DVR v Children's Guardian

[2021] NSWCATAD 223

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DVR v Children’s Guardian [2021] NSWCATAD 223

Hearing dates:

22 October, 11 December 2020

Date of orders:

30 July 2021

Decision date:

30 July 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Leal, Senior Member;
L Houlahan, Senior Member

Decision:

1.   The decision of the respondent dated 18 April    2019 to cancel the applicant’s working with    children check clearance is set aside.

2.   In substitution for this decision the following    decision is made: the applicant is to be granted    a working with children check clearance.

Catchwords:

ADMINISTRATIVE LAW — Working with children — Application for a working with children check clearance – Whether applicant poses a risk to the safety of children

Legislation Cited:

Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Regulation 2013 (NSW)

Police Act 1990 (NSW)

Cases Cited:

CHB v Children’s Guardian [2016] NSWCATAD 214

Children's Guardian v BRL [2016] NSWSC 1206

CSW v Children's Guardian [2017] NSWCATAD 326

CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

DAR v Children's Guardian [2018] NSWSC 942

Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255;

Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143

VQB v The Secretary to the Department of Justice

[2013] VCAT 789

Texts Cited:

Nil

Category:

Principal judgment

Parties:

DVR (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J Alderson (Applicant)
M Higgins (Respondent)

Solicitors:
Aubrey Brown Lawyers (Applicant)

Crown Solicitor (Respondent)

File Number(s):

2019/00138768

Publication restriction:

With the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings including mandatory reporters or risk of harm reporters is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

Summary

1. The applicant, who will be referred to as DVR, is a former police officer who was medically discharged from the NSW Police Force in 2017. His application for a working with children child check clearance was refused by the Children’s Guardian on 18 April 2019 on the basis of sexual assault allegations made against him. The applicant has applied to the Tribunal for a review of the decision to refuse him a working with children check clearance.

Issues

The main issue for determination is whether the applicant poses a real and appreciable risk to the safety of children.

If we are satisfied that the applicant does not pose a real and appreciable risk to the safety of children, we then need to consider:

1. whether a reasonable person would allow the applicant to have direct, unsupervised contact with their children; and

2. whether it is in the public interest to grant the applicant a working with children check clearance.

Does the applicant pose a real and appreciable risk to the safety of children?

2. To engage in child-related work in NSW, a person must hold a working with children check clearance. The Office of the Children’s Guardian can grant a clearance unless the applicant is, by virtue of his or her criminal history, a disqualified person. The Children’s Guardian also has the power to conduct a risk assessment of an applicant. Where the applicant is neither a disqualified person nor the subject to a risk assessment, the Children’s Guardian must issue him or her with a working with children check clearance. An applicant who is subject to a risk assessment must also be granted a clearance unless the Children’s Guardian is satisfied that he or she poses a real and appreciable risk to the safety of children. (s5B and s18 of the Child Protection (Working with Children) Act 2012)

3. In determining whether the applicant poses a real and appreciable risk to the safety of children this, we have considered the following:

1. Allegations that he sexually assaulted his stepdaughter, JM;

2. Allegations that he sexually assaulted a 14-year-old girl, BE;

3. Allegations that he sexually assaulted two girls under the age of 10 years between 2001 and 2002;

4. Professional conduct findings made by NSW Police against the applicant;

5. The applicant’s conduct since 2014, including his relationship with his partner and his volunteer work as his local sporting organisation;

6. Suggestions that the applicant may have performed child-related work without holding a working with children check clearance;

7. A risk assessment report prepared by Dr Olav Nielssen.

4. We have then considered these matters in the context of those topics we are obliged to take into consideration, as set out in s30(1) of the Child Protection (Working with Children) Act.

Allegations that the applicant sexually assaulted his stepdaughter, JM

5. In 2015, the applicant was charged with seventeen sexual offences against his former stepdaughter, JM, namely aggravated sexual intercourse and aggravated indecent assault. The offences were alleged to have occurred between 2005 and 2007 when JM was aged between 13 and 15 years. In 2017, the applicant was acquitted of all charges.

6. In an interview with officers from the Department of Family and Community Services (FACS) in 2006, JM reported that the applicant would massage her all over her body because she had a dry back. JM’s mother confirmed to FACS officers that she was aware the applicant had been massaging JM for her dry back and didn’t think there was any sexual connotation to it.

7. JM was fifteen years old when she contacted FACS in 2007 to report the applicant had been sexually assaulting her when she was at home sick by checking the glands in her vagina to see if they were inflamed.

8. Although JM made reports of sexual assault by the applicant in 2006, 2007 and 2008, she did not request the matter to be investigated until the relationship between her mother and the applicant ended in 2014.

9. In the police statement she made in October 2014, JM said that:

I’ve recently found out through my mum that [DVR] may have sexually assaulted someone else and I don’t want this to happen to anyone else. I am reporting this again to the police and I would like some action taken against him for what he’s done to me.

10. At the applicant’s trial in 2017, JM was asked about a statement she had made to the police in 2007 stating that the applicant had sexually assaulted her over a period of time between the ages of six and twelve while she was residing with him in the family home. She told the court she couldn’t remember anything before the family moved house in 2005, when she was 13 years old. Relevant excerpts from the cross-examination of JM are set out below:

Q: How can it be that you were assaulted, sexually abused from the age of 6 to 12 and not be able to remember it?

A: I honestly cannot remember it.

…

Q The assault that you allege against him involve his touching your bottom, touching your breasts, touching your vagina area and setting for you is that right?

A Yep.

Q. And one of the statements that you’ve made to other people in the past is that he’s raped you vaginally, he’s had actual sex with you?

A I can’t remember that.

Q. What can’t you remember, telling someone that or being a victim of rape?

A. I can’t remember any of it.

…

Q. How could you have forgotten being actually raped by him?

A. I just can’t remember.

…

Q. I am going to suggest to you that the fact is that you moved out of [street name] early in 2006 and went to live with your father?

A Yeah.

Q You didn’t have anything to do with [street name] until you moved back in for financial reasons?

A Yeah

Q. And that you told the police was in 2011 or 2012?

A. Yeah

…

Q. Well the fact is you did from time to time suffer from eczema?

A. Yeah

Q. And your mother would rub cream on your body?

A. Yeah

Q. And at times the accused rubbed cream on your body?

A. Okay

Q. Is that true?

A. I don’t know mum said it is.

…

Q. Your allegation the 2008 version was that your stepfather had felt you up, what he did was rape and he had sex with you, in your vagina, that's what you told Jenny in the presence of [the psychologist]?

A. That's what's written there.

Q. Well that wasn't true was it?

A. I cannot remember the conversation

Q. It wasn’t true that the accused ever had sex with you in your vagina was it?

A. I can’t recall that.

11. Following a trial by jury, the applicant was acquitted of all charges. The trial judge directed the jury to return verdicts of not guilty in relation to fifteen counts. In relation to the two remaining counts, the trial judge gave the jury a Prasad direction (which was still available at the time) framed in the following terms:

I inform you that the Crown case is now closed and so at this point at any point for the duration of the trial, you are entitled to bring in a verdict of not guilty on counts one and two, if all twelve of you are not satisfied that the complainant was a truthful and reliable witness and you are all twelve of you are satisfied that you cannot therefore rely upon her evidence in relation to count one and two.

12. The jury elected to continue to hear the evidence and, at the conclusion of the trial, returned a verdict of not guilty in relation to the two outstanding counts.

13. A NSW Police Force Investigators report was finalised in 2017 following the applicant’s acquittal, with issues 1 and 3 relevant to the alleged sexual assault of the applicant’s stepdaughter:

1. Issue 1 (headed Evidence Based – Criminal) refers to the allegations that the applicant sexually assaulted his stepdaughter JM. The issue was not sustained on the basis that the matter was heard in the District Court and the applicant was found not guilty following a trial by jury.

2. Issue 3 (headed Evidence Based – Non-Criminal) refers to the allegations that the applicant sexually assaulted his stepdaughter JM. The issue was sustained for the following reasons:

Between 2005 and 2014, [JM] consistently maintained she was sexually assaulted by [DVR]. At the time of the disclosure in 2014, her mother was separating from [DVR]. [JM] was in a position to disclose the assaults and have the matter properly investigated without affecting the marriage of her mother and [DVR]. Through this investigation, and the investigation regarding [BE], the integrity of [DVR] as a police officer is compromised. The evidence considered, on the balance of probabilities, it is more likely than not that [DVR] did sexually assault [JM][in] 2005.

14. In making this finding in relation to Issue 3, the report took into account that, between 2004 and 2006, JM told her school friend, a school counsellor and a boyfriend that the applicant had sexually assaulted her. The report also found that a further disclosure in 2007 was consistent with other disclosures, as was JM’s police statement made in 2014.The report explained JM’s inability to recall dates and details as not being uncommon in relation to traumatic events and recognised within the psychiatric field.

15. Notes contained on FACS assessment records for 28 September 2007 state that ‘[JM] disclosed to reporter 2 weeks ago that her stepfather is continuing to sexually abuse her and has been doing so since she was six years old’ and that JM ‘has a boyfriend…who is in Silverwater jail…[JM] visits him in jail.’

16. The notes also state:

The applicant’s school friend gave evidence that when they had been in Year 8, [JM] had told her that the applicant ‘would go into her room at night time, put his hand under her blanket and touched her in places she didn’t want to be touched. And he would watch her shower as well.’

According to the applicant’s school friend, [JM] ‘would always say she had a sore back or something about her back and so she, at one time she asked [DVR] to give her a massage to try to make the pain go away and he took the massage too far.’

Q. What did you tell you about that?

A. He put his fingers inside.

17. In a statutory declaration prepared for these proceedings, the applicant denied ever having sexually assaulted his stepdaughter. It is his view that she made the allegations in 2007 – which she later retracted - because the applicant had tried to stop her relationship with a teenager known to the police as a high risk offender and drug taker. It is the applicant’s view that JM renewed her complaint in 2014 because the applicant had separated from her mother.

18. In oral evidence in these proceedings, the applicant denied ever having sexually assaulted JM. He told the Tribunal that JM’s demeanour had completely changed after she started going out with her boyfriend in 2004, when she was in Year 7.

19. On the evidence before us, we cannot be satisfied that the applicant sexually assaulted his stepdaughter, JM. This is because of the inconsistencies between JM’s evidence at trial and the material contained on file.

20. In 2006, JM said that the applicant had been assaulting her since she was six years old. This contradicts the unchallenged evidence of the applicant, both at trial and in these proceedings, that he and JM did not share a household until she was nine years old.

21. Between 2005 and 2007, when she was aged between thirteen and fifteen years, JM made many disclosures of abuse by the applicant but at trial in 2017, was not able to remember any of these instances. The 2017 Police Force Investigators report prepared in relation to the JM allegations states that an inability to recall is not uncommon in relation to traumatic events. There is, however, no evidence before us to show that JM’s failure to recall events was for this reason.

22. In the absence of such an explanation, JM’s failure to recall events she reported as a teenager gives us concern as to the veracity of her account. This concern has not been allayed by the evidence of the applicant that JM’s allegations coincided with her relationship with a person known to the police and whose relationship with JM the applicant had discouraged.

23. For these reasons, on the evidence before us, we cannot be satisfied that the applicant sexually assaulted his former stepdaughter, JM.

Allegations of the sexual assault of BE

24. In late April 2014, the applicant was on duty in the early hours of the morning when he and two other police officers found a drunk, young girl, BE, wearing only underpants, ugg boots and a singlet top in the company of three young men. Despite BE’s protests, the police officers insisted on taking her home. The two other police officers drove her to two separate addresses BE said were hers, but proved not to be. When she provided the correct address, the applicant offered to take her, as it was on the way to where he was headed. He took her home alone in his police vehicle, which was a van used to transport working police dogs and had only one passenger seat, in the front of the van. When he arrived at BE’s house, the applicant stayed in the car instead of seeing her to the door. While waiting in the car, he noted the registration number of the car in the driveway, driving away once a woman had answered the door.

25. Later that morning, BE’s mother told police of her daughter’s disclosure that, in the police van on the way home, the applicant had digitally penetrated her, performed oral sex on her and touched her breasts.

26. In a recorded interview with police that day, BE confirmed this and reported that she had touched the applicant’s penis through his underpants.

27. In relation to his interaction with BE on the morning in question, the applicant wrote in his police duty book:

At 2am sighted hoodlums in…surf club carpark. Girl only dressed in underwear in company with 3 males caged truck requested…Drove female to address after she stated she lived in [street name]. Off 3.05am. On 3.10 to continue patrol. Off [name of police station] 3.45am. On 4.52am to patrol off home 5.10am.

28. He did, however, write comprehensive notes in a notebook, a copy of which is contained on file. Although the notes are not dated, the applicant gave evidence in these proceedings that he had written these notes within two hours of the event, with the intention of transferring them into his official police notebook. Given the speed of the subsequent investigation and his suspension from duty, he told the Tribunal he had not been able to do this.

29. In the child interview transcript contained on file, BE said in relation to the police:

I was in the paddy wagon then and they took me out of the paddy wagon, they put a dog in the paddy wagon and they put me in the front seat…I don’t really remember everything that happened..he asked me why I was wearing my undies and told him I’ve been swimming – and he said he didn’t believe me..so then he put his hand into my panties and he said, You’re not sandy….and we were at, we were together for about 2 hours..and I touched him through his pants. And then he got some, somebody called him on the radio and he said he had to go, so he dropped me out…my house.

30. In a police record of interview four days later, the applicant stated while he had been driving her home, BE had taken off her clothes and masturbated, telling him she wanted to touch his penis and perform oral sex on him. She also asked to meet up with him at 8pm the following evening. It is not disputed that such a meeting did not take place.

31. The applicant gave a lengthy police interview four days after BE’s police interview. The applicant told the interviewing officers that, after being picked up, BE had provided a false name and two false addresses to which she’d been driven in the back of a police van by two other police officers. Once she’d provided her real name and an address she’d said was hers, the applicant told the other police officers that he would drive her there. When explaining that decision, he said in his police interview:

Well, I looked at it as..a situation. I knew the car crews were busy. I was going back up to the….police station…that area is a direct route, is probably halfway in between where I was, to where I was going…My intention was to take her home and..to speak to someone at that, at that premises.

32. In response to questions about BE’s behaviour, the applicant said:

I tried to deal with it as professionally as I possibly could, creating, creating distance but also trying to [be] professional about it because this is something I have never ever witnessed before in my life.

33. In the police interview, the applicant was asked, ‘Is there any reason your DNA profile would be located on the underwear on the inside or outside of the female?’ The applicant replied, ‘I don’t know how that would occur, no.’

34. According to the DNA report contained on file, swabs taken from BE’s hands and from the front passenger back rest were a DNA match with the applicant. While swabs taken from the inside crotch area of BE’s underpants recovered DNA from ‘at least four male individuals’, the applicant was ‘excluded as a major contributor to this mixture. The minor component is too weak/complex.’

35. According to the 2016 NSW Police Force Evidence Based Investigators Report into this matter, the DNA evidence gathered was not inculpatory of the applicant.

36. When asked why he didn’t accompany BE to her front door, the applicant replied:

Because I was in a state of shock and I just thought..how am I going to tell a mother than her daughter was masturbating all the way home and basically trying to entice me to have sex with me.

37. Although the applicant agreed that the drive to BE’s house would normally have taken twenty-five minutes, according to the VKG police radio system, the drive took 61 minutes. The applicant said that the trip may have taken longer because he’d had to stop on two occasions to admonish BE for her provocative behaviour. No confirmation of GPS co-ordinates for the journey is contained on file.

37. When asked why he didn’t do any background checks on the location or on BE before he arrived at the house, the applicant initially told interviewing officer this was because he thought she was from Sydney but then conceded that he had made a mistake not to conduct the checks. There is evidence on file of BE advising the police officers of an address in Sydney

38. In his police interview, the applicant told the investigating officers:

[A]ll I can say to you is, that my intention was to get this girl home and it escalated to the point..it was a situation where I was totally taken by her behaviour and it…shocked me.’

40. In his police interview, the applicant stated that he had conducted a vehicle check on the car in BE’s residence, after he had dropped BE off but while still parked outside the property, and had confirmed the car belonged to BE’s mother.

41. In evidence before these proceedings, the applicant told the Tribunal that he must have been mistaken in saying this:

By looking at the answer that I gave I was just giving a tailored rundown.  I know that I did not conduct a registration check at the address.

42. He told the Tribunal that whilst he had definitely written down the registration number while in the driveway of BE’s residence, he did not think he actually conducted the vehicle check until after he had left the residence. This, he explained to the Tribunal, would explain the sixty-one minutes between the time he picked up BE and the time he completed the vehicle check.

43. In the detailed notes the applicant said were written within two hours of the event occurring, he refers to stopping outside BE’s residence and taking down the registration details. Making no mention of having conducted a vehicle check at that stage, his notes read as follows:

I drove into [street] and stopped outside [number]…[Colour of house] with a [make of car] Rego No [number]…She got out of the vehicle and ran up the driveway toward the front door. Lost sight of her. I sat there for a moment and thought is this a joke I was disgusted and horrified by the behaviour I had witnessed left and went [name of police station.]

44. The 2016 NSW Police Force Evidence Based Investigators Report into the BE allegations notes ‘the time [DVR] indicated off at [BE’s street] in his duty book is 35 minutes before CAD shows that he has conducted a vehicle check [on BE’s mother’s car].

45. CAD is the Computer Aided Dispatch system used by NSW Police in relation to police deployment. A 35 minute lag between the applicant indicating that he was leaving BE’s evidence, as noted in his duty book, and the check of the vehicle in BE’s driveway supports the applicant’s evidence to the Tribunal that he had been mistaken in his police interview and that, rather than conducting the vehicle check while parked outside BE’s residence, he made the check later.

46. When the applicant’s laptop was seized on 13 July 2014, analysis of the computer shows the applicant searched BE on Google and Facebook on multiple occasions and that, shortly after his police interview, the applicant conducted searched on whether the Tom Tom GPS could be identified and downloaded. No confirmation of GPS co-ordinates for the journey is contained on file.

47. In a statement to police in relation to BE’s allegations, a teacher working at BE’s former school advised that ‘[BE] was problematic at school, for example she would open her blouse towards male teachers and display herself to male teachers which were a concern.’ The teacher was not required by either the applicant or the respondent to give evidence in these proceedings.

48. In September 2014, police used a listening device to record a conversation between the applicant and his then (although estranged) wife about the BE allegations. In the conversation, which was recorded without the applicant’s knowledge, the applicant’s account of the incident was consistent with his police interview. In the course of the conversation, the applicant stated:

In hindsight I’d probably do things totally different but I'm supervisor I'm a Sergeant of Police, I took charge, I had her in my car as a matter of welfare. Now if she had more clothes on, I would've dumped her out. The moment she started but can you imagine driving along bloody [name of road] and I dump this young female with no clothes on or, or very little clothes on I mean how would that, that have looked? So so I'm at ease about what I did because I I I I think about it nearly every flipping day. What I could've done differently if I was five minute minutes later or five minutes earlier….

I’ve never seen a 14, I’ve never seen anyone let alone a 14-year-old, I’ve never seen anyone at the way she acted in the car on the way up there. All right. It was humiliating, she humiliated me, all right…

Now you can laugh… but I’m telling the truth and I, you know, at the end of the day, yeah, put me in front of a half a dozen fucken Hells Angels or throw me in a house that there’s blood splattered from one end to the other but that absolutely rattled me. I have never been rattled in 28 years like I was rattled that night…

I wasn't expecting it to happen and when it did happen, when it started to happen I was totally shocked by, by the behaviour and what was coming out of her mouth. I felt sorry for her to begin with. And, you know, after I drove off ‘cause I did, I waited, I waited outside her place for five, it might have been even ten minutes, I waited there thinking should I go in, shall I go out.. and I just think, I just sat back and thought what the fuck just happened.

49. According to police notes dated 9 January 2015, when police officers spoke to BE in July 2014, she told them that ‘she was drunk on the night of the assault and she really did not remember the night.’

50. Following an assessment by FACS completed on 13 May 2015 in relation to the allegations by BE, the following opinion was noted, where the applicant is referred to as the POI (person of interest):

The outcome of the FACS assessment is based largely on the views of [the Police Professional Standards] and FACS have not been directly involved in any aspects of the investigation including [BE’s] interview or the POI’s. There appears to be no forensic evidence and the DPP are not pursuing further action. The POI denies the allegations.

In consideration of all issues and following consultation with JIRT Director Mary Maher insufficient information is available to make a determination that the sexual assault is more than likely to have occurred. Ongoing risk of sexual harm is considered likely yet it also considered likely that this would be unreported particularly on [BE’s] part. Ongoing risk of sexual harm will be substantiated however this is not in relation to this POI.

51. In the 2016 NSW Police Force Evidence Based Investigators Report, the allegations by BE that the applicant had digitally penetrated her and performed oral sex on her were not sustained. This finding was made following advice received from the Office of the Director of Public Prosecutions advising that that there was no likelihood of a conviction and that they would not be proceeding with the matter.

52. The report did, however, find that the applicant had breached the NSW Police Code of Conduct by transporting an underage female alone and by not ensuring she was left with a responsible adult.

53. The applicant gave oral evidence in these proceedings in relation to BE’s allegations. He denied deliberately leaving out the details of the night in his duty book explaining that he used the duty book only as a record of duties. He recorded the specific details of the night in a notebook instead, telling the Tribunal that the undated entry ‘were my contemporaneous notes prepared at the police station at 4.25am.‘

54. He told the Tribunal that he wrote down this lengthy account of the evening’s events because ‘because I needed to get my thoughts down and transcribe them into my official notebook, but I didn’t get the opportunity because I was called in the next night.’

55. There is no dispute that the applicant was approached and cautioned by NSW Police Professional Standards Command Investigators the day after BE’s police interview.

56. In oral evidence in these proceedings, the applicant agreed that he had not accompanied BE to the door of her residence:

I was more concerned about how I was feeling. I saw her run up the driveway, saw her mum, thought she was home. I’d suffered a great deal of anxiety and needed time to process what had happened. ..I was thinking about my own daughter..I thought my God, what if my daughter behaved like that, what would I do?

57. He told the Tribunal that he had conducted registration checks and COPS checks for BE after he left the property. He agreed that he had also checked BE’s Facebook profile, which revealed that she had posted sexually promiscuous posts.

58. He agreed that, given her behaviour that night, he should have considered her a child at risk but that at the time ‘it had not entered my mind.’ He agreed that he should have reported it.

59. The applicant gave the following explanation to the Tribunal for his failure to report the incident:

Q.  Why didn't you seek guidance from a superior?

A.  Well, I ‑ yes.  Yes.  I suppose if I was ‑ if time had gone a little bit slower and I didn't get interviewed or I didn't get pulled up the next night, I probably would've sought guidance.  I was actually reaching out to a fellow officer and I was going to talk to him about it but I was rushed off to a job in another location and I spent the whole night there and then came back and I was interviewed and it just ‑ it went to nothing.  I was intending to put a intelligence report on her but didn't get the ‑ well, when I say I didn't get the opportunity, the opportunity didn't arise for me to do that because of what happened in the ensuing days.

Q.  You're saying that it was a matter of circumstance that you didn't get an opportunity to tell others about it?

A.  Well, yeah, it sound pretty ordinary but‑‑

Q.  Is that what you're saying?

A.  Well, yes, I am.  I'm saying that, yeah.

60. In his oral evidence in these proceedings, the applicant stated that he had only checked the registration of BE’s mother’s car once he’d left the property but could not explain why, in his police record of interview, he said that he had conducted the registration check while he was parked outside the property.

61. On the evidence before us, we are satisfied that, despite his statement in his police record of interview, the applicant conducted the check of the vehicle in BE’s driveway only after he had left the residence. In making this finding, we give weight to the contemporaneous note in the applicant’s duty book indicating he had left BE’s residence at 3.05am [‘off 3.05am’] and the CAD evidence that he conducted the vehicle check thirty-five minutes later. We also accept the evidence given in these proceedings by the applicant who we found to be a truthful witness.

62. In accepting this, we also find that the applicant left BE, a young, vulnerable 14-year-old girl, at a residence he hadn’t, at that stage, confirmed was hers via a registration check of the car in the driveway, and did not take BE to the front door to confirm she was in the care of a responsible adult.

63. In oral evidence before the Tribunal, the applicant considered his actions on the night he had taken BE home:

Well, on reflection, I could've done things a lot better and if I had my time over again I would've done.  I would've done things better.  I would've made sure that she ‑ I would've spoken to her mother and perhaps this would not have come about…I just wanted the situation to go away. I’d never been in that situation. It was very confronting and unique and I could not fathom what was going on. I just wanted to get out and calm down.

64. The applicant told the Tribunal that at the time he had taken BE back to her residence, his mental health had been deteriorating, he had undiagnosed PTSD, extreme mood swings, nightmares, flashbacks and trouble sleeping and had become overprotective of children.

65. He feels that he let down BE and that he could have managed the incident better. In retrospect, he believes that he shouldn’t have been at the job that night because of his mental state. He told the Tribunal that his mental health is now much better and he is continuing to receive treatment.

66. The 2016 NSW Police Force Evidence Based Investigators Report contains the following findings in relation to the allegations by BE:

Issue 3

Breach of the Code of Conduct – Comply with the law on or off duty: Complainant was conveyed to her home address… by the applicant after being located intoxicated. The complainant alleges [DVR] digitally penetrated her and performed oral sex upon her before returning home.

This issue was not sustained on the basis that ‘insufficient evidence exists on the balance of probabilities to establish that the applicant failed to comply with the law by digitally penetrating BE’s vagina and performing oral sex on her.

In making this finding the report took into account:

The applicant’s stating that he may have performed the vehicle check after he left the driveway of BE’s residence given that he marked himself ‘off’ at BE’s residence 35 minutes before conducting the vehicle check, and given that no information was given as to the GPS location for the applicant’s vehicle.

BE and the applicant provided DNA samples and their clothing was seized with no inculpatory evidence found. DNA swab and fingernail scrapings for the applicant found no inculpatory evidence

BE declined to undertake a SAIK [Sexual Assault Investigation Kit]

In a recorded conversation between the applicant and his estranged wife, the applicant provided a version of the events consistent with the version in his ERISP.

Issue 1

Sexual assault – Complainant was conveyed to her home address by [DVR] after being located intoxicated. The complainant alleges [DVR] digitally penetrated her and performed oral sex upon her. This finding was not sustained for the following reasons:

[T]he brief of evidence was forwarded to the DPP for a determination…legal advice was received from the DPP [that] there was no likelihood of a conviction and they would not be proceeding with the matter. As this is a criminal matter, this matter is not sustained.

67. In these proceedings, the Children’s Guardian declined a request by the applicant to make BE available for cross-examination. We do not agree with the respondent that the applicant should have pressed this request at hearing. The applicant requested BE for cross-examination and the request was declined, with Counsel for the Respondent noting in his submissions that it is the Children’s Guardian’s approach not to make complainants available to give evidence in proceedings:

The applicant has met the respondent’s reliance on the child’s allegations by requesting that the child attend the Tribunal for cross-examination. That request has been resisted by the Respondent, who has historically preferred in such proceedings not to contact complainants or other individuals mentioned in documents which it has filed. In this case, there is no evidence that the child is unavailable or unwilling to attend.

68. The Tribunal notes that as the complainant had been fourteen years old when the complaint had been made in 2014, she was no longer a child by the time these proceedings were commenced.

69. As BE has not been made available to be cross-examined in relation to her allegations, it would be a breach of procedural fairness to the applicant for the Tribunal to accept BE’s statement as evidence of the truth of her allegations. (see Children’s Guardian v BLF [2016] NSWSC 1206)

70. On the evidence before us, and for the reasons provided below, we are not satisfied that the applicant sexually assaulted BE as alleged. In making this finding, we have accepted the oral evidence of the applicant in these proceedings, who we found to be a truthful witness. His oral evidence in these proceedings is consistent with notes in his police duty book and his detailed handwritten account of the event. Although undated, we accept the applicant’s evidence that he wrote his account of the event within two hours of dropping BE home.

71. The applicant’s statement during his police interview that he made a registration check of the car in BE’s driveway when parked outside her house is, we are satisfied, inconsistent with his oral evidence in these proceedings. His oral evidence in these proceedings, namely that he must have conducted the vehicle check after leaving BE’s residence, is, however, consistent with the contemporaneous notes in his police duty book.

72. On the evidence before us, we are satisfied that the applicant was mistaken in his police interview when he said he had conducted the vehicle check while still at BE’s residence and that he must have made the check later, which would accord both with the contemporaneous notes in his duty book and the records of the police radio system.

73. Furthermore, in the applicant’s account of the evening to his former wife, which was recorded without his knowledge, his denial of the allegation is both detailed and consistent with his police interview.

74. As BE was not made available to be cross-examined in relation to her allegations, we do not accept her statement as evidence of her allegations.

75. On the evidence before us, as considered above and including the decision of the Office of the Director of Public not to institute proceedings in the matter, we are not satisfied that the applicant sexually assaulted BE as alleged.

Allegations that the applicant sexually assaulted two girls under the age of 10 years between 2001 and 2002

76. In 2016, the Children’s Guardian received a notification in relation to allegations that the applicant had sexually assaulted two girls under the age of 10 years between 2001 and 2002. The allegations were not sustained, the girls in question (now women) declined to provide any information and there was no criminal investigation.

77. In an affidavit sworn in 2020, the applicant denied these allegations. He understood the allegations to have been made in the context of a friend’s family law proceedings where the wife had accused the husband (the applicant’s friend) of the sexual assault of her children. The applicant had given evidence on behalf of the husband and only upon receiving the information from the Children’s Guardian did he become aware that the wife had also made allegations against him.

78. Given the lack of evidence before us and the applicant’s sworn denial of the allegations, we cannot be satisfied that the applicant ever sexually assaulted two girls under ten years between 2001 and 2002.

Professional conduct findings made against the applicant

79. Before us are details of professional conduct findings made against the applicant.

BE allegations

80. A NSW Police Force Investigator’s Report dated 4 January 2016 made the following findings in relation to the BE allegations:

Issue 1

81. The first issue, whether the applicant had digitally penetrated BE and performed oral sex upon her, was not sustained when the DPP refused to proceed with the matter on the basis that there was no likelihood of a conviction.

Issue 2

82. Issue 2, namely that the applicant failed to comply with procedures standing orders or police directives, was sustained. This was because the investigators found the applicant had elected to convey a 14-year-old female complainant to her home address while unaccompanied by another officer in circumstances that were neither exigent nor appropriate. In making this finding, reference was made to the NSW Police Handbook, which stated that unless exigent circumstances exist, female officers are to escort female detainees. The applicant was criticised for his failure to make inquiries to ensure BE was left in the care of a responsible person.

Issue 3

83. Issue 3 alleged that the applicant breached the Police Code of Conduct by failing to comply with the law, in light of BE’s allegations that DVR had digitally penetrated her and performed oral sex upon her before returning home.

83. This issue was not sustained on the basis that ‘insufficient evidence exists on the balance of probabilities to establish that the applicant failed to comply with the law by digitally penetrating BE’s vagina and performing oral sex on her.

84. In making this finding the report took into account:

1. The applicant’s stating that he may have performed the vehicle check after he left the driveway of BE’s residence given that he marked himself ‘off’ at BE’s residence 35 minutes before conducting the vehicle check, and given that no information was given as to the GPS location for the applicant’s vehicle;

2. BE and the applicant provided DNA samples and their clothing was seized with no inculpatory evidence found. DNA swab and fingernail scrapings for the applicant found no inculpatory evidence;

3. BE declined to undertake a SAIK [Sexual Assault Investigation Kit];

4. In a recorded conversation between the applicant and his estranged wife, the applicant provided a version of the events consistent with the version in his ERISP.

Issue 4

86. The allegation that the applicant acted in breach of the Code of Conduct by failing to provide a duty of care to BE when dropping her home considering she was 14, intoxicated and vulnerable was sustained. This was because the applicant did not make any inquiries to ensure there was a responsible person at the address where he left BE, other than to make a registration inquiry on a vehicle parked in the driveway, which the applicant conceded he may not have made until after he left the property.

JM allegations

87. A NSW Police Force Investigator’s Report dated 21 August 2017 made the following findings in relation to the JM allegations:

Issue 1: Evidence Based - Criminal

88. This issue, in relation to allegations that the applicant sexually assaulted his stepdaughter, JM, was not sustained on the basis that the applicant was found not guilty following a criminal trial.

Issue 2: Evidence Based – Criminal

89. This issue, in relation to allegations that the applicant assaulted his stepdaughter, JM, in 2011 by grabbing her arm and throwing her against her wall was not sustained. This was because the Office of the Director of Public Prosecutions elected not to charge the applicant for common assault based on insufficient evidence being available. The report also found there to be insufficient evidence to proceed with this allegation at a departmental level.

Issue 3: Evidence based – Non-criminal

90. This issue, namely that the applicant sexually assaulted his stepdaughter, was sustained. The finding was made primarily on the accounts of the witnesses in this matter.

91. The investigator made the following findings:

The two known females who have been alone with [DVR] are [JM] and [BE]. [JM] and [BE] both made allegations of sexual assault and both [JM] and [BE] were of similar age when the assaults are alleged to have occurred. It is noted that no sustained findings were made against [DVR] in relation to the [BE] matter. This was largely due to lack of corroborative evidence, however the fact remains that [BE] had made an allegation of sexual misconduct consistent with the allegations of [JM].

Between 2005 and 2014 [JM] consistently maintained she was sexually assaulted by [DVR]. At the time of the disclosure in 2014, her mother was separating from [DVR]. [JM] was in a position to disclose the assaults and have the matter properly investigated without affecting the marriage of her mother and [DVR].

Through this investigation and the investigation regarding [BE], the integrity of [DVR] as a police officer is compromised. The evidence considered, on the balance of probabilities, it is more likely than not that [DVR] did sexually assault [JM]….[in] 2005.

COPS Curiosity Access

92. The 2017 NSW Police Force Investigator’s Report sustained the finding that the applicant had accessed the profile of JM in the COPS database system for curiosity reasons not being in lawful execution of his duty.

93. In relation to accessing the COPS event record for JM, the applicant gave evidence in these proceedings that he had seen JM’s name as an associate of a man classed as a high risk offender by NSW Police and had checked JM’s details for this reason. He had documented the reason for accessing the record as checking on the associate.

94. On the evidence before us and for the reasons set out in the 2017 NSW Police Force Investigator’s Report, we are satisfied that in accessing JM’s profile, the applicant went beyond the execution of his duty.

Recommendation for removal from NSW Police Force

95. In June 2017, the NSW Police Commissioners Advisory Panel recommended that the applicant be removed from the NSW Police Force under s181D (3)(a) of the Police Act 1990, on the basis of loss of the Commissioner’s confidence. This recommendation was made on the basis of the allegations of sexual assault made against the applicant by JM and BE.

96. The applicant was, however, instead medically retired from the NSW Police Force in October 2017.

Suggestion that the applicant may have performed child-related work without holding a working with children check clearance

97. In oral evidence in these proceedings, the applicant confirmed that he wishes to be granted a working with children child clearance primarily to enable him to coach sport and to be involved in sporting activities with his grandchildren. He is no longer able to coach the junior members of the local sporting club (between the ages of 5 and 17) because he doesn’t hold a working with children check clearance.

98. Club players are able to join the club’s senior sporting competition once they have left the under 17 team. According to the applicant, this senior sporting competition only ‘very rarely’ has term members under the age of 18 years. The applicant gave evidence that, in his current training position, he was never left to manage the players unsupervised.

99. The Tribunal accepts the applicant’s evidence that, in his current training position, he is never left unsupervised with players. This means that even if a 17-year-old player were to be chosen to play in the senior competition, he would not have been left with the applicant unsupervised.

100. Section 8 of the Child Protection (Working with Children) Act 2012 provides that a worker must not engage in child-related work unless he or she holds a working with children check clearance of a class applicable to the work.

101. According to the Child Protection (Working with Children) Regulation 2013, work for a club, association, movement, society or other body of a cultural, recreational, sporting or community service nature that involves providing programs or services primarily for children is child-related work. Work as a coach or as a team manager, or an assistant coach or assistant team manager, for a sport or activity for children is child-related work. (Regulation 7)

102. Given that the applicant’s work training players in the senior sporting competition is not an activity for children nor is it work providing services primarily for children, we are not satisfied that it meets the definition of ‘child-related work.’

103. For these reasons, we are not satisfied that the applicant is required to hold a working with children check clearance for this work, even if there were, on occasion, a player in the group who was under 18 years of age.

The applicant’s conduct since 2014

Allegations of domestic violence between the applicant and his de facto partner

104. In 2019, a police event report was created for the applicant’s de facto partner who was stated to be suffering from post-traumatic stress disorder, chronic alcoholism and depression. She told police the applicant had kicked her in the leg. According to the report, the applicant told police that he and his partner had been arguing and ‘she became enraged and lashed out at him at which point he has kicked her to the left side of her leg.’

105. The mother of the applicant’s de facto partner told police that her daughter’s behaviour had been erratic and that it was her intention to take her daughter to hospital.

106. An interim AVO was issued by the police for the protection of the applicant. The applicant confirmed that whilst he and his partner remain in a relationship, they haven’t lived together since May 2020. He told the Tribunal that ‘the only time we ever argued and the only time the house was disruptive was when she was drinking.’

Applicant’s work with sporting organisation

107. The applicant has provided a series of references lauding his work for his sporting organisation.

Applicant’s aspiration to work in youth welfare

108. The applicant agreed that he was considering a career in children’s welfare. He is hoping to find work in a youth shelter where, as a former sports coach, he would be able to work with troubled youth between the ages of ten and eighteen.

109. He told the Tribunal that as a police officer, he had been involved with youth in juvenile detention in the puppy-training program and had found the work to be very rewarding. He enjoyed the mentoring role in that program and was impressed by the change in behaviour of the youth as a result of the program. In a statutory declaration dated 14 February 2018, the applicant advised as follows:

I have been actively involved in coaching, mentoring and training young people both in my professional and personal life. I was involved in a mentoring program at [name of juvenile detention centre] where I oversaw the training of puppies in the NSW Police Dog Unit’s puppy raising development program. This program brought me into close contact with young inmates, mentoring them not only in puppy development, but also their own personal development. As a result of this program, I received a Premiers Award in 2013.

110. In evidence before the Tribunal, the applicant said that he does not believe that he poses a risk to the safety of children. He told the Tribunal:

There are always children around me. My children and their friends have always felt safe. I have always been around children’s sport. I have three granddaughters and my daughter-in-law doesn't hesitate to let me take them out alone. I have mentored children and have a good standing in the community.

111. He told the Tribunal he believes he has a lot to offer to children.

Risk assessment report

112. The psychiatrist, Dr Olav Nielssen, conducted a risk assessment for the applicant and gave oral evidence in these proceedings.

113. In his risk assessment report, Dr Nielssen, confirmed the applicant’s diagnosis of Post Traumatic Stress Disorder. This diagnosis had been made by Dr Selwyn Smith in 2015 due to trauma sustained by the applicant in the course of his employment as a police officer.

114. In his report, Dr Nielssen stated that:

The diagnosis of post traumatic stress disorder (PTSD) is made from the symptoms reported by [DVR] and his account of the opinions of Dr Smith and Mr Dieter, and the findings of the board that approved his retirement from the police on medical grounds. He reported intrusive anxiety provoking memories of traumatic experiences during his police service, nightmares on those themes, and disabling avoidance behaviour. He has been treated with a combination of medications for depression and to reduce arousal and nightmares, in combination with regular counselling by a psychologist.

115. Dr Nielssen did not identify any features of the applicant’s clinical history or presentation to indicate any risk of harm to children who might be placed in his care in the course of his activities as a volunteer sports coach, and so did not recommend interventions to mitigate risk to children.

116. In support of this finding, Dr Nielssen gave the following opinion:

There was also no information to suggest that [DVR] had a disorder of abnormal sexual interest. He reported several long-term relationships with women who were similar in age to himself, including two long marriages and his current to facto relationship of four years in duration. There was no information to indicate a disorder of abnormal sexual interest (a paraphilia) for example, heterosexual paedophilia, or any information to suggest a particular fixation with teenage girls that might result in harm to a child placed in his care.

In addition to him having no criminal conviction or adverse findings from any of the complaints made against him, [DVR] had a long history of working as a senior policeman and as a parent of four children and three grandchildren without any concerns being raised about his behaviour towards those children or their friends and associates.

I did not identify any features of [DVR’s] clinical history or presentation to indicate any risk of harm to children who might be placed in his care in the course of his activities as a volunteer sports coach, and hence I do not recommend interventions to mitigate risk to children.

[DVR] has been a parent of four children and a stepfather to two others, and has also been heavily involved in team sports and numerous ambiguous situations in the course of his policework. That degree of life experience would be expected to make him a suitable person to have unsupervised contact with children.

117. In oral evidence, Dr Nielssen made the following observations in relation to the applicant:

I got the impression from meeting him that he was a mature individual with a vast amount of life experience and that he's quite resilient and can cope with the slings and arrows.

118. When asked about the applicant’s risk to children, Dr Nielssen gave the following opinion:

1. the applicant does not have a psychiatric disorder that would cause him to pose a risk to children;

2. given the investigations and trial did not confirm that that the applicant sexually assaulted the complainants, past behaviour is no guide to future conduct;

3. based on the applicant’s mental health, personal history and circumstances, there would be a low probability of the applicant engaging in that kind of conduct in the future;

4. given that the applicant has been a parent of four children and a stepfather to two others and has been heavily involved in team sports and in numerous ambiguous situations in the course of his police work, that degree of life experience would be expected to make him a suitable person to have unsupervised contact with children;

5. despite the disciplinary findings made against the applicant by NSW police in relation to the allegations by JM and BE, Dr Nielssen maintains the opinion that the applicant does not have a disorder of abnormal sexual interest that would make him a danger to a child placed in his care.

119. According to Dr Nielssen:

With regards the application of actuarial instruments to estimate the probability of sexual offending, the instruments that are available, such as Static 99R, Sonar and RSVP, are administered on the assumption that the person who is the subject of the risk assessment has committed a sexual offence, in most cases a contact sexual offence. Hence they are not relevant in the assessment of the probability that [DVR] might commit any kind of offence against children in the future, as he has never been found to have committed an offence. Even if they were applicable, [DVR] would be assessed as having a very low or negligible likelihood of committing a sexual offence based on the absence of any of the main risk factors.

120. In conclusion, Dr Nielssen stated:

I did not identify any features of [DVR]’s clinical history or presentation to indicate any risk of harm to children who might be placed in his care in the course of his activities as a volunteer sports coach, and hence I do not recommend interventions to mitigate risk to children. Based on the information that it available, including a clinical evaluation of [DVR] and an assessment of his level of maturity and his conduct as a policemen and as a parent, I do not believe that [DVR’s] volunteer work as a sports coach or his involvement in his grandchildren’s sporting activities would adversely affect the safety, welfare and well-being of children placed in his care.

121. In oral evidence in these proceedings, Dr Nielssen confirmed the opinions expressed in his report.

Consideration of the s30(1) matters

As set out above, in determining this application and considering the question of risk, we must explicitly consider the factors set out in section 30 (1) of the Child Protection (Working with Children) Act. The evidence will be considered under each of the following subheadings.

The seriousness of any matters that caused a refusal of a clearance or the imposition of an interim bar. (s30 (1)(a))

122. The matters that led to the refusal of the applicant’s working with children check clearance are allegations made against him that he sexually assaulted his stepdaughter, JM, and a fourteen-year-old girl, BE, in addition to two girls under the age of 10 years who are not identified in the material before us. Although the allegations are serious, on the evidence before us and for the reasons set out above, we are not satisfied the assaults took place.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b))

123. The offences against JM were alleged to have taken place between 2005 and 2007, the offences against BE were alleged to have taken place in 2014 and the offences again the unnamed two younger girls were alleged to have taken place between 2001 and 2002.

The age of the person at the time the matters occurred (s30(1)(c))

124. As stated above, we are not satisfied the offences alleged occurred. In 2001, the applicant was 38 years. In 2005, the applicant was 42 years old. In 2014, the applicant was 51 years old.

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 (s30(1)(d))

125. JM alleged that the applicant sexually assaulted her from the age of six to the age of 15. BE was fourteen years old in 2014 when she alleged the applicant sexually assaulted her. There is no information to confirm the ages of the girls the applicant was alleged to have sexually assaulted between 2001 and 2002. As all the alleged victims were children at the time of the allegations, they were vulnerable due to their age.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

126. In 2005, the applicant was aged 42 and the complainant JM was 14 years old. In 2014, applicant was aged 58 and the complainant, BE, was 14 years old. The applicant was aware of the ages of JM and estimated BE to be between 12 and 14 years of age. JM was the applicant’s stepdaughter at the time and BE was not previously known to him. There is no information to confirm the ages of the girls the applicant was alleged to have sexually assaulted between 2001 and 2002.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

127. The applicant knew JM was a child and had assumed BE to be a child, too. The applicant assumed the unidentified girls were also children at the time he was alleged to have assaulted them.

The person's present age (s30(1)(g))

128. The applicant is 58 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

129. The applicant has no criminal convictions. The applicant has provided character references attesting to his general trustworthiness, including in the company of children.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

130. For the reasons set out above, we are not satisfied that the offences alleged to have been committed by the applicant ever took place. We accept the opinion of Dr Nielssen that the probability of sexual offending declines with age and that, even if the applicant had been guilty of the offences, his risk of reoffending would be very low.

Any order of a court or tribunal that is in force in relation to the person (s30(1)(il)

131. There are no orders in place.

Information given by the applicant in, or in relation to, the application (s30(1)(j))

132. The applicant had provided references attesting to his work with children and by people who trust him to be unsupervised around their children.

Any relevant information in relation to the person that was obtained in accordance with section 36A (s30(jl)

133. No further information has been provided.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

134. No further matters have been put forward for our consideration.

Conclusion on section 30(1) matters

135. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.

136. As set out above, the applicant was charged with sexually assaulting his stepdaughter between 2005 and 2007. For the reasons set out above, we are not satisfied the conduct ever occurred.

137. The applicant was alleged to have sexually assaulted BE in 2014. For the reasons set out above, we cannot be satisfied that applicant sexually assaulted BE as alleged.

138. No details are before us in relation to the allegation that the applicant sexually assaulted two young girls 2001 and 2002. On the evidence before us, we cannot be satisfied that the applicant sexually assaulted the girls.

139. As set out above, disciplinary proceedings were taken against the applicant in relation to the BE and JM allegations.

140. In relation to the BE allegations, neither issue alleging that the applicant had sexually assaulted BE was sustained. We give weight to these findings, the reasons for which accord with our reasons, as set out above, for finding that on the evidence before us, the applicant did not sexually assault BE as alleged.

141. We give weight to the findings of the 2016 NSW Police Force Evidence Based Investigators Report that by taking BE home unaccompanied in circumstances that were neither exigent nor appropriate, the applicant failed to comply with the NSW Police Handbook. We also give weight to the findings of the 2016 Police Force Investigator’s Report that the applicant failed to provide a duty of care to BE by not making inquiries to ensure there was a responsible person at the address.

142. For the reasons set out above, we are satisfied that the applicant did not make a registration vehicle check for the car in BE’s driveway until he had left the residence, thereby exacerbating his failure to provide a duty of care to BE.

143. The 2017 NSW Police Force Evidence Based Investigators Report sustained a finding that, on the basis of an evidence based non-criminal investigation, that the applicant sexually assaulted JM as alleged. While we accept there is evidence that in 2005, 2006 and 2007 JM reported that the applicant had sexually assaulted her, in her evidence at trial, she was unable to remember having reported the alleged assaults. Although it is suggested in the 2017 NSW Police Force Evidence Based Investigators Report that victims of sexual assault may have difficulties with memory recall, there is no evidence before us to indicate this was the case for JM. We have also had the benefit of the applicant’s oral evidence in these proceedings which was not available to the police investigators who prepared the 2017 NSW Police Force Evidence Based Investigators Report.

144. In the light of JM’s evidence at trial and the evidence of the applicant both at trial and during these proceedings, we are unable to find on the balance of probabilities that the applicant sexually assaulted her. For these reasons, we give little weight to the sustained finding of Issue 3 in the 2017 NSW Police Force Evidence Based Investigators Report, as set out above.

145. For the reasons given above, we also give weight to the finding by the 2017 Police Force Investigator’s Report that the applicant accessed COPS event record for JM in 2007, ‘for curiosity reasons not being in lawful execution of his duty.’

146. As set out above, we accept that a recommendation was made that the applicant be removed from the NSW Police Force on the basis of loss of the Commissioner’s confidence and having regard to the allegations of sexual assault against JM and BE. We also accept that this recommendation was not acted upon and that the applicant was instead discharged from the NSW Police Force for medical reasons.

147. We have given the recommendation for the applicant’s removal little weight. This is because the recommendation took into account the sustained finding that, on the evidence based non-criminal investigation undertaken by the NSW Police investigators, the applicant sexually assaulted JM.

148. For the reasons set out above, we do not agree with that finding. Instead, as set above, on the evidence before us, we cannot be satisfied on the balance of probabilities that the applicant sexually assaulted JM as alleged.

149. We do, however, give weight to the sustained findings that the applicant failed to show a duty of care to BE and acted in breach of the NSW Police Code of Conduct by taking her home unaccompanied and that in accessing the COPS profile for JM he went beyond the execution of his duty.

150. In light of the evidence provided by the applicant in these proceedings, we are satisfied that he regrets both taking BE home unaccompanied and failing to ensure she was left in the care of a responsible person. We are satisfied that he has gained an insight into his shortcoming in this regard. As the applicant is no longer a serving police officer, he no longer has access to the COPS database system. There is, therefore, no risk that he will access any records on the system.

151. In determining whether the applicant poses a real and appreciable risk to the safety of children, we have given weight to the opinion of Dr Nielssen both in his risk assessment report for the applicant and his oral evidence in these proceedings.

152. We accept the applicant’s evidence that his partner’s health has improved since 2019 and that whilst they remain in a relationship, they are no longer living together. We are satisfied that the applicant’s relationship with his partner has no bearing on whether the applicant poses a real and appreciable risk to the safety of children.

153. Having considered all the evidence before us, we are satisfied, for the reasons set out above, that the applicant does not pose a real and appreciable risk to the safety of children.

Section 30(1A) considerations

Section 30 (1A) of the Child Protection (Working with Children) Act 2012 prohibits the Tribunal from making an order allowing a person to work with children unless satisfied that:

1. 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 child-related work, and

2. it is in the public interest to make such an order

Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work?

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

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

154. The reasonable person, for the purposes of s 30(1A)(a), is a person with knowledge of the matters before the Tribunal and privy to all the evidence before the Tribunal. The relevant question is whether a reasonable person, knowing what the Tribunal knows, would allow his or her child to have unsupervised direct contact with the applicant: DAR v Children's Guardian [2018] NSWSC 942 at [56]-[57].

155. In CSW v Children's Guardian [2017] NSWCATAD 326 at [136]-[137], the Tribunal said a reasonable person would acquaint themselves with all of the evidence and submissions (or matters) placed before the Tribunal, and person would not approach the matter with a closed mind, but apply an objective test in consideration of all the material. Particular regard would be had to the unchallenged expert evidence (notwithstanding the respondent's submissions as to weight). A reasonable person whilst approaching the manner with some caution would find that any risk was insufficient to cause them to have concerns about access to their child.

156. The information that a reasonable person would have to properly consider under the test in s 30(1A)(a) of the Child Protection (Working with Children) Act 2012 is all the evidence before us, as considered above.

157. Having regard to all this evidence, and particularly the evidence of the applicant in these proceedings, in addition to the character references provided for him, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work. The reasonable person would have particular regard to the following matters:

1. that the applicant was acquitted of all charges in relation to the allegations by JM;

2. the evidence of the applicant at trial denying he ever sexually assaulted JM;

3. JM’s inability at trial to recall having reported the alleged offences by the applicant;

4. the applicant’s oral evidence in these proceedings denying he assaulted BE as alleged;

5. the decision not to institute proceedings against the applicant in relation to BE;

6. the character references provided for the applicant describing him as trustworthy and honest, and the unchallenged evidence that he received a Premier’s Award in 2013 for his work with youth in the NSW Police Dog Unit’s puppy raising development program;

7. the applicant’s long and positive history of involvement in his local sporting organisation;

8. Dr Nielssen’s report that he did not identify anything in the applicant’s clinical history or presentation to indicate any risk of harm to children who might be placed in his care in the course of his activities as a volunteer sports coach and hence did not recommend interventions to mitigate risk to children.

158. Having regard to the material before us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would not allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work.

Is it in the public interest to make the orders sought by the applicant?

159. Whether it is in the public interest to make an order enabling a particular applicant to work with children will depend upon all the relevant facts of which the Tribunal is aware. CHB v Children’s Guardian [2016] NSWCATAD 214

160. The Tribunal must consider the public interest in the context of section 4 of the Child Protection (Working with Children) Act 2012, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.

161. The public interest test requires the Tribunal, in the context of the paramount consideration (the safety, welfare and well-being of children and in particular, protecting them from child abuse), to consider broader community or public interests as well as private interests, with the public interest being of at least equal importance to the private interests of the applicant. Mielczarek v Commissioner of Police, NSW Police Force(No 2) [2016] NSWCATAP 255; CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262

162. In Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY [2012] VSCA 143,at [24]-[26] the Victorian Court of Appeal considered the meaning of the term “public interest” in the context of the equivalent provision in the Victorian Act. In those paragraphs the Victorian Court of Appeal said:

“[24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.

[25]  In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’. The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.

[26]   The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.”

163. For the reasons set out above, we are not satisfied that the applicant poses a risk to the safety of children. Having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the applicant.

164. The applicant has a long history of positive involvement in his sporting organisation and his expertise and knowledge would be of benefit to players of all ages in the organisation.

Decision

165. For the reasons set out above, we are satisfied that the applicant does not pose a real and appreciable risk to children. We have also decided that a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child-related work, and that it is in the public interest to make such an order.

Orders

166. The decision of the respondent dated 18 April 2019 to cancel the applicant’s working with children check clearance is set aside.

167. In substitution for this decision the following decision is made: the applicant is to be granted a working with children check clearance.

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

Registrar

Decision last updated: 30 July 2021