GPC v Children's Guardian

[2025] NSWCATAD 222

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GPC v Children’s Guardian [2025] NSWCATAD 222

Hearing dates:

10 April 2025
19 June 2025

Date of orders:

18 September 2025

Decision date:

18 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Smith, Senior Member
E Hayes, General Member

Decision:

The Tribunal affirms the decision under review.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance - risk assessment - real and appreciable risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

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

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

BKE v Office of the Children’s Guardian [2015] NSWSC 523

Children’s Guardian v CF1 [2020] NSWSC 1673

Children’s Guardian v CFW [2016] NSWSC

CMT v Children’s Guardian [20167] NSWCATAD 280

Commission for Children and Young People v FZ [2011] NSWCA 111

CXZ v Children's Guardian [2020] NSWCA 338

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

DAR v Children’s Guardian [2018] NSWSC 942

GDB v Secretary, Department of Education [2025] NSWCATAD 96

GLB v Children’s Guardian [2025] NSWCATAD 126

GQT v Children's Guardian [2025] NSWCATAD 109

M v M (1988) 166 CLR 69; [1988] HCA 68

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Minister of Transport v FV (GD) [2008] NSWADTAP 60

Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10

Pollock v New South Wales Trustee & Guardian [2022] NSWSC 923

Roberts v Balancio (1987) 8 NSWLR 436

Sullivan v Civil Aviation Authority [2014] FCAFC 93

Tilley v Children’s Guardian [2017] NSWCA 174

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None

Category:

Principal judgment

Parties:

GPC (Applicant)
Children’s Guardian (Respondent)

Representation:

Counsel:
J Curtin (Respondent)

Solicitors:
Abbas Jacobs Lawyers (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00298990

Publication restriction:

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 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

REASONS FOR DECISION

Decision

1. The Applicant seeks a review of a decision made by the Respondent to cancel his Working with Children’s Check (WWCC) clearance (“clearance”).

2. The Tribunal has determined that the correct and preferable decision is to affirm the decision under review because, for the reasons set out below, the Tribunal has assessed that the Applicant poses a risk to the safety of children.

Background

3. On 31 January 2023, the Applicant applied for a clearance. The Applicant seeks a clearance to be able to adopt a child with his wife, and to be able to work with children in the future.

4. On 8 February 2023, the Respondent notified the Applicant that it was conducting a risk assessment and had imposed an interim bar on his clearance. The reason for the risk assessment included that the Respondent had received information that:

1. In 2016, the Applicant had been charged with two counts of assault with an act of indecency relating to two adult female complainants, and one count of indecent assault person under 16 years of age.

2. The Applicant had been convicted of one count of assault with act of indecency and one count of indecent assault person under 16 years of age by the Local Court. On appeal to the District Court, in 2018, these convictions were quashed.

3. In 2020, the Applicant was charged with one count of common assault, one count of stalk/intimidate intend fear physical etc harm, and one count of sexually touch another person without consent. According to the Applicant’s criminal history, these charges were subsequently withdrawn.

5. On 4 June 2024, the Respondent issued the Applicant with a notice of proposed refusal of his clearance and the reasons for the proposed refusal. In addition to the information that had led to the risk assessment, the Respondent referred to the fact that the Applicant had been made the subject of a non-contact Apprehended Violence Order (AVO) for two years, made on a “without admissions” basis, protecting the complainant in relation to the 2020 charges.

6. On 18 July 2024, the Respondent notified the Applicant of the Respondent’s decision to refuse the application for a clearance, pursuant to s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW) (“WWC Act”).

7. On 9 August 2024, the Applicant filed an administrative review application with the Tribunal, seeking a review of the decision.

8. On 10 April 2025, with the Tribunal satisfied that it had jurisdiction to review the decision under s 27(1) of the WWC Act, a final hearing was held. After initial submissions, it became apparent that while the information that the Respondent had received prior to the risk assessment had indicated that the 2020 charges were withdrawn, the Applicant submitted that a hearing was held in the Local Court, and the charges were dismissed. To ensure the Tribunal had evidence of what had actually occurred, the Tribunal adjourned the hearing to allow the parties to obtain a copy of the transcript of the Local Court hearing in relation to the 2020 charges.

9. On 19 June 2025, the hearing continued. The Applicant was cross-examined, and oral submissions were made by both parties.

Relevant law

Object and paramount consideration of WWC Act

10. The object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have clearances (WWC Act, s 3).

11. 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 WWC Act (WWC Act, s 4).

Children’s Guardian’s determination of application for clearances and risk assessments

12. The Children’s Guardian must conduct a risk assessment of an applicant for a clearance, or the holder of a 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 (WWC Act, s 15(1)).

13. A reference in the WWC Act to a “risk to the safety of children” is a reference to a real and appreciable risk to the safety of children (WWC Act, s 5B).

14. In making an assessment, the Children’s Guardian may consider the following factors set out in s 15(4) of the WWC Act:

(a)  the seriousness of any matters that caused the assessment in relation to the person,

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

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

(d)  the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,

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

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

(g)  the person’s present age,

(h)  the seriousness of the person’s criminal history and the conduct of the person since the matters occurred,

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

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

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

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

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

15. Section 15(4A) of the WWC Act provides that the Children’s Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children’s Guardian is satisfied:

1. a reasonable person would allow the person’s child to have direct contact with the applicant or holder:

1. while not directly supervised by another person, and

2. while the applicant or holder was engaged in child-related work, and

2. the making of the determination is in the public interest.

16. Section 18(2) of the WWC Act provides that the Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.

Tribunal’s determination of application

17. In determining an application under s 27 of the WWC Act, the Tribunal must consider the factors set out in s 30(1) of the WWC Act, which are the same factors that the Children’s Guardian may consider in conducting a risk assessment under s 15 of the WWC Act.

18. Section 30(1A) of the WWC Act states that the Tribunal may not make an order under Part 4 of the Act which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:

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 (reasonable person test), and

2. it is in the public interest to make the order (public interest test).

19. In DAR v Children’s Guardian [2018] NSWSC 942 at [56]-[57], the Supreme Court held that there was no error in the Tribunal considering s 30(1A) of the WWC Act in an application under s 27 of the WWC Act.

20. Section 30(1A) of the WWC Act only applies in circumstances where the Tribunal is considering making an order enabling the applicant to work with children. The Tribunal could only make such an order if it were to be found that an applicant does not pose a risk to the safety of children. The matters in s 30(1A) of the WWC Act only need to be considered once the risk test has been satisfied: CMT v Children’s Guardian [20167] NSWCATAD 280, at [88].

Assessment of risk

21. Basten JA in CXZ v Children's Guardian [2020] NSWCA 338 at [7] stated that the correct test to be applied in assessing whether a person poses a risk to the safety of children was addressed by the Court in Tilley v Children’s Guardian [2017] NSWCA 174 at [34] to [35], where the Court followed Beech-Jones J in BKE v Office of the Children’s Guardian [2015] NSWSC 523 who had applied the principles identified by the High Court in M v M (1988) 166 CLR 69; [1988] HCA 68. Basten JA stated that the approach described in M v M is the correct test under s 18(2) of the WWC Act.

22. In M v M, at [25], after referring to the different ways in which the “degree of risk”, which would justify a court in denying a parent access to a child had been described in previous cases, the High Court stated to achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. At [24], the Court stated that in access cases, the magnitude of the risk may be less (i.e. the risk is not unacceptable) if the order in contemplation is supervised access.

23. In BKE, in relation to the possible mitigation of risk with supervised access that was discussed in M v M, the Court of Appeal stated at [33]:

“33. The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working With Children Act. It is not concerned with “unacceptable risks” but “real and appreciable” risks. Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.”

24. In Tilley, the Court of Appeal followed the approach in BKE, stating at [34] to [35]:

“30. That was not seen by the Tribunal as a determinative factor. The senior member referred to the reasoning of the High Court in a family law case involving allegations of child abuse, M v M, [18] in which the Court had noted that the issue to be determined was the likelihood or possibility of such conduct occurring in the future, which imposed no necessary requirement to determine whether it had occurred in the past. The Court noted that some allegations might be seen to be well-founded, while others may be seen as groundless. However, the Court accepted that there would be allegations falling into an intermediate category which were nevertheless relevant to the assessment of future possibilities or likelihoods, which lay at the heart of the Family Court’s function in determining appropriate orders with respect to custody and access, for the welfare of a child. That approach was approved in dealing with applications under the Working with Children Act by Beech-Jones J in BKE v Office of the Children’s Guardian. [19]

31. The advocate for the applicant submitted that if the chances of each set of allegations being true were less than 50%, the possibility of such events occurring in the future was even more remote than the possibility of the past events having occurred. However, that logic cannot be accepted. The fact that there were a series of allegations of sexual misconduct, over a period of years, in different locations, and from apparently entirely independent complainants, is material upon which the Children’s Guardian and the Tribunal were entitled to act. It is not logical to suggest that the risk declines with the number of independent though unproven allegations of similar misconduct.”

25. In Children’s Guardian v CFW [2016] NSWSC, the Supreme Court set out an approach to assessing risk to the safety of children, including when a positive finding as to any alleged acts of wrongdoing cannot be made. At [14]-[17], the Court stated that:

“14. The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has ‘no hesitation in rejecting the allegation as groundless’. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a ‘decisive impact’ on the outcome of the application.

15. The second proposition is that, even if no such ‘positive finding’ can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is ‘groundless’. ...

16. Even if not positively satisfied that the acts occurred on the balance of probabilities, if ‘a lingering doubt or suspicion remains’ then this should count against the defendant, although it is not necessarily fatal to an applicant’s efforts to obtain a clearance.

17. A court or tribunal may make a finding of ‘real and appreciable risk’ even though it is not satisfied on the balance of probabilities that the relevant conduct occurred. Moreover, if as in the present case, that question is left ‘open’, the relevant body must assess the likelihood or possibility of similar events occurring by reference to those possibilities and any relevant factual material in answering the central question regarding risk posed by the statute.” (citations omitted)

26. In CXZ, the Court of Appeal drew a three-step approach from CFW at [57]:

“None of these decisions endorses the proposition that, in respect of every allegation raised by the Children’s Guardian against an applicant for a clearance, the Tribunal must engage in the three-step process for which the respondent contends. The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children.”

27. The approach in CXZ has subsequently been followed in a number of recent Tribunal cases concerning the assessment of risk to children (GDB v Secretary, Department of Education [2025] NSWCATAD 96 at [128]; GQT v Children's Guardian [2025] NSWCATAD 109 at [72]; GLB v Children’s Guardian [2025] NSWCATAD 126 at [95]).

Administrative review

28. Section 63(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) provides that, in determining an application for administrative review under the ADR Act of an administratively reviewable decision, 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.

29. The standard of proof applicable to this review by the Tribunal is the balance of probabilities. There is no onus of proof in merits review cases: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, at [28], [34].

30. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 38(2)).

31. However, the procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide: Sullivan v Civil Aviation Authority [2014] FCAFC 93, at [97]; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at [62], [68].

32. Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.

28. In conducting a review, the Tribunal may have regard to material that was relevant at the time of the decision as well as any further material that is relevant at the time of the hearing. The issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken: YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].

Material before the Tribunal

34. The Applicant relied on the following documents:

1. Administrative review application filed on 9 August 2024 (Exhibit A1).

2. Applicant’s response to risk assessment for WWCC clearance application filed on 12 December 2024 (Exhibit A2).

3. Applicant’s written submissions dated 20 March 2025 (Exhibit A3).

35. The Respondent relied on the following documents:

1. Bundle of documents filed pursuant to s 58 of the ADR Act on 8 November 2024 (Exhibit R1).

2. Respondent’s evidence bundle filed on 21 February 2025 (Exhibit R2).

3. Respondent’s tender bundle filed on 4 April 2025 (Exhibit R3).

4. Respondent’s bundle of authority (Exhibit R4).

5. Respondent’s further evidence bundle filed on 6 June 2025 (Exhibit R6).

6. Respondent’s amended written submissions filed on 6 June 2025 (Exhibit R7), which replaced earlier submissions filed by the Respondent (which had been Exhibit R5).

36. Both parties confirmed that, in relation to NCAT Procedural Direction 7- Use of Generative Artificial Intelligence, Generative Artificial Intelligence had not been used in the preparation of any evidence or submissions.

The Applicant’s case

37. The Applicant submits that:

1. The findings of “not guilty” in the 2016 and 2020 allegations mean the alleged conduct is not proven and he must be presumed innocent.

2. The reliance on dismissed charges is unfair and contrary to the principles of procedural fairness.

3. There is no pattern of behaviour or similarity between the two matters that justifies an adverse risk assessment.

4. The Applicant has never posed a risk to children.

5. The Applicant has been employed by NSW Health since 2000, has received multiple promotions and maintains a reputation for professionalism and integrity.

6. The Applicant has demonstrated strong protective factors, including long-term stable employment and positive relationships with children in his family.

7. The Applicant has no criminal convictions and no history of misconduct towards children.

8. The Applicant has provided strong character references and has demonstrated a long-standing commitment to child safety. The Applicant does not want to disclose the allegations, which he contends are unfounded, to any of the people who provided character references as it reflects his right to avoid stigma for allegations that were judicially dismissed.

9. The expectation that the Applicant should demonstrate “insight” is misplaced in circumstances where the Applicant has been judicially exonerated.

10. The decision to refuse a clearance is unnecessary and should be set aside. The Tribunal should direct that the Applicant be issued with a clearance.

The Respondent’s case

38. The Respondent submits that the Applicant poses a real and appreciable risk to the safety of children due to the:

1. Seriousness of the offences or any other matters that caused the clearance refusal - namely the 2016 and 2020 criminal charges.

2. The repetition of the alleged (similar) conduct after the gap of four years. There is a real likelihood of repetition, given the similarities between the 2016 and 2020 charges, and the opportunistic nature of the alleged conduct.

3. The 2016 charges involved a 13-year-old girl. The other complainants in the 2016 and 2020 charges were all young women aged between 21 to 26 years of age. The Applicant was 42 years old at the time of the 2016 charges and was 46 at the time of the 2020 charges.

4. The complainants of the 2016 charges were vulnerable, with the alleged conduct occurring in a darkened cinema.

5. None of the complainants for the 2016 and 2020 charges had a prior connection to the Applicant.

6. The 2016 charges occurred during school holidays, and as such the Applicant could have reasonably known that one of the complainants was a child.

39. The Respondent submits that even if the Tribunal were to find that the Applicant does not pose a risk to the safety of children, the Tribunal would not be satisfied that a reasonable person would allow the Applicant to have unsupervised access to their children in a work setting, and that granting a clearance would not be in the public interest.

Evidence and findings

40. It is undisputed that the complainants for the 2016 charges were indecently assaulted. What is in dispute is the identity of the offender. The Applicant denies that he was the offender. The Tribunal has therefore placed more focus on the evidence as it relates to the identity of the offender in relation to the 2016 charges.

13 July 2016 charge

Police records

41. According to Police records, on Wednesday, 13 July 2016, a 21-year-old female (“Complainant 1”) attended a movie cinema with her younger female family member who was 12 years of age. It was the Winter school holidays at the time. They purchased tickets to a movie (“movie 1”) showing at 1:00pm that day. The girls took their allocated seats.

42. On the same day, the Applicant made an online booking to purchase one ticket to the 2:10pm session to a different movie (“movie 2”). The Applicant attended the movie cinema and collected his ticket in person at 2:39pm.

43. At 2:40pm, the Applicant entered the cinema for movie 1, not the cinema for movie 2 for which he had purchased a ticket.

44. Complainant 1 was indecently assaulted by a male sitting in the seat next to her. The male placed his hand under the armrest and touched Complainant 1 on her thigh. The touch caused Complainant 1 to fear the male, her heart was racing at the time, and she was too scared to move.

45. The Applicant left the cinema, which was captured on CCTV footage, at 3:04pm.

46. At the conclusion of the movie, Complainant 1 approached a staff member inside the cinema to report the incident.

47. The Applicant was arrested by Police on 18 July 2016, and participated in an electronically recorded interview. During the interview:

1. The Applicant said he was at the movie cinema on 13 July 2016.

2. The Applicant said: “I have never touched anyone. Intentionally I have never touched anyone. If someone sitting next to me and, like I have no intention of anything that I have touched anyone like sexually or anything. Never, ever have done that.”

3. The Applicant said: “If a person sitting next to me, my hands are like this. Like, if I, just, my hands are like this. If, if unintentionally if I, if I have touched anyone then I don’t know that. Without my consent, I don’t know that. But I did not, I did not touch anyone intentionally in any inappropriate [word obscured]”.

4. The Applicant said he was wearing a shirt, normal trousers, glasses and the coat he was currently wearing.

5. When asked if he left work early on 13 July 2016 as he had “another appointment” and “other personal work that I don’t want to tell you”, and from that appointment he went to the movie cinema.

6. The Applicant could not explain why he had chosen to sit in a seat between four girls, with two girls on his right and two on his left, when there were many spare seats in the cinema. The Applicant denied that he had any “intentional reason” for sitting where he did.

7. The Applicant said that he had to leave the cinema before the movie ended to pick up his wife who was finishing work at 5pm.

8. The Applicant said that he finished work early because he was stressed as he and his wife had some personal issues. The Applicant stated that his wife was very depressed about it, which was giving him stress. The Applicant said that on that day, he thought “I will just go and take off some of the stress from my life. So I went to movie and then after that I just went and pick her up.”

9. In relation to the allegation that he had put his hand underneath the armrest and touched Complainant 1 on the leg, the Applicant said that he had never, ever done anything like that. The Applicant said, “Probably it could be unintentionally” and that he was “wide” and “not a skinny boy”, so when he was sitting there and “I put my, like, hands there, if it has touched unintentionally.”

48. The Applicant was charged with assault with an act of indecency relating to Complainant 1.

Second charge on 13 July 2016

Police records

49. According to Police records, on Wednesday, 13 July 2016, a 24-year-old female (“Complainant 2”) attended the same movie cinema with a female family member who was 17 years of age. They purchased tickets for the 2:10pm session of movie 2.

50. After the Applicant left the cinema for movie 1, the Applicant entered the cinema for movie 2.

51. A male sat next to Complainant 2 on her right side. Complainant 2 quickly glanced at the male when he sat down and noticed that he was a big man with a beard and wearing a jacket and glasses.

52. Two minutes after the male was seated, Complainant 2 felt the male touch her on her right upper thigh. Complainant 2 immediately turned to her family member and said, “he touched me”, referring to the male.

53. Complainant 2 crossed her right leg over her left in an attempt to move her leg away from the male. Still feeling uncomfortable, Complainant 2 continued to watch movie 2.

54. About one minute after the male had touched Complainant 2 on her leg, the two females seated on the other side of the male left their seats and relocated. Once these females left their seats, the male leant to his right on the armrest.

55. A short time later, the male sat up straight in his seat which caused Complainant 2 to watch the actions of the male. Complainant 2 saw the left hand of the male moving towards her leg underneath the armrest between her and the Applicant. When she saw the male attempting to touch her leg a second time, Complainant 2 immediately got out of her seat saying to her family member “let’s go, let’s go, he’s weird”. Both Complainant 2 and her family member walked past the male to the cinema doors where they had a conversation about what occurred.

56. Complainant 2 was convinced by her family member to stay and watch the movie however in different seats. Complainant 2 agreed and sat in two seats near the back of the cinema where they had a view of the male. Complainant 2 observed the male move from his seat, one seat across to his right. After seeing this and fearing the male, Complainant 2 said to her family member, “I’m scared, I don’t want to be here, let’s go”. At 3:30pm the pair left the cinema without seeing the end of the movie due to Complainant 2 feeling scared of the male.

57. The matter was reported to the security staff of the shopping complex by the family member who had attended the cinema with Complainant 2.

58. When the Applicant was arrested by Police on 18 July 2016, he was wearing a blue suit jacket, which was later confirmed to be the one that he was wearing at the cinema on 13 July 2016.

59. The Applicant was arrested by Police on 18 July 2016, and participated in an electronically recorded interview. This allegation involving Complainant 2 was not directly addressed with the Applicant during the interview.

60. The Applicant was charged with assault with an act of indecency relating to Complainant 2.

61. On 10 February 2017, the charge in relation to Complainant 2 was withdrawn by the Crown on the first day of the hearing in the Local Court. This charge was not the subject of any cross-examination.

15 July 2016 charge

Police records

62. According to Police records, on Friday, 15 July 2016, the Applicant entered the same movie cinema at about 3:34pm and purchased a ticket for the 3:30 session of a movie.

63. On the same date, a 13-year-old female (“Complainant 3”) attended the cinema to watch a 3:20pm session of a different movie (“movie 3”) with four of her family members. The family were allocated seats together in one row and were provided with 3D glasses to watch the movie. The family entered the cinema for movie 3 at about 3:10pm and took their seats. Complainant 3 was seated on the end with approximately five seats to her left that were vacant.

64. A short time after, the Applicant entered the cinema for movie 3. This was not the movie the Applicant had purchased a ticket for.

65. A male sat in the same row as Complainant 3 and her family, leaving one vacant seat between Complainant 3 and himself. Soon after the male was seated, the male left his seat for a short time and when he returned, he sat in the seat next to Complainant 3. There were a lot of spare seats in the cinema at the time.

66. At about 4:30pm, Complainant 3 leaned forward in her seat to pick up a bag of lollies which had dropped to the ground. This caused her to raise her bottom up from her seat. Complainant 3 leant forward for about two to three seconds and when she sat back in her chair, she was startled by the hand of the male on her seat and underneath her bottom. Complainant 3 reacted, and the male moved his hand swiftly, before leaving the cinema. Before the male had moved his hand, Complainant 3 saw the male’s left wrist and noticed he was wearing a watch. Complainant 3 noticed that the watch was on her side of the armrest at the time she saw it. Complainant 3 did not see the face of the male, however described the male as “pretty fat” and wearing glasses.

67. Complainant 3 became upset, she was crying and turned to her sibling next to her saying “he was touching my bottom”, referring to the male who had been sitting next to her. Complainant 3 and her sibling then reported the incident to their mother.

68. At 4:35pm, the Applicant is captured on CCTV footage exiting the cinema for movie 3 and walking to another cinema (not the cinema for movie 3 or the movie he had purchased a ticket for).

69. At 4:38pm, Complainant 3’s mother exited the cinema and reported the incident to staff. Police were contacted and attended the location. Complainant 3 and her family had since left the location.

70. The Applicant was seen walking towards the car park on the cinema level at 5:20pm.

71. During an electronically recorded interview with Police, Complainant 3 stated that it was a shock and has made her more cautious and scared to go to the movies. Police observed Complainant 3 to get upset during the interview.

72. The Applicant was arrested by Police on 18 July 2016, and participated in an electronically recorded interview. During the interview:

1. The Applicant said he was at the movie cinema on 15 July 2016.

2. The Applicant initially said that he went to the cinema for the movie he purchased a ticket for, he watched the movie, but the movie was a sad movie, so he went to change the movie to some other movie – he then went to the cinema for movie 3.

3. When Police put it to the Applicant that the CCTV footage revealed that he did not attend the cinema for the movie he had purchased a ticket for, the Applicant said he bought a “ten-dollar movie ticket”, he didn’t watch that movie, and went to the cinema for movie 3.

4. The Applicant said that he sat at the back of the cinema and not the front, and that he did leave the cinema to go to the toilet but then came back to the same seat (did not move seats to sit next to Complainant 3). The Applicant denied sitting next to a group of five people. The Applicant also said that he did not remember sitting there.

5. The Applicant said that if someone had sat on his hand, he would have “definitely take off my hand”. The Applicant stated “But if it has happened, I’m saying that I have never had any, any intention to assault someone. Never, ever intention to, like, like, you know, sexually abuse someone or, like, anything like that”.

6. When asked if someone did sit on his hand in the cinema on 15 July 2016, the Applicant stated, “I don’t know whether it has happened on Friday or not because I don’t remember these things.”

7. The Applicant stated that he wears his watch on his left wrist (which is where Complainant 3 saw the watch on the male).

8. The Applicant said that he left the cinema around 5pm to go and pick up his wife. Police noted that the Applicant left in his vehicle at 5:20pm, to which the Applicant stated that he called his wife and said he was running late, and that he had been in his car, praying.

9. When asked if it was normal for him to go to the cinemas twice in one week, the Applicant stated that he went to the movie for relaxation due to his very stressful life and his wife, who was very depressed, not wanting to go anywhere. The Applicant stated that he usually goes to the movies with his wife, and not on his own.

10. After he left the cinema on 16 July 2016, the Applicant went to another shopping complex with cinemas and watched movie 3 again, with his wife.

11. After saying that he left the cinema for movie 3 to go and pick up his wife, the Applicant was asked if he went into another cinema. The Applicant then recalled that he had gone to another cinema and sat there for 10 or 20 minutes and then left. When asked why he did not go back to movie 3, the Applicant said that the plan was to watch movie 3 with his wife, so he went to another theatre to wait until 5pm and then go and pick up his wife.

12. The Applicant stated: “Maybe my hand was there and then when she sitted (sic), I just took, took my hand off”…”Immediately I took it off”.

13. The Applicant stated: “Yeah, so I, what I’m saying, this situation, this is completely purely an accident for me. Probably, like, this is unlucky for me that I have sit next to someone and my hand was there, where it touched their leg and I had to remove it.”

73. The Applicant was charged with indecent assault person under 16 years of age in relation to Complainant 3.

Local Court proceedings – 2016/2017

74. The charges against the Applicant involving Complainant 1 and Complainant 3 were dealt with together in the same trial. The transcript of the Local Court trial was included in the Respondent’s material. During the trial, Complainant 1 gave oral evidence and stated that and the male had a dark complexion, was wearing a suit, was “a little bit more plump” and was about 35 years of age or middle aged.

75. During the trial, Complainant 3 gave oral evidence and stated that:

1. The male had a gold watch on his hand, really dark hair on his arms, dark hair on his head, pretty tanned skin and was wearing glasses (not the 3D glasses for the movie).

2. When asked whether she had sat on a lolly, she said “no, because after, when he left, I checked and there was no lolly there and when I went to go turn, I saw the gold watch under the seat, like, across my seat and I saw half of his – like, half of his hand was gone and his watch was just there and then when I looked, it – I, I saw the watch and then him quickly snatch and he just left”.

76. During the trial, the 17-year-old sibling of the Complainant 3 gave oral evidence and stated that:

1. She attended the movie cinema and watched movie 3 on 15 July 2016 with five of her family members including Complainant 3. She was sitting to the left of Complainant 3.

2. During the movie, Complainant 3 started to get really close to her, she thought she was getting scared of the movie, and Complainant 3 whispered to her, what she thought was “The man next to me is touching my drink bottle”.

3. She looked to the right and saw a man in dark clothing, had glasses on (something other than 3D glasses), darkish appearance and was “quite a bigger guy”.

4. When asked about his appearance, she said he was “not Australian”, “like Indian or something like that”.

77. During the trial, the mother of the Complainant 3 gave oral evidence and confirmed that when she was handing out lollies to Complainant 3 and her sister, she noticed that there was a spare seat next to Complainant 3, and in the seat next to that, was a man. The mother of Complainant 3 noticed that the man was wearing dark clothes and had glasses on, but they were not 3D glasses. The mother of Complainant 3 recalled that Complainant 3’s sister said that someone had touched Complainant 3’s bottom, and when she asked Complainant 3 if a man touched her bottom, she said “yes” and was crying. The mother of Complainant 3 said that she knew that this had definitely happened and stood up and ran out of the cinema to find the man who did that. The mother said that she saw an attendant at the stand where you hand in your ticket, and when she asked her if she had seen a man come out of the cinema, the attendant said “Yes, I saw a man with a smug look on his face”, but did not know where he had gone.

77. During the trial, the attendant/cinema staff member at the stand also gave oral evidence. The attendant said that she saw and spoke to Complainant 3’s mother when she came out of the cinema. The attendant said that she saw a man come out of the cinema about two minutes before the mother of Complainant 3 did. The attendant said that he was of a big build, olive skin, and had curly, dark hair. The attendant said that she saw the man walk towards the exit.

78. During the trial, the General Manger of the shopping complex gave oral evidence. The General Manager said that she spoke to Complainant 3 who was a bit shaken up but was able to give a description of the person, and “that description seemed to correspond with the person on the Wednesday”. The General Manager said that she reviewed CCTV footage for quite some time with the Detective Senior Constable, and “we were able to see a man who matched the description”. The General Manager said that she recognised the person initially because it “looked like the same person from the Wednesday incident”. The General Manager said that cinema CCTV footage was matched to the footage from the shopping complex’s cameras and they were able to obtain a vehicle registration number.

79. During the trial, the Detective Senior Constable who investigated the matter, gave oral evidence and stated that, after reviewing the CCTV footage:

1. On 13 July 2026, between 2:30pm and 3:08pm, only a male (Caucasian, light coloured hair, tall) with a small child came out of the cinema for movie 1 before the Applicant. The cinema cleared out just prior to 3:08pm.

2. On 15 July 2016, between 4:30pm and 4:38pm, only the Applicant could be seen coming out of the cinema for movie 3, followed by the mother of Complainant 3.

3. A gold watch was seized from the Applicant’s house. On the day that the accused was arrested, he was wearing a silver watch, which was also seized.

81. During the trial, the Applicant gave oral evidence, during which he stated:

1. On 13 July 2016 and 15 July 2016, he asked his manager for permission to leave work early as he was feeling very stressed and sad, which is the reason he went to a movie.

2. On 13 July 2016, at the cinema, he was wearing a dark coloured jacket (which he did not remove), a light blue blazer, a white t-shirt, a cap, glasses, and had a beard.

3. On 13 July 2016, he went to the back of the first cinema he entered and sat in the same row as a man in a wheelchair. It was put to the Applicant that there was a female in a mobility scooter who was nine seats away from where the Applicant said he was sitting. The Applicant said that it was dark, and he could not recognise if the person was male or female.

4. He does not have hairy arms (and showed them to the Court) and he was not wearing a gold watch to the cinema. He said that the gold watch was a watch that his wife had borrowed from her sister and he had never seen that watch before.

5. He has never touched anyone like that in a cinema, and if he had touched anyone, even accidentally, he would remember it. The Applicant denied touching anyone accidentally in a cinema before.

82. In February 2017, the Applicant was found guilty by the Local Court of:

1. The indecent assault of Complainant 1 on 13 July 2016 at the movie cinema.

2. The indecent assault of Complainant 3 on 15 July 2016 at the movie cinema.

83. In the transcript of the Local Court judgement, the Magistrate stated the following:

1. Complainant 1 and Complainant 3 gave brief descriptions that could be viewed as consistent with a broad description of the Applicant.

2. Neither Complainant 1 nor Complainant 3 knew the identity of the man who touched them.

3. The CCTV footage puts the Applicant at the cinema complex on the relevant days and at the relevant times. It records him attending the two particular cinemas in which the offences allegedly occurred, at times consistent with the complainants. The Applicant agreed that he is the person depicted in the footage.

4. None of the reasons for going in and out of the cinemas at various times change the position that the Applicant had the opportunity to commit the offences charged.

5. The description the complainants give of the person who touched them and how they were touched must be considered accurate in the absence of any direct evidence to the contrary. The Court was comfortable that the two complainants gave a truthful and accurate account of what happened to them on the days in question.

6. In terms of the power of the complainant’s testimony – they were consistent, unembellished, opened to accepting propositions that appear rational if possibly detrimental to their evidence. They were both impressive and appeared to answer all questions put to them fully and without hesitation.

7. There was corroboration by immediate complaint – the complainants reported what happened to their companions and then to cinema staff. Any delay was negligible given their age and circumstances of the incident, shock, disbelief and self-questioning.

8. The descriptions that the complainants gave of their attacker are consistent with what one would reasonably expect to be given in each of the circumstances. The Court saw hair clearly on the arm of the accused when it was suggested he was not hairy – such descriptors can be very subjective, and the Court has to be wary in assessing them. By contrast a person’s profile, a round face, tubbiness, plump hands or dark skin and features that could readily stand out in such a brief encounter.

9. The Court was struck by the similarities between the descriptions, both of the man and the events given by the complainants and the witnesses with Complainant 3. There was so much in common between the complainants’ accounts that the Court is satisfied, along with the modus operandi described by each complainant, that the man described by each is one and the same person. They were both incidents where the offender seized an opportunity to strike and was brazen to the extent that the victims were accompanied. The CCTV footage corroborates each complaint as to the timing of their complaints to cinema staff.

10. The touching of a woman’s thigh by a stranger in a darkened cinema without permission would be, by any accepted community standards, indecent. Likewise, the touching of a 13-year-old girl on the bottom in a darkened cinema, makes it an offence of aggravation. No ordinary, decent member of the community would consider the touching of a child in those circumstances, when she leant down to retrieve something from the floor of the cinema, as anything other than indecent.

11. In the CCTV footage of 13 July 2016, no other person consistent with the description on the timing described by the witness appears in the footage.

12. In the CCTV footage of 15 July 2016, no other person matching the description of the offender appears in the footage at the relevant time.

13. The fact that the Applicant was wearing a silver watch, noting the appearance of metals can be affected by light, does not attack the credibility of Complainant 1. Caps and jackets can be easily removed in settings such as darkened cinemas.

14. The Court was satisfied beyond a reasonable doubt that each of the incidents complained of occurred as described in the complainant’s evidence. The Court was satisfied that the incidents involved the same perpetrator. The Court was satisfied beyond a reasonable doubt that the circumstances established by the evidence for each incident combined so that in terms of timing, opportunity and description, no hypotheses other than that consistent with the Applicant having committed both offences complained is available to the Court.

District Court proceedings - 2018

84. In February 2018, on appeal, the District Court quashed the convictions recorded by the Local Court against the Applicant. In the transcript of the District Court judgment, the Judge stated the following:

1. The Court accepted that the complainants gave truthful and accurate evidence.

2. The Court agreed with the limitations of making reliable identification in the circumstances – lack of proper lighting conditions, the shock of the events, the unexpected nature of the events, and the minority of one of the complainants.

3. Had the Prosecution relied on tendency or coincidence evidence to support each of the charges, it may well have strengthened the Prosecution case and may well have justified the convictions which the Local Court ultimately found, but this was not the case.

4. The Local Court did not make reference to the potential for a person to leave by the fire escape exits.

5. The Court identified the following deficiencies in the Prosecution case:

1. The vague descriptions of the Applicant.

2. The admissions by the Applicant in his interview and the occasion of the search warrant, which were admitted into evidence, which were not the subject of cross-examination or relied on by the Local Court. Had this evidence been properly examined, it may well have been a crucial piece of evidence which would have justified the Local Court’s finding of guilt.

3. Times and misdescriptions of the Applicant given by the complainants – although not of great moment given the circumstances, but these minor matters have a cumulative effect on the general unreliability (not dishonesty) of the complainant’s evidence.

4. If the Applicant was not wearing a gold watch, then Complainant 3 is mistaken.

5. The evidence that the Applicant and his wife gave that he was not wearing a gold watch. The Court, however, had some doubt about the reliability of the Applicant’s wife’s evidence and the Applicant’s evidence about whether he was wearing a watch.

6. The Applicant was in the same cinemas at about the times nominated by each of the complainants when the assaults occurred. The evidence places the Applicant in the vicinity of the offences and at the relevant time. This is an important set of circumstances which go to an assessment of whether any circumstantial case has been made out.

7. The fire escape exits were not the subject of video surveillance. There remains a possibility that a similarly described offender exited the cinema without being detected by CCTV footage. The Court had some doubts about how real the possibility was, but the evidence did not descend to that level of specificity.

8. The Applicant denied touching the complainants in his evidence. Some considerable doubt exists as to his claims to Police that any touching that occurred was accidental – however these admissions to Police were not tested. Applying common sense, the possibility of accidental touching in those circumstances is so small as can be put to one side. The comparative physical contortions required to touch a person underneath the armrest, put the notions of accidental touching on that scenario out of the question.

9. The Applicant is a person of good character, both as to his lack of convictions and his contribution to charitable works.

10. The Local Court’s consideration adopted a tendency/coincidence approach which ought not to have occurred, given the fact that the Prosecution did not rely upon such reasoning and in fact had taken no steps to permit such evidence to be used.

85. In conclusion, the Judge stated:

In the final analysis, I conclude that there is ample evidence to establish that in respect of each offence, a male person committed an indecent assault upon each of the complainants. In my opinion, it is clear that the appellant was present in each respective cinema when the relevant offence occurred and was present in the cinema complex about the relevant time. Furthermore, I am not convinced of the legitimacy of the reasons offered for the so-called cinema hopping, acknowledging that the Magistrate was so satisfied. In my opinion, there is much suspicion which attaches to the activities of the appellant at the […] cinema complex on both dates 13 and 17 (as said) July 2016. However, by reason of the deficiencies I have identified, and particularly having regard to the dangers involved in accepting uncritically identification evidence, I cannot be satisfied beyond a reasonable doubt that the prosecution has established each of the cases brought against the appellant. Accordingly, the orders I make are that I allow each of the appeals and I set aside each of the convictions recorded against the appellant.

Applicant’s evidence during the Tribunal hearing

86. The Applicant was cross-examined during the hearing in relation to the 2016 charges concerning Complainant 1 and Complainant 2. The Applicant gave similar evidence to the evidence he gave during cross-examination in the Local Court proceedings.

87. The Applicant was asked about the inconsistency in what he said under cross-examination in the Local Court proceedings about not touching anyone, and what he said to Police about never having touching anyone intentionally. The Applicant said that, in relation to his Police interview, this was the first time in his life that he had an interview with Police, so when they asked him this kind of question, he was shocked. The Applicant stated that it could be an accidental touch, he could not remember, and it was not intentional. The Applicant stated that if he had touched anyone, he would have remembered.

88. When it was put to the Applicant that he still did not have a good explanation for going to a cinema to watch a movie that he did not have a ticket for, he said that he could not remember.

2020 charges

Police records

89. According to Police records, on Monday, 6 January 2020, a 26-year-old female (“Complainant 4”) attended a Railway Station (“Railway Station A”) to catch a train, which arrived at 7:15am. Complainant 4 boarded the middle carriage and sat upstairs in a two-seater next to the window. Complainant 4 placed her long jacket on top of her lap and closed her eyes to rest.

90. As the train arrived at a Railway Station along the trip (“Railway Station B”), a male came and sat next to Complainant 4. The male kept leaning his leg on the complainant and his body was consuming most of the seat. Complainant 4 nudged him to move and the male moved briefly before moving his legs back to touching Complainant 4. Complainant 4 looked around and realised that there were plenty of available seats for the male to sit at, particularly a vacant three-seater seat. The male continued to touch the complainant’s leg for the rest of the train trip rubbing his leg up and down her leg.

91. Complainant 4’s husband said that he received a text from his wife at about 7:15am on 6 January 2020 saying that a “strange man came and sat next to her, and he was hogging the seat and was all over her and she was pushed up against the window.”

92. On Tuesday, 14 January 2020, Complainant 4 caught the same train from Railway Station A at 7:15am. Complainant 4 sat in the same seat on the upper level. Complainant 4 placed her coat over her legs as usual and closed her eyes to rest.

93. As the train came to a stop at Railway Station B, the same male came and sat next to the complainant again. Complainant 4 was sitting at an angle towards the window. The male was taking up most of the seat again. The male had his legs spread open leaning against Complainant 4 and began moving his leg up and down rubbing against Complainant 4. The male was also leaning his body on Complainant 4 and Complainant 4 was trying to move her body away but was squashed up against the window. The male was rubbing his arm up and down the victim. The male’s hand was underneath his laptop bag, not visible to Complainant 4. Complainant 4 continued to shove the male over and over again to get away from him. The male then removed his hands from his lap underneath the laptop and stopped.

94. Complainant 4 closed her eyes again and the male began to run his leg up and down her leg again. Every time Complainant 4 closed her eyes from this point, the male would rub his legs up and down against her leg. At one point the male began to brush his elbow up and down Complainant 4’s side from her waist to her underarm.

95. Complainant 4 dropped her phone on the ground, and the male was leaning all over her so much that she could not lean over and pick up her phone. Complainant 4 shoved the male again, so she could get her phone. The train then pulled up at Complainant 4’s stop and she waited for the male to get off the train first due to being so fearful that the male would find out where she worked.

96. Complainant 4 sent a text message to her husband at 8:11am on 14 January 2020 which read: “This loser is sitting next to me again and he keeps spreading his leg and rubbing it against me. I woke up and his arm was rubbing against my waist” and “So I got up seriously can’t stand Indian men”, and “…it’s the same man as last week too”.

97. Complainant 4 told Police, in relation to the incident on 6 January 2020, that she felt “violated, scared, intimidated and annoyed” and so fearful that she “felt frozen in the spot”.

98. On Wednesday, 15 January 2020 at 7:15am, Complainant 4 was at Railway Station A. Complainant 4 saw the same male when she arrived at the Station and when the train pulled up, she watched the male get on a carriage at the back of the train. Complainant 4 got on the train about three carriages in front of the carriage of the male. Complainant 4 sat in the same two-seater seat in the upper carriage.

99. As the train approached Railway Station B, the male walked from behind Complainant 4 and again sat next to her. Complainant 4 immediately felt as though the male had been following her. When the train arrived at another Railway Station, Complainant 4 got off the train due to being fearful that the male was stalking her. Complainant 4 could not see anyone at the Railway Station to report the matter to and got back on the train towards the back, away from the male.

100. At 5:15pm on 15 January 2020, Complainant 4 caught the train to go home and arrived at Railway Station A at 6:22pm. When Complainant 4 tapped off, she saw the same male again. Complainant 4 waited for the male to leave. Complainant 4 then started to walk along with other commuters about 5 metres away from the male. The male continued to look back towards Complainant 4 as she was walking away.

101. Complainant 4 saw her husband in the car waiting to pick her up and Complainant 4 pointed towards the male to show her husband that he was the male who had been touching her and following her on the train. Complainant 4’s husband got out of the vehicle and approached the male and had a conversation. Complainant 4 was standing 3 to 4 metres away and was feeling “really anxious and shaking”. Complainant 4’s husband got back in the car and male came over to the window and kept saying “it’s a mistake, it’s a mistake”. Complainant 4’s husband said: “No mate, my wife wouldn’t lie to me three times. She is not going to carry on about something that serious and lie about it”. Complainant 4 took a photo of the male.

102. On 15 January 2020, complainant 4 attended the local Police Station where a statement was obtained. Complainant 4 gave Police the photos of the male that she took on 15 January 2020. These photos were included in the Respondent’s material and are photos of the Applicant.

103. Complainant 4 described the male as an Indian man, in his late 30s to 40s, black hair balding at the back, about 6-foot, medium build, full beard, glasses, wearing grey pants, grey checked shirt, black shoes, brown belt and black backpack. Complainant 4 said that the incident occurred over three days, including that day, so she had a fresh recollection of events.

104. On 16 January 2020, Complainant 4’s husband saw the Applicant at Railway Station A, saw him get into a vehicle and took a photo of the vehicle to provide to the Police. Police were then able to contact the Applicant via his mobile phone.

105. On 17 January 2020, the Applicant attended a Police Station, as requested by Police. Upon arrival at the Police Sation, the Senior Constable immediately recognised the Applicant as the same male in the photo that Complainant 4 had given Police. The Applicant participated in an electronically recorded interview. During the interview with Police, the Applicant stated:

1. He normally boards the train at Railway Station A at about 7:00am, but does not catch the train every day.

2. When the first incident of 6 January 2020 was explained to the Applicant, he said it was “completely nonsense” as if he sits next to someone on a long journey, he falls asleep.

3. He normally has to stretch his legs “as it gets a pain”. He stated, “but it’s not, like, someone I go and touched ah, like, in, like, not sexual or something”.

4. When asked why he didn’t sit on any of the free available seats at the time, he stated that he goes to the two-seater seat as the three-seater is sometimes “too clumsy”. He said that he doesn’t go to the window side, but to the aisle side, so he can stretch his leg.

5. When the second incident on 14 January 2020 was explained to the Applicant, he stated that it was “completely wrong” and that “I explain I sit, as I said, do the same thing, that I move. I just stretch my leg, but I never, ever, I’m falling asleep. So, when I falling asleep, if I lean some, like when you are going to sleep, you can, you don’t know that, you are not in conscious.” He stated, “I stretch my leg, but not, definitely not ah, touching someone intentionally.”

6. When the Applicant was asked why he boarded one carriage at Railway Station A and then as the train arrived at Railway Station B, he went to another carriage and sat next to Complainant 4, he said that the train was empty, he was talking on the phone, and then just moved to the other carriage. The Applicant said that he did not intentionally sit next to Complainant 4, and if it was the case that he sat next the same person he did not realise it.

7. When the Applicant was asked why he would get on at one train station and then move to sit next to the same female five stops later, he stated that he moved to the two seater aisle seat, as he was looking for a seat where he can be comfortable.

8. The Applicant denied following Complainant 4 on 15 January 2020.

9. When the Applicant was asked why he would wait four stops down the track to get up and go to a different seat, particularly when he had said he was very tired and could be sleeping, the Applicant denied following or trying to sexually touch anyone.

10. The Applicant recognised Complainant 4 as the female that he had sat down next to on the train after her husband approached him (on 15 January 2020).

11. The Applicant said that it was a “complete coincidence” that he had sat down next to Complainant 4 three times.

106. On 17 January 2020, the Applicant was charged with the following offences in relation to Complainant 4:

1. Sexually touch another person without consent between 7:00am and 8:00am on 15 January 2020.

2. Stalk or intimidate intending to cause fear of physical or mental harm (personal violence offence) between 7:00am on 6 January 2020 and 8:00pm on 15 January 2020.

3. Common assault between 7:14am and 8:00pm on 15 January 2020.

107. On 17 January 2020, a provisional Apprehended Personal Violence Order (APVO) was issued against the Applicant, protecting Complainant 4.

108. Complainant 4’s husband provided a statement to Police on 14 February 2020 in which he said that since the initial incident his wife had been so frightened. He said that she was scared to catch the train to work and now had to drive. He said that she is so fearful to leave the house, and he has to go with her everywhere.

Local Court proceedings – 2020

109. On 30 September 2020, a defended hearing was held in the Local Court in relation to the three charges against the Applicant and the APVO application. The Court was not satisfied, and had reasonable doubt, that the Applicant was the man alleged to have assaulted Complainant 4 on 6 January 2020 and 14 January 2020. Each of the three offences were therefore dismissed.

110. The transcript of the Local Court judgement was included in the Respondent’s material. The Magistrate noted the following:

1. The Court could not be satisfied beyond a reasonable doubt that it was the Applicant in the circumstances of the evidence given by Complainant 4.

2. There was no dispute from the CCTV footage that the Applicant catches a train from Railway Station A to attend work. There was no footage provided to the Court of the Applicant catching the train on 6 January 2020. There was also no evidence that the Applicant had used his Opal card on 6 January 2020.

3. Complainant 4 had been unwavering in her evidence that she felt violated by the same man on two separate occasions, and was clear in her evidence that her recollection of the date of 6 January 2020 was clear in her mind as this was the first date that she started her job for the first time.

4. Complainant 4 said on more than one occasion that she was one hundred per cent sure that it was the same man on 6 January 2020 and 14 January 2020, and that it was on 15 January 2020, that she told her husband “That’s the man that assaulted me on the train”.

5. The evidence of identification comes from Complainant 4, in circumstances where, on her evidence, she was either resting her eyes, or in her messages to her husband, she was asleep at the time when she said that the Applicant was sitting next to her and violating her.

6. Complainant 4 never spoke to the Applicant throughout the one-hour trip. On her evidence, there were very short periods of time for her to look at the person and see his description and facial characteristics and provide identification.

7. There was evidence (which came to light during the hearing) of the Applicant’s wife being home on 6 January 2020 and text messaging her husband who the Applicant’s wife said was downstairs working from home.

111. On 30 September 2020, a final APVO with standard conditions was made against the Applicant, protecting Complainant 4, expiring on 29 September 2022. The transcript of the proceedings in the Local Court indicates that the Court made this order without admissions and on a consent basis.

Applicant’s evidence during the Tribunal hearing

112. The Applicant was cross-examined during the hearing in relation to the 2020 charges.

113. The Applicant was asked why he had not mentioned that he was at home on 6 January 2020 when he was interviewed by Police. The Applicant stated that he did not focus on the date, and he kept telling them that he regularly caught the train, but he did not know what date they were talking about.

114. When it was put to the Applicant that the Police had gone through the dates of the incidents with him during the interview, the Applicant stated that he told them generally that he goes to work and he catches the train.

115. During the hearing, the Tribunal asked the Applicant if he could check if he had any records, such as an email, which confirmed that he was working from home on 6 January 2020. The Applicant made enquiries and later advised the Tribunal that he was not able to obtain any records as his manager was on leave.

Factual findings

116. In Pollock v New South Wales Trustee & Guardian [2022] NSWSC 923, Hallen J set out some general principles regarding evidence and fact finding at [74]-[75]:

“74. Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]:

“When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; [1938] HCA 34; [1938] ALR 334 at 342.”

75. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].”

117. His Honour went on to state at [93]:

“93. I have also had regard, amongst other things, to whether the evidence given is inherently plausible or implausible; whether it is evidence that is specific as to time and otherwise consistent; whether, in a material way, it is, or is not, conformable to other evidence in the case including the available contemporaneous documents; and whether it is contradicted by other evidence which is undisputed or indisputable. I have endeavoured to consider the evidence, not only in its context, but in the context of the total evidentiary mosaic. Common sense and ordinary experience in life is also applied.”

118. The Tribunal has considered all of the documentary and oral evidence before the Tribunal and makes the following findings of fact in relation to the alleged conduct of the Applicant that caused the Respondent to conduct a risk assessment. The Tribunal does not have the constraints that the Local Court had in respect of the 2016 charges, in terms of considering tendency or coincidence evidence, and is able to consider the “total evidentiary mosaic” or all the evidence cumulatively.

119. In relation to the offence on 13 July 2016 involving Complainant 1 and the offence on 15 July 2016 involving Complainant 3, the Tribunal has reached a level of reasonable satisfaction that the Applicant was the offender of both offences. The reasons for these findings are as follows:

1. Complainant 1’s and Complainant 3’s description of the Applicant was consistent with his broad description.

2. The CCTV footage placed the Applicant at the cinema at the relevant date and time and place for both incidents.

3. The Local Court and the District Court accepted Complainant 1’s and Complainant 3’s account as truthful and accurate. Both Courts were satisfied that both complainants had been indecently assaulted.

4. Both complainants reported the incidents soon after they occurred.

5. There was inconsistency in what the Applicant told Police in his interview about possible unintentional touching, and his denial to the Local Court that he had not touched anyone at the cinema.

6. The Applicant had an inadequate explanation for leaving work early, for not going to the cinema for the movie he had purchased a ticket for, for watching a movie on 15 July 2016 that he was going to see later with his wife, for watching part of a sad movie when he was going to the movies to alleviate sadness he was facing at home, and for leaving before the movies concluded – after the alleged conduct occurred. The District Court was not convinced of the legitimacy of the reasons offered by the Applicant for the “cinema hopping” and found that there was “much suspicion which attaches to the activities” of the Applicant on 13 and 15 July 2016.

7. As found by the Local Court, the circumstances established by the evidence for each incident combined so that in terms of timing, opportunity and description, there is no available hypothesis other than that consistent with the Applicant having committed both offences.

120. In relation to the offence 13 July 2016 involving Complainant 2, as this was not the subject of the Police investigation or the Local Court hearing, the Tribunal is not able to make a positive finding that the alleged conduct occurred or that the Applicant was the offender. The Tribunal, however, does not consider that the allegations are groundless. Cases where the allegation can be dismissed as groundless are not cases where there is competing evidence which has to be weighed up: Children’s Guardian v CF1 [2020] NSWSC 1673, at [80]. It is not open to the Tribunal to treat this allegation as groundless because:

1. The Applicant was at the cinema at the relevant date and time and place.

2. The Applicant’s conduct against Complainant 1 (on the same day) and Applicant three days later was similar in nature to other conduct alleged against the applicant – touching Complainant 2’s thigh and attempting to touch her leg underneath the arm rest.

3. Complainant 2 observed that the Applicant was a big man with a beard and wearing a jacket and glasses, which was consistent with the appearance of the Applicant at the time.

121. In relation to the incidents on 6 January 2020, 14 January 2020 and 15 January 2020 involving Complainant 4, the Tribunal has reached a level of reasonable satisfaction that the alleged conduct did occur and that the Applicant was the offender. That is, that the Applicant touched and rubbed Complainant 4’s leg with his leg, and touched and rubbed her arm with his arm on two occasions in January 2020, and sat next to Complainant 4 on a third occasion causing her to fear for her own safety, and that this was not unintentional. This is because:

1. Although there were times when Complainant 4 had her eyes closed, she was able to provide an accurate description of the Applicant and took photos of him on 15 January 2020, recognising him as the man who had sat next to her and touched her on 6 January 2020 and 14 January 2020.

2. Complainant 4 sent her husband text messages describing the alleged conduct by the Applicant, including his perceived ethnic background (Indian), at the time of the alleged conduct. Complainant 4 could not have been asleep when she was doing this and described what happened and what she saw at the time it was happening.

3. When Complainant 4’s husband approached the Applicant on 15 January, with Complainant 4 a few metres away, the Applicant recognised Complainant 4 as the female he had sat next to on the train.

4. The Applicant’s explanation for not telling Police during his initial interview that he was at home on 6 January 2020, when the date of the incident was clearly put to him, was not adequate. The evidence of a text message from his wife to the Applicant on 6 January 2020, which implies he was downstairs, is the only corroborative evidence that he was at home. The text message was sent at 1:23pm that day, which does not rule out the possibility that the Applicant could have been on the train in the morning after 7:15am. The Applicant did not produce any corroborative evidence of having worked from home on 6 January 2020 at the time of the alleged conduct.

5. The absence of an Opal card record for any of the dates does not discount the possibility that he was on the train on the dates in question. The Applicant may have not used his Opal card. The Applicant, in the 2016 charges, did engage in questionable behaviour in relation to the purchase of cheap movie tickets and cinema hopping, which he admitted during cross-examination was wrong.

6. The Applicant’s conduct of intentionally touching a female he is sitting next to, in a public place, is consistent with his previous conduct in 2016.

Consideration

122. In considering what is the correct and preferable decision, the Tribunal is to determine whether the Applicant poses a risk (a real and appreciable risk) to the safety of children. This requires that the Tribunal consider the matters in s 30(1) of the WWC Act.

Section 30(1) factors

The seriousness of any matters that caused the assessment in relation to the person

123. The Tribunal is positively satisfied that the Applicant committed the alleged conduct against Complainant 1, Complainant 3 and Complainant 4. The Tribunal does not regard the Applicant’s alleged conduct against Complainant 2 as groundless.

124. In relation to the seriousness of the matters that caused the Respondent to conduct the risk assessment of the Applicant, the Tribunal is of the view that the conduct of the Applicant towards the complainants is very serious because:

1. The conduct involved one child who was 13 years of age.

2. The complainants were all vulnerable due to the circumstances of the Applicant’s conduct (dark cinema and being backed into the window of a train on a two-seater chair).

3. The conduct took place in a public setting, with the 2016 incidents having occurred in the school holidays at a place where children were present.

4. The Applicant was not deterred by the 13-year-old complainant being in the company of her family, including her parents.

5. The conduct was opportunistic and in relation to Complainant 4, appears to have been targeted.

6. The Applicant was undeterred by the complainants’ initial response to his conduct, including being shoved away, and moving their bodies away from him.

7. The conduct had a significant adverse impact on all of the complainants who were shocked, distressed and in fear of the Applicant. Complainant 4 was in fear of catching trains and leaving the house without her husband.

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

125. The conduct occurred in 2016 and 2020. The fact that the Applicant repeated similar conduct in a period of four years is a relevant risk factor.

The age of the person at the time the matters occurred

126. The Applicant was 42 years of age in 2016, and was 46 years of age in 2020. The Applicant was of sufficient age and maturity to know that the conduct he committed against the complainants was unacceptable.

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

127. Complainant 3 was 13 years of age, which is a factor weighing heavily against the Applicant in the Tribunal’s assessment of risk. The other complaints were young women, aged between 21 and 26 years of age.

128. As noted above, the complainants were all vulnerable due to the circumstances of the Applicant’s conduct.

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

129. The Applicant was significantly older than all of the complainants and had no prior relationship or connection with any of them.

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

130. In relation to the 2016 offences, which occurred during school holidays at a movie cinema, the Tribunal accepts the Respondent’s submission that the Applicant could have reasonably known that one of the complainants in 2016 was a child.

The person’s present age

131. The Applicant is currently 51 years old.

The seriousness of the person’s criminal history and the conduct of the person since the matters occurred

132. Other than the 2016 and 2020 charges and the two-year ADVO that was made in September 2020 and since expired, the Applicant has no other criminal history. There is no evidence before the Tribunal that there has been other similar conduct or conduct of concern that the Applicant has engaged in since the matters occurred.

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

133. The Tribunal is of the view that there is a real likelihood that the Applicant may engage in similar conduct, given the similarities in the Applicant’s conduct in 2016 and 2020, and the fact that the Applicant was not deterred from repeating this conduct despite having gone through two sets of legal proceedings for the 2016 charges.

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

134. There is no evidence before the Tribunal that the Applicant is currently subject to any order of a court or tribunal.

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

135. The Tribunal has considered the Applicant’s evidence that he submitted for consideration in the Respondent’s risk assessment, including various character references. These references, however, do not refer to the Applicant’s conduct that led to the Respondent’s risk assessment. What a person giving a character reference knows of the negative history of the applicant is determinative of the weight to be attributed to the reference: Minister of Transport v FV (GD) [2008] NSWADTAP 60 at [41]. The Tribunal is therefore not able to place substantial weight on these character references.

136. The Tribunal has also considered the Applicant’s submissions, which focus on Applicant being found not guilty by the District Court in 2018 and by the Local Court in 2020. The Tribunal, however, applies the civil standard of proof in assessing the evidence, and the Tribunal’s task is to assess whether the Applicant poses a risk to the safety of children by considering all relevant and probative evidence.

137. The Tribunal has also considered the Applicant’s evidence and submissions in relation to this work history, his family relationships, and his aspiration to support his wife in seeking to adopt a child.

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

138. This is not applicable.

Any other matters that the Children’s Guardian considers necessary

139. There are no other matters that the Respondent has raised.

Assessment of risk

140. The Tribunal has made findings above as to the Applicant’s conduct, which has involved touching young women on their legs and arms, and touching a child on her bottom, without their consent, in public places. Exposure of children (and adults) to this conduct can result in significant and lasting psychological harm. The Tribunal is satisfied that the Applicant’s conduct poses a risk, that is real and appreciable, to the safety of children.

141. The Tribunal has found that the Applicant’s conduct is recent, serious, and likely to reoccur. The Tribunal is not satisfied that the Applicant’s evidence of good character from various references who do not know about the Applicant’s conduct, or his charitable work in the community, or his career record, mitigates the risk such that the risk is not real and appreciable. These factors did not prevent the Applicant from committing the conduct.

142. While the Applicant maintains his innocence for both the 2016 and 2020 charges, this means that the Applicant has not demonstrated any insight or remorse in relation to his conduct.

143. After having been satisfied that the allegations are well founded and that all but one of the incidents occurred, and having considered the s 30(1) factors, in relation to the assessment of risk, the Tribunal finds that the Applicant poses a risk to the safety of children.

Reasonable person test and public interest test

144. Given the Tribunal’s finding that the Applicant poses a risk to the safety of children, it is not necessary to consider the additional tests in s 30(1A) of the WWC Act.

145. However, it is the Tribunal’s view that the Applicant would not satisfy the reasonable person test. The Tribunal is satisfied that a reasonable person with knowledge of all the facts and circumstances which have been outlined above, would not allow his or her child to have direct contact with the Applicant whilst unsupervised by another person.

146. The Tribunal is of the view that the Applicant would also not satisfy the public interest test. The Applicant seeks a clearance to support his wife in applying to adopt a child after years of not being able to have children of their own. The Tribunal, however, is to give priority to the broader interests of the community over private or individual interests (CYY v Children’s Guardian (No 2) [2017] NSWCATAD 262, at [74]-[75]). The public interest weighs against a clearance being given to the Applicant in the circumstances of this case. Granting the Applicant a clearance would not be consistent with the paramount consideration in the operation of the WWC Act of the safety, welfare and well-being of children, and to protect them from child abuse.

Conclusion

147. As the Tribunal has determined that the Applicant poses a risk to the safety of children, it follows that the correct and preferable decision is to affirm the decision under review.

Orders

148. The Tribunal affirms the decision under review.

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

Registrar

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

Registrar

Decision last updated: 18 September 2025