros” or that he was a member. He referred to his brother-in-law being the president of “a motorcycle club” and said “I went with that group to a hotel to attend a motorcycle show”.
In his sentencing reasons the trial judge stated that the Applicant fired a gun in the affray and at the hearing admitted firing twice.
At this hearing, when asked by a panel member when he first saw the shotgun, he said he first saw it lying on the ground when the affray had started. When asked, he said he didn’t see how it got there. He said he picked it up. Later, when he was asked again where the shotgun was when he first saw it, he said “I can’t recall”. He said he didn’t take a firearm there. He was asked whether it was the shotgun that came with them in the car and he replied “could have been”. He had earlier said someone else who came in his car brought the gun. He said “various people came in my car.” When asked, he gave the names of the 3 other men in the car and named the one he said had the gun and then he volunteered “I think it was a shotgun”. He admitted firing it twice into the air but on occasions more proximate to the event he denied firing it at all. The trial judge held in his sentencing reasons that forensic tests of the shotgun and spent cartridges and evidence of witnesses established that he fired it twice.
When asked whether another named man in the car had a gun with him, he said he couldn’t recall. He said of his state of mind in the car on the way to the hotel, “My view was we were going to a motorcycle show.” When asked whether he usually takes a shotgun when he goes with friends to an hotel, he avoided the question three times before he said he doesn’t.
Then he said, “I wasn’t anticipating there might be a fight. In the weeks leading up to that, there were problems. We weren’t going to hide under the bed. We weren’t anticipating problems, but if they attacked we were ready to defend ourselves”.
It is clear that he contemplated there could be a “fight” with the Bandidos and that is why he took his shotgun and cartridges with him.
When cross examined by Ms Dart, counsel for the Respondent, he conceded it was his car. He also later changed his evidence about where he obtained the gun. He was asked whether he returned to his car and took the gun from the car and he replied. “I think I picked it up from the ground near the car, but I could be wrong”. Before the Tribunal the Applicant falsely alleged that he first saw the gun lying on the ground when the affray was happening. Later he retreated and said he wasn’t sure. Eventually he said that maybe he went to his car and took the shotgun that had come with them. In the criminal trial he denied he had possession of a gun, that he owned it, that he took it to the motor bike show, and that he fired it. From other admissions and findings of the trial Judge in his sentencing reasons, the Tribunal is well satisfied that all these denials were false.
The Probation and Parole Officer who interviewed him at the Long Bay Parole Unit on 29 July 1987 noted that “He took his gun from his car after the shooting began and did not fire it.” But in fact he fired it twice and he lied to the probation and parole officer.
At his trial he testified at his trial that he fired in self-defence, but the jury verdict rejected that defence as untrue.
In 2012 the Defence Honours and Awards Tribunal awarded the Applicant the Australian Defence Medal. The Applicant relies in these proceedings upon submissions made to that Tribunal in support of him receiving that Medal. One of those submissions is by his Barrister, Mr A Anforth, and the other is by a friend, Greg Skinner. Each of those submissions does not include an accurate or adequate description of the Applicant’s relevant conduct on 2 September 1984 which supported the affray conviction and the manslaughter convictions. Neither Mr Anforth nor Mr Skinner witnessed any of the conduct of the applicant which supported the convictions for affray and manslaughter. Presumably they relied upon what the Applicant told them was his conduct on the day.
That day, the Applicant drove his car to the motorcycle show. He took with him his brother-in-law, who was the Captain of the Comancheros, and 2 other members. He took his double barrel shotgun with him and cartridges. There was no other gun in the car but his. The version of these matters in his application to the Tribunal that he signed on 6 April 2018 did not disclose that he was a member of the Comancheros, that it was his car, that he was driving, or that they had a gun. He said in his application, “My brother-in-law was the president of a motorcycle club and I went with that group to attend a motorcycle show”.
When he gave evidence in his bail application on 8 December 1987, he did not dissent from Counsel for the Crown’s statement that in the Applicant’s statement from the dock in the criminal trial he said he fired the gun twice; once in the air and once into the ground. In a typed statement of 30 June 1988 he said: “In our trial I gave my version of events in a dock statement to the jury in early November 1986”. The Applicant has on several subsequent occasions since 30 June 1988 alleged that each time he fired the shotgun, he fired it into the air. The trial judge in his sentencing reasons stated that he fired both times into the air. On the balance of probabilities he lied when he stated that he fired once into the ground.
Notwithstanding the requirements of sub section 27(4) of the Act that an applicant for an enabling order make full disclosure of “any matters relevant to the application”, the Applicant did not voluntarily disclose numerous other criminal proceedings against him, including proceedings on a charge for assault. On the contrary, he falsely stated in his application that he had “never had another charge or conviction since 1984”.

The seriousness of the offence with respect to which the person is a disqualified person

The offence which caused the Applicant to be a disqualified person was the conviction for manslaughter of the 14 year old girl who was a child and an innocent bystander. That is the most serious of the manslaughter convictions.
That day, 2 September 1984, the Applicant drove his car to the motorcycle show. He took with him his brother-in-law, who was the Captain of the Comancheros, and 2 other members. He took his double barrel shotgun with him and cartridges. There was no other gun in the car but his.
When they arrived at the hotel, in the grounds of which the bike show was occurring, there were many people. On the balance of probabilities, when he arrived with his fellow members at the hotel, they alighted from his car and went to the area where the affray occurred. When the Bandidos arrived, within a short time shooting occurred between the two motorcycle clubs.
The Court of Appeal quoted the sentencing judge’s reasons where he said that the evidence established that he fired his gun twice. It added “the reference to [DPO] having fired a gun during the affray must be looked at in the light of other evidence which would appear to establish that the gun was fired well into the air, according to the account given by independent eye witnesses.”
Six motorcycle club members and the 14 -year-old girl bystander were shot dead.
He said that during the affray he saved two wounded Comancheros by dragging them to behind a parked car. At the hearing he told the Tribunal that when the affray started, he “saw it as a military battle”. The Tribunal accepts that during the shooting he went to his car and took his sawn off shotgun from his car and returned to the affray. He fired it twice into the air. While he did not kill or physically injure anyone, he no doubt added to the atmosphere of shock, terror and insecurity.
Clearly he contributed to the deaths that occurred by going to the location with a common purpose with the others in his car to participate in a fight with members of the Bandidos, bringing his shotgun and cartridges, remaining in the affray when the fight started and recklessly disregarding the very real prospect that one or more people would be shot or killed in the fight. He also participated by retrieving his shotgun from this car, taking it to the affray, and by participating in the affray in a public place and firing his gun there twice.
His most serious conviction eventuating from the events of 2 September 1984 was manslaughter of the 14 year old girl, who was an innocent bystander in a public place. That was in the context that there were six other people killed in the affray / fight. It was the disqualifying offence.
On the evidence, it had been open to the Applicant to have not gone to the show, or to have left before, or when, the affray started, or to have not participated in the affray. He could have left the affray on foot or in his car. He chose instead to obtain his shotgun and participate further in the affray. The death of the young victim was a result of the conduct of him and the others who participated in the affray.
His disqualifying offence was extremely serious.

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

It is more than 34 years since those offences occurred. The dates of the alleged offences, outcomes and penalties comprising the criminal record of the Applicant since the affray and manslaughter offences are:-

07/09/1991: Driving with prescribed concentration of alcohol (lower) - fined $150.00;

10/03/1992: Common Assault – dismissed on 04/12/1992;

18/09/1997: Contravene Red Traffic Control Signal - fined $75.00;

03/12/2000: Refuse Breath Test - fined $800.00 and disqualified from driving for six months; and

03/12/2000: Driving Unlicensed Vehicle - fined $50.00.

On 26 August 1985 the Applicant fought with another prisoner in the Activity Yard of the prison. The applicant did not disclose this to the Tribunal. . The fight was not part of any organised sport approved by the governor of the prison. Prison officers separated the two. The other prisoner was taken to the clinic. The Applicant was taken to his cell and locked in. The Superintendent dealt with the matter. The applicant was admonished and discharged.
The common assault charge was dismissed after a defended hearing before a magistrate. The Applicant did not disclose it and there was before the Tribunal no transcript of evidence or of the Magistrate’s reasons. When at the Tribunal hearing he was asked about the common assault charge he admitted the complainant was the manager of the Albion Hotel in Parramatta. He said that it was his only “clash with the law” since 1984. He said there was an assault at the hotel and “I tried to intervene and pushed someone, who fell”. The “someone” was the hotel manager.
We turn to the evidence of the applicant’s involvement with his children since the offences in 1984. In the document authored by the Applicant’s brother dated 15 January 1988, he states that the Applicant has “also lost his wife, his dearly loved infant child, and his much-valued Army career”.
In an application to the prison superintendents for the Applicant to marry his fiancée dated 17 August 1986 the Applicant said that he had been together with his fiancée for four years. He said that their daughter was 2½ years of age. It appears then that he had already formed a relationship with his fiancée in 1982 before the incident on 2 September 1984.
His daughter resided with her mother for the whole of her childhood. She was only 5 months of age when he first went to prison. His evidence is that his wife raised her “single handily whilst maintaining employment to survive”. There is no evidence that his daughter visited him in prison. His wife moved to Melbourne with their daughter to have the support of her family.
In a letter to a member of parliament dated 30 June 1988 the Applicant reflected on his marriage and his relationship with his wife and daughter. He said:-

“I am a married man with a 4-year-old daughter. My daughter was only 5 months old when I was jailed and she has never known what it is like to have her father live with her. My wife has been under enormous pressure since this whole business started. She has had to raise her daughter single-handedly whilst maintaining employment to survive. She has since returned to Melbourne to seek support of her family”.

The parole records for the Applicant record that in the period of 1989 – 1992 the Applicant maintained an excellent relationship with his daughter and she often came and stayed with him for weekends or a holiday. Throughout that period she was residing in Melbourne and he was in Sydney. It is clear from the records that their relationship has been close and he is very supportive of his daughter.
The Applicant’s daughter now has two children. The Applicant has maintained reciprocating visits between him and his daughter and her family. He has encouraged a relationship between his daughter and his son.
The Applicant and his wife were estranged by the time he left prison in July 1989. He subsequently partnered with another woman and they cohabited from 2001 for 15 years. Their son was born in 2008. By 21 May 2016, the Applicant and the mother of their child had separated. The boy has resided with his mother since the separation. His parents have not resumed cohabitation.
There is a statement by his son’s mother that provides considerable evidence in relation to the Applicant’s involvement with his son. She says:-

“I have held senior executive roles for many years as the primary income earner and this meant that [DPO] was the primary carer of our son from eight months old. He was and remains a dedicated good and loving father, who has a very strong bond with his son”.

She says that although she and the Applicant are separated their relationship is cordial and their focus is on their son “ensuring he has the love and support of his mother and father regardless of our situation”.
She also says in her statement:-

“I would like to state that [DPO] is a great example of someone who grew up in a violent unloving and unhappy home with little money, support or guidance, but has managed to break the cycle and turn his lemons into lemonade. He has done this on his own despite his family background, lack of role models and despite finishing school at 15 after his father pulled him out. Despite all of this he went onto university to study at both the undergraduate and postgraduate level, receive scholarships, university sporting medals, has carved out a career and often volunteers in activities that support his son and the community. [DPO] is someone who wants to give back to society and help others who have had similar struggles”.

Ms Robyn Townsend is a retired psychologist. She worked as a Parole Officer and was assigned to the Applicant on his release from prison. She provided him with a reference for the proceedings. She said that as a part of her role she met the Applicant’s father and the Applicant’s daughter. She left Corrective Services in 1989, but continued to stay in touch with him for many years. She attended some of his family events and visited the Applicant and his partner in Western Australia on one occasion.
Ms Townsend does not have any qualifications in forensic psychology or forensic psychiatry, and she did not perform any risk assessment of him, but her experience of the Applicant was that she did not observe anything contrary to her experience of him as a “responsible parent and a responsible citizen”.
The Applicant’s evidence of his involvement with his son since the separation of his parents is limited. The son was 10 years of age when the Applicant filed his application. The Applicant alleged that he had coached/refereed the boy’s rugby union team “for many years”. It is unlikely that the boy would be playing in a rugby union team before age 6, so at most the Applicant’s involvement with his son coaching/refereeing his football team is for the football seasons for 5 years.
The Applicant attended psychological counselling with Anne Ward from 21 May 2016 to 22 February 2017 for anxiety in relation to the separation from his son’s mother and associated separation from his son, who was living with his mother. He told her he regularly drove his son to school and collected him from school and minded him until the mother returned from work. Ms Ward said in her reference that on one occasion she saw the Applicant with his son and he appeared to be “a caring, nurturing parent”. She did not disclose any knowledge of the Applicant’s conduct on 2 September 1984 and did not conduct any risk assessment of him.
In his application the Applicant said he had been “heavily involved” with his son’s school, but he did not say what that involvement was.
In his application the Applicant said that if he did not obtain a Working With Children Check Clearance, he could “No longer participate in the same level at his son’s school including attending school camps”. The inference is that the Applicant has attended at least one school camp previously, but there was no other evidence about that involvement.
The Army supported the Applicant after his conviction. While the Applicant was in custody awaiting trial, on 6 August 1986 the Army re-engaged him for a further three-year period. Support included senior staff providing character references and his Commanding Officer providing evidence in Court to support his application for bail when his appeal was lodged. When he was released on that occasion the Army immediately resumed his full-time employment at Randwick Barracks.
When he lodged an appeal in 1987, the Army assisted his application for bail by providing references and informing the Court the Army would take the Applicant into its care if he was released. He was freed on bail and resumed service on 9 December 1987 at Randwick Barracks. Subsequently bail was revoked and he returned to imprisonment. He was discharged from the Army because he was “unable to render effective service due to his imprisonment”. His discharge was an “honourable discharge”.
In 2012 he was issued with the Australian Defence Medal. The Applicant made application on 18 May 2007 to the Defence Honours and Awards Tribunal for the Australian Defence Medal. Initially the Director recommended against the issue of the medal, but subsequently after various submissions were made by the Royal Australian Armoured Corps Association NSW (Inc), the Tribunal recommended on 28 August 2012 that the Applicant be awarded the Australian Defence Medal and that award was made on about 7 August 2013.

That decision involved a finding that the criminal convictions of which the Applicant had been convicted were “not disgraceful or serious”. It appears that this decision was arrived at on the basis of material that is included in the documents before this Tribunal, being a submission by his barrister, Mr A Anforth, and a statement of Mr Greg Skinner. The version of the Applicant’s conduct on 2 September 1984 contained in that material is seriously inaccurate and inadequate when compared with the findings this Tribunal has reached.
The Pre-Release Report from the Department of Corrective Services dated 30 June 1989 refers to his educational attendances and advancement during his periods of imprisonment. Under the heading “Behaviour in Custody”, it notes that he has not been a security or management problem during his custody and says:-

“It seems that he has maintained employment and used his remaining time pursuing various educational courses. These include Fitness Leadership, Motor Maintenance Courses, Italian, Word-Processing and two years of an ‘Advanced Certificate in Commerce”.

When the Court of Appeal parole decision was implemented there was a substantial Education Excellence Remission provided by the Department of Corrective Services. That document recites that the studies he had undertaken in custody were an Advanced Certificate in Commerce, “Italian Language” and Private Pilot Licence Course. The document also noted that he studied “Computers full-time”.
Other documents in relation to the Education Excellence Remission provide that the Italian Language Course was “Advanced Certificate”. He also completed a Motor Maintenance Course, a Fitness Leaders Course, a Massage Course and a Small Business Course. There is also evidence that the Applicant attended a two-day Small Business Management Course on 27 and 28 April 1989, which was during the period of his imprisonment.
When the Applicant was released from prison on bail for a short period pending the hearing of the appeal, there was a period of 10 days and in that period he worked Saturday and Sunday mornings as a part-time milkman. Then he was back in prison until 7 July 1989 when he was released on parole. He then resumed his part-time work as a milkman and also undertook work five days per week as a financial planner. He continued with the same employer in that role. It appears that from his statements to his parole officer in the two years after his release from prison that he continued the financial planning business and generally it supported him.
Whilst the Applicant had been working full-time as a financial planner he had also continued to assist his friend with the milk run on weekends for at least six months. In that time he had also commenced and operated a second business manufacturing and installing security grills and security doors. The business developed and he had two part-time employees working in the business.
In the submissions on behalf of the Applicant by his barrister, Mr A Anforth, to the Defence Honours and Awards Tribunal, which was sent to the Tribunal by letter dated 22 August 2012, under the heading “Character”:-

“28. In regard to the Applicant’s activities within the community after his incarceration, the Applicant determined to not allow the negative circumstances he was caught up in to impact his future participation within society. In the last 25 years the Applicant has been a contributor to society and his accomplishments include:-
Attending University where he has completed three degrees, and working as a media practitioner, university lecturer and researcher in media;
Producing films and representing Australia at international festivals and competitions as a film director;
Building a successful career in the media industry and serving as an executive within both the public and private sector in high profile roles. Upon moving to Canberra in 2005 the Applicant managed the TransACT pay-television operation which broadcasts over 50 channels. The Applicant thereafter moved to a senior executive role with the Australian Public Service (APS). His civil record was made known and accepted by the APS where he ran the largest branch of the National Film and Sound Archive with accountability for 60 staff and multi-million- dollar budgets and infrastructure, and where he was called upon to represent the Australian government nationally and internationally.”

The Applicant left high school aged 15 or 16 and had not matriculated. He had obtained the School Certificate. There was no evidence that he had matriculated after he left school. There was no documentary evidence to corroborate his evidence that he achieved three university degrees. The Applicant’s CV discloses the following certificates and degrees he has achieved, which are:-

1996 – Bachelor of Arts Communication - University of Technology Sydney;
1998 – Bachelor of Arts with First Class Honours in Communication - Murdoch University;
2008 – Certificate IV – Project Management – (Institution Not Stated); and
2012 – Graduate Certificate in Management (Change Leadership and Innovation) - Flinders University

Mr Vogt, the general manager of Corporate and Collection Services of the National Film and Sound Archive, wrote a reference dated 14 October 2009. He recalled that the Applicant commenced employment with the Australian Film Commission (AFC) on 25 October 2007 and eight months later finished working for the AFC because of structural changes. From 30 June 2008 the Applicant worked for National Film and Sound Archive (NFSA) in a position as Executive Level 2 - Branch Manager of Preservation and Technical Services (PATS). Mr Vogt described in his report the responsibilities and major tasks undertaken by the Applicant in that role at PATS. He did not corroborate that the Applicant had worked as a media practitioner, university lecturer, or researcher in media. He did not corroborate that the Applicant produced films or represented Australia at international festivals and competitions as a film director.
There is also a character reference by Mr Michael Patrick Monaghan dated 8 November 2011. He states his occupation as “Portfolio Project Officer at Australian Government Department of Human Services”. He says in his very short (2 paras) reference that “He worked directly to [DPO] at TransACT Communications where the Applicant was head of the Television Division and he later worked “directly to” the Applicant when he was Head of the Preservation and Technical Services at the NFSA. The applicant, according to his CV, worked at Transact in 2005 - 2008 and at the National Film and Sound Archive in 2008 – 2011.
The Applicant, although he made numerous claims in his application, did not provide a statement in the proceedings nor did he provide documentary evidence or evidence of witnesses to support some off these claims.
However, the statement of his son’s mother does corroborate his evidence about university degrees and sporting honours. She said in her statement that the Applicant:-

“Went on to university to study at both undergraduate and postgraduate level, receive scholarships, university sporting medals, has carved out a career, and often volunteers in activities that support his son and the community”.

In his application the Applicant alleges that after he was released from prison:-

“I have gained three degrees; I have lectured at multiple universities and represented the Australian government in negotiations with foreign governments; I have represented Australia with my cinema films at prestigious international festivals and competed in sports successfully at the national level winning medals and a university blue from the University of Technology, Sydney”.

There is no evidence as to what the alleged negotiations on behalf of the Australian Government with foreign governments was about and no detail as to the authorisation or the government authority or department that instructed him. There is no corroboration by way of document or other evidence of that claim and the Tribunal therefore is not satisfied that any such representation and negotiation occurred.
With the allegation that the Applicant has represented Australia with his cinema films at “prestigious international festivals”, there is corroboration from the evidence of his son’s mother, who states:

“He has made films with over 300 staff released at prestigious international festivals”.

He alleged in his application that:-

“I have held senior executive roles in the federal and state public services, in private enterprise and in the private sector”.

The Tribunal has relied upon his CV and other evidence as to his employment history.
The Applicant commenced his full-time employment as a financial planner with Carlton Ross and Associates during his (short) release on bail and then while on parole after his release from prison on 7 July 1989 nearly 30 years ago. The senior associate of the firm provided him with a character reference for the criminal appeal proceedings. It stated in relation to his first six months working with the firm he had shown commitment, he was “very supportive to his fellow associates”, and “had a natural ability in the area of service to people”. It said that if he was not working with the firm “it would be detrimental” to the team with which he worked and his client base, which “he has built with sheer hard work”, and ultimately for the company. He was also described as “punctual, honest and hard working and reliable”.
In evidence is a “profile” of the Applicant’s employment since 2005. The list of employments with the period and position is as follows:-

2005 – 2008 - TransACT (ACT Communications and Media Firm) - Head of Pay Television/IPTV/VoD;
2008 – 2011 - National Film and Sound Archive – Head of Preservation and Technical Services;
2011 – 2012 ACT FilmACT Not for Profit - Development/Resource Organisation);
2014 - Mission Australia – Senior Change and Communications Manager;
January 2014 – October 2016 – Optus – Senior Change and Communications Lead – Optus Group Property;
December 2016 – August 2017 – Sydney Trains and Transport NSW – Senior Change and Communications Manager;
September 2017 – December 2017 – Telstra Senior Change and Communications Manager;
December 2017 – 2018 - Uniting Church Developing Change Strategy Communications Plan and Relationship; Terminated because of disclosure of criminal convictions.

The Applicant refers to “my career as a Change Manager”.
At the time of the hearing the Applicant was unemployed. His employment with Uniting Church had been suddenly terminated when he had disclosed his criminal convictions.
In addition to receiving the Australian Defence Medal, the Applicant also received a university blue from the University of Technology Sydney which was for national-level sporting achievements in power lifting.
He also received a PhD scholarship from Curtin University in Perth. In his barrister’s submission to the Defence Honours and Awards Tribunal in August 2012 document it is alleged that:-

“The Applicant also took five years out of the workforce to undertake academic research on Australian military history. He attained a doctoral scholarship and completed a feature film screenplay on the Battle of Long Tan …”

It appears that this occurred in the 15 or 16 years between his release on parole and the first employment listed in his CV, which commenced in 2005. But apparently he has not achieved the degree.
His son’s mother in her statement states:-

“During our relationship [DPO] held senior and responsible roles in the public and private sectors. He has made films with over 300 staff released at prestigious international festivals. He has led government branches of over 60 people, and run television stations broadcasting over 50 channels managing relationships with international partners like Disney, Nat Geo and Discovery at a global (sic) and at the highest level.

He said that when he managed the TransACT pay-television operation it “broadcasted over 50 channels” and had “multi-million-dollar budgets and infrastructure”.
The Applicant’s CV also states that his Bachelor of Arts, Communication from the University of Technology, Sydney was completed in that period, as was the Degree of Bachelor of Arts with First Class Honours in Communication from the University of Sydney. It also appears that although he was granted a doctoral scholarship and completed a film for that, he was not awarded a doctorate.
In his application the Applicant alleged that since his release from prison:-

“I have lectured at multiple universities and represented the Australian government in negotiations with foreign governments. I have represented Australia with my cinema films”.

Other evidence identifies that he has taught at Curtin University of Technology and has worked as a sessional workshop leader at Edith Cowan University (Perth) in the topic “Introduction to Video Production”. These apparently occurred before he moved to the ACT in 2005.
He has not provided details of when, where, and in what capacity, he represented the Australian Government in negotiations with foreign governments and what the negotiations were about. There is no corroboration of this claim. In those circumstances no significant weight has been given to this claim.
He alleged in his application:-

“I have represented Australia with my cinema films at prestigious international festivals and completed in sport successfully at the national level winning medals and a university blue from the University of Technology Sydney”.

He does not identify any international film festival where any of his films were exhibited, however his son’s mother in her statement states that:-

“He has made films with over 300 staff released at prestigious international festivals.”

The Tribunal accepts that he made films that were exhibited at prestigious international film festivals.
He also did not identify in what sports he achieved “winning medals and a university blue”, however his son’s mother corroborates that universities awarded him medals for sport and there is other evidence that he was awarded a University Blue for weight lifting.
There is also an undated reference from Mr Henrik Anthony. It does not include any address and is not dated. It does not note the circumstances in which it was requested. It states:-

“[DPO] approached my sports university, Australian College of Physical Education, looking for volunteers from sports management/coaching degree graduates to undertake a type of grad program in rugby. Myself and three others … responded. [DPO’s] idea was to assist young grads to obtain a start in the rugby area either in coaching or administration roles.
[DPO] arranged for us to obtain some training in coaching or administration with him at West Harbour. [DPO] was quite experienced in coaching young children (Minis under 6 to under 10 years of age) which requires specialist handling techniques.
[West Harbour is located in Western Sydney]
He organised for us to assist with teams he was coaching at West Harbour Rugby and I spoke to many parents who were very thankful and supportive of [DPO] and his coaching of their kids over many years.
We learned the techniques for coaching young kids and this gave us our first start in the game as recognised professionals.
[DPO] further organised us to obtain paid employment with NSW Rugby Union where we coached in schools under the ‘Sports in Schools’ program. The first one was St Ambrose Catholic Primary where [DPO’s] son … and most of [his] team attended. We taught at that school for a four week period and attained ongoing employment with the NSW Rugby Union for many years thereafter.
I have always been very appreciative of [DPO’s] initiative and assistance to get us our first start in our careers and for this commitment to junior rugby. He did this for nothing other than helping kids in rugby and helping young grads getting a professional start.
I have always seen him as a generous father to his son and mentor to the many kids we trained and also myself and the other grads as young practitioners in providing support to us in commencing our careers.
I also noted the strong sense of thanks from the headmistress, teachers and kids at St Ambrose for the fun the kids had in learning rugby”.

The Applicant in the Court of Criminal Appeal relied upon a character reference from Mr J R Pickering, a businessman. He had known the Applicant and his family for more than 11 years and said that he had much respect for “the overall character and fidelity of [DPO]”. He says in that reference that DPO is in his employ and that he is also successful in his financial consulting career and his newly started security company which he says, employs two men part-time. He says that despite being busy with those two businesses, DPO has continued to work for him on his milk run on weekends.
The affidavit to which the undated reference is attached is dated 8 June 1989. It appears from that affidavit that the Applicant worked with and lived with Mr Pickering and worked for him on weekends once he was released from gaol on 30 November 1988.
The Applicant’s work as a financial planner was full time as an employee of Carltoon Ross and Associates for a short period when he was on bail and a longer period from January 1989 while he was on Parole.
To assist him to do that work in April 1989 he attended a two-day course on “Small Business Management”. There is a character reference from the managing director of a business called “Artscape” and also one from Camille Svenson. Their experiences of the Applicant are positive, however neither of them acknowledges any awareness of his conduct on 2 September 1984 which led to his affray and manslaughter convictions.
Upon admission to prison after being sentenced, a psychologist carried out assessments of the Applicant. The report is dated 27 July 1987. The results indicate:-

“General reasoning ability above average; verbal reasoning above average; numerical reasoning ability average. The screening indicated no need for psychological intervention at that time.
Comprehensive personality inventory.
The test indicates he is a very warm, easy going person.
Also suggest that at present he is withdrawn and feeling uneasy.
Some feelings of guilt and resentment suggested.
But appears likely related to present circumstances rather than ongoing psychological states.
Personality profile indicates some form of obsessional/compulsive behaviour.
Unlikely to represent clinical problem.
Soldier by occupation and also sports oriented.”

The report states that the Applicant asked to speak with the psychologist about his concern that he had been treated unfairly with regard to his conviction and sentence. He said that he did not shoot or harm anybody. “He expressed concern that his relationship with his wife had been deteriorating as a result of his incarceration and her visits are less frequent, he does not see his daughter as often and he appears to feel helpless”.
The psychologist reported that “He presents as a rather intelligent man at interview”.
When the report was prepared for the Release on Licence Board he was visited by the Committee on 13 October 1988. On that visit it was noted that although he was in a very positive frame of mind, “He cannot accept his incarceration while he staunchly maintains his innocence”.

The age of the person at the time the offences occurred

The Applicant was 22 years of age.

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

The child victim was a 14 year old girl and was not involved in the conflict between the two motorcycle clubs. She was an innocent victim of the affray. Because she was female and 14 years of age it is accepted that she was vulnerable for those reasons.

The difference in age between the victim and the person and their relationship, if any, between them

The 14 year old girl was eight years younger than the Applicant. The child had no relationship with the Applicant. The other six victims were adult males and members of one or the other motorcycle club and the ages of those victims are not in evidence.

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

The affray occurred in a public place where there was a motorcycle show. The evidence does not establish that the Applicant knew the victim was a child prior to her being shot, however it appears on the evidence that the Applicant would have known there were children present.

The person’s present age

The Applicant is 56 years of age.

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

The offences in 1984 are extremely serious and they render the Applicant’s overall criminal record very serious. The most recent criminal offence occurred in December 2000, more than 18 years ago. In that period the Applicant has not been charged or convicted of any criminal offence. There is no evidence of any abusive conduct by him towards a child or other person in the last 27 years.
The conduct of the Applicant since the offences occurred has already been discussed.

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

The Applicant did not have the benefit of legal advice or legal representation in these proceedings. He failed to seek a forensic psychologist or forensic psychiatrist who could, by the use of accepted models and other expertise, have assessed the extent of the risk of the Applicant to others or to children particularly.
In assessing such risk, the insight of the person into his past problem conduct is relevant.
At the gaol the Applicant was interviewed by a psychologist who prepared a report dated 27 July 1987. In that report the psychologist noted that the Applicant had attended the club house of the Comancheros “a few times” in 1983 and that he said “there were bad vibes because the Bandidos were then still members of the Comancheros but the split was about to take place”. He told her that he was given his Patch only a week before the events of 2 September 1984. In relation to the offences, she recorded:-

“Denies any active involvement in the offences. He took [his brother-in-law] to the Viking Tavern on 2.9.84 intending to swap bikes. When the Bandidos came with their guns he got his gun from the car but did not fire it. He says that this was proved in evidence.”

She conducted various testing and the results indicated that the Applicant has above average verbal reasoning ability. His numerical reasoning is in the average range. She said no need for psychological intervention was indicated. The results of a comprehensive personality assessment test indicated that he is a “very warm, easy going person”.
The results also indicated that at the time of the testing he was “rather withdrawn and feeling uneasy” and had some feelings of guilt and resentment. The psychologist found that those problems were more likely related to his present circumstances rather than being “ongoing psychological states”. His personality profile also indicated that he had some form of obsessional/ compulsive behaviour, but it was unlikely that this presented a clinical problem because:-

“[DPO] is a soldier by occupation and is also sports-oriented. Both these areas require a good deal of self-discipline. [DPO] believes that a certain degree of obsessional behaviour or thought is required to do well in these fields”.

The psychologist had discussions with [DPO] on a number of prior occasions because he wanted to discuss his concerns with her. She reported, “He was feeling troubled by his present circumstances especially since he has been sentenced. He feels that he has been treated unfairly with regards to his conviction and sentence …”
He was also feeling helpless because his wife’s visits had become less frequent and he was not getting to see his daughter as often. The psychologist reported that he had no drug or alcohol problems. She reported that he “Enjoys sports, particularly boxing and weight lifting”. He told her that he had obtained his Physical Fitness Instructor's Certificate while he was in gaol.
The psychologist said that the Applicant presented “As a rather intelligent man at interview”. She considered there were no indications of any chronic psychological problems.
She suggested that he see a psychologist at the gaol for classification for some stress management work. The classification report is in two parts, the first is dated 28 July 1987 and the second part is dated 29 July 1987. He told her that he received his Comancheros membership Patch two weeks before the events of 2 September1984. It reports:-

“In interview [DPO] has been substantially expressionless, and obviously stressed, but he will not openly acknowledge any trouble in his marriage”.

The report writer stated that “The Applicant still feels a definite affinity with club members”. He told her that he took his gun from his car after the shooting began, “but did not fire it”.
She assessed the Applicant as “not having come to terms with his penalty and being depressed about its implications for his marriage”.
On 4 November 1987 there was a call to the prison by the mother of the Applicant’s wife advising that her daughter had separated from the Applicant and did not wish to see him. They were concerned that he might be given day leave to visit his daughter because the mother of the child wanted no contact with the Applicant.
A psychologist prepared a further report for the Release on Licence Board dated 11 March 1988.
The Applicant saw his Parole Officer on 13 July 1989. He told the officer that he found being in gaol “extremely annoying”. The officer reported:-

“He said it was all a political sentence and that he had not killed anyone. He also gave me the impression he thinks the whole thing very unfair and it was more the fault of others that the event had occurred. [DPO] does not appear to shoulder any guilt or regret from our conversation today. He is very concerned about doing well. He asked me about visiting his daughter in Melbourne and I said he was not supposed to leave the state, but would discuss it with the OIC seeing he has been out in the community for six months already”.

During a home visit by the Parole Officer to the Applicant on 19 July 1989 the officer noted that the Applicant was residing with family of the man who employed him on a milk run. The officer made lengthy notes of the discussions they had and the notes included:-

“The thing that seemed to strike him the worst was that he was allowed out on bail at the end of 1987. He was out for only one week. They changed bail laws and then re-arrested him and put him back in for another year. Then he was allowed out for six months on bail, taken back in and when the appeal was won changing the sentence from murder to manslaughter, he had to go back to gaol for about two weeks before he was released on parole. He said even the day being released on parole they could not do it in a hurry. It was going to be a couple of more days etc. As noted in a previous parole report, [DPO] is quite resentful that (sic) the whole conviction. He thinks the whole thing was a legal political stuff up and would like in some way to be able to clear his name and to prove to the system that they were wrong. We discussed the appeal by the Crown against the lowering of the sentence from murder to manslaughter. He does not think the Crown has a chance here and that the manslaughter charge will stay. He is also considering the possibility of he himself applying to have his whole sentence quashed, however there would be a big risk in this in that he could be recharged with murder”.

Subsequently, in a discussion with his Parole Officer on 26 July 1989, the officer recorded that:-

“[DPO] is very adamant that I see his point that there was absolutely no intention of any sort of fight going on and that also the Comancheros were pretty well in the clear that it was much more a Bandido planned event”

The officer notes that the Applicant later said that:-

“He feels like a lot of the others had given up just to get on with life and not concern about it but he feels like he has had the strength of mind to stay with pushing the right point of view or not even the point of view, the correct version … none of this view was put in an angry sense but what I get from [DPO] is a sense of injustice coming through”.

When the Applicant was interviewed by a Parole Officer for the purpose of a report being prepared on 28 July 1989 the officer reported, regarding the Applicant’s attitude to the offences, that:-

“[DPO] is very black and white in his attitudes to these offences. He is happy with the conviction of manslaughter but denies that he is any more guilty of this offence than he was of the original murder charge. He is continuing with a further appeal to have the matter quashed totally. He feels the Comancheros were totally innocent parties in the slaughter. He stated that the Bandidos had planned the event some weeks beforehand even to organising legal representation to be ready. He feels their superior legal representation was very much responsible for the outcome which saw only one Bandido convicted of murder.”

On 2 August 1989 he asked his Parole Officer if he could have permission to go to Canberra to attend the High Court hearing of one of the appeals against the decision of the Court of Criminal Appeal. His brother-in-law was one of the appellants. He wanted to see what the High Court decided, as he believed it would have a bearing on his case. Permission was given.
An assessment was conducted of the Applicant on 25 August 1989. The Parole Officer reported:-

“[DPO] adamant of the injustice of the Milperra verdicts – sees it mostly as Bandido’s fault. Articulate, intelligent in general, but close minded as in the Milperra events. Maintains some encounters with the club – they are still his ‘mates’”. The Parole Officer’s notes for his visit to the Applicant on 30 August 1989 includes the following:-
“[DPO] appeared a bit down today. I was wondering if he was thinking about the anniversary of the Milperra Massacre. He seemed a little bit reluctant to talk about this. I said to him that I thought he was probably treating it in too romantic a light. That I would like it if he could see there were mistakes made and it was not just competition between goodies and baddies. [DPO] listened to this but still says that it would be difficult for me to understand, not having been there. Some discussion about prison and his anger at being told what to do not as he said in a sense of the Army where there was a purpose to it”.

On 19 September 1989 when he met with his Parole Officer, they had a discussion about his girlfriend. The officer noted:-

“Some discussion about his girlfriend whom he cares for a great deal. He is feeling like she wants too many things her own way. He seems to have a fairly low tolerance for frustration and I mentioned this to him. He does not think he has a temper but said he can react quickly. Work seems the main focus.”

The officer spoke to the Applicant’s father by telephone. It was a lengthy call. The Applicant’s father told the officer that [DPO] had “always been interested in feeling that he could achieve something if he wanted that”. He also said [DPO] can be “single minded and perhaps has a quick temper but not at all a mean person or a bad-tempered person”.
The Parole Officer attended a home visit at the Applicant’s home on 24 November 1989. He informed the Applicant that he had been given permission to travel overseas for holidays. They discussed a book the Applicant had read. The officer noted:-

“[DPO] very much into positive thought. Recognises that he needs to take time out to relax and recharge”.

On 2 February 1990 the Applicant reported to the Parole Officer and they had a discussion. The officer recorded that [DPO] was “tense and worried”. He said that the reason he gave for this was that he was fearful of being set up or implicated in something he would not have done. He noted that the Applicant had said:-

“I consider the police may be ‘up to something’ possibly to set me up in some way. One incident occurred when my girlfriend (a solicitor) received a message on her pager that was supposedly from me, but was not. This message stated my movements and where I could be located at the time. No-one but myself knew where I had been, therefore I presume I had been followed.
Furthermore last week I saw in the street a prosecuting detective [name]. He appeared overly interested in me and my car which is registered in both my name and that of my girlfriend. This detective was involved in the Milperra case and I believe has a personal dislike of my brother-in-law [name] and members of the Comanchero Bike Club.
I am concerned about these incidents as threats of physical violence have been made against my girlfriend recently and she has also come under pressure from the Department of Public Prosecutions because of her relationship with me”.

On 3 April 1990 the Applicant attended on his Parole Officer as was required. He reported:-

“Also, [DPO] wanted me to know about what he described as police harassment he is currently subjected to. He said that he had made a statement and wanted it included in his case history. [DPO] presents as a very angry and up tight young man, who has yet to come to terms with imprisonment. He needs to ventilate his anger and resentment he has toward the prison system and to work through the last four years.”

The Parole Officer also recorded:-

“[DPO] proud of the fact he is driving a Porsche and is self-employed as an insurance type salesman, although he didn’t use the words salesman, more of a financial and insurance adviser. However he seems to be going well, although he does not deny that he is still involved with the Comanchero Bike Club which he describes as a legitimate and solid club not the outlaw status afforded them by the police”.

A Parole Officer visited the Applicant at his home on 17 May 1990. He noted that the Applicant was sharing the house with two other men. The Applicant reported to him that his work was rather slow at present, however the officer noted that the Applicant would not permit himself to show concern. He noted:-

“He continues to be rather arrogant and involved in club activities, although he says, on a much lesser scale”.

His Parole Officer recorded on 5 June 1990 that the Applicant was “depressed because the business was not being too successful at present”. He was still involved in the Comancheros Club and “does not accept any responsibility for the offences”.
On a home visit on 6 September 1990 the Parole Officer recorded:

“Says he is locked into the company because of the low interest loan he has for his Porsche. Obviously causing him concern. Says he is now in full training and works out through boxing …”

In his statement of 30 June 1998 he prepared for a politician the Applicant made numerous complaints including that the Trial Court was ‘a Kangaroo Court’, the trial was “a travesty of justice from start to finish,” and ‘It is obvious that what occurred to myself and others makes a joke of legal precedents set over many years.” He also referred to the trial as “a complete miscarriage of justice” and listed 15 complaints of injustices he perceived in his trial.
He was strongly critical of the police who investigated the offences and raised allegations, including allegations of dishonesty and of false evidence by police. He raised complaints later that while he was on remand, the prison refused to allow him access to journalists to give his version of the alleged offences.
In the last paragraph of that his statement on 30 June 1998 he stated:-

“I would like to finish with the thought that seeing the only evidence against me is a police verbal, it is a crime itself to think that British justice can convict a man and sentence him to the rest of his life in imprison over a couple of notebook pages of disputed handwritten notes”.

Before the Tribunal he presented as a very assertive, forceful and angry person. He expressed anger in other documentary evidence towards the judge in the trial. At earlier times he has expressed a whole list of complaints about the trial judge and his conduct of the hearing. He is also angry about the doctrine of common purpose but acknowledged that it is valid Australian law. He considered that he was unjustly convicted. He is hostile to the police who investigated the events of 2 September 1984. He was also angry at the Court of Criminal Appeal decision to convict him of manslaughter. He appeared particularly aggrieved and angry when expressing his view that the legal doctrine of common purpose was wrong.
When asked what errors he thought he had made on the day of his offences, he was asked whether he had suffered because of “misplaced loyalty” and he replied:-

“I have been in the Army for 5 – 6 years and you are taught there to defend people next to you”.

When asked whether he thought he was wrong to attend the motor cycle show that day, he did not agree with that proposition and said:-

“All I did was drag the wounded people to safety”; and “I didn’t kill or hurt anyone on the day”.

When he was again asked what was wrong with him attending the motor cycle show, he acknowledged that there was a risk of getting into a conflict with the members of the other group. He acknowledged that during the previous two months there had been incidents of conflict and on one occasion, the other group had fired on his house. He conceded that it was a tense situation. Eventually he conceded that going to the hotel in that context (when he knew that the other group would be there) was “high risk”.
Now 34 years after his conduct on 2 September 1984 he demonstrates no real insight into the seriousness of what he did that day. He has expressed no regret about his conduct or sympathy for the victims or their families, including the 14 year old girl. He said in his application commencing these proceedings “I did not kill or hurt anyone, nor was I ever accused of doing so by the prosecution. My action consisted of dragging some of the wounded to safety whilst under fire” and “I stand by my claims that I was not guilty of anything”.
In his application the Applicant also stated:-

“I have devoted my life to supporting young people in sport including as a referee in amateur boxing and coached and refereed kids’ rugby for many years”.

“The reason why I need a WWC clearance is due to my lifelong commitment to sport, and helping disadvantaged kids stay out of trouble via sport”.

Mr Peter Lusted, whose character reference is dated 11 November 2018 does not state what information he had received, if any, regarding the conduct of the Applicant on 2 September 1984. It appears that he was not informed. He described the Applicant as a “passionate advocate for junior rugby”. He has been a parent and an official of the [name] Junior Rugby Club and his two sons have been coached by the Applicant.
He said of the Applicant:-

“[DPO] is a passionate advocate for junior rugby and during his time he demonstrated an immense level of dedication in his role as coach over a number of years while my sons were playing for the club. In his role as coach I personally witnessed [DPO] shape what could have been described as a bunch of highly charged inexperienced individual ball runners into a cohesive and effective team of extremely loveable boys.
As any parent would appreciate, this outcome doesn’t happen overnight. [DPO] invested enormous amounts of his time, energy and his own money buying equipment for the team to achieve this result. His level of commitment and real value in his time with the boys cannot be understated.

As a parent I felt completely comfortable with [DPO] in his role as a coach and mentor to both my boys. In my capacity as team manager there were many times where other parents approached me to comment on [DPO’s] enthusiasm both for the game and for the personal consideration and respect shown to each of the boys under his care”.

The undated reference from Mr H Anthony is about the role of the Applicant in a different area. The Applicant approached the Australian College of Physical Education seeking volunteers from sports management/coaching degree graduates to undertake a program in rugby union. Four men volunteered. The purpose of the course was to assist young graduates to obtain a start in rugby union either in coaching or in administrative roles. The Applicant was more experienced in coaching young children and organised the participants to assist in the teams that he was coaching. He testified that many of the parents of the children expressed their gratitude and support of the Applicant and his coaching of their children.
The group of four graduates learned techniques for coaching from the Applicant and this gave them “our first start” in the game as recognised professionals. He also organised for them to obtain paid employment with the NSW Rugby Union where they coached in schools under the “Sports in Schools” program. The first school they coached with was the school where the Applicant’s son attended and most of his son’s team attended. They taught at that school for a four week period and then obtained ongoing employment with the NSW Rugby Union for many years thereafter.
Mr Anthony also said:-

“I have always seen him as a generous father to his son and mentor to the many kids we trained and also myself and the other grads as young practitioners in providing support to us in commencing our careers”.

Mr Carl Ruhen was a Board member of Boxing ACT when he provided a character reference dated 13 December 2018 for the Applicant in these proceedings. Mr Ruhen at that time had been a member of Boxing ACT since 2002 as the Referees and Judges Co-Ordinator. In that time he had also held the role of President, Vice President and Board Member. He does not say he has any knowledge of the Applicant’s conduct on 2 September 1984, or the resulting convictions for affray and manslaughter. He says in his reference that “I am a currently IBA Three Star R & J serving senior constable of police with the Australian Federal Police, ACT Policing”. He has known the Applicant for more than 12 years and his observation is that the Applicant “has displayed the utmost integrity and professionalism”.
He says that the Applicant completed his R & J training course in 2006 and was instrumental in officiating all Amateur Boxing Tournaments in the ACT between 2006 – 2009. He also testifies that the Applicant volunteered at the Winnunga Health Gym in Narrabundah, ACT, refereeing boxing, training sessions and mentoring for predominantly indigenous youth. He said:-

“His services added value to the organisation and the youth sports community. I always observed his demeanour to be professional and helpful at all times. [DPO] volunteered his time for several years until his child was born reducing his time availability”.

The Applicant’s former defacto wife, in her reference for him for these proceedings, said that she has known the Applicant since 2001 and they lived in a defacto marriage for 15 years. She says there has never been any violence in their relationship and:-

“I have held senior executive roles for many years as the primary income earner. This meant that [DPO] was the primary carer of our son from 8 months old. He was and remains a dedicated, good and loving father, who has a very strong bond with his son.”

Her evidence is that she and the Applicant have a cordial relationship that is focussed on what is best for their son and ensuring he has the love and support of both his parents. She credits the Applicant for ensuring that their son, as an only child, has a close relationship with the Applicant’s daughter. She said that the Applicant engenders loyalty, decency, friendship and support from people that lasts decades and gives examples of his former partners and his former parole officer.
She also stated that:

“[DPO] having been a soldier since a teenager, channels his focus and masculinity into helping develop himself and others including young people via sport. This is demonstrated by the following activities:-
I have watched him as a judge and referee for ACT Boxing helping young boys from tough backgrounds similar to his;
I have watched and seen him dedicate time as a coach/safety boat officer and Board member at the Australian National University Sailing Club;
He has been the Director of Sponsorship at the Royal Military College Duntroon Golf Club supporting ADF Sport; and
I have seen him a dedicated coach and referee for his son’s rugby team for five years and have had many discussions with the kids’ parents who have always been overwhelmingly thankful for [DPO] for being a mentor for their young kids and thankful for his incredible amount of time and energy spent helping their children. I have seen fathers thank him publicly at rugby presentation days for the support and mentoring he has given them when they started coaching/managing their sons’ teams”.

A literal interpretation of “a risk assessment…to determine whether the applicant…poses a risk to the safety of children” (section 15(1)) 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.
In Commission For Children and Young People - v - V [2002] NSWSC 949, Young CJ in Eq was 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’.”

In his letter to a member of parliament dated 30 June 1998 the Applicant concluded:-

“I would like to finish with the thought that seeing the only evidence against me is a police ‘verbal’, it is a crime itself to think that British Justice can convict a man and sentence him to the rest of his life in prison over a couple of notebook pages of disputed handwritten notes”.

On the available evidence, the Tribunal does not accept that the convictions of the Applicant for affray and manslaughter arising from his conduct on 2 September 1984 were wrong at law or unjust. The Applicant has yet to recognise the seriousness of his conduct or accept responsibility for it. Instead he has a longstanding sense of injustice and anger about what he perceives to be misconduct, victimisation and injustice, and he inappropriately sought to minimise to the Tribunal his involvement and responsibility for the events associated with the disqualifying event.
On the other hand there are matters that weigh in his favour including:

A. the particular and unusual circumstances of the 1984 offences and the unlikelihood that anything like them will occur again;

B. his immaturity at the time of the offence - he was 22 years old, had left school at 16 and had very limited education;

C. at the time of the offence he was close to his older brother-in-law, who was president of the Comancheros and encouraged him in relation to the conflict with the Bandidos;

D. the absence of any serious offence by him against any person in the last 34 years;

E. his former defacto wife’s evidence that in 15 years of cohabitation he was not physically abusive;

F. his extensive endeavours and achievements in diverse areas of education since the offences;

G. his pro-social careers and pastimes since release from prison;

H. his devotion to, and consistent support of, his 2 children;

I. his considerable and admirable contributions to youth through coaching boys’ rugby union teams;

J. his positive social attitudes, interests and activities since his release from prison; and

K. his current age - he will be 57 years old in August.

The Tribunal also notes that in final submissions the Children’s Guardian supported the application and the consequential granting of a Working With Children Check Clearance to the Applicant.
The Tribunal’s role is protective in nature and its role is not to further punish the Applicant. The Tribunal must assess, based on all of the relevant factors before it, the risk that the Applicant poses to the safety of children. On the basis of that assessment, and consideration of the other requirements of the Act, the Tribunal must then either grant or refuse an enabling order and the consequential issuing of a Working with Children Check Clearance.
The Tribunal finds that, notwithstanding the Applicant’s continuing reluctance to accept appropriate responsibility for his role in the disqualifying event and his minimisation of his involvement to the Tribunal, on the balance of probabilities the risk the Applicant poses to the safety of children is low, and he does not pose a real and appreciable risk to the safety of children. The presumption under subsection 28(7) of the Act that he poses a risk to the safety of children has been displaced.

Any order of a court or tribunal that is in force in relation to the person

There is no such order and there is no evidence of any such order in the past.

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

The relevant information given by the Applicant has already been referred to or set out.

Any relevant information in relation to the person that was obtained in accordance with section 36A

Relevant information received under the section has been listed in the list of evidence and includes records of courts, police (NSW, WA, the Australian Criminal Intelligence Commission, NSW Department of Family & Community Care, and NSW Justice Corrective Services.

Any other matters that the children's guardian considers necessary

The Children’s guardian supports the granting of an enabling order.

Section 30(1A)

The Tribunal is satisfied that on all the evidence a reasonable person would allow his or her child to have direct contact with the Applicant that is not directly supervised by another person while the Applicant is engaged in any child-related work.
The Tribunal is also satisfied that it is in the public interest to make an enabling order in relation to the Applicant.
The requirements of subsection 30(1A) have been satisfied.

CONCLUSION

An enabling order is, therefore, made in relation to the Applicant. The Children’s Guardian is, therefore, directed to issue a Working With Children Check Clearance to the Applicant.

Privacy

The Tribunal notes that the affray and shootings on 2 September 1984 are widely known in the Australian community. This decision is a public document. Notwithstanding this, the Applicant’s identity is not directly revealed in this document and the Applicant and his family should have the protection of their privacy afforded by a non-publication order.

ORDERS

The Orders of the Tribunal are:

The Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of manslaughter of a child of which he was convicted by the NSW Court of Criminal Appeal on 22 june 1989;

The Respondent must grant the applicant a Working with Children Check Clearance.

Publication or broadcast without the leave of the Tribunal of the name or other identifying information of the Applicant, his son, daughter, former wife, or defacto wife, is prohibited.

**********

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

Registrar

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: 27 June 2019

Medium Neutral Citation:	DPO v Children's Guardian [2019] NSWCATAD 127
Hearing dates:	13 March 2019
Date of orders:	27 June 2019
Decision date:	27 June 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hon G Mullane ADCJ, Principal Member S Davison, General Member
Decision:	1. The Applicant is not to be treated as a disqualified person for purposes of the Child Protection (Working with Children) Act 2012 in respect of the offence of manslaughter of a child of which he was convicted by the NSW Court of Criminal Appeal on 22 june 1989. 2. The Respondent must grant the applicant a Working with Children Check Clearance. 3. Publication or broadcast without the leave of the Tribunal of the name or other identifying information of the Applicant, his son, daughter, former wife, or defacto wife, is prohibited.
Catchwords:	CHILDREN PROTECTION – working with children – disqualified person – application for enabling order
Legislation Cited:	Child Protection (Working with Children) Act 2012 (‘the Act”); Child Protection (Prohibited Employment) Act 1998
Cases Cited:	Commission for Children and Young People v V [2002] NSWSC 949
Category:	Principal judgment
Parties:	DPO (Applicant) Office of the Children's Guardian (Respondent)
Representation:	DPO (Applicant in person) R Dart (Respondent) Solicitors: Crown Solicitor (Respondent)
File Number(s):	2018/320624
Publication restriction:	Publication or broadcast without the permission of the Tribunal of the name or other identifying information of the Applicant, his son or daughter or his former wife or defacto wife is prohibited.