FZ v Commission for Children and Young People (No 2)
[2013] NSWADT 22
•30 January 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: FZ v Commission for Children and Young People (No 2) [2013] NSWADT 22 Hearing dates: Written submissions closed 10 August 2012, On the papers Decision date: 30 January 2013 Jurisdiction: Community Services Division Before: L. Goodchild, Judicial Member Decision: The Act is not to apply to the applicant in respect of the offences of aggravated indecent assault committed on June 2008.
Catchwords: Declaration that the applicant is not a prohibited person. Legislation Cited: Commission for Children and Young People Act 1998
Child Protection (Prohibited Employment) Act 1998
Child Protection (Working with Children) Act 2012 No. 51
Child Protection (Working with Children) Regulations 2012Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476
Commission for Children and Young People v IK & Anor [2005] NSWSC 136
Commission for Children and Young People v UR [2007] NSWSC 1099; 173 A Crim R 300
Commissioner for Children and Young People v FZ [2011] NSWCA 111
R v Commission for Children and Young People [2002] NSWIRComm 101Category: Principal judgment Parties: FZ (Applicant)
Commission for Children and Young People (Respondent)Representation: Counsel
M Avennall (Applicant)
M Higgins (Respondent)
Logical Legal (Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 104026 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies.
reasons for decision
On 29 September 1982, the Applicant was convicted of one count of unlawful sexual intercourse, contrary to s61D of the Crimes Act, 1900. This is referred to as the 'index offence'. The victim was an 11-year-old boy. The offence was committed on 25 August 1982. The facts disclose that the applicant both threatened the boy with violence and was actually violent towards the boy.
As a result of the commission of the above serious sex offence, the Applicant, who will be referred to by the pseudonym "FZ", is a prohibited person.
Section 33E of the Commission for Children & Young People Act, 1998 ("the Act") prevents an employer from employing the plaintiff in child related employment because of his conviction for this offence. The plaintiff wishes to return to bus driving, including employment on school buses, which is defined by inclusion in s33 (1)(a)(xvi) of the Act as child related employment.
On 22 April 2008, the Plaintiff applied for a declaration that the Act did not apply to him with respect to the offence. That application was dismissed on 14 October 2009. Deputy President Britton determined that the Applicant had not discharged the onus of establishing on the evidence that he was not a risk to the safety of children.
By Summons filed on 10 December 2009, the Applicant appealed from that decision to the Supreme Court of New South Wales. The Supreme Court allowed the appeal, set aside the decision of the Administrative Decisions Tribunal, and remitted the application to this Tribunal differently constituted for decision according to law.
The Respondent appealed the decision of the Supreme Court to the Court of Appeal. The Court of Appeal heard the appeal on the 5 April 2011 with judgment delivered on the 9 May, 2011 granting leave to appeal and dismissing the appeal: [Commission for Children & Young People v FZ [2011] NSWCA 111 Hodgson JA, Young JA and Handley AJA].
These proceedings are the remittal of the Applicant's application.
This matter on remittal proceeded to hearing in February, March and May of 2012, with any further written submissions to be filed by the parties, by August 2012.
On 18 May 2012, I delivered a decision with respect to a preliminary issue regarding the admissibility of evidence sought to be tendered by the respondent.
After the determination of that preliminary issue, it was agreed between the parties that these proceedings proceed by way of an agreed bundle which included the evidence of the applicant, the evidence of the respondent and the exhibits from the proceedings before the tribunal in May of 2009, the written submissions from the Applicants and the Respondents from 2009 and 2012. The parties relied upon the transcript of the proceedings heard on 19,20 and 21 May 2009.
I have had regard to all of the evidence and the transcript of the 2009 proceedings. I have also had regard to the oral evidence given by the parties experts during the hearing of the preliminary matter. I will expressly refer only to those parts of the evidence and transcript that I consider to be of critical import to the making of my determination.
The Legislative Framework
Section 33I (1) of the Act provides that the tribunal may make an order declaring that the Act does not apply to an act in respect of a specified offence. Section 33I (6) provides that an order may be made subject to conditions. Section 33J(1) provides that the tribunal is not to make an order on a review application under s33I (1), unless it is satisfied that the person, the subject of the application, "does not pose a risk to the safety of children". Section 33J(2) provides that it is to be presumed that the applicant poses a risk to the safety of children unless he or she can prove the contrary. In deciding whether or not to make an order under s33I, the tribunal must take into account the following matters in s33J (3):-
33J Matters to be considered in determining review applications
(1)...
(2)...
(3)In deciding whether or not to make an order in relation to a person, the Commission or a relevant Tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(b) the period of time since those offences were committed,
(c) the age of the person at the time those offences were committed,
(d) the age of each victim of the offences at the time they were committed,
(e) the difference in age between the prohibited person and each such victim,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the prohibited persons present age,
(h) the seriousness of the prohibited persons total criminal record, and
(i) such other matters as the Commission or tribunal considers relevant.
In determining the application, in accordance with s32 of the Act, I am required to give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from child abuse.
In these proceedings before the Court of Appeal, it was confirmed that the exercise of the Tribunal's jurisdiction under section 33I of the Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. The purpose of this Act is not to impose additional punishment on a prohibited person, but to eliminate possible risks to children. The repealed Child Protection (Prohibited Employment) Act 1998 (the "CPPE Act") had a similar purpose: see R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The test under the CPPE Act was considered by the Supreme Court (see, for example, Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476; Commission for Children and Young People v IK & Anor [2005] NSWSC 136; Commission for Children and Young People v UR [2007] NSWSC 1099; 173 A Crim R 300).
Young CJ (in equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 considered the meaning of the word "risk" in s 9(4) of the CPPE Act. His Honour adopted Haylen J's analysis in R vCommission for Children and Young People [2002] NSW IR Comm 101. Haylen J said that s 9(4) was focused on:
"Not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights."
(Commission for Children and Young People v V [2002] NSWSC 949 at [22]:
With respect to the content and scope of 'risk', his Honour held at [42] that "risk" in the context of s 9(4) meant a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child "... one must link the word 'risk' with the words that follow, namely, 'to the safety of children'.
Section 33J(3) factors
Risk Factors
At the time the application was lodged, FZ was 43 years of age. He would now be in his 48th year. He was 17 years of age when the index offence was committed. The victim was an eleven-year-old boy. It is not an issue that the Applicant knew that the victim was a child. As at the time of these proceedings, almost 30 years have elapsed since the index offence was committed.
Index Offence
In September of 1982, the Applicant, after entering a plea of guilty, was convicted of one count of unlawful sexual intercourse, contrary to s61D of the Crimes Act, 1900. The evidence tendered by the Respondent in these proceedings discloses in a statement given by the victim to the police the day after the incident, that the victim told the police that the applicant had offered him $50.00 to help him with some odd jobs, that when alone, the applicant had said to him; "Do what I tell you or your head will go through the wall"; that he had forced him to strip down and demanded that he perform fellatio and when he did not, he threw him against the wall causing the boy to hit his head.
The boy stated that the Applicant forced him to perform fellatio three times. The boy also stated that the Applicant hit him in the face and punched him hard in the stomach and the jaw.
Under cross-examination in these proceedings, the Applicant, whilst confirming his plea of guilty, disclosed a very limited recollection of the offence. He denied offering the boy money. He claimed he would not have had that sort of money at the time. He denied hitting the boy. He denied threatening the boy. The Applicant purported to have a very poor memory of the event.
The offence is a serious offence, the aggravating features being violence and the age of the victim.
Seriousness of Applicant's Total Criminal Record
In addition to the index offence, the Applicant had been convicted of a number of offences. His criminal record did not disclose that any of those offences involved violence or sexual violence.
In 1998, the Applicant was convicted of "driving in a manner dangerous" and was placed on a good behaviour bond, fined $1,000.00 and was disqualified from driving for two years.
He was convicted in 2000 of impersonating a police officer and offensive language and was fined $100.00.
He was also convicted of a social security offence and was placed on a community service order.
For the purposes of my determination in these proceedings, these offences are of little relevance.
Character evidence
The Applicant relied upon a number of character references. They are somewhat outdated now. Some were sourced in 2008 and another sourced in 2004. None disclose on their face knowledge by the author of the purpose of the testimonial. I can place little weight on them for the purposes of character.
The Applicant sought weight be placed on the testimonial from a former employee in the bus industry stating that FZ was a reliable and responsible employee. The Applicant contends that throughout his long period of employment as a bus driver, there have been no complaints made about him. It is certainly the case that there is no evidence before this Tribunal that there have been any complaints made about the Applicant arising from his involvement in his chosen profession.
Testimonials from family members speak of the Applicant as being caring and a much-loved uncle of nieces and nephews.
Other matters
The Respondent relied upon a witness statement of VB. This statement is dated 16 October 2008. The deponent signed this statement. By this statement VB deposes to having met the applicant in June/July 1995 when the applicant was the driver of the bus that she and her daughter regularly caught. VB states that after a period of months the Applicant and her started a relationship. VB stated that the applicant would visit her at her house but would always go back to his house late at night.
VB deposes in her statement that around 1996 on a Saturday afternoon after hanging washing on the line in the back yard she came into the house and walked into her daughter's room and saw the applicant without his shirt on and touching her daughter on her private parts. She states in her statement that when she raised the matter with FZ, he punched her and broke two of her ribs. She states that the applicant took her to the doctor and he insisted that he accompany her into the doctor's room. She states that she told the doctor that she had hurt herself by falling.
VB states that the relationship with the Applicant ended for a period of time. VB states that she did not report the incident to the police because the Applicant lived around the corner from her and she was "scared about what he would do". She states that after a while they resumed contact after she had seen the Applicant in the street. She states "He promised not to be violent and that he would not touch my daughter anymore so we began to see each other again on and off throughout the years leading to 2000".
She states that FZ was frequently violent towards her and her daughter. She further says that FZ hit her daughter with a walking stick on one occasion and on another occasion hit her with a ruler and that she herself was subject to frequent beatings by FZ. She alleges that in 2000, she took her daughter to a police station because she was concerned about complaints made by her daughter that FZ was saying sexually inappropriate things to her. She says that her daughter became scared of FZ.
She states that she obtained an Apprehended Violence Order for the protection of her daughter. After the AVO was issued, the relationship between FZ and VB terminated. The AVO included orders that FZ not contact VB for a period of two years.
VB was cross-examined during the 2009 proceedings. I have had regard to the transcript of her examination and her cross-examination. In cross-examination VB agreed that her recollection of the events of February 1996 was 'vague'. She agreed that when she walked into her daughter's room she could not see the Applicants arms, or hands and when it was put to her that she was "not sure that you saw him touch your daughter", she stated "That is correct". Despite the evidence contained in her statement with respect to the allegation that the Applicant had inappropriately touched her daughter, VB's evidence in cross-examination was as follows:
Q. Do I take it from that, that you are not sure that you saw him touch your daughter?
A. Because I cannot really remember back that far.
Q. But you reached the conclusion, did you, that he was touching her inappropriately?
A. When he left I had a suspicion and my daughter told me that mummy, she told me that, she looked scared and she just wanted to go and have a shower.
Q. Do I take it from that, that you formed the opinion that he had been touching her inappropriately?
A. Yes.
Q. From the way she was acting?
A. Yes.
Q. And she did not say anything specifically to you?
A. No
The transcript discloses no explanation given either in cross examination or re-examination as to why, despite the content of the statement made by VB in October 2008, VB was unsure in cross-examination in May 2009 of what she saw the Applicant do to her child.
VB alleges that the abuse of her child by the Applicant occurred during the period of 1995 to 2000. No action was taken by VB prior to 2000. Despite the knowledge of the alleged abuse, VB continued to see the Applicant 'on and off' throughout the years leading to 2000.
VB was cross-examined regarding comments made to the Department of Community Services ("the DOCs") in 1995. It is reported that she told the DOCS staff that her child had had cardiac problems and that the child was to have cardiac surgery. The fact of telling DOCS was recorded in records produced by it. In cross-examination VB denied that she made the allegations and she denied telling the DOCs those things.
VB stated that in her cross-examination, that at the time of a visit to the hospital, the Applicant hit her daughter on the backside with a ruler. She stated in her cross-examination that she told the Department about that incident and also the hospital. There was no record of the DOC's being informed of the assault in the DOCS notes relevant to that incident.
VB identifies in her cross-examination incidents of extreme violence between herself and the Applicant. She stated that these alleged assaults were never reported to the police. She states the reason for not reporting the assaults to the police was because she was in fear of the Applicant. It is noteworthy that during this period of time, the Applicant was not residing with VB. He was residing in his own accommodation. In cross-examination, she alleged that the Applicant constantly followed her and her child. Within six months of the relationship in 1996, she stated that the Applicant was waiting outside her house every day. When it was suggested to her that she could have phoned 000, she responded that she tried, "but he snatched the phone from me". She alleged she was thrown down a set of stairs by the Applicant. When cross-examined as to why such a serious accusation was not in her statement, she responded; "no, because I just keep it to myself". VB stated that on occasions she rang the police and she told the police that she was having trouble with FZ. She was unable to recall with any specificity when she made those calls. She was unable to recall what she told the police. The police records tendered contained no corroborative material.
Not having heard the witness' evidence in person, I am not able to make any comments about her demeanour. However, it is clear from the transcript of her cross-examination that VB was a poor historian. VB referred to matters in her cross-examination that are of significance for the purposes of these proceedings and those matters are not referred to in the statement that she prepared for these proceedings. The allegations made by VB in her statement with regard to the Applicants inappropriate touching is an allegation that goes to a core issue in these proceedings. This very serious allegation made by VB in her statement is resiled from in her cross-examination. No satisfactory explanation is given for the failure of the witness to recall the incident. There is no independent corroborative evidence of the allegations made by VB against the Applicant. In those circumstances, given the nature of the allegations and the lack of specificity, the contradictory versions, no weight can be placed on the assertions made by VB in her statement and her oral evidence that the Applicant was seen to be inappropriately touching the daughter.
It is inexplicable in circumstances of repeated serious physicals assaults alleged to have been perpetuated by the Applicant on both VB and KB, that police action was not taken.
Further, whilst in no way determinative of the assessment of the evidence given by VB, I have had regard to the observations made by the then Deputy President Britton having observed VB give evidence, that VB's demeanour as a witness was unpersuasive and gave rise to the impression that she was exaggerating her evidence for effect.
The Applicant was cross- examined. I have had regard to the transcript of his cross-examination and whilst no observations can be made by me of the demeanour of the Applicant, I note the observations made by the then Deputy President that the prevarication of the Applicant in answer to questions, the fact of the Applicant making few concessions and of him being defensive and evasive, taken together with other cogent evidence, tended to undermine the credibility of the evidence of the witness. The Deputy President found the Applicant to be an unsatisfactory witness.
A close review of the transcript of the evidence given by the Applicant in 2009 discloses that FZ made few concessions in his evidence before being forced to make them when presented with objective evidence establishing the fact of the matters.
The reports of Drs Westmore and Allnut disclose the Applicant as being reticent in discussing his offending behaviour. This is not only confined to the behaviour with regard to the index offence but also with regard to the other matters that appear on his criminal record. It is not uncommon for persons who have been convicted of such offences to be hesitant about discussing the circumstances of the offence. The index offence occurred in 1982 and the Applicant maintained he had little recollection of the incident. In cross-examination he agreed that he had pleaded guilty to what was alleged by the victim at the time. He denied he would have offered the boy money.
His responses in cross-examination to questioning regarding the sending of SMS to VB also suggest the Applicant is a poor historian, and that he is attempting to present his evidence in a light that reflects as positively as possible on him. The police COPs report at Exhibit R2 records the attendance at the Campbelltown Police Station of VB and her daughter KB. The attendance at the police station relates to a complaint made by KB of a sexually explicit sex message. The message was sent from the Applicants phone to VB's phone that had been provided to KB. There is no evidence that the text message was intended for KB.
The Applicant denied that he had acted inappropriately towards KB. He denied any misconduct of a sexual or psychologically abusive nature.
FZ initially claimed to have been unaware of the existence of the AVO proceedings. He claimed that had he known of the application, he would have defended himself against the allegations. Court papers from Campbelltown Court show that on the 16 May 2000, FZ did not appear but was represented by a lawyer who consented to the AVO on FZ's behalf. When confronted in cross-examination with this evidence, FZ claimed to be unaware of the existence of the AVO. His position changed from abject denial to one of confusion with respect to the meaning of the AVO as opposed to the ignorance of its existence.
Expert Evidence
Dr. Stephen Allnutt saw the Applicant at the request of the respondent for the purposes of reports tendered in these proceedings. The Applicant relied upon reports prepared by Dr. Westmore.
Dr. Allnutt had provided two reports. One in August 2008 and one in September 2008. Dr. Allnutt opined that there was no evidence to support the conclusion that FZ suffered from a major mental illness or to conclude he has an anti-social personality disorder. There was no evidence of significant substance abuse and there was no evidence of significant cognitive impairment. Dr. Allnutt opined that if the sexual abuse allegations are not accepted, the Applicant manifests a low loading of risk factors associated with sexual recidivism. Dr Allnut was cross-examined in 2009 and also in 2012. His opinion had not changed.
Dr Westmore was cross-examined. In response to cross-examination regarding the impact on his assessment if an account being given to the doctor was different from what the Applicant gave in evidence, Dr Westmore opined that it would be important, but of itself it does not raise the risk concerns. Dr. Westmore considered that the risk is based upon behaviour. He stated that the index offence is an offence of high concern, but if there is no subsequent offence, the risk concern decreases with the passage of time.
Dr. Westmore considered that the Applicant was very reluctant to discuss his criminal history. Dr. Westmore was unable to make any comment about whether the Applicant was a reliable self-reporter.
Both experts opined that the Applicant, absent the acceptance of the allegations made by VB with respect to KB, would fall into a group of sex offenders in the low risk range for future serious sexual recidivism.
Conclusion
FZ's application is based upon a desire to be able to work as a bus driver. This is an industry in which he has gained employment in the past.
The index offence committed by FZ in 1982 is a serious one. The victim was a young boy. The Applicant threatened and intimidated the victim and was violent towards him. It is now some thirty years since the time that the index offence was committed. The Applicant was 17 years of age at the time.
Other than the index offence, there are entries in the Applicant's criminal history. I do not consider those matters germane to my determination.
Evidence was relied upon by the Respondent of allegations made by VB of conduct by the Applicant towards her and her daughter, KB. I am unable to determine with any degree of certainty that the allegations made by VB of the Applicants behaviour towards KB are made out. As such, for reason I have outlined earlier, no weight can be placed on those allegations.
Drs. Allnut and Westmore conclude that the Applicant constitutes a low risk to children.
The fact of having been convicted of the index offence, presumes FZ to pose a risk to children. The onus of proof is on FZ to satisfy the Tribunal that he does not pose a risk to the safety of children.
As I have indicated, risk in this context means 'no real or appreciable risk' in the sense of a risk that is no greater 'than the risk of any adult preying on a child' (see paragraph 18 above).
I have had regard to the observations regarding demeanor made by the Judicial Member presiding over the proceedings when the Applicant gave evidence in 2009. I have had regard to the transcript of that evidence. It is apparent that the Applicant prevaricated when answering questions and his lapses of memory were self-serving. His manner of answering appeared defensive and evasive and he was hesitant in his discussion of the circumstances of the index offence. However, demeanor is not decisive in determining credibility and despite the urging by the respondent, I do not find that the Applicant was intentionally deceptive.
In my opinion, having regard to all the material before the Tribunal, the factors set out in subsection 33(3) of the Act and the need to give paramount consideration to the safety and welfare of children, FZ has established to the requisite standard of proof that he does not pose a risk to children or young people. In making this finding I have, on balance, been persuaded by the conclusions reached Dr Allnut and Dr Westmore.
I am satisfied on the objectively established facts and the on the material before me, that the Applicant has discharged his onus of proof that he does not pose a risk to the safety of children in the relevant sense and it is appropriate to make an order under subsection 33I(1) of the Commission Act.
The Applicant indicated that he was prepared to submit to a condition that he only work in the bus industry, as he has no intention of seeking any 'child related employment' outside this sector. The Respondent opposes a conditional order. In light of the conclusions I have made it is not appropriate that any conditions be placed on the order.
Further, I note that the Child Protection (Working with Children) Act 2012 No 51 is soon to be proclaimed. This legislation repeals those provisions of the current Act with respect to checks and clearances for the purposes of working with children. The effect of this legislation is such that any person who was subject of an existing declaration and that existing declaration was made with conditions, is deemed a disqualified person for the purposes of the new legislation. Section 6 of Schedule 3 Savings, transitional and other provisions provides as follows:
6 Existing prohibited persons declarations
(1) This clause applies to a person who is the subject of an order containing a declaration (in force immediately before the repeal of the former provisions) under section 33H or 33I of the former provisions that Division 2 of those provisions is not to apply to the person in respect of a specified offence (an "existing declaration").
(2) On the application of this Act to a person to whom this clause applies:
(a) a person who is the subject of an unconditional existing declaration is taken to be the subject of an order under Part 4 of this Act declaring that the person concerned is not to be treated as a disqualified person in respect of the offence, and
(b) any other person to whom this clause applies is to be treated as a disqualified person for the purposes of this Act.
Orders
On the basis of my findings the Tribunal orders:
1) It is declared that Division 2 of Part 7 the Commission for Children and Young People Act does not apply to FZ in respect of the offence of one count of unlawful sexual intercourse, contrary to s61D of the Crimes Act, 1900 for which he was convicted on 29th September 1982.
2) The Registrar is requested to provide a copy of these orders to the Commissioner of Police, New South Wales Police.
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Decision last updated: 30 January 2013
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