Efh v Children's Guardian

[2020] NSWCATAD 256

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EFH v Children’s Guardian [2020] NSWCATAD 256

Hearing dates:

8 July 2020, 9 September 2020

Date of orders:

21 October 2020

Decision date:

21 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member
F Given, General Member

Decision:

The decision of the Children’s Guardian is affirmed.

Catchwords:

ADMINISTRATIVE LAW – Child Protection – Working with children check clearance – Where respondent refused application for clearance – Where applicant found not guilty of indecent assault of a child – Whether applicant poses a risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Cases Cited:

CMD v NSW Office of the Children’s Guardian [2018] NSWSC 1348

Office of the Children’s Guardian v CFW [2016] NSWSC 1406

Reed v R [2006] NSWCCA 314

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EFH (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
D Kaiti (Applicant)
M Giacomo (Respondent)

Solicitors:
Crown Solicitor (Respondent)

File Number(s):

2019/00403474

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 is prohibited pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

1. This was an application for a review of a decision of the Children’s Guardian refusing the applicant’s application for a working with children check clearance.

2. The central issue in this case was whether the applicant, a flute teacher, indecently assaulted a twelve year old student during the course of her lesson. He was found not guilty of indecent assault charges relating to the alleged incident.

3. We have found that it is more likely than not that the applicant did indecently assault his student in the way she claimed. He has not expressed any remorse and continues to deny that the incident occurred.

4. In these circumstances, we are satisfied that the applicant poses a risk to the safety of children. Accordingly, we have affirmed the decision of the Children’s Guardian.

Background

5. In 2016, the applicant was charged with two counts of indecent assault of a person under the age of 16 years pursuant to s 61M(2) of the Crimes Act 1900 (NSW).

6. On 14 July 2016, the Children’s Guardian cancelled the applicant’s working with children check clearance.

7. On 28 February 2018, following a four-day hearing of the criminal charges against the applicant, the charges were dismissed.

8. On 23 March 2018, the applicant applied for a working with children check clearance. The application was refused on 5 December 2019. The applicant applied for a review of that decision on 23 December 2019.

Relevant law

9. The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Child Protection (Working with Children) Act 2012 (NSW) (s 4).

10. The applicant became subject to an “assessment requirement” when proceedings were commenced against him for the offences of indecent assault of a person under the age of 16 years (Child Protection (Working with Children) Act, s 14, Sch 1).

11. The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement (Child Protection (Working with Children) Act, s 15(1)). A reference in the Child Protection (Working with Children) Act to a “risk to the safety of children” is a reference to a real and appreciable risk to the safety of children (Child Protection (Working with Children) Act, s 5B).

12. The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children (Child Protection (Working with Children) Act, s 18(2)).

13. A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of the decision within 28 days after notice of the decision was given to the person (Child Protection (Working with Children) Act, s 27(1)).

14. The Tribunal must consider the matters set out in s 30(1) of the Child Protection (Working with Children) Act when determining an application under Part 4 of that Act.

15. The Tribunal may not make an order having the effect of enabling 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 any child-related work, and

2. it is in the public interest to make the order (Child Protection (Working with Children) Act, s 30(1A)).

16. In determining the application for an administrative review, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law (Administrative Decisions Review Act, s 63(1)).

Evidence before the Tribunal

17. The Tribunal has before it a large amount of documentary material. This includes:

1. the transcript of the complainant’s interview with the police;

2. the transcript of the criminal proceedings, including the judgment of the magistrate;

3. Family and Community Services records in relation to the applicant’s children;

4. two statutory declarations of the applicant dated July 2018 and April 2019 and a witness statement of the applicant dated May 2020;

5. photographs of the applicant’s children and family (with descriptions), provided by the applicant;

6. a report of psychologist Raymond Hudd from August 2019 and a supplementary report dated May 2020, with letters of instruction;

7. a large number of references provided by the applicant. His referees included a Catholic priest who has known the applicant for 30 years; a music teacher who was the applicant’s student as a child; a manager of a musical ensemble who has known the applicant for over 20 years; a journalist who has known the applicant for thirty years; a chaplain who has known the applicant since 2016; and a parent of one of the applicant’s former students who has known him for eleven years.

18. The applicant and Mr Hudd, the psychologist, were cross examined at the hearing.

The criminal proceedings

19. The circumstances leading to the charges against the applicant were as follows. The applicant was a flute teacher. In June 2016, he was teaching a female student aged twelve years old (“the student”) with nobody else in the room. He had been teaching flute for approximately thirty years before this, without any known complaints of sexual misconduct. He had been teaching the student for about two to two and a half years.

20. The student alleged that, during the flute lesson, the applicant stood behind her whilst she was playing the flute and used his right hand to rub her buttocks in a circular motion for 5 to 10 seconds. She stated that, when she tried to move away, the applicant put his hand around her right hip and pulled her back towards him. The student said he then placed a hand on each of her breasts, on the outside of her clothing, before pulling back on her breasts and body for a few seconds. According to the student, the applicant then left the room in which the lesson was taking place for about five minutes. She said that, when he returned, he asked her to resume playing, which she did.

21. Immediately after the lesson, the student sent a text message to her mother telling her mother that she felt uncomfortable and that she had just been touched. The student told her mother, after her mother arrived to pick her up, that the applicant had touched her breasts and that he handled her underwear.

22. The following day the student stayed home from school as she said she was feeling emotional. The student’s mother informed her general practitioner that day of what her daughter said had occurred. The general practitioner reported the matter to the police immediately.

23. Two days after the alleged offence, the student made a recorded statement to police.

24. The police retrieved the student’s school blouse, which she was wearing at the time of the alleged offence, from the laundry basket. The police officers took forensic samples from the front of the blouse by use of tape lifts. The evidence at the criminal hearing was that the DNA on one of the samples was that of the applicant. However, this could have been from secondary transference (such as from saliva leaving a flute, or from the student touching her blouse after touching the applicant or her flute with the applicant’s DNA on it). The applicant had adjusted the student’s flute at the beginning of the lesson and during the lesson.

25. The applicant has consistently denied that the alleged indecent assault occurred. He gave evidence at his criminal hearing and was cross examined. He was not shaken in his evidence that he did not touch the applicant’s breasts or bottom.

26. After a four-day hearing, in March 2018 the magistrate found the applicant to be not guilty of the two counts of indecent assault.

27. The magistrate found that there were discrepancies in the student’s version of what she told her mother immediately after the alleged offence and what her mother said that the student had disclosed. The discrepancies were that she told her mother in the car that the applicant pulled her underwear down, but later said the applicant was not pulling her underwear down, but that she felt it move when he rubbed her on the bottom. The mother’s evidence was that the student told her that the applicant had “pulled” her underwear, but not that the applicant had rubbed her bottom.

28. The magistrate observed:

“Relevantly, the complainant’s evidence that the defendant rubbed her bottom ‘up and down’, appeared to contradict her other evidence, the defendant rubbed her bottom on the outside of the skirt in a ‘circular motion’. … Even though the complainant regarded the movement of her underpants as an incident of the rub of her bottom, her evidence in cross-examination was that the rub pulled her underwear down four to 5 centimetres so a not insubstantial movement. Again, it was curious the complainant made no mention of this in her recorded statement. … There were other contradictions in the complainant’s account, for instance, under cross-examination the complainant agreed the defendant rubbed her breasts when he touched them, she made no mention of this rubbing at the time of her complaint or in her recorded statement.”

29. The magistrate also stated as follows:

“The complainant gave a reasonably clear and considered account of the alleged offences. There were discrepancies in her account as to the first alleged touch. There was a difference between the complainant’s underpants being pulled down her count 2 of the mother and on the outside of her, and her bottom being rubbed on the outside of the skirt for five to ten seconds. There is no mention of underpant movement, her account to police. There was a difference between the complainant’s bottom being rubbed, her account in her recorded statement and her account in court that as an incidents of the rub, that is as a result of the rub her underpants were pulled down for the 4.5 to 5 centimetres.”

30. The magistrate found the student’s evidence as to the touch of her breasts to be “more consistent.” The magistrate rejected the defence counsel’s submission that the student was an untrustworthy witness but considered that the plausibility of certain aspects of her evidence and the absence of male DNA on the tape lift of the left blouse pocket raised a question as to her reliability of the witness.

31. The magistrate considered that the applicant was not avoidant or evasive in any aspect of his evidence. He gave an “even account” which was “not implausible.”

32. The magistrate found that, although the experts’ evidence was that direct transfer (that is, touching) was the most likely mechanism of transference of the applicant’s DNA to the student’s blouse, there was a real possibility of secondary transference.

33. The magistrate concluded that the Crown had not proved its case beyond reasonable doubt.

Did the applicant indecently assault the student?

34. The question of whether the Tribunal should accept the student’s allegations of indecent assault against the applicant is directly relevant to whether the applicant poses a risk to the safety of children. The indecent assault charges against the applicant in 2016 led to the cancellation of his working with children check clearance. The allegations which led to those charges also formed a principal reason for the Children’s Guardian’s refusal, in December 2019, of his application for a clearance.

35. The Tribunal is not considering whether the allegations can be proven to the criminal standard, as the magistrate was in the criminal proceedings. Rather, the Tribunal must decide whether it is satisfied that the applicant poses a risk to the safety of children and, in determining whether it can reach that state of satisfaction, must consider whether or not it accepts the indecent assault allegations made against the applicant on the balance of probabilities (Office of the Children’s Guardian v CFW [2016] NSWSC 1406 at [14]).

36. It is not necessary to find that allegations of criminal conduct are proven to the civil standard in order to be satisfied that the applicant poses a risk to the safety of children (see, for example, CMD v NSW Office of the Children’s Guardian [2018] NSWSC 1348 at [51]). Conversely, it does not necessarily follow from a finding that an applicant engaged in sexual or criminal misconduct, that the applicant poses a risk to the safety of children at the time of the hearing.

37. The applicant denies the allegations of indecent assault and that he engaged in the conduct the subject of the charges. The Children’s Guardian’s position as expressed in her opening written submissions is that the evidence supports a finding that, on the balance of probabilities, the applicant engaged in the conduct with which he was charged.

38. In support of his application, the applicant “relies on [his] acquittal at hearing and other material raised as to the integrity of the evidence of the complainant including doubts about the reliability of the complainant.” The applicant also relies upon his statutory declarations, his witness statement and the references attesting to his character.

39. The applicant repeats the following contentions made on his behalf at the criminal hearing, as to why the student’s evidence, and her account of the alleged incident as given to the police, should not be accepted:

1. the student’s account was improbable;

2. there was a basic inconsistency in the evidence of the student and her mother’s evidence on the important issue of complaint evidence;

3. the inconsistencies within the student’s own evidence about the alleged offences;

4. the small amount of the applicant’s DNA recovered from the tape lift from the upper right front of the blouse was explicable by secondary transfer of DNA;

5. the lack of the applicant’s DNA on the left blouse pocket was consistent with the applicant’s innocent account;

6. there was no motive for the applicant to commit the offences; and

7. the applicant was of good character.

40. We have considered each of these contentions below.

Was the student’s account improbable?

41. We do not consider that the student’s account of the incident was improbable. The magistrate found that “it was not an improbable time and place for the offending alleged.” We agree. As the magistrate found, if “the complainant’s description of the touching was correct, the alleged offences were short-lived and were committed about halfway through the lesson when no one else was present and well before the next student ordinarily arrived.”

42. The magistrate, who had the advantage of seeing the student give evidence, expressed the view that she was not argumentative in her evidence and that certain parts of her evidence were plausible. The magistrate also stated that she “did not conclude that the complainant was an untrustworthy witness” but considered that her evidence was affected by certain discrepancies.

43. We have not seen the student give evidence. However, we consider, from the transcript of the student’s interview with the police two days after the alleged incident, and the transcript of the student’s evidence in the criminal matter, that the student gave a very credible account of the alleged indecent assault.

Weight to be given to claimed inconsistencies in the evidence of the student and her mother

44. We also consider that the inconsistencies in the student’s evidence, and the inconsistencies between the student’s evidence and that of her mother, as described by the magistrate, may plausibly be explained. In our view, in the most part they are better described as differences in emphasis or description, or as omissions, rather than inconsistencies. Those “inconsistencies” or discrepancies as identified by the magistrate include:

1. It was difficult to reconcile the student’s evidence that she kept playing the flute whilst the applicant touched her and was not “too upset” to play with the evidence that she was disturbed by his touching;

2. It was difficult to reconcile the student’s evidence, given in cross examination, that she could see the palms of the applicant’s hands with her evidence that the applicant put each hand over her breasts on the outside of her blouse. It is also difficult to reconcile the student’s evidence that she saw the applicant’s palms with her account in court that the applicant rubbed her breasts. It was unlikely, on the student’s account, that the applicant’s palms were visible;

3. It was “curious” that the student made no mention, in her statement to police, of the circumstance that the rub of her bottom pulled her underwear down four to five centimetres;

4. The student agreed in cross examination that the applicant rubbed her breasts when he touched them, but made no mention of this at the time of the complaint or in her statement to police;

5. The student’s evidence that the applicant rubbed her bottom “up and down” appeared to contradict her other evidence that he rubbed her bottom on the outside of her skirt in a circular motion. It was “curious” that she made no mention of his at the time she complained to her mother;

6. The student agreed in cross-examination that she told her mother in the car that the applicant pulled her underwear down in response to a question from her mother, but her evidence was that the applicant was not pulling her underwear down; rather she felt it move when the applicant rubbed her bottom;

7. The mother’s evidence was that the student told her in the car that the defendant “pulled” her underwear but did not tell her about the rub to the bottom.

45. There are a number of circumstances which might explain some of these issues.

46. The student and the mother spoke to each other in Cantonese and the mother relied upon an interpreter at the criminal hearing and when giving her statement to police. This may have affected the mother’s ability to explain clearly what the daughter said to her, noting that this involved a third party translating a conversation which had not occurred in English. The mother appeared to be having difficulties conveying her meaning when asked, in the criminal proceedings, about her evidence that the student told her in the car, after the alleged incident, that the applicant had “pulled” her underpants. The following exchange between the applicant’s counsel and the mother occurred during cross examination:

“Q. I suggest it would be very difficult to pull on your underpants or someone to pull on your underpants holding onto the outside of that dress?

A. INTERPRETER: Pulling not as in pulling down, but pulling as in this way.

Q. You’ve got slacks on, haven't you?

A. INTERPRETER: Yes.

Q. You just stood up and demonstrated how you would pinch out your slacks so as to touch your underpants. Is that right?

A. INTERPRETER: That’s how my daughter described it to me.

Q. You didn’t say that in court a few minutes ago when you described what she told you, did you?

A. INTERPRETER: I said ‘pull’. I told the interpreter that it wasn’t pulling down or taking off, but it was pull, to pull.

Q. You said to the police when they asked if he touched her - you asked her if had touched her lower parts and she said to you, ‘No, he didn’t, but he handled my underwear.’

A. INTERPRETER: She said ‘pull, pull’. I did ask her specifically about this.”

47. The mother’s difficulty in conveying her meaning is apparent from her decision to stand up and demonstrate what occurred physically, and from her repetition of the word “pull” (which was not the word the student used, as the student spoke in Cantonese). Whilst this does not necessarily mean that the account given by the student of the applicant “pulling” her underpants was not inconsistent with later accounts of what he did, some allowance needs to be made for the difficulties of precisely translating words in other languages, where words in different languages do not usually have exactly corresponding meanings.

48. The evidence of both the student and the mother is that the student was upset in the car after the alleged incident. After she had told the mother that she had been touched by the teacher, the student did not provide an unprompted account of what happened. Rather, she responded to her mother’s questions with short answers. The mother was cross examined, through an interpreter. When the mother was asked what occurred in the car after she had read her daughter’s message, the interpreter gave her response:

“A. INTERPRETER: Once I got into the car and I ask it, ‘Was it [the applicant]?’ She said, ‘Yes’, and I said, ‘Where did he touch you’, and then she kept silent. She didn’t say anything. I ask her, ‘Did he touch breast?’

She said, ‘Yes.’”

…   

Q. Did you say anything after she told you that?

A. INTERPRETER: Then I ask her, “Did he touch you down there”, because I knew that she was wearing school uniform that day, which was a short skirt. She replied, “He did something to my underwear, my panties.” I asked whether he pulled her panties down. She replied, “No.”

Q. Did she say anything else?

A. INTERPRETER: She didn’t want to say anything else. I pressed further, but she didn’t want to say anything.”

49. The mother had told police that the student told her in the car that the applicant “handled” her underwear then, when questioned further, that he “pulled on my underwear.” The student then got to a position where, according to her mother, she “couldn’t answer.” The magistrate asked the mother about this topic at the end of her cross examination:

“Q. I just have one question, witness. I’m little confused about your evidence concerned with when you say [the student] told you that her pants had been pulled.

A. WITNESS: So it was on that evening in the car I ask her, “What did he do”, and she told me that he had “done something to my underpants” and then I ask her what she meant and then she demonstrated the pulling to me.

Q. What language did she tell you that in?

A. INTERPRETER: We speak Cantonese.”

50. The mother’s evidence was inconsistent about whether the student had told her that the applicant pulled at her underpants, or whether she had showed her mother what he did. The mother maintained throughout, however, that the daughter had communicated to her, in the car, that the applicant had in some way pulled at her underpants, but had not pulled them all the way down.

51. In cross examination, the student said she was “very disturbed” in the car after the incident and also that her mother’s questions made her feel “a bit more uncomfortable.” The student’s emotional state following the lesson is relevant when considering why she did not disclose more detail to her mother at the time (including details about the applicant rubbing her bottom) and in considering what she did say.

52. The applicant’s counsel in the criminal proceedings suggested that the student’s credibility was damaged by her failure to disclose certain details to police which she later gave evidence about in court. These included that she “didn’t bother” to tell “the police about the underwear and the fact that it was moving.”

53. The police interview was conducted by way of a series of questions to which the student responded. Whilst the questions were generally not leading questions, they did direct the student to particular topics. For example, after she made a disclosure about being touched, the police officer then asked her about something else:

“Q. … And after that?

A. Well, while I was playing he touched me and then he left for around five minutes ---

Q. O.K.

A. … to the back door while I kept on playing.

Q. And so it’s a one hour lesson. Yes?

A. Yep.”

54. She was then asked very specific questions in the police interview about the touching, which did not encourage her to elaborate generally:

“Q. O.K. So what happened, what was the first touch? You, your back or your front?

A. Um, the back.”

55. At the end of the interview which lasted from 5.15pm to 6.15pm, and which included quite detailed questioning, the student was asked, “is there anything else that you feel that you should add before we maybe wrap up?” She replied, “Not that I can think of.”

56. The circumstance that the student was asked very specific questions for most of the interview provides a plausible reason for why she did not tell the police officers (for example) that the applicant rubbed her breasts, that the applicant touched her on the outside of her blouse rather than her blazer, or that the applicant pulled her underwear down by four to five centimetres. In relation to the place where the applicant put his hands (that is, over her blazer or on her blouse), she said in the criminal hearing that she did not tell the police because she “wasn’t asked.” The student’s evidence was also that she did not consider these details to be important.

57. The student was asked in cross examination about her failure tell police that the applicant pushed her underwear down. She explained that “in this case I was just telling them about him touching me and how he was doing it, so the rubbing up and down was all I said and not the underwear because it was not completely pulled down.” When asked further about this omission, the student said that when the police “interrogated” her, she “didn’t mention” the pulling of the underwear “because I wasn’t asked and I thought the main points that I had to get across like I said before was that he was touching me.” When questioned again about this the following day, she said: “at the time I thought the only thing I had to get through was that I was being touched at my breasts and my bottom."

58. The student’s explanations appear to us to be plausible, given the nature of the police questioning and having regard to her age. It is true that the police gave the student an opportunity to say anything additional at the end of the interview and she did not say anything about her underwear being pulled. However, in our view, it is not surprising that she did not volunteer this information after the end of an hour long interview in the early evening. Her evidence was that she thought she had already communicated what was important.

59. The magistrate considered that the student’s evidence that the applicant rubbed her bottom “up and down” appeared to contradict her evidence that he rubbed her bottom on the outside of her skirt in a circular motion. The part of the student’s evidence during the criminal trial where she used the expression “up and down” is as follows:

“Q. Now, because you know that he didn't touch you by the underwear at all, correct?

A. But - okay. You - thing is, the underwear was not pulled down but there was definitely a feel, that the - but the major thing that - that stood out to me was the fact like the feeling of him rubbing my bottom.

Q. You got the feeling when he's rubbing your bottom that he's pushing your underwear down, is that what you're saying?

A. Yes.

Q. You didn't say that to the police?

A. No.

Q. Don’t you think that was important?

A. The underwear moving up and down, and the rubbing, because in this case I was just telling them about him touching me and how he was doing it, so the rubbing up and down was all I said and not the underwear because it was not completely pulled down.”

60. We do not see any inconsistency between the student’s evidence that the applicant rubbed her bottom in a circular motion and that her underwear moved up and down when he did so. On the contrary, the moving of the underwear up and down is a foreseeable consequence of rubbing the back of the applicant’s skirt in a circular motion. We also consider that a twelve year old girl who had experienced a man rubbing her bottom might quite plausibly describe it in different ways, including rubbing her bottom up and down, rubbing it in a circular motion and pulling her underwear. If these descriptions of what occurred are not strictly consistent, that may simply reflect the student’s inability to communicate clearly what happened, rather than indicating that she is not truthfully reporting that the applicant touched her on the bottom.

61. Another relevant factor is that the applicant’s counsel suggested facts to the student in cross examination. This is likely to have affected the reliability of those parts of her evidence. For example, when asking the student about her evidence that she continued playing whilst the applicant touched her, the following exchange occurred:

“Q. Yes?

A. I was playing per normal.

Q. Normal?

A. Normal because the - the piece we were playing I did that for my allegro ma non presto, I did that for my exam.

Q. Yes?

A. So I'm well versed in it to be able to think while--

Q. But you didn't feel too upset to play?

A. No.

Q. You played well? Is that what you're saying?

A. I played normal.”

62. It is difficult to know how the student could have responded to the suggestion that she did not feel too upset to play, other than by agreeing to the proposition, given her evidence that she had continued playing whilst being touched. This did not mean, however, that she was not upset. As she explained it in a different part of her evidence:

“Q. You’re saying to this Court that you kept playing while he was rubbing your bottom. Is that right?

A. Yes.

Q. Would you agree with me that, if he was rubbing your bottom, it would cause you shock?

A. Before I get shocked, I need to process what’s happened and at that time, since this was the first time it’s happened to me, I don't know what was going on. I need time to think before I get shocked.

Q. But you said he did this for about ten seconds. Correct?

A. Yes.

Q. If he’s doing it for ten seconds, what, you kept playing the flute as if nothing had happened. Is that right?

A. To, to him it might seem nothing has happened, but in my head I can’t just instantly think up of a way, what to say, what to do in those ten seconds.”

63. She said that she did not scream out because “at that time I was - it was like a mind blank.”

64. This evidence indicates that the child was shocked and having difficulty processing what was happening to her. It appears from the student’s evidence and that of her mother that the emotional effects were gradual. In the car she said she was “already in like a really bad state” and “very disturbed.” That night her mother said, in her police statement, that it seemed like the student “just didn’t want to talk about it.” The next day, the mother said to police, the student was “annoyed and crying.” When giving evidence in court, the mother said that she let her daughter stay home the day after the incident “because she was really emotional that day.”

65. For these reasons, unlike the magistrate, we do not consider that it is difficult to reconcile the student’s evidence that she kept playing the flute whilst the applicant touched her and was not “too upset” to play (as she said in cross examination) with the evidence that she was disturbed by his touching.

66. Other matters which were suggested to the student by the applicant’s counsel affect the reliability of certain parts of her evidence. In an exchange in the criminal hearing between the applicant’s counsel and the student about how far the student’s underwear was pulled down, the following was said:

“Q. Well how far down was your underwear pulled?

A. Not far enough for me to need to pull it back up.

Q. More than 5 centimetres?

A. Maybe just around 5 - 4. 5.

Q. Around 4 of 5 centimetres it was pulled down, now that was a serious action wasn’t it? If he's pulling down your underwear?

A. Yes it would be.”

67. The applicant’s counsel effectively suggested that the student’s underwear was pulled down more than five centimetres, which provided a proposed starting point for the student’s consideration. Her tentative answer, “Maybe just around 5 – 4. 5” demonstrates some uncertainty. Her initial answer, that her underwear had not been pulled down far enough for her to need to pull it back up is a more reliable guide. The student’s answer that her underwear was pulled down by 4 to 5 centimetres, given over a year after the event, is plainly a retrospective assessment and may have been incorrect. If so, that would not, in our view, affect her credibility more generally.

68. We have approached the evidence about how far the student’s underpants were pulled down with some caution, given that a measurement was suggested to her, she would not have been in a position at the time to measure the distance and she was being asked to consider this a year after the incident occurred. In these circumstances, we would not draw any adverse inferences as to the student’s credibility from her failure to mention, in her police statement, that the rub of her bottom pulled her underwear down four to five centimetres. That is particularly so given the method of questioning adopted by the police in the interview, as discussed above.

69. We agree with the magistrate that it there is some implausibility about the student’s evidence that she could see the applicant’s palms whilst he had his hands on her breasts, if her account is to be accepted. However, it is not entirely implausible. She may have looked down and may have seen his palms as he put his hands on to her breasts or as he was removing them. She could also have seen the applicant’s palms if he had rested the edge of his hands on the lower part of her breasts and had them angled away from her. Alternatively, she could have been wrong about seeing the palms of the applicant’s hands.

70. Inconsistencies and errors of memory in a complainant’s account do not necessarily indicate that the complainant was being untruthful about the occurrence of an indecent or a sexual assault. In Reed v R [2006] NSWCCA 314 at [63]-[64], Spigelman CJ, with whom McClellan CJ at CL and Sully J agreed, said:

“Credibility issues involve questions of reliability and of veracity. It is sometimes important to distinguish between them.

Cross-examination of sexual assault complainants often proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail. This approach is, in my opinion, rarely appropriate. Memory of surrounding detail has few if any implications, in my opinion, for a person’s reliability about the central details of a traumatic event. The psychological assumptions that appear to underlie much cross-examination have no scientific basis and, indeed, are contrary to what we do know about human memory. (See eg Richard J. McNally. Remembering Trauma Harvard University Press, Cambridge, Massa., 2003 esp at pp 48–62.) There was no miscarriage of justice arising from any inability to cross-examine the complainant on her reliability as a witness.”

71. If it were the case that the student was wrong about seeing the palms of the applicant’s hands (for example), that would not, in our view, detract from our assessment of her veracity. It would mean that her account of the details of the incident was not entirely reliable. However, it would not mean that she was not telling the truth when she claimed that the applicant had touched her breasts and rubbed her bottom.

72. There is no plausible reason, in our view, why the student would have invented the allegations. The applicant suggested that it was because her mother was late in paying his fees, but that is not, to our minds, persuasive. The student gave evidence that she had the money for his fees on the day of the incident, but did not give them to him after the incident occurred. They were paid shortly after the incident. The student maintained that the applicant touched her on the bottom and breasts throughout cross examination and we consider that her account is believable.

73. As indicated earlier, the student immediately sent her text message to her mother after the lesson in Mandarin, saying “Mum, I’m feeling not very safe right now, I’ve just been touched.” This supports her account. So too does the circumstance that she told her mother some details of what had occurred in the car on the way home from the lesson. The contemporaneous reporting of the incident is a factor which indicates that it is likely to have happened.

DNA evidence

74. The Tribunal has before it the transcript of the cross examination of two experts who gave evidence at the criminal hearing about the DNA evidence. The Tribunal does not have before it the expert reports which were tendered at the criminal hearing.

75. Ms Virginia Friedman, a senior forensic biologist employed by the New South Wales Forensic and Analytical Science Service, gave evidence for the prosecution in the criminal proceedings. She said that two tape lifts had been taken from the upper part of each side of the student’s blouse and the DNA analysed and compared with the applicant’s DNA.

76. Ms Friedman said that, in relation to the tape lift from the left side of the blouse, they had recovered the DNA of a female as well as DNA from additional contributors. However, due to the low levels of DNA from the additional contributors, it was not possible to saying anything about them. She considered, however, that it was “reasonable to assume” that the applicant may have been one of the minor contributors to the left side of the blouse, given that he was a contributor to the right side.

77. In relation to the right side of the blouse, there was DNA from more than one person. In terms of male contributors, the major contributor had the same profile as the applicant. Ms Friedman said that this was consistent with the applicant touching the student’s blouse. However, his DNA could also have been transferred through secondary or tertiary means (such as by the student touching something the applicant had touched). She said that “primary transfer is the most likely way that DNA gets onto something.” She also gave evidence that DNA was not transferred on every occasion that there is direct contact with an object and that she would not necessarily have expected to find DNA on the left side if the applicant had touched both of the student’s breasts. This was because one uses one’s hands differently.

78. Ms Helen Roebuck, a principal forensic scientist, gave evidence for the applicant in the criminal proceedings. It was her view that the applicant’s DNA could be excluded from the mixed DNA profile in relation to the left side of the blouse, but that his DNA was present on the right side. Ms Roebuck considered that the applicant’s DNA could have been deposited by way of secondary transference. She also agreed that, in general terms, “you’re more likely to find DNA as a result of direct transfer” than primary or tertiary transfer. She said, however, that she could not infer whether the applicant had been in direct contact or whether it was a secondary contact.

74. On the one hand, the presence of the applicant’s DNA on the right side of the blouse supports the student’s account. On the other hand, this is not determinative, because the applicant’s DNA could have been deposited there by way of secondary transference. The magistrate stated that she was “uneased by the absence of any male DNA on the tape lift from the left blouse pocket.” However, Ms Friedman’s evidence was that she would not necessarily expect his DNA to be present on both sides of the blouse, even if he had touched both of the student’s breasts.

75. We consider that the DNA evidence does not greatly assist either party. We have treated it as a neutral factor.

Motive

81. The applicant relies upon a lack of motive to commit the offence. However, it may be inferred, if the applicant did indecently assault the student, that his motive was sexual gratification. We accept that there is no evidence, other than the alleged offence itself, to indicate that the applicant was sexually interested in the student.

Good character

82. A factor which weighs against the likelihood that the alleged offence occurred is that the applicant has taught flute for thirty years without any known complaints. He has also given evidence that he has never had a complaint made against him. The absence of previous complaints makes it less likely that he would indecently assault a child at this point in his career. There are no circumstances known to us which would explain this change in his behaviour.

83. The applicant has provided the Tribunal with many references supporting his good character. One reference is from a former student, now a teacher, who states that she has only heard about positive students he has had with this students and others. A friend who has known him since about 1988 states that the applicant has always impressed him as a man of integrity and honesty. The father of one of the applicant’s flute students, who has known him for eleven years, also states he has never heard any criticism of the applicant or his teaching. Other referees who have known the applicant for a long time state they have never heard of any complaints about him.

84. These references weigh in favour of the applicant’s account.

Applicant’s evidence

85. In his statutory declaration of 10 July 2018, the applicant denied engaging in the alleged conduct. He stated that there has never been any issue with his contact with children apart from the student’s complaint.

86. The applicant also denied that the incident occurred at the Tribunal hearing. His evidence was given through an interpreter, and via audio visual link, and we have made due allowance for both of these factors.

87. Counsel for the Children’s Guardian, Ms Giacomo, submitted that the applicant was evasive when giving his evidence, that he was unwilling to make obvious concessions and was unable to recall significant events that it would be expected he would be able to recall. She invited the Tribunal to draw the inference that the applicant was unwilling to give evidence that was not helpful to his case. She also submitted that it was open to the Tribunal to find that the applicant gave contradictory evidence, false evidence and was not frank with the Tribunal.

88. We find that the applicant was not always candid in his evidence.

89. The applicant lacked candour when giving evidence about proceedings for an apprehended domestic violence order brought by his ex-wife in 2004. Family and Community Services (as it then was) (“the Department”) provided redacted documents to the Children’s Guardian in response to a notice under s 31 of the Child Protection (Working with Children) Act. These were filed by the Children’s Guardian on 19 February 2020. These documents contained reports to the Department about the welfare of the applicant’s children.

90. The documents contained allegations made against the applicant around 2005 and 2006. These included that the applicant and other male residents in his home were often intoxicated to the point of vomiting whilst looking after the children; that men living with the applicant blew smoke in the children’s faces; that the men often presented themselves in their underwear; that the applicant made the children bathe together and allowed them to touch each other’s private parts; that his children slept in the same bed as the applicant when they stayed at his house; and that he sometimes did not give them breakfast before they attended school.

91. The applicant’s witness statement dated 13 May 2020 stated that he had complained to the Department about his ex-wife’s care for the children and that it appeared from the documents that, although the caller’s name was redacted, the complaints about his care of the children were made by his ex-wife. He denied the allegations made about him both in that witness statement and in cross examination.

92. We have not given these allegations any weight. There is no independent, corroborative evidence to support them and they are hearsay.

93. The documents also referred to an AVO taken out against the applicant to protect his ex-wife. The applicant stated, in his witness statement, that his ex-wife “requested an AVO” around 2004 and that he attended court “a number of times which I recall were mentions at Fairfield Local Court.” He added: “There was an interim order that continued. This interim order was never made final.” He stated that he “consented to the interim AVO with no admissions” and that it expired within about six months.

94. The following exchange occurred in cross examination:

“Can you recall an application being made against you in December 2004 by your wife in which she sought a restraint against you?

A. No, I don't remember that. I only became aware of it just now. And, I want to say that there was never a AVO order in place.”

95. Counsel for the Children’s Guardian pointed out to the applicant that he had provided evidence in his witness statement about the AVO proceedings and asked him to read the relevant paragraphs. The cross examination continued as follows:

“Q. Having read those three paragraphs, Sir, do you still maintain the oral evidence that you gave a short moment ago that the first that you knew of the AVO was when I asked you questions about it?

A. Firstly, I became aware of it because of the social welfare department. Right now I still maintain my position because the police or the court has never talked to me about this matter.

Q. Sir, in the evidence that you filed in your witness statement you say that you consented to an interim order, didn’t you?

A. That was more than ten years ago. When we – and, maybe during that time, when I was thinking back about what happened that many years ago in – in my witness statement I was thinking that – that may have happened. That’s a possibility.”

96. When asked about it again, he explained that in his witness statement he “was just trying my best to recall” the AVO and “it may have happened. There’s some possibility of it happening.”

97. The applicant’s tentative evidence about whether or not the AVO was ever made, in cross examination, is in stark contrast to the unqualified acceptance that it was made in the applicant’s witness statement, made only about two months before the hearing, and the details provided by him about it. We conclude that the applicant’s unwillingness to admit that the interim AVO was made in cross examination is due to a reluctance to agree to any proposition which he considered to be unfavourable to his case.

98. The Departmental documents included an interview with the applicant’s ex-wife and daughter in 2016, following the allegations made against the applicant. In that interview the applicant’s ex-wife said the children had not seen him since 2005.

99. In his statutory declaration dated 10 July 2018, the applicant stated that “[a]lthough divorced, the mother of my children and I have worked amicably in raising our children.” He made no mention of not being in contact with his children. The applicant had not in fact had any communication with either of his children since 2010 and had not seen his daughter since 2007. In 2010, his son was about sixteen and his daughter was about twelve. It was not until after the Children’s Guardian had served the documents from Family and Community Services in February 2020, that the applicant made a witness statement stating that he had last seen his children in 2010. He responded to his ex-wife’s claims by providing photographs of himself and his children in 2007 and his son in 2008 and 2010.

100. Mr Hudd, a psychologist, prepared a risk assessment for the applicant in August 2019. In that report, Mr Hudd stated, “I understand that [the applicant] is on good terms with both of his children and in constant communication with them.” When the applicant was asked, in cross examination, about what he told Mr Hudd, he said that he had told Mr Hudd that before 2010 he had constant communication with his children. The applicant agreed that he did not attempt to correct Mr Hudd’s apparent misunderstanding after he had received his report, even though he instructed Mr Hudd to prepare a supplementary report.

101. Mr Hudd said, in cross examination, that the applicant had given him “the impression” that he was in constant communication with his children. Mr Hudd did not recall being told that the applicant had not spoken to them since 2010.

102. We consider that the statement in the applicant’s statutory declaration that he and his ex-wife worked amicably in raising their children is, at best, misleading. He and his wife separated in about 2000 and the children lived principally with their mother from that time. The Departmental records point to there being considerable tension between the two about the upbringing of the children. The applicant had no role in raising his children after 2010 and a very minimal role in raising his daughter after 2007. The statement gives the impression that he had a continuous role in raising his children until adulthood and that he did so harmoniously with his ex-wife.

103. We also find that the applicant told Mr Hudd that he was in constant communication with his children, despite not having had any contact with them since 2010. This is consistent with his conduct in making a misleading statement in his statutory declaration about his role in raising his children. There is no reason why Mr Hudd would record that the applicant was in constant communication with his children if the applicant had not told him this. We consider it is unlikely that Mr Hudd would have forgotten if the applicant had told him that he had not had contact with his children since 2010.

104. The misleading information the applicant gave to Mr Hudd is, indirectly, a way of misleading the Tribunal. That is because Mr Hudd’s report is based in part upon what the applicant told him and it was prepared for the purposes of these proceedings.

105. We also accept the Children’s Guardian’s submissions that the applicant was, at times, evasive and argumentative when giving evidence. One example of the applicant being argumentative is in the following exchange with Ms Giacomo:

“Q. Sir, I want to suggest to you that the application that was made by your wife in 2004, the basis for her application was a complaint that you were coming to the residence in which she lived, and were yelling abuse at her and making threats to her.

A. If I remember clearly, Ms Lawyer, you have asked this question many times, multiple times. I have told you before, the property there, the downstairs was a child care centre. I didn’t attend her residence to yell at her.

Q. [Applicant’s name], I would like you to listen to the question carefully, and answer the question. You - - -

A. I’ve answer you – I’ve been answering your questions very carefully.”

106. Another example is as follows:

“Q. Given [the student’s] experience in playing the flute, and the years that she’d been playing it for, it would have been quite rare, wouldn’t it, for you to touch her during a lesson – to touch her to correct, say, her posture?

A. I want to repeat it once again. I respect the Australian legal system. I have answered and explained myself very clearly in the Local Court already. If you have any further questions please check the evidence that I’ve given in the Local Court.”

107. This evidence was not helpful. The applicant’s argumentative responses do not necessarily indicate that he was not telling the truth. These and other responses do, however, give some support to the Children’s Guardian’s submission that he was unwilling to make concessions.

108. We accept the submission made on behalf of the Children’s Guardian that the unsatisfactory nature of the applicant’s evidence, particularly in relation to his children and the AVO, makes it more difficult to accept his evidence on the key issue of whether he indecently assaulted the student.

Conclusion that alleged incident happened

109. We find that it is more likely than not that the applicant touched the student on her breasts and on her bottom during a lesson, as she alleged. The reasons why we have come to this finding are set out above. In summary:

1. the student’s account is credible;

2. there are plausible reasons or explanations for most of the discrepancies or omissions in her evidence, and the differences between her evidence and that of her mother;

3. errors of detail in the student’s account, if they are errors, are not in our view indicative of untruthfulness, and do not suggest that she was wrong about the central allegations, that the applicant touched her on her breasts and bottom;

4. there was no plausible reason put forward as to why the student would have invented the allegations;

5. the student reported the alleged incident to her mother as soon as the lesson finished;

6. there were aspects of the applicant’s evidence in these proceedings which were not credible, his evidence before the Tribunal was not entirely candid and he tended to respond to questions in cross examination in ways he thought would assist his case;

7. the applicant’s long history of teaching without any complaints being made against him, and the references as to his good character, were outweighed by the considerations referred to above.

110. In her closing submissions, the respondent’s counsel, Ms Giacomo, submitted that the Tribunal could find that the applicant touched the student on the breast and that he “may have” touched her on the bottom.

111. We find, on the balance of probabilities, that the applicant touched the student on the breasts and on her bottom. We do not consider that there is any breach of procedural fairness in coming to this finding, in light of the more qualified finding the respondent invited in her closing written submissions. That is because, in her opening submissions, the Children’s Guardian put that the student had maintained throughout lengthy cross examination that she had been touched on the buttock by the applicant, and that the evidence supported a finding that the applicant engaged in the conduct with which he had been charged. The applicant had a reasonable opportunity to respond to that submission.

Section 30(1) factors

112. The Tribunal is required to consider certain matters under s 30(1) of the Child Protection (Working with Children) Act when determining an application under Part 4 of that Act. These matters are relevant, where applicable, to the question of whether an applicant poses a risk to the safety of children. In this case, there is no order of a court or tribunal that is in force in relation to the applicant (s 30(1)(i1)) and no relevant information in relation to the applicant was obtained in accordance with s 36A of the Act (s 30(1)(j1)).

113. The other s 30(1) matters are considered below.

The seriousness of the matters that caused a refusal of a clearance and the seriousness of the applicant’s criminal history (s 30(1)(a), (h))

114. The applicant does not have a criminal record. The only relevant criminal or quasi-criminal matters are the charges concerning the alleged indecent assault, which were dismissed, and the interim apprehended violence order. We have not given any weight to the interim apprehended violence order in circumstances where the ex-wife has not given evidence and no final order was made.

115. The offence with which the applicant was charged was serious, as the applicant has conceded in his written submissions. We have given this factor a significant amount of weight, in light of our finding that the alleged conduct occurred.

The period of time since those matters occurred and the applicant’s conduct since they occurred (s 30(1)(b), (h))

116. The alleged conduct occurred in June 2016. There has been no similar conduct before or afterwards. The applicant has not been working with children since that time.

117. The applicant has not relied in his submissions upon any positive conduct since the alleged offence. There was very little evidence of his conduct since June 2016.

The age of the applicant when the alleged conduct occurred and his present age; the age of the student at the time and matters relating to the vulnerability of the student; whether the applicant knew that the student was a child; and the difference in age between the student and the applicant and the relationship between them (s 30(1)(e)) (s 30(1)(c), (d), (f), (g))

118. The applicant was 52 years of age at the time of the alleged indecent assault and the student was twelve, making a difference of 40 years. The applicant is now about 57 years old. The applicant knew that the student was a child. They had an established relationship of music teacher and student. The student was vulnerable because she was alone with a middle-aged man and in his care. There was a power imbalance in that he was a teacher with authority and she was a child.

The likelihood of any repetition by the applicant of the conduct and the impact on children of any such repetition (s 30(1)(i))

119. We consider that there is a risk that the applicant will repeat the conduct or engage in similar conduct with a child.

120. As indicated above, Mr Hudd, a psychologist, completed a risk assessment report in relation to the applicant in August 2019 and provided an addendum to this report in May 2020. In his primary report, Mr Hudd expressed the opinion that the applicant’s “risk to sexually behave inappropriately with children is extremely low.”

121. During cross examination, Mr Hudd gave evidence that he had never provided a risk assessment report for working with children proceedings in the past, and that he had no training specifically in the area of conducting assessments as to the degree of risk a person poses to the safety of children. He had, however, prepared risk assessments for criminal proceedings for the purposes of sentencing.

122. Mr Hudd had been provided with only a limited amount of the evidence before the Tribunal. He could not recall reading the police interview with the student or any of the transcript of the four hearing days in the criminal proceedings. He had read the transcript of the magistrate’s judgment. He did not have, before him, any of the material containing the allegations made by the applicant’s ex-wife against the applicant.

123. Mr Hudd agreed that, in order to discuss in detail the student’s complaint with the applicant, it would have been helpful to have read police interview with the student and the transcript of the cross examination of the student. He also agreed with counsel for the Children’s Guardian that he had applied the risk assessment tool, the STATIC-99, on the basis that the alleged offending conduct did not occur. He said that, if it had occurred, he would have to re-do the assessment. He conceded that, if he had a copy of the police interview, a transcript of the student’s evidence, and a copy of the complaints made by the applicant’s ex-wife, he would want to re-interview the applicant for the purposes of his assessment.

124. Given the concessions made by Mr Hudd in cross examination, we place little weight on the opinion expressed in his report that the applicant poses an extremely low risk to children. That is in the context that we have made the finding that it is more likely than not that the offending conduct occurred and he agreed that, if that was the case, the original assessment would need to be revisited.

119. If the applicant were to engage in similar conduct again, the impact on a child victim would likely be significant. An indecent assault is generally a traumatic event for a child and a major breach of trust when the child is a student of the person committing the assault.

Any information given by the applicant in, or in relation to, the application (s 30(1)(j))

126. In his written submissions, the applicant relies, in relation to s 30(1)(j) of the Child Protection (Working with Children) Act, upon his witness statement dated 13 May 2020. We have taken this into account and, as indicated above, have not given his ex-wife’s allegations against him any weight. The witness statement deals in detail with these allegations.

127. We have also had regard to the references attesting to the applicant’s character and the applicant’s submissions more generally.

Any other matters that the Children’s Guardian considers necessary (s 30(1)(k))

128. The Tribunal has addressed the significant matters raised by the Children’s Guardian in these reasons.

Conclusion

129. We find that the applicant poses a real and appreciable risk to the safety of children. It is possible that, having engaged in the conduct of touching a child on her breasts and bottom, and then having gone through a criminal prosecution and these proceedings, the applicant would never behave in such a way again. However, in circumstances where he continues to deny that the offence occurred and has not shown any insight into his behaviour, we cannot be confident that this is the case. He has had no counselling to assist him to understand his behaviour and has not expressed remorse.

130. We note that if, contrary to our view, it is not open to us to make the finding that the applicant touched the student on the bottom, due to the respondent’s apparent concession in her closing submissions, it would not make any difference to our conclusion. Having found that the applicant touched the student’s breasts, we consider that he poses a risk to the safety of children, irrespective of whether he also touched her bottom.

131. As we have concluded that the applicant poses a risk to the safety of children, it is not necessary for us to go on to consider the s 30(1A) factors. However, in case we are wrong about risk, we are not satisfied that a reasonable person would allow his or her child to have direct, unsupervised contact with the applicant while the applicant was engaged in any child-related work. This is because we consider that a reasonable person who had read the transcript of the criminal proceedings and was aware of the other evidence before the Tribunal would be concerned that the applicant might behave with his or her child in the way the student alleged that he behaved towards her.

132. For these reasons, we have decided to affirm the Children’s Guardian’s decision.

Orders

133. We make the following order:

1. The decision of the Children’s Guardian is affirmed.

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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: 21 October 2020