GPE v Children's Guardian

[2025] NSWCATAD 247

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GPE v Children’s Guardian [2025] NSWCATAD 247

Hearing dates:

25 February 2025

Date of orders:

2 October 2025

Decision date:

02 October 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member
K Stubbs, General Member

Decision:

The decision of the respondent is affirmed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance following a risk assessment – dismissal of charges under section 14 of the Mental Health and Cognitive Forensic Provisions Act 2020 (NSW) - whether the applicant poses a real and appreciable risk to the safety of children

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

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

Crimes Act 1900 (NSW)

Mental Health and Cognitive Forensic Provisions Act 2020 (NSW)

Cases Cited:

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; ALR 334

CXZ v Children’s Guardian [2020] NSWCA 338

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Holbrook and Australian Postal Commission (1983) 5 ALN N46

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

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1

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

Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303

Tilley v Children’s Guardian [2017] NSWCA 174

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

Category:

Principal judgment

Parties:

GPE (Applicant)
Children’s Guardian (Respondent)

Representation:

Solicitors:
Brady & Associates Lawyers Pty Ltd (Applicant)
Crown Solicitor (Respondent)

File Number(s):

2024/00305358

Publication restriction:

Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), except for expert witnesses and officers of government agencies, the disclosure, 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.
Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

reasons for decision

1. The applicant (GPE) seeks administrative review of the decision of the respondent (the Children’s Guardian), made on 16 July 2024, to refuse his application for a working with children check clearance (clearance): Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) section 27. The respondent refused the applicant’s application for a clearance as she was satisfied, having conducted a risk assessment, that the applicant poses a risk to the safety of children: WWC Act section 18(2).

2. For the reasons that follow the Tribunal has decided to affirm the decision of the respondent.

Background

3. The applicant is 33 years of age and has been diagnosed with autism spectrum disorder and Klinefelter Syndrome. He is single and has no dependents. He lives with his mother, stepfather and brother and he worked as a cleaner for the local Council.

4. In August 2018, the applicant was granted a volunteer clearance under section 12(1)(a) of the WWC Act which authorised him to engage in unpaid child-related work. Under section 22(1) of the WWC Act a clearance ceases to have effect five years after the date it is granted, unless it is sooner cancelled or surrendered.

5. We understand the applicant has not engaged in any unpaid child-related work while the holder of a volunteer clearance: WWC Act section 12(1)(b). The applicant now seeks a non-volunteer clearance under section 12(1)(a) of the WWC Act. In his application to the respondent, the applicant said he needed a clearance for his work as a cleaner as he works around people who are on the NDIS.

6. In March 2022, the applicant was charged with two offences of sexual touching without consent contrary to section 61KC of the Crimes Act 1900 (NSW) (Crimes Act). The first offence related to a charge of attempt to commit an offence of sexual touching without consent and that was alleged to have occurred on 9 January 2021. The second offence of sexual touching without consent was alleged to have occurred 5 March 2022.

7. On being informed of these charges, the respondent imposed an interim bar on the applicant under section 17(1) of the WWC Act.

8. On 27 March 2023, the criminal charges laid against the applicant were dismissed by the Local Court under section 14(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act).

9. On 14 July 2023, the applicant sought to have the bar on his clearance lifted.

10. On 27 July 2023, the respondent informed the applicant that he was subject to an ‘assessment requirement’ by reason of having been charged with the sexual touching offences: WWC Act section 14 Schedule1, clause 1(1)(b).

11. Section 15(1) of the WWC Act provides that the respondent must conduct a ‘risk assessment’ of a person subject to an ‘assessment requirement’. The matters the respondent may consider in making that assessment and determining an application for a clearance are prescribed in section 15(4) and (4A) of the WWC Act.

12. On 16 July 2024, the respondent having completed a risk assessment, determined under section 18(2) of the WWC Act to refuse the applicant’s application for a clearance as she was satisfied that the applicant poses a risk to the safety of children. In her decision, the respondent explained that in undertaking the risk assessment the following police records and other records had been considered:

1. the police records relating to the March 2022 charges laid against the applicant;

2. the 2021 police record of the applicant having allegedly offered a lift to a fourteen-year-old male and asked him if he could listen to his stomach in exchange for money;

3. a January 2021 police record of the applicant allegedly having sexually assaulted an associate in 2012, when the associate was 16 years of age; and

4. other police records of the applicant allegedly having asked other men he had given a lift to whether he could listen to their stomach.

13. The applicant continues to deny the charges laid against him. He also disputes the allegations made against him in the other police records and contends that he does not pose a risk to the safety of children as assessed by the respondent in her risk assessment.

14. The respondent contends that, on the material before the Tribunal, the Tribunal will be satisfied that the applicant does pose a risk to the safety of children and on this basis her decision to refuse the applicant’s application should be affirmed.

Non-publication order

15. Due to the sensitive nature of these proceedings and to protect against the identity of any alleged victim being disclosed, on 12 September 2024, the Tribunal (differently constituted) made an order under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) that, with the exception of expert witnesses and officers of government agencies, the disclosure, 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. We note that a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Accordingly, the pseudonym ‘GPE’ is used for the name of the applicant in these proceedings and geographic locations have also not been disclosed.

Jurisdiction and role of the Tribunal

16. The applicant’s application is an application for administrative review, under the Administrative Decisions Review Act 1997 (NSW) (ADR) Act, of the decision of the respondent to refuse his application for a clearance: WWC Act section 27.

17. The role of the Tribunal is to decide the correct and preferable decision having regard to any relevant factual material before it and the applicable law: ADR Act section 63(1). The Tribunal is required to review the merits of the original decision and in doing so is to consider the evidence available at the time the original decision was made together with any other or later material, and decide whether to affirm the original decision, vary it or set it aside: ADR Act section 63(2) and (3) and YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].

18. The Tribunal is to make its own decision and there is no presumption that the respondent’s decision is correct: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.

19. These are not adversarial proceedings and there is no burden or onus of proof on either party: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39] – [40]. However, a practical or ‘forensic’ burden may arise where a party asserts a material fact without any supporting evidence: Re Eckersley and Minister for Capital Territory (1979) 2 ALD 303; Holbrook and Australian Postal Commission (1983) 5 ALN N46.

20. The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter subject to the rules of natural justice: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) section 38(2). However, the Tribunal is required to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at [62], [68] and BKE v Office of the Children’s Guardian [2015] NSWSC 523 (BKE) at [29].

The applicable law

21. 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 a WWCC clearance: WWC Act section 3.

22. Section 4 of the WWC Act provides that the paramount consideration in the operation of the Act is ‘the safety, welfare and well-being of children and in particular protecting them from child abuse’. The term ‘child abuse’ is not defined in the WWC Act and should be given its ordinary meaning to include any action that harms or injures a child.

23. The word ‘children’ is defined in section 5(1) of the WWC Act to mean persons under the age of 18 years.

24. Section 5B of the WWC Act provides that a risk to the safety of children in that Act is a reference to a ‘real and appreciable risk to the safety of children’.

25. Sections 8 and 9 of the WWC Act prohibits a person from engaging in child-related work or an employer employing a person to engage in child-related work unless the person has a WWCC clearance.

Child-related work

26. The word ‘child-related work’ is very broadly defined in sections 6 and 7 of the WWC Act.

27. The WWC Act makes no provision for a clearance to be granted subject to conditions. Hence, if granted, a clearance is a clearance for any child-related work.

Part 3 of the WWC Act – determination of applications for a clearance

28. Part 3 of the WWC Act makes provision for the two classes of clearance, the making of an application for a clearance, risk assessments of applicants and holders of a clearance, the determination of an application for a clearance, and the duration of a clearance.

29. Section 18 sets out how the respondent is to determine an application for a WWCC clearance.

30. How the respondent determines an application will depend on whether the applicant for the clearance is:

1. a ‘disqualified person’- in such circumstances the respondent must not grant the person a clearance: WWC Act section 18(1);

2. a person is subject to a ‘risk assessment’ under Division 3 of Part – in such circumstances the respondent must grant a clearance to the person unless satisfied that the person ‘poses a risk to the safety of children’: WWC Act section 18(2); or

3. a person who is not a ‘disqualified person’ or subject to a ‘risk assessment’ – in such circumstances the respondent must grant a clearance to the person: WWC Act section 18(3).

31. A ‘disqualified person’ is a person who, at the time of making the application for a WWCC clearance:

1. has been convicted, as an adult, of an offence specified in Schedule 2 of the WWC Act: WWC Act section 18(1)(a), or

2. a proceeding for such an offence is pending against the person: WWC Act s 18(1)(b).

32. At the time the applicant was charged with the offence of attempt sexual touching and the offence of sexual touching contrary to section 61KC of the Crimes Act, he was a ‘disqualified person’ pending the determination of those charges: WWC Act Schedule 2 clause 1(1)(e).

33. In response to being notified of these charges the respondent determined to make the applicant subject to an interim bar under section 17 of the WWC Act.

34. Section 23(1) of the WWC Act provides that the respondent must cancel a clearance where she becomes aware that a person is a disqualified person or she is satisfied that the person poses a risk to the safety of children.

35. Section 13A(1) of that Act places a five-year embargo on a person whose clearance has been cancelled. That is such persons are unable to make a fresh application for a clearance for five years after the date of cancellation. However, section 13A(2) sets out the circumstances in which a further early application can be made. This includes where, after the date of cancellation the proceedings that were pending at the time of cancellation have been dealt with without the person being found guilty of the offence: WWC Act section 13A(2)(a).

36. On the material before the Tribunal, the respondent does not appear to have decided to cancel the applicant’s clearance under section 23(1), as she was required to do on being informed about the charges. The respondent did however, in accordance with section 13A(2), accept the applicant’s request for a lifting of the interim order as a fresh application for a clearance. Having accepted the request as a new application, the applicant was nevertheless subject to an ‘assessment requirement’ under section 14: WWC Act Schedule 1 clause 1(1)(b).

37. Section 15(1) provides that, where a person is subject to an ‘assessment requirement’, the respondent must conduct a risk assessment of that person to ‘determine whether the applicant or holder poses a risk to the safety of children’.

38. Section 15(4) provides that in ‘making an assessment’ the respondent may consider the matters prescribed in paragraphs (a) to (k) in that section.

39. Section 15(4A) provides that the respondent may determine that an applicant for or the holder of a clearance ‘does not pose a risk to the safety of children only if the respondent is satisfied’:

(a)  a reasonable person would allow the person’s child to have direct contact with the applicant or holder—

(i)  while not directly supervised by another person, and

(ii)  while the applicant or holder was engaged in child-related work, and

(b)  the making of the determination is in the public interest.

Part 4 of the WWC Act - Reviews and appeals

40. Subject to the restrictions in section 26, Part 4 of the WWC Act makes provision for reviews and appeals from decision made by the respondent to refuse to grant a clearance or cancel a person’s clearance.

41. As notes above, section 27 in this Part makes provision for a person who has been refused a WWCC clearance by the respondent, or whose clearance has been cancelled by the respondent to apply to the Tribunal for administrative review under the ADR Act.

42. Section 28 in this Part makes provision for a ‘disqualified person’ to make an application to the Tribunal under that section, for an order declaring that he or she is not to be treated as a ‘disqualified person’ for the purpose of that Act in respect of the offence(s) that are the person’s disqualifying offences.

43. The applicant’s application is brought under section 27 of the WWC Act which relevantly provides as follows:

27   Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions

(1)  …

(2) A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.

(3)  …

(4)  An applicant must fully disclose to the Tribunal any matters relevant to the application.

(5), (6)    (Repealed)

(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.

(8)  …

(9) …

(10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

44. Section 30 in this Part sets out the matters the Tribunal must consider, and be satisfied of, in determining an administrative review application under section 27 or an application brought under section 28. These matters are in similar terms to those in section 15(4) and (4A)

45. Section 30 is in the following terms:

30   Determination of applications and other matters

(1)  The Tribunal must consider the following in determining an application under this Part—

(a)  the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,

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

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

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

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

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

(g)  the person’s present age,

(h)  the seriousness of the person’s 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 and the impact on children of any such repetition,

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

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

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

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

30(1A) The Tribunal may not make an order under this Part 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—

(a)  a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and

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

Material before the Tribunal

46. In support of his case, the applicant relied on a bundle of documents which included:

1. a statement made by the applicant and dated 11 October 2024. Attached to that statement were a number of attachments;

2. a statement made by the applicant’s mother dated 11 October 2024;

3. a report of Dr James F Donnelly Clinical Neuro Psychologist;

4. an expert report, dated 4 October 2024, of Dr Marcelo Rodriguez (Psychologist); and

5. three references.

47. In support of her case, the respondent relied on:

1. copies of documents provided by the NSW Police Force (Police) under section 31 of WWC Act. These documents were contained within the respondent’s section 58 documents (marked Ex R1). Included in Ex R1 were copies of COPS Event reports (Event reports) and Information reports concerning incidents/events in which the reporting police officer identified the applicant as a ‘POI’ (person of interest) or a ‘victim’, and the Police Fact Sheet concerning the alleged sexual touching offences of which the applicant was charged; and

1. two further bundles of documents (marked Ex R2 and EX R3). Ex R2 contained a copy of the transcript of the hearing, before the Local Court, concerning the dismissal of the charges laid against the applicant. Ex R3 contained the documents produce, pursuant to a summons issued by the Tribunal at the request of the respondent, by Dr James Donnelly, the applicant’s treating psychologist.

48. Pursuant to a further summons, issued by the Tribunal at the request of the respondent, the Police produced a copy of the Police Brief in respect of the alleged sexual touching offences. That material was marked as MFI 1 at the commencement of the hearing and subsequently relied on by the solicitor for the respondent in cross-examining the applicant.

49. At the hearing of the applicant’s application, the applicant, the applicant’s mother, Dr Rodriguez and Dr Donnelly gave oral evidence and were cross-examined by the solicitor of the respondent. Written submissions were also provided by both parties.

The Evidence

The sexual touching charges

50. The Police Fact Sheet (see at Exhibit R1 p112) was prepared by Police after the applicant was arrested (11 March 2022). As noted under the heading ‘Antecedents’, the Fact Sheet was prepared for the purpose of a hearing as to whether the applicant should be granted bail. This was not formerly opposed, so long as the applicant was subject to a curfew and not permitted to have passengers in his vehicle other than family members. The applicant was granted bail on the conditions recommended by police. There is no evidence to indicate that the applicant breached those conditions.

51. The Police Fact Sheet (Fact Sheet) noted that the accused (the applicant) was the owner of a white Mitsubishi Outlander vehicle and that the registration number of the vehicle was changed in November 2019.

52. The Fact Sheet began by referring to two incidents, that allegedly occurred prior to the 9 January 2021 attempted sexual touching charge. These earlier incidents were not the subject of any criminal charges. They relate to two incidents that allegedly occurred in the early hours of the morning when three young men (deponent 4, 5 and 6) had accepted a lift from the driver of a vehicle (alleged to be the applicant) who engaged in conversation of a similar nature to the driver of the vehicle the subject of the alleged offending: MFI1 – tab 4, 5 and 6. The first incident is alleged to have occurred in January 2020, and the second incident is alleged to have occurred on 8 November 2020. These incidents are dealt with below.

9 January 2021 alleged attempted sexual touching offence

53. Regarding the 9 January 2021 charge of attempt sexual touching without consent, the Police Fact Sheet sets out the following alleged acts and omissions relating to that charge (Exhibit R1 p113):

1. at about 1.15am on the morning in question, victim A, a 25-year-old male, was walking home alone from a night out when the accused (the applicant) pulled up driving a white Mitsubishi Outlander SUV. Victim A alleged that the applicant had asked him what the time was and offered him a lift home;

2. victim A accepted the lift as it was raining. He got into the SUV and provided directions to his home;

3. the applicant is alleged to have said that he was a biologist and asked to listen to victim A’s stomach as he was fascinated about the insides of the human body and requested to listen to victim A’s intestines. Victim A alleges he said no. It is alleged that at this time the applicant leaned across and grabbed victim A’s belt buckle, reaching for victim A’s penis and moved his head towards victim A’s crutch;

4. the applicant is alleged to have said he did not mean to touch the victim’s penis and that he was ‘straight but curious’. The applicant is alleged to have asked about protein and cannibalism and what would happen to the protein if he ate him. Victim A got out of the car and ran away; and

5. the next day victim A is alleged to have heard of other persons that had a similar experience with a male driving a white SUV.

54. The Fact Sheet goes on to note that on 27 January 2021, police attended the home of the applicant and requested to take a photo of him for ‘forensic procedures’. The applicant agreed, and on the same day he attended the local Police Station and consented to police taking photographs of him. Victim A subsequently completed a ‘Witness View’ but did not identify the applicant as being the person who had on 9 January 2021 given him a lift in his SUV.

5 March 2022 alleged sexual touching offence

55. The Fact Sheet refers to an incident that is alleged to have occurred prior to 5 March 2022 at about 2.00am on 28 November 2021. That incident is the subject of Event report E XXXXX 946 (Ex R1 p85). Again, no charges were laid in respect of this incident. This incident is also dealt with below.

56. Regarding the 5 March 2022 charge of sexual touching without consent, the Police Fact Sheet sets out the following alleged acts and omissions relating to that charge (Exhibit R1 p114-115);

1. at around 1.00am on the morning of 5 March 2022, victim B (aged 19 years) alleged that as he and his two male friends were walking away from the local hotel where they had been drinking that evening, they saw the accused (the applicant) parked on the side of the road in a white Mitsubishi Outlander vehicle. It is alleged that the applicant asked victim B and his friends if they wanted a lift. They got into the applicant’s vehicle with victim B getting into the rear passenger seat;

2. it is alleged that the victim B’s friends were dropped off first and during that part of the trip the applicant talked about going to find some girlfriends. After the friends of victim B had been dropped off, victim B decided to go with the applicant and remined in the back passenger seat of the vehicle;

3. it is alleged the applicant then drove a short distance and stopped the vehicle in a cul-de-sac. It is alleged that victim B remained seated in the rear of the vehicle as he and the applicant exchanged snapchat details. During this time, it is alleged that the applicant asked victim B if he could listen to his stomach as he was training to be a doctor. It is alleged that, at the same time, the applicant lowered his seat so that he could lean into the back passenger seat close to victim B. It is alleged that victim B initially agreed before feeling weird and withdrawing his consent. Before making more comments about the digestive system and organs, the applicant again asked if he could listen to the victim’s stomach. It is alleged that the applicant asked victim B whether he would eat another human, and if he was tiny, would victim B eat him. It is alleged that the applicant asked victim B how much he would need to pay the victim to suck his penis. Victim B was shocked and asked to be taken home; and

4. the applicant is alleged to have again requested to listen to victim B’s stomach, which was denied. It is alleged applicant then put his hand on the stomach of victim B and his hand under the victim’s shirt. It is alleged that victim B felt the hand of the applicant just above his penis on his pubic hair. Victim B pushed the applicant away and punched him several times before getting out of the vehicle and running from the location. The victim telephoned police.

57. Event EXXXXX 160 (Ex R1 p84), notes that victim B attended the local police station on 5 March 2022 to report the incident and make a statement about the events of the previous night. A copy of that statement is at tab 7 of MFI1.

58. The Fact Sheet goes on to note the following (Exhibit R1 p114 -115):

1. on the afternoon of Friday 11 March 2022, the applicant was sighted driving his white Mitsubishi Outlander. After having sighted the applicant, he was stopped by police outside his home. Police placed the applicant under arrest in respect of the 5 March 2022 incident. The applicant informed police that he had not been at the specified location but had been at another location from 12am to 4am. The applicant’s vehicle and mobile phone were seized pursuant to a search warrant. Other items were also seized from the applicant’s home;

2. the applicant was taken to the local Police Station. The applicant was identified as being on the autism spectrum and police organised for the applicant to have a support person present (the applicant’s mother). The applicant was also given the opportunity to speak with a solicitor organised by the Justice Advocacy Service; and

3. the applicant participated in an electronic record of interview. He denied any involvement in the alleged offending. He acknowledged ownership of the white Mitsubishi Outlander with the registration number depicted in the photograph and said he had changed his registration plates after one was stolen. He confirmed his involvement and interaction with police on 28 November 2021 but did not remember the conversation he had with the young man (see below Event Report E XXXXX 946)). The applicant confirmed that he was not studying medicine and denied an interest in cannibalism. He said no other person drives his vehicle and he had not picked up a hitch hiker or given people a lift home since 2018.

The dismissal of the charges

59. The applicant pleaded not guilty to the charges.

60. On 3 August 2022 the applicant consented to a mental health assessment by the Statewide Community and Court Liaison Service (SCCL Service or Service). He was reviewed multiple times by the Service and on 21 March 2022, Carrie Lewis, Clinical Nurse Consultant (Mental Health) provided a report in which she concluded:

After consultation with Professor David Greenberg it is our view that there are reasonable grounds to believe that [the applicant] is suitable for consideration of diversion by the court as described in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, section 14 because [the applicant]

(i) is cognitively impaired

a) Autism spectrum disorder,

61. Carrie Lewis recommended that the applicant;

1. seek further assessment from a Forensic Psychiatrist or Forensic Psychologist, with expertise in sexual behaviours; and

2. continue regular appointments with his general practitioner Dr S Bright; and

3. continue engagement with his Clinical and Neuropsychologist, Dr J F Donnelly.

62. On 27 February 2023 (see Exhibit R2 tab 2), being satisfied that the applicant has a mental health impairment or a cognitive impairment and the facts as alleged in the proceedings, the Local Court Magistrate made an order, pursuant to section 14(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), dismissing the charges laid against the applicant and discharging him into the care of Dr S Bright and Dr Donnelly to continue:

1. regular appointments with Dr Bright and continue to take medications as prescribed, and

2. engagement with Dr J F Donnelly, with regular fortnightly sessions to manage his anxiety and his Autistic Spectrum Disorder.

63. The facts, as alleged, appear to have been those made by victim A and victim B and did not include those made by deponent 4, 5 and 6, but did include the events of 28 November 2021 when police directed the applicant to move on after he was seen early that morning talking to a 14 year old male while in his vehicle: Exhibit R2 p8.

Other reported incidents

64. It is convenient to deal with the other reported incidents in the order they were alleged to have occurred.

2012 – alleged sexual assault

65. Event report E XXXXX 734, dated 15 January 2021 (Ex R1 p87) – This report arose after the applicant had called triple zero that evening. He called after 9pm to report an assault by friends of the driver of the vehicle (the Driver) parked behind him at the local laundromat. The applicant is recorded as having reported that the friends of the Driver were alleging that he, the applicant, had sexually assaulted the Driver in 2012 when the driver was 16 years of age. Police attended in response to the applicant’s call and spoke to the applicant who denied the allegations and provided police with his details. The applicant said it was a case of mistaken identity and drove off. The Driver is recorded as having gone back with police and provided his version of events. In this regard police have recorded that the Driver asserted to have been sexually assaulted by the applicant in 2012. The Driver asserted that he and the applicant had met through mutual friends, and the applicant had added him to his Facebook account. The Driver alleged that on the night in question in 2012, the applicant had picked him up one evening and had two cases of Smirnoff Double Black alcoholic drinks in his vehicle. He said the applicant drove him to a spot in the local area where he was encouraged to consume several drinks. The Driver said he was intoxicated when the applicant drove him to an unknown dark bushland location where the Driver was forced to perform oral sex on the applicant. The Driver alleged that the applicant then insisted on performing anal sex on him. The Driver is recorded as having said that he blocked the applicant from Facebook and was afraid of coming forward and reporting the matter to police, family or friends. The Driver is recorded as having blocked the applicant on Facebook, but the applicant continued to set up new accounts and joined the Driver to those accounts until he, the Driver, set up a new account. The Driver is recorded as having said that on the few occasions he has seen the applicant, this has caused him to leave immediately due to the fear of flashbacks.

12 November 2016 – move on direction

66. Event report E XXXXX 687, dated 12 November 2016 (Ex R1 p 94) – this is an automated narrative report which records the applicant having complied with a ‘move on’ direction after being sighted that evening (11/11/2016) loitering, without any legitimate reason, near a set of public toilets which were in a high crime area known for sexual activity and prostitution.

January and 8 November 2020 – alleged encounter with the applicant by three young men

67. It was through the information provided to police by victim A that police were able to contact and obtain statements from three men who alleged to have accepted a lift from the applicant during the early hours of the morning after they had been out drinking: see Ex R1 p88. The statements, dated 11 and 12 January 2021, are in MFI1 at tab 4, 5 and 6. In the Statement of Facts the men were described as ‘teenagers’. In their respective statements they each said they were 19 or 20 years old.

68. In the statement that is at MFI1 tab 4, the deponent (deponent 4) only referred to the events of January 2020, when he and the other two men accepted a lift with the person who was driving a white Mitsubishi Outlander SUV. The deponent noted that, after the other two men were dropped off, the driver of the vehicle made remarks to him about cannibalism, asked if he could listen to his heart and asked what he would say if he asked him to perform oral sex. The deponent said he got straight out of the vehicle and telephoned the other two men to tell them what happened. He said he had not seen the vehicle or the driver of the vehicle since that day. However, on 7 November 2020, he received a photograph from one of the other men (see below deponent 5). The other man told him that photograph was a photo of the rear number plate of the vehicle that had given them a lift in January 2020. A copy of that photograph has not been provided but, in his statement, deponent 4 provided details of what he asserted the number depicted in the photo to have been.

69. In the statement that is at MFI1 tab 5, the deponent (deponent 5) only refers to the events of 7 November 2020 where he and two other men accepted a lift in the white Mitsubishi Outlander SUV. In naming the two men who were with him, he names one of the men who was with him in January 2020 but does not identify deponent 4 as being with him on the night in question (7 November 2020). However, the third person appears to be a nickname of that person. In his statement, deponent 5 explains that he and the others were not in the vehicle very long and that he took a photo with his phone of the back registration plate of the vehicle. A copy of that photograph has not been provided but, in his statement, deponent 5 provided the details of what he asserted the number depicted in the photo to have been.

70. In the statement that is at MFI1 tab 6, the deponent (deponent 6) refers to both the January and the November 2020 incidents. He states that both deponent 4 and deponent 5 were with him on each occasion, that deponent 4 had told him what had happened in January 2020, and deponent 5 had taken a photograph of the registration plate of the white Mitsubishi Outlander SUV. A copy of that photograph has not been provided but, in his statement, deponent 6 provided the details of what he asserted the number depicted in the photo to have been and went on to assert that the photo was timed and dated ‘2:12am 7/11/2020’.

71. The same registration number is contained in each of the statements of deponent 4, 5 and 6 and it is not disputed that this is the registration number of the applicant’s vehicle. The applicant denies having offered a lift to deponent 4, 5 and 6 as alleged. He also says that as he has never seen the photo, he unable to verify what number is in fact depicted in the photograph taken by deponent 5.

1 June 2020 – 16 January 2021 – sighting of applicant’s vehicle to pick up intoxicated males

72. Information Report Ref No XXXXX 552, dated 1 June 2020 (Ex R1 p 96) - this is a police narrative which has a start date of 1 June 2020 and an end date of 16 January 2021, which is 5 days after victim A had contacted police and made his statement. The narrative notes that information had been received about the applicant using his vehicle to pick up intoxicated males and transporting them to their stated location or a secluded area. While in the vehicle the applicant asked the males if he could ‘listen to their intestines’ or ‘what would happen if you ate me?’ And on some occasions the applicant was known to touch the genitalia of the males. Based on the content of the narrative and the information that is before the Tribunal, this report is a police narrative, entered on 16 January 2021, not 1 June 2020, based on information received from victim A and deponent 4, 5 and 6.

5 October 2020 – sighting of applicant’s vehicle in local drug location

73. Information Report Ref No XXXXX 030, dated 5 October 2020 (Ex R1 p 96) – this is a police narrative of police having received information from a security company that, on the previous three to four nights, during the early hours of the morning the applicant’s vehicle had been sighted in a known local drug location.

10 January 2021 – victim A’s report to police

74. Event report E XXXXX 972, dated 10 and 11 January 2021 (Ex R1 p88) – the 10 January 2021 police narrative is the Event record of victim A’s account of his alleged encounter with the applicant the previous night, which became the subject of the first sexual touching charge laid against the applicant: see at [53] above. The report notes that victim A was of the belief that the applicant was ‘socially awkward and might have autism’. As already noted, victim A provided a statement. He also provided police with the names of two other men who he had been told had experienced a similar encounter. One of the men named was deponent 5 (see at [69] above) and another male. Both men were contacted, and statements were obtained. The statement of the other man (deponent 3) is at tab 3 of MFI1, who alleges that the vehicle that gave him a lift a few months earlier was black car and that he also experienced similar behaviour from the driver of that car that had been experienced by deponent 4 and 5.

19 November 2021 – applicant reports an assault to police

75. Event report E XXXXX 460 dated 19 November 2021 (Ex R1 p86) – this is a police narrative of the applicant having attended the local police station to report an assault. The narrative states that, on 18 November 2021, a friend and snapchat acquaintance of the applicant had sent a message asking for $175. The applicant is recorded as having agreed to pay the friend the money if he could give the friend a hand job. The friend agreed. The applicant picked up the friend at about 6.30pm after which they drove to a cul-de-sac. After the applicant gave the friend a hand job, the applicant transferred $175 to the friend. The friend then punched the applicant in the head and left the vehicle. The applicant sent a message to the friend asking him why he had punched him. The friend is recorded as having said that if the applicant did not pay him $150, he would tell the applicant’s mother. The applicant was recorded as being worried because he had not told anyone he was gay. The applicant is recorded as having said he did not pay the $150. The applicant was advised to block the friend from snapchat. On 1 December 2021, police attended the home of the friend who told police that he had punched the applicant when the applicant tried to make a sexual move towards him.

28 November 2021 – move on direction

76. Event report E XXXXX 946, dated 28 November 2021 (Ex R1 p85) – this is a narrative of the patrolling police who, in the early hours of that morning had stopped to speak to the applicant who was in his vehicle speaking to another man standing at the intersection. The man (the alleged victim), immediately asked to speak to police in private. The alleged victim is recorded as having told police that he was 14 years of age. He said the applicant had pulled up next to him and struck up a conversation and asked him if he needed a lift home. The alleged victim said he told the applicant that he did not need a lift to which the applicant is alleged to have offered to pay the alleged victim $20 if he got into the vehicle and let the applicant listen to his stomach with a stethoscope. When questioned by police, the applicant is recorded as having said he had only stopped to ask the time as his phone was flat and the clock in his car was not correct. Police searched the applicant’s vehicle and did not find a stethoscope, but found a black dildo, a bottle of lube, and gloves on the back seat. The applicant is recorded as having denied making the comments as alleged by the alleged victim and said he wanted to go home. The applicant was issued with a ‘move on direction’ and told not to return to the area for 6 hours.

The applicant’s evidence

77. In his written statement, the applicant said the following regarding the 9 January 2021 alleged offending with which he was charged:

1. in early January 2021 he had haemorrhoids surgery. On 8 January 2021, while he was at work, he called his mother at 7pm to tell her he was not feeling well as he was bleeding from where he had the surgery and he was in pain. He sent his mother a photo of the blood he had collected on toilet paper, a copy of which was attached to his statement. He and his mother decided that he did not need to go to the hospital;

2. he arrived home about 11.15pm and went straight to bed and slept through the night;

3. he had never met and did not know victim A or the two named friends of victim A;

4. he has never told anyone he is a biologist, or asked any questions about cannibalism or attempted to listen to peoples’ internal organs – this behaviour, he said, is bizarre and he would never do such things;

5. he openly identifies as gay and any sexual encounters he has had, have been with consenting adults who are also same sex attracted; and

6. he fully complied with police investigators and completed a police line-up. Victim A did not identify him as the offender on three (3) separate occasions. Nor did the description of the offender fit his height, age, length and colour of hair or where he was from.

78. In support of his claim that he was not driving the night of 9 January 2021, the applicant relied on the ‘Discharge Referral Notes’ (‘Referral’) of his admission to the local hospital from 2 to 3 January 2021: Ex A2 p22-29. The ‘Referral’ noted that the applicant presented to the Hospital with ‘Post Operative Complication’. The ‘Referral’ noted that the applicant had haemorrhoid surgery in July 2020. In his presentation to the local hospital on 2 January 2021, it is recorded that the applicant had a recurrence of bleeding and pain. On his discharge from the hospital the applicant was given a certificate to say he was ‘unable to attend normal duties’ of his cleaning job from 3 January to 4 January 2021. It was the applicant’s evidence that the bleed to which he referred occurred after this hospital visit.

79. The applicant said he has never driven or been in possession of a black car as alleged by deponent 3.

80. During cross-examination at the hearing, the applicant re-iterated that he had gone home after work on 9 January 2021 because of the bleeding. He said the incident did not happen. However, he agreed, having been shown discharge documents, that he did not have his surgery in January 2021. He nevertheless confirmed his evidence that he had bleeding on the night in question and went home.

81. The applicant agreed that he had a BCU credit card. He was shown a copy of the BCU statement for January 2021 that was addressed to him: see MFI1 tab 15. The solicitor for the respondent took the applicant to the BCU credit statement for entries made on 9 and 10 January 2021 which included entries for food purchases on that were made on these days. The solicitor for the respondent then put to the applicant that he was not at home on the night of 9 January 2021 but was out driving and purchasing food. In response the applicant said that he sometimes gives his credit card to his mother.

82. The BCU statement does not indicate for each transaction entered on the statement the date and time the purchase had been made.

83. In his written statement, the applicant said the following regarding the 4 March 2022 alleged offending with which he was charged:

1. at the relevant time he was parked in his vehicle checking his notifications when he was approached by a male who was visibly drunk. The male asked him if he was an uber or taxi and if he could give him a lift;

2. he asked the male who he was and told him to get out of the vehicle about 3 times. In a grumpy voice, the male asked to be dropped off around the corner. Given the past experiences of 12 December 2015 and 20 March 2019, the applicant said he reluctantly agreed to give him a lift and the male ’immediately beckoned his two friends into the back seat’;

3. he was uncomfortable and wanted to get the ‘three strangers’ out of his vehicle as soon as possible. The male who had stopped him was sitting in the front seat and did not have his seat belt on. As he was driving around a corner, the male in the front seat spilt his ‘white can of beer all over my car, himself and me’. This made the applicant angry, and he yelled at them all to get out of his vehicle. All three males left together;

4. he participated in a police line-up for this alleged offending and none of the three males identified him. He assumed this was because they were in his vehicle for such a short period of time; and

5. the description of him, as provided by victim B, did not match his height or age. Nor did he provide his contact or snapchat details to victim B.

84. In his oral evidence at the hearing the applicant acknowledged that he encountered victim B on the night in question. He said he had pulled over because it was a safe place to stop. He re-iterated that he was very cautious in having a stranger in his car as he had been assaulted in 2019 (Event report E XXXXX 683 – Ex R1 p92-93). In response to the statement made by witness B, the applicant denied what witness B had asserted to have happened on the night in question.

85. In his statement the applicant responded as follows regarding the police reports referred to at [65] – [76] above:

1. he denied the alleged 2012 sexual assault. He said he did not obtain his provisional driver’s licence until 30 April 2013. Prior to this he never drove a vehicle on his L’s without a supervisor being present: see Ex A2 p18. He did not know anyone by the name of the Driver and that he only ever had one Facebook account and did not create any additional accounts;

2. regarding the events of 15 January 2021 – Event E XXXXX 734 (Ex R1 p87) – the applicant said he did recall going to the laundromat that day and putting in his washing when another car pulled up blocking his exit. Fearing for his safety, the applicant called police, who arrived 10-15 minutes later. He does not otherwise know anyone by the name of those mentioned in this report;

3. regarding the January 2020 event, the applicant said the person described in this event was not him, because he was working as a cleaner at this time and would not finish until 9pm. He went on to say that, as this alleged incident occurred during the COVID period he would have gone straight home. He also said it did not make sense that he would have been on the street named by that person as he lives on the opposite side of the town and does not go there. He also said that there were many white Mitsubishi Outlanders in the town;

4. regarding Event report E XXXXX 460, dated 19 November 2021 (Ex R1 p86) –the applicant explained that the friend was his neighbour who identifies as being bi-sexual. He said that it was the friend who had asked him to pick him up. Attached to the statement was a copy of an internet payment confirmation to the friend on 18 November 2021 at 6.04pm. The applicant said it was a consenting act between two consenting adults. In his oral evidence, the applicant said that he and his friend use snapchat to flirt and that this was the first and only time he had given money for sex.

5. regarding Event report E XXXXX 946, dated 28 November 2021 (Ex R1 p85) – the applicant said:

1. he was at home playing video games on the night in question when he became hungry and began driving to McDonald’s which was not unusual for him. He said he was aware that McDonald’s resets its registers at 3.00am and he wanted to make it before then. However, his phone was flat and charging and the clock in his vehicle is not set at the correct time, which was confirmed by the police who attended;

2. he noticed a male on the side of the road talking on his phone. He pulled over to ask him the time. He did not know who he was or that he was 14 years of age – ‘he had a mustache and a goatee, so I assumed he was an adult’. He said the male gave him the time and asked what he was doing so early. After a brief exchange, the male asked the applicant if he could give him a lift as he was going to his mate’s place. The applicant said he told the male that he could not give him a lift as he was unwell. He said he was wearing a mask at the time because he was not sure if he had COVID. He said that as the male was walking away, the police pulled over and began questioning him. He said it was the police who separated him and the male, and the male did not immediately ask to speak to the police. Nor did he at any point offer the male $20 to get into his vehicle; and

3. as he was a cleaner by trade, he has a bottle of silicon and box of plastic gloves in his vehicle. A blanket and a bottle of water were standard items that he had in his vehicle. The dildo was a small 5cm toy that was given to him by a friend as a joke.

86. During cross examination the applicant agreed that he usually drives around at night after he finishes work, which is usually around 9pm. He said night for him is like day for others and he drives point to point. He also said that he understands that consent is important and he is always respectful of other people’s personal space since he was inappropriately touched by his birth father.

Evidence of the applicant’s mother

87. In her statement the applicant’s mother said:

1. on reading the accusations made against the applicant, she immediately knew that they were not describing her son. The applicant has never been afraid to speak to her about anything, including instances where he has been in the wrong. In her opinion, the charges and reported events about the applicant are false – he has denied them and has maintained this position when speaking to her about the accusations;

2. ‘he cannot lie to save his life, and I believe that he is being completely honest with me when he has given me his version of events on each occasion’;

3. from 17 years of age, the applicant has always been a ‘nocturnal child’ and frequently out at late hours of the night to spend time with friends or to go to McDonald’s. The nature of his work disrupts his sleep;

4. regarding the alleged 2012 incident – the applicant was 20 years of age and was on his learner’s licence and did not obtain his provisional licence until 2013. While on his learner’s licence the applicant did not on any occasion drive without someone supervising. Nor did the applicant own a vehicle at that time. Nor did her family own a sedan as described the Driver.

5. regarding the alleged 9 January 2021 incident, the applicant was at work when he called her at 7pm to say he was not feeling well and bleeding quite a bit. He texted her a photo of the blood from his anus on toilet paper. He came home about 11.15pm and went straight to bed as he was in pain. She checked on him around 12.15am and he was asleep in his bed. Her husband did not go to bed until 2am and did not see the applicant leave the house before he went to bed. She woke up for work at around 5am the next morning and checked on the applicant who usually drives her to work. The applicant was in bed and not feeling well and did not drive her to work. The applicant did not go to work for some days thereafter;

6. on 18 November 2021, the applicant came home and told her about having paid $175 to the neighbour after the neighbour had agreed that her son could give him a hand job and that the neighbour had assaulted him. She is aware that the applicant is gay, and ‘this level of sexual interaction with another consenting adult male is much more in character with who (the applicant) is’;

7. on 28 November 2021, the applicant told her about having pulled over to ask a male the time when he was driving late that night. The applicant assumed the male was over 18 and denied he had offered the male to listen to his insides. The applicant has never owned a stethoscope.

8. the applicant told her that on 4 March 2022, an unknown male jumped into his vehicle with two friends. Out of fear that he would be assaulted, the applicant agreed to their request to give him a lift home, however one of them spilt a beer in his vehicle so he kicked them out; and

9. ‘I know that these allegations are not my son. He has never been afraid to tell me the truth, and I believe that his version of events are honest and true’.

88. During cross-examination, the applicant’s mother said that the applicant had called her on 8 January 2021, and it was the Sunday when the bleeding happened.

Evidence of Dr Rodriguez

89. Dr Rodriguez interviewed the applicant for 3.5 hours, via AVL, on 26 September 2024. Dr Rodriguez also had follow-up telephone discussions with the applicant on 30 September and 1 October 2024.

90. In his report of 4 October 2024, Dr Rodriguez noted that he had been requested to focus his assessment on whether the applicant poses a risk to children pursuant to section 15(1) of the WWC Act. In his report Dr Rodriguez’s set out his “Clinical Opinion’ based on the written material that was provided and his interview of the applicant. In this regard the report sets out the applicant’s current psychological functioning, personal history, drug and alcohol history, medical history, mental health history, psychosexual history and criminal history.

91. Regarding the applicant’s criminal history, Dr Rodriguez sets out the applicant’s account of the allegations of sexual offending (January 2021 and March 2022), the events that were alleged to have occurred in January 2020, November 2020 and 28 November 2021. That account, as recorded by Dr Rodriguez, is largely consistent with the evidence of the applicant as set out in his statement of 11 October 2024 and his oral evidence at the hearing. Hence it is unnecessary to repeat these other than to note the following:

The applicant categorically denied ever picking up the individuals identified in the facts sheet, let alone asking them if he could hear their bowls, their digestive system, or anything to do with stomach sounds, in the process stating that these allegations were bizarre, illogical and irrational.

I asked [the applicant] why he changed his number plates on his vehicle, he said that his front number plates were stolen, so he needed to get new plates promptly. He said, “I wasn’t going to drive with only one set of number plates”. He denied any reason to hide his identity or misguide authorities.

…

[The applicant] stated that the finding by police of a dildo and other items in his boot together with the subsequent spurious conclusions reached, were “out of context”. He said:

The gloves were for working … they were work gloves … the blanket was for protecting the car carpet from cleaning chemicals …the lubricant was not for sexual purposes. It is for lubricating cleaning equipment … the dildo was a small vibrator not a dildo … [name] thought it was funny to buy it for me … I just had it in the car, I’d forgotten it was there …

Regarding a “large black dildo” located in his room and found by police, [the applicant] stated he purchased a small dildo which he used briefly. …

92. Under the heading ‘CLINICAL OPINION’, and the sub-heading, ‘Re Diagnosis’, Dr Rodriguez said:

1.   [The applicant] has likely experienced social skills deficits, lack of emotional reciprocity, difficulties learning social cues from a young age, which persist, and which likely meets the Diagnostic and Statistical Manual of Mental Disorders – Text Revision (DSM-5-TR) [4] for an Autism Spectrum Disorder (ASD) … - most likely Asperger’s Syndrome.

2.   …

3.    …

4.   [The applicant] does not meet DSM-5-TR clinical criteria for a Paedophilic Disorder … as there is no evidence that he has a persistent sexual interest in children or young adolescents. He does not demonstrate recurrent sexual arousal or preoccupation toward minors. There is no evidence of him having committed a contact sexual offence against a minor, which provides some accuracy of the absence of this disorder.

5.   Equally, in my opinion [the applicant] would not DSM-5-TR clinical criteria for any other paraphilic disorder …

6.   From the developmental history reported, [the applicant] does not appear to have a history of a conduct disorder, nor would he meet DSM-5-TR criteria for Antisocial Personality Disorder. It would be relevant if such disorders were present, in terms of risk to society, including vulnerable young people.

93. Under the sub-heading, ‘Re: Risk assessment for sexual offending’, Dr Rodriguez said that given his assessment of the applicant, the growing and extensive literature on sex offenders, and the risk factors identified in the Risk for Sexual Violence Protocol (RSVP) assessment tool, the applicant would be considered a ‘Low risk’ for committing a sexual offence against a minor or adult. In reaching this opinion, Dr Rodriguez listed the factors that were not preset and those that were present in the applicant’s case, which included the following:

1. risk factors ‘not present’:

• the applicant does not have a pattern of chronicity of sexual violence, diversity/or multiple types of sex offences, or escalation of sexual violence;

• he has not engaged in physical coercion (i.e. aggression, violence, threats of harm);

• there is no psychological coercion of victims;

• he does not hold attitudes that support or condone sexual violence;

• there is no evidence that he has engaged in pervasive sexual deviance such as a paraphilic disorder or hebephilia.

2. risk factors that ‘were present’:

• if the sexual offences did occur, there would be extreme minimalization or denial of sexual violence by the applicant;

• there are examples that the applicant has demonstrated problems of self-awareness, for example, talking to a teenager in the early hours, believing that the person was much older;

• he has had trouble regulating his behaviour in times of stress when he has been subjected to homophobic attacks;

• he has experienced problems with intimate relationships or lack of meaningful relationships.

94. Dr Rodriguez concluded by saying the applicant required ongoing psychological treatment for stress and in this regard, it was noted that the applicant had demonstrated a good attitude towards treatment.

95. In his oral evidence during cross-examination, Dr Rodriguez acknowledged that he had not been provided with the additional material that is in Ex R3 and MFI1. He also said that if the alleged sexual offending was true, this would be deviant sexual behaviour.

Evidence of Dr James Donnelly

96. Dr Donnelly, a Clinical and Neuro Psychologist, treated the applicant after his arrest in March 2022. On 8 July 2022, he provided a written report to the applicant’s treating doctor in which he noted that he had provided seven, individual psychotherapy sessions to the applicant: Ex R3 p22. Dr Donnelly noted that the applicant had always been:

… [on-time], polite, appropriate with staff, and fully cooperated in therapy. Rapport was easily established and maintained. He demonstrated relatively high intellect and expressive language skills but his style of conversation was clearly indicative of those with an Autism Spectrum Disorder (ASD) (pragmatic and having some difficulty with interpreting figures of speech, highly detailed when explaining events, fixated on topics). …

97. On 14 June 2023, Dr Donnelly wrote to the applicant’s doctor to advise that he had moved to Melbourne, but that he was continuing to work with the applicant via telehealth: Ex R3 p22. He also said that he was of the belief that the applicant would benefit continued psychotherapy, as did the applicant, and he was happy to provide ongoing therapy.

98. In his oral evidence at the hearing, Dr Donnelly agreed to be bound by the Tribunal’s Expert Code of Conduct.

99. In his evidence in chief, Dr Donnelly said that:

1. the applicant had attended more than a dozen sessions of treatment after the Local Court had dismissed the charges laid against him;

2. the applicant had fully co-operated with the treatment, but was anxious, distressed and confused;

3. the applicant presented as being autistic;

4. his impression was that the applicant:

1. was very honest and that he sometimes over reports;

2. was very cautious;

3. kind to others and very concerned about his mother and family;

5. there was no evidence of the applicant suffering from psychosis or a paraphilic disorder;

6. the applicant was of low risk of harm to children, as there was no evidence of the applicant being attracted to minors – instead he was attracted older males.

100. In response to questions asked of him by the respondent’s solicitor, Dr Donnelly said:

1. he had occasional contact with the applicant and he was happy to continue to provide him with support should he wish to do so;

2. his clinical impression is that the allegations made against the applicant did not occur. At the same time, what the applicant was accused of did not concern him, as he was concerned about the applicant’s mental well-being;

3. in response to a question as to whether the truth – Dr Donnelly said that, consistent with the applicant’s autism, he tries always to be precise, including being precise in his interactions with others.

101. In response to a question asked of him by the Tribunal, Dr Donnelly said:

1. the applicant is vulnerable to men who may have a sexual interest in him or in identifying a risky situation;

2. when under pressure, the applicant withdraws socially and would look physically agitated and sometime tearful; and

3. in response to the allegations made against him, the applicant was confused as he did not understand how people could accuse him of such things.

Consideration

Legal principles – in making a positive finding that an applicant committed the offence as alleged or charged

102. Notwithstanding that the rules of evidence do not apply, in BKE at [29], his Honour Justice Beech-Jones held that when considering to make a positive finding that an applicant committed an offence as alleged or charged in circumstances where the applicant has not been convicted or found guilty of doing so, the Tribunal would be well advised to have regard to the civil standard of proof and the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2; ALR 334 at 342 (Briginshaw). Those principles were described by Dixon J at 361-2 as follows:

… [The truth] is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 

Legal principles – in assessing risk

103. In BKE at [31]-[33], his Honour Justice Beech-Jones went on to consider the approach to be taken to fact-finding for the purpose of assessing risk based on unproven allegations. At [33], his Honour concluded:

33 … 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.

104. This approach was confirmed by the Court of Appeal in CXZ v Children’s Guardian [2020] NSWCA 338 (CXZ) at [7(a)], [28], and [44] and in Tilley v Children’s Guardian [2017] NSWCA 174 at [34] – [35].

105. In Office of the Children’s Guardian v CFW [2016] NSWSC 1406 at [13]-[17], Harrison J described the approach to assessing risk under the WWC Act as follows:

13 The test in s 18(2) of the Act requires a decision maker to consider whether a person “poses a risk to the safety of children”. “Risk” in this context excludes “fanciful or theoretical risk” and instead requires a decision maker to determine “whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child” …

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.

106. In CXZ Simpson AJA noted:

1. many cases will not lend themselves to definitive factual determination: at [51];

2. where an allegation is neither ‘well founded’ or ‘groundless’ the Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: at [52];

3. what weight is to be assigned to allegations will depend upon the seriousness of the allegations, the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: at [53]

107. At [57], Simpson AJA expanded on the approach explained by BKE at [33] as follows:

57 … 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.

108. At [58] Simpson AJA emphasised the protective nature of the WWC Act jurisdiction:

58 It is plain that in some cases this will be the cause of potential injustice to the applicant for a clearance. A person entirely innocent of any allegations may be refused a clearance because the evidence does not permit a conclusion that the allegations are without foundation and the inability to reach such a conclusion leaves open sufficient possibility that the risk exists. Analysis of the relevant provisions of the Child Protection Act satisfies me that the legislature preferred the risk of injustice to an applicant to risk to the safety of children.

109. In FJL v Children’s Guardian [2023] NSWCATAD 65 at [70], citing BKE at [28] and CYY v Children’s Guardian [2017] NSWCATAD 155 at [69]-[71], in determining an application made under the WWC Act, the Tribunal is required to consider ‘the totality of the evidence’ and make a decision based on the ‘cumulative effect’ of the matters before it.

Factual findings concerning the matters that caused the respondent to conduct a risk assessment

110. The Tribunal has considered all the documentary and oral evidence that is before it 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.

111. In his presentation at the hearing, the Tribunal found the applicant to be polite and respectful in responding to questions asked of him. However, occasionally the applicant became slightly agitated and was hesitant in his responses.

The 9 January 2021 and 5 March 2022 attempted sexual touching without consent and sexual touching without consent charge

112. In dismissing the two charges of sexual touching without consent, the Local Court Magistrate did not make a finding that the applicant did the things as alleged by victim A and victim B: see MHCIFP Act section 14(2). Nor did the Local Court Magistrate find that the applicant had not done the things as alleged by victim A and victim B. Instead, the Local Court Magistrate decided, given the applicant’s mental health impairment or cognitive impairment, that on balance, ‘the community would probably be better served’ by the applicant being diverted under the MHCIFP Act rather than being dealt with through the criminal justice system, because under that Act ‘it is most likely to lead to less of a risk of the reoccurrence of this type of offending , if he (the applicant) co-operates with the process and accepts the psychological counselling that is on offer’: Exhibit R2 p10.

113. Regarding the 9 January 2021 allegation of attempted sexual touching of victim A without consent - on the material before the Tribunal, the Tribunal is unable to reach a reasonable level of satisfaction that the allegation as made by victim A is true. This is because:

1. the allegations made by victim A are serious and untested in a court or tribunal;

2. victim A did not identify the applicant as the perpetrator of the alleged offending; and

3. the applicant’s evidence before the Tribunal in which he denied the allegation because he was not driving that night as he was home following a bleed from his anus and was in pain. In support of that denial is the evidence of the applicant’s mother and the content of the 2/3 January 2021 hospital ‘Referral’ report which noted that the applicant had presented to the hospital with a recurrence of bleeding and pain. It is possible that the applicant had a further bleed and pain six (6) days later.

114. However, the Tribunal does not consider that the allegations are groundless because:

1. victim A reported the incident soon after it had occurred and made a statement the following day. In that report, victim A identified the vehicle of the alleged perpetrator as being a white Mitsubishi Outlander SUV. In his statement victim A said the driver of the white Mitsubishi Outlander SUV was ‘nerdy’. Victim A is also recorded in the Event report E XXXXX 972, as having said that the driver of the vehicle was socially awkward and might have autism’;

2. the allegations of deponent 4, 5 and 6 having had a similar, although not involving and allegation of sexual touching, encounter in January and/or 8 November 2020, when approached by a person driving a white Mitsubishi Outlander SUV (allegedly with the same registration number as that of the applicant’s vehicle) offered them a lift in the early hours of the morning and engaged in conversations about cannibalism and requesting to listen to their intestines;

3. the evidence before the Tribunal of the applicant and his mother acknowledging that the applicant regularly drives his white Mitsubishi Outlander SUV around at night, after he has finished work. And that he drives through the night into the early hours of the morning;

4. the oral evidence of the applicant that for him the night is as if it were the day;

5. the applicant’s inadequate response to the debits recorded in his BCU bank statements for January 2021 in which debits are recorded for food purchases, including on 9 and 10 January 2021; and

6. it is possible that the applicant did not have a bleed on the night of 8 January 2021 but on another night and was driving as he usually did after work on 8 January 2021 and into the early hours of the morning of 9 January 2021.

115. Regarding the 5 March 2022 allegation of sexual touching of victim B without consent - on the material before the Tribunal is unable to reach a reasonable level of satisfaction that the allegation as made by victim B is true. This is because:

1. the allegations made by victim B are serious and untested in a court or tribunal. Nor are the allegations corroborated by the other two men who were with victim B at the time victim B alleges they encountered the applicant in his white Mitsubishi Outlander SUV; and

2. the applicant’s evidence before the Tribunal acknowledging that he gave a lift to victim B and his two friends, but denies the allegations as made by victim B.

116. Again, for the same reasons set out at [114(1) and (2)] the Tribunal does not find or consider that the allegations made by victim B are groundless. While, in his evidence the applicant provided a different version of his encounter with victim B, he failed to provide any evidence to corroborate that evidence.

The 2012 alleged sexual assault of a child

117. Regarding the allegation of sexual assault of the Diver in 2012 - on the material before the Tribunal, the Tribunal doubts that this allegation is true. This is because:

1. the allegation is a very serious allegation, made on 15 January 2021, when police had attended the scene (laundromat) in response to the applicant’s triple zero call that he was being assaulted by the Driver and his friends;

2. having made the allegation, the Driver was asked by police to make a statement, the Driver is recorded as having declined to make a statement;

3. no further investigations were undertaken regarding the allegations, and the applicant has not been charged with an offence regarding this allegation;

4. there is no evidence of the applicant being a drug user or a drinker of alcohol. Nor is there any evidence of the applicant having alcohol in his vehicle; and

5. in his evidence before the Tribunal, the applicant denied the allegation and provided independent evidence of not having a car or being licensed to drive a car unless accompanied by a licenced driver. This evidence was supported by the evidence of the applicant’s mother. Accordingly, if the applicant did not have a car and was not able to drive a car, the allegation as recorded in the Event report EXXXXX 734 is very unlikely to have happened.

118. The respondent submits that there are notable similarities between the Driver’s account of the alleged sexual assault and that of victim A and victim B the evidence and, on this basis the Tribunal cannot exclude the possibility that the applicant had sexually assaulted the Driver.

119. The Tribunal finds that there are no similarities in the account recorded by police and those alleged in the charges that had been laid against the applicant.

120. Given the undisputed evidence of the applicant that he did not have a car at the relevant time and he was not licensed to drive a car unless accompanied by a licenced driver, the Tribunal finds that this allegation can be dismissed as being groundless. Accordingly, the Tribunal has not considered this allegation any further.

The other reports

121. As noted, the Event report of 12 November 2016 and the Police Information reports of 1 June 2020 and 5 October 2020 are police narratives - in the absence of any evidence that the applicant is a drug user the Tribunal has not considered the report of 12 November 2016 and 5 October 2020 any further.

122. As indicted, the information report of 1 June 2020 is in fact an updated police narrative, of 16 January 2021, following the receipt of the reports/allegations of victim A and deponent 4, 5, and 6. The Tribunal has not considered this report any further.

123. Regarding the Event report of 19 November 2021 – no charges were laid against the applicant regarding the matters in this report. Nor has it been suggested that the conduct of the applicant or his neighbour was unlawful. Nevertheless, the Tribunal finds that the response of the applicant to questions asked of him about this incident are of concern. This is because, as alleged by victim A and victim B, this incident occurred in the applicant’s vehicle while parked in a cul-de-sac, and the applicant having described the incident as having paid for sex. His evidence was that this was the first time he had done so.

124. Regarding the 28 November 2021 Event report – this incident occurred nine days after the applicant had reported the alleged assault by his neighbour. The applicant denies that he offered to pay the 14-year-old male $20 if he got into his vehicle. While police did not obtain a statement from the 14-year-old male, on the material before the Tribunal, the Tribunal considers it might be possible that he did so.

Section 30(1) matters

(a) The seriousness of the matters that caused a refusal of a clearance

125. It is accepted that the two offences of which the applicant was charged are serious even though the victims of these charges were not children.

126. If true, these offences together with the allegations of deponent 3, 4, 5 and 6 and the incident of 28 November 2021 evidence a two-and-a-half-year almost persistent pattern of behaviour by the applicant that is of considerable concern. That behaviour being out of the ordinary where late at night or in the early hours of the morning when it is dark, while driving point to point, the applicant stops to offer a lift to strangers (mainly young men and in one reported incident a 14-year-old young man) who had been out drinking, and then engaging in very disturbing and unusual conversations about cannibalism and making request to listen to the intestines of the young men who accepted the applicant’s offer for a lift.

127. As noted, the Tribunal has not found that this pattern of behaviour did not or could not have occurred. This includes the applicant having driven to a secluded place and allegedly sexually touching or attempted sexual touching of victim A and victim B without their respective consent. While the victim A and victim B were not under eighteen years of age, the evidence is that, on 28 November 2021, the applicant did allegedly offer, in similar circumstances, a lift to a child. While the applicant may not have known the male was a child, the evidence is that the applicant appeared to be indifferent as to whether the young male was a child.

128. Accordingly, the Tribunal finds that this alleged two-and-a-half-year pattern of behaviour of approaching young men, in the early hours of the morning, offering them a lift and engaging in conversations about cannibalism and making request to listen to their intestines, if true, is very serious. While the Tribunal is unable to find to a reasonable level of satisfaction that the allegations concerning this pattern of behaviour is true, the Tribunal has found that the allegations are not groundless and given their seriousness, considerable weight should be given to the allegations when considering the issue of future risk to the safety, welfare and well-being children.

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

129. It is:

1. three (3) years since the applicant approached a 14-year-old child and allegedly offered him $20 to get into his vehicle;

2. four (4) and three (3) years respectively since the alleged attempted sexual touching without consent and the alleged sexual touching without consent occurred; and

3. five (5) and four (4) years since the allegations to which deponent 3, 4, 5 and 6 refer occurred.

130. There is otherwise no further report of the applicant having been seen driving late at night and approaching young men who have been drinking and offering to drive them home. However, as indicated above, following his arrest in March 2022, the applicant was bailed with a strict curfew until March 2023 and then subject to a conditional release order until March 2024. There is no evidence of the applicant having breached his conditions of bail or conditional release order. Nor is there any evidence of the applicant having come to the attention of police since 2022.

(c) The age of the person at the time the offences or matters occurred

131. From January 2020 to March 2022, the applicant was between twenty-seven (27) and thirty (30) years of age. It was during this period that the alleged sexual touching offences are said to have occurred and when the alleged encounters with young men were said to have occurred.

(d) The age of each victim of any relevant conduct at the time they occurred and any matters relating to the vulnerability of the victim

132. The 14-year-old male the applicant approached on 28 November 2021 was a child and intoxicated. Given his age and the fact that he was intoxicated, the young male was especially vulnerable.

133. The victims of the alleged sexual touching without consent were nineteen (19) and twenty-five (25) at the time of the alleged offending. While they had been drinking, neither victim identified any matter relating to their vulnerability in their respective statements but were grossly offended by the alleged actions of the applicant. The Local Court Magistrate also found that victim A and victim B ‘were not as vulnerable, say, as if they had been young people’: Exhibit R2 p9

134. The males who accepted a lift from the applicant in 2000 were all aged nineteen (19) and (20) at the relevant time. Again, neither male identified any matter relating to their vulnerability in their respective statements but were offended/disturbed by the alleged requests and conversations of the applicant.

135. The age of the applicant’s neighbour is not disclosed in the Event report. It is assumed that the neighbour is not a child or vulnerable.

(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

136. It is the evidence of the applicant that he did not know that the young man he approached, or was approached by, on 28 November 2021, was a child. The evidence is that the applicant did not know this young man or that the young man’s appearance was such that the applicant could reasonable have known that he was a child. As noted, the Tribunal finds that the applicant was indifferent to the age of the young man.

137. Victim A and victim B were both adults. At the relevant time the applicant was four (4) years older than victim A and eleven (11) years older than victim B.

138. The other males who had allegedly accepted a lift from the applicant in 2000, were between nine (9) and ten (10) years younger than the applicant.

(g) The person’s present age

139. The applicant is thirty-three (33) years of age.

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

140. The applicant’s criminal history is limited to the two sexual touching without consent offences for which he was charged in March 2022.

141. However, he has come to the attention of police several times during 2020 to 2022.

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

142. In the decision to dismiss the sexual touching charges laid against the applicant, the Local Court Magistrate said (Exhibit R2 at p10):

He has no prior convictions and I cannot assume that he would continue to offend if given appropriate treatment. I do think that the Autism spectrum diagnosis has some relationship to the offending, particularly the part where he does not really know how to interact with people appropriately, he is not good at picking up body language, warnings that somebody might be uncomfortable and does not want him to take a matter any further.

So, I do think there is some connection between the diagnosis and the behaviour.

143. These remarks were made in the context of the material before the Court regarding the application for a diversion order under s 14 of the MHCIFP Act.

144. While Dr Donnelly gave evidence that the applicant did not have a paraphilic disorder or that he was not attracted to minors and therefore of low risk of offending against a minor or causing harm to a child, the Tribunal agrees with the respondent that little weight should be given to that evidence, because he was the applicant’s treating psychologist following the March 2022 charges laid against him. That is, it was not the task of Dr Donnelly to assess the applicant for risk of harm to children. Instead, his task was to treat the applicant following his alleged offending which the Court believed to have some relationship with the way the applicant interacted with others. Dr Donnelly did not address this issue in his evidence. Accordingly, the evidence of Dr Donnelly does not support a finding that there is an unlikelihood of the applicant engaging in a pattern of behaviour as he has been alleged to have engaged in during the almost two and a half years between 2020 and 2022. Should a pattern of behaviour of this re-occur in future and involve a child (a person under 18 years of age) this would have a serious impact on the child.

145. The Tribunal also finds that the opinion of Dr Rodriguez that the applicant had been assessed as being of low risk for committing a sexual offence against a minor fails to address the pattern of behaviour the applicant is alleged to have engaged in between early 2000 and March 2022. In particular, the risk factors of re-offending that were present, as identified in his report, which in the view of the Tribunal continue to be present are as follows:

1. if the conduct, as alleged did occur, there was extreme minimalization or denial of that conduct which was similar in nature to that alleged by each alleged victim;

2. the alleged conduct was disturbing and unusual involving a request to listen to the intestines of the alleged victim and in two instances allegedly led to the sexual touching without consent charges;

3. the applicant’s demonstrated problems of self-awareness of driving from point to point at night and into the early hours of the morning, offering a lift to a male (including a 14-year-old child) or men who were strangers and appeared to be intoxicated;

4. trouble regulating his behaviour in times of stress; and

5. problems with intimate relationships or lack of meaningful relationships.

146. While the applicant continues to maintain his innocence and the abovementioned issues remain unaddressed, the Tribunal finds that the likelihood of the applicant engaging in a pattern of behaviour as previously alleged cannot be disregarded or excluded. Hence, if a pattern of behaviour of this kind were to occur in the future and lead to the sexual touching of a child, that conduct can result in significant and lasting psychological harm to that child.

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

147. There are no orders in force that apply to the applicant.

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

148. The Tribunal makes no adverse findings about the evidence given by the mother of the applicant. She is clearly supportive of the applicant and he of her. However, this does not mean that she is fully aware or made aware of what the applicant does and who he may encounter when driving from point to point at night.

149. While in his evidence at the hearing the applicant said he did not wish to work with children, as noted above, a clearance once granted enables the holder of the clearance to engage in any child related work. And it is on this basis that risk must be assessed.

150. The applicant has provided three references. One is from a person for whom the applicant did some gardening work and the other two are form friends who have known the applicant for some time. The referees each acknowledge that they were informed that their reference was required for these proceedings before the Tribunal. Each referee said that the applicant is polite and that they personally have no concerns about the applicant being around children. Two of the referees make mention of having seen the applicant with children. However, as no referee makes any mention of having been informed about the matters which caused his application for a clearance to be refused, the Tribunal places little weight on these references.

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

151. This matter is of no relevance to this application.

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

152. There are no further matters relied on by the respondent in these proceedings.

Does the applicant pose a risk to the safety of children?

153. Based on the findings of the Tribunal regarding the matters in section 30(1) of the WWC Act and the paramount consideration in section 4 of that Act the Tribunal is satisfied that the applicant poses a real and appreciable risk to the safety of children. In summary this is because:

1. the allegations of sexual touching without consent made by victim A and victim B are serious and found not to be groundless;

2. the circumstances giving rise to the allegations of sexual touching without consent are not isolated but, if true, are part of a pattern of behaviour the applicant is alleged to have engaged in from early 2000 to March 2022;

3. on 28 November 2021, consistent with these circumstances as alleged, the applicant is alleged to have approached a 14-year-old male and offered to pay him $20 if he would get into his vehicle;

4. the allegations made between 2020 and 2022 are all relevantly recent;

5. the lack of any evidence of the applicant’s psychological treatment having included a possibility that he may have engaged in the conduct as alleged and what skills and steps the applicant had developed to ensure that conduct of the kind alleged is not engaged in future;

6. while there have been no further reports of any further allegations of this kind, the Tribunal has found that while the applicant maintains his innocence and the risk factors identified by Dr Rodriguez in his report remain unaddressed, a likelihood of the pattern of behaviour that the applicant is alleged to have engaged in during 2000 to March 2022 (including sexual touching without consent of a child) cannot be excluded. And if conduct of this kind does occur it can result in significant and lasting psychological harm to a child;

7. there is otherwise no evidence that the applicant has any insight into his alleged offending conduct and the circumstances giving rise to that conduct.

154. Even if the Tribunal is wrong in its finding on an assessment of risk, the Tribunal finds that the reasonable person test in section 30(1A) of the WWC Act would not be met. A reasonable person with knowledge of all the facts and circumstances as outlined in these reasons for decision and the findings that have been made, would not, in the opinion of the Tribunal, allow his or her child to have direct contact with the applicant whilst unsupervised by another person: GFL v Children’s Guardian [2024] NSWCATAD 345.

Conclusion

155. Based on the findings of the Tribunal that the applicant poses a risk to the safety of children, it follows that, by reason of section 18(2) of the WWC Act, that the correct and preferable decision is to refuse the applicant’s application for a clearance.

156. Based on this finding, the Tribunal has decided, under section 63(1)(a) of the ADR Act to affirm the decision of the respondent and makes an order accordingly.

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

Registrar

Decision last updated: 02 October 2025