KF v Commission for Children and Young People
[2005] NSWADT 48
•03/22/2005
CITATION: KF v Commission for Children and Young People [2005] NSWADT 48
This decision has been amended. Please see the end of the decision for a list of the amendments.DIVISION: Community Services Division PARTIES: APPLICANT
KF
RESPONDENT
Commission for Children and Young PeopleFILE NUMBER: 044003 HEARING DATES: 19/02/2004, 1/04/2004, 2/06/2004, 26/07/2004 & 18/08/2004 SUBMISSIONS CLOSED: 11/08/2004 DATE OF DECISION:
03/22/2005BEFORE: Kelly T (Deputy President) APPLICATION: Declaration that applicant not a prohibited person MATTER FOR DECISION: Principal matter LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998 CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949
FD v Commission for Children and Young People 2003 ADT 261
HG v Then Queen 1999 197 CLR 414
KP v Commission For Children and Young People 2004 NSWADT 174
R v Commission of Children and Young People [2002] NSWIR Comm 101REPRESENTATION: APPLICANT
D Rayment, barrister
RESPONDENT
M Higgins, barristerORDERS: The Child Protection (Prohibited Employment) Act 1998 is not to apply to KF in respect of the offence of indecent assault for which he was convicted on 11 April 2003
Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,
(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
REASONS FOR DECISION
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, 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.Introduction.
1 On 5 October 2001 when the applicant was working as the manager of a building company he dropped the pay packet of a subordinate worker in front of the worker and directed him to pick it up. When the worker bent down to do so the applicant pushed his finger through several layers of clothes towards the worker’s rectum, which the worker stated caused him pain for several days. The applicant has claimed that he was testing the physical capabilities of the worker, who he believed was malingering in regard to a workers compensation claim. He still denies the assault as described above and has always claimed that he jabbed the worker in the ribs.
2 The applicant was charged with indecent assault and was convicted of this offence at Gosford Local Court on 16 January 2003.This conviction was confirmed on appeal by Judge Latham who placed him on a 12 month good behaviour bond without recording a conviction on 11 April 2003
3 Judge Latham’s determination prevents the applicant from working unsupervised with persons under the age of 18 years, as indecent assault is a serious sex offence under the Child Protection (Prohibited Employment) Act. The applicant has applied to the Tribunal to obtain an exemption from this prohibition. He seeks this exemption generally as well as for the specific possible purpose of becoming a Catholic priest should he recommence his studies for this.
4 To succeed in this application the applicant must satisfy the Tribunal that he is not a risk, as judicially defined, to persons under the age of 18 years. The meaning of the word “risk” for the purposes of s 9(4) was considered by Young J in Commission for Children and Young People v V [2002] NSWSC 949. His Honour agreed with Haylen J’s analysis of the meaning of risk in R v Commission of Children and Young People [2002] NSWIR Comm 101. Haylen J said that s 9(4) was focussed on:
5 It is not the Tribunal’s role to express any opinion on the applicant’s suitability for the role of a priest.
“not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights Young J held that ‘risk” in the context of s 9(4) meant “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child”. That test is now binding on the Tribunal.”
6 The respondent opposed the application until the conclusion of the evidence of Professor Greenberg when it position shifted to one of neutrality.
7 Section 9(4) provides that the Tribunal is not to make an order under this section unless it considers that the person who is the subject of the proposed order does not pose a risk to the safety of children.
8 Section 9(5) sets out a non-exhaustive list of factors to be taken into account:
9 I will now consider specified matters under section 9(5).
In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following:
(a) the seriousness of the offences with respect to which the person is a prohibited person,
(a1) the period of time since those offences were committed,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(d1) the prohibited person’s present age
(e) the seriousness of the prohibited person’s total criminal record,
(f) such other matters as the tribunal considers relevant.
The index offence
10 The applicant’s claim that he jabbed the victim in the ribs can not be accepted as the Court could not have accepted this and must have accepted the facts as summarised in paragraph 1 hereof as the conviction was for indecent assault and not common assault. Judge Latham described it as a trivial criminal offence. Neither of the two psychiatrists whose reports are discussed further on thought it likely to have been of a sexual nature. As a serious sex offence it is at the lowest end of the scale thereof, although as an exercise in industrial relations it was deplorable.
Age issues
11 The offence occurred over 3 years ago. The applicant was 39 years of age and his victim was 35 years at the time of the offence. There is nothing relevant to the likelihood of risk in regard to the ages of each of them or the difference in ages other than the victim being a mature person
Applicant’s total criminal record
12 The Applicant’s criminal record is:
13 There were no court or police documents found in respect of the 1990’s assault. The only evidence about this was from the applicant, who stated that a mature adult male of about the same age as him hit him first. The Applicant’s defence of self defence failed as the magistrate found that the applicant had retaliated too vigorously.
a) 19 March 1982: 1 x drive manner dangerous
b) 24 September 1985 2 x forge; 4 x utter
c) 17 March 1987 1 x breach of community service order
d) 13 October 1994 7 x obtain benefit by deception
e) Mid-1990s 1 x assault
f) The index offence
14 The forge utter and fraud matters were not for large sums of money and raise issues about the applicant’s financial honesty rather than his risk to children.
Other relevant matters: expert evidence
15 In 2002 when the applicant was studying to be a priest, the Catholic Church sent the applicant to Encompass Australasia a group of psychologists, for a psychological assessment. Their detailed written report addressed to the applicant dated 6 may 2002 was produced to me by him. It stated that the MMPI-2 personality assessment showed that the applicant placed himself in a favourable light by minimising faults and denying psychological problems and was reluctant to dissociate personal information whilst being sociable outgoing and gregarious. The MCCI-III profile also showed the applicant had a need to present himself in a socially acceptable light and to down play personal short comings. The report went on to say that he may try to avoid competitive situations and to adopt a positive attitude to overcome personal tensions and is likely to avoid situations that involve conflict as he seeks to maintain harmony with others. However, it said, frustrations may occasionally surface, but because he is careful not incur others disapproval he is likely to conform to their needs and to express feelings indirectly. The MIPS test showed a positive outlook on life but sometimes an impulsive approach. The report went on to say that he was a person who preferred to be spontaneous rather than to be bound by the rules and procedures that tend to test his patience to the limit and his reactions could shift from intense warmth to feelings of anguish and irritable anger which might benefit from counselling. There was no evidence of any psychological impediments or significant disabling features.
16 The Catholic Church also sent the applicant for assessment by Dr C. Canaris, a psychiatrist, whose report to the church dated 9 July 2003 was produced by him. Whilst having some reservations about the applicant’s credibility as an historian, Dr Canaris concluded that there was no specific evidence to suggest that he was a danger to young people, and that the index offence was not sexually motivated. Neither the authors of the Encompass report nor Dr Canaris were required for questioning by the respondent.
17 The respondent caused the applicant examined by Professor David Greenberg a clinical professor of psychiatry who provided a written report dated 29 March 2004. In the middle of the report under the heading “Conclusions and Recommendations” he stated that he was of the opinion that” the index offence was probably primarily motivated by aggression rather than a primary sexual motivation”.
18 Further on towards the end of the report under the heading “Actuarial Risk Scale For Sexual Assessment” Professor Greenberg applied the formula of Static 99 which is an actuarial risk assessment based on research that was conducted in Canada and which placed the applicant in the medium/high risk category. However, this rating is high because the assessment takes into account the various non-assault convictions prior to the index offence, his status as a single person and the fact that the victim of the sexual offence was of the same sex and not related to him. The report comments that there is a severe limitation with these actuarial scales as they do not say which offender will re-offend, and did not distinguish between adult and child offences.
19 Under the same heading of “Actuarial Risk Scale For Sexual Assessment” the report draws unclear conclusions. It goes on to say that the applicant does not pose a specific threat to children and young persons at this time, but then goes on to discuss a conviction for assault on an adult in the mid 1990’s, his dishonesty convictions, the issue of sending an inappropriate e-mail to a pupil and states that his risk for future aggressive or socially inappropriate or illegal behaviours is probably in a medium /low range. The report then says that having weighed all the current information it is possible that the applicant poses a more generalised significant risk to the safety of children. It then goes on to refer to an adverse 1985 parole report and that report’s reference to the applicant’s mother and brother’s reported allegations that the applicant was a liar and then states that the applicant does not pose a specific risk to the safety of children but does possibly pose a generalised (physically and emotional and possibly to a lessor degree a sexual) risk to the safety of children and young persons. It subsequently repeats this last conclusion and goes on to say that applicant’s personality problems appears mainly related to adults because he has he has worked almost exclusively with peer adults, and that working with children may heighten the risk. The conclusions about the e-mail incident and inexperience in working with children were to become one of many challenges to this report.
20 Professor Greenberg gave evidence. Hopes that his views on the risk that the applicant may pose to children and young people in his report might be clarified were not to be fulfilled. He was questioned about “risk”:
21 However, when concluding his evidence three weeks later I asked him:
Q. You don't say anywhere in your report that he presents a risk to the safety of children do you?
A. I think I was more cautious in my approach to (the applicant) and as I stated in page 17 I'm of the opinion that pursuant to section 9.4 of the Child Protection (Prohibited Employment) Act 1998 it can be said that (the applicant), the subject of the proposal, does not pose a specific sexual risk to the safety of children or young persons but should such behaviour recur etc but I am of the opinion pursuant to section 9.4 etc it can be said that (the applicant), the subject of the proposal, does pose a possible generalised physical and emotional and, possibly to a lesser degree, a sexual risk to the safety of children and young persons.
Q. So the answer to my question is no?
HIGGINS: No -that's not right, the answer to his question is yes.
RAYMENT: No -he doesn't say anywhere in his report that (the applicant) presents a risk to the safety of children.
A. I think that's really what I am saying --
DEPUTY PRESIDENT: You seem to be saying that he presents a possible risk as distinct from presenting a risk. Is that the point you're making? RAYMENT: Yes.
A. I'm saying he's a risk but it's --
DEPUTY PRESIDENT: ...He's talking about your report. The question was he claims that you don't say in your report that the Applicant presents a risk to the safety of children and you're pointed to a section which doesn't say that but does say that he presents a possible risk.
A. Yes but I am saying he's a risk. I'm saying it's possible that he will present with generalised physical or emotional difficulties with children. I'm not saying it's probable. I am saying there is a risk.
RAYMENT: A risk or a possible risk? A. A possible risk.
22 Professor Greenberg in his evidence put emphasis the applicant’s denial of the index offence and his tendency not to fully self-disclose and to put himself in a favourable light. The inference from this evidence appears to be that there may be more information that we do not know that may reveal a sexually deviant disorder, which on the available evidence cannot be said to exist. This hypothesis can only be sustained if one is prepared to speculate on evidence that that has never been adduced or implied other the applicant’s above referred personality tendency. I would need a cogent basis for so doing. It is also difficult to sustain when both Dr Canaris and Professor Greenberg state that the index offence was not sexually motivated.
JUDICIAL MEMBER; Is he a real and appreciable risk? A: Yes
23 In support the contention that the applicant withheld relevant information, Professor Greenberg relied on the applicant’s failure to tell him of a dispute he had with A, who was his supervisor when he was a voluntary worker with St Vincent de Paul. It is a criticism that is hard to accept, as its connection to risk to children is obscure. The applicant should have expected that Professor Greenberg would have been aware of this incident as the details thereof would have been likely to have been part of the brief that the respondent sent to him.
24 In further support of his contention that the applicant withheld information, Professor Greenberg relied on the lack of any reference to the applicant’s criminal convictions in the Encompass report. The applicant stated that he did disclose this to the authors of that report and there was no attempt to check this with those authors. However there is evidence from Fr M, the Vocations Director of the Catholic church, that the applicant made full disclosure to him about his criminal convictions and as it was clear that this priest was the one who referred the applicant to Encompass and thus he would have been likely to have briefed Encompass on this. Additionally Professor Greenberg made no reference to and gives the applicant no credit for the voluntary disclosure by applicant of his 1990’s criminal assault conviction, which for some unexplained reason does not appear on his Police Criminal History computer print out. If the applicant had not disclosed this it would have never been known to Professor Greenberg or the Tribunal.
Factual bases of Professor Greenberg’s conclusion of risk
25 Because of the unstructured and discursive style of his report I asked Professor Greenberg to list each of the matters the evidence that he used in concluding that KF was a physical risk and an emotional risk to children and young people, which he did as follows:
a) The index offence
26 I have discussed this in paragraph 10 above.
b) Assault in 1990’s
27 I have discussed in paragraph 13 above
c) Statement of R, a factory foreman with whom KF worked
28 This statement dated 18 October 2001 stated that applicant, then a building manager, used foul and abusive language and repeatedly shown violent temper outbursts towards subordinate staff. Two specific examples are given, one of kicking a steel bin across the factory floor and anther of destroying a cabinet. The applicant admitted to using foul language and could not remember kicking the bin. He admitted destroying the cabinet which he stated was an over reaction. He stated that he believed this cabinet was made poorly because the workers knew it was intended for Department of Housing premises, rather than that of private householders, and that his made him angry and that he destroyed it to prevent them sending it to the Department of Housing. This explanation has a ring of truth about it has the same flavour as that of the index offence as well as his dispute with A of St Vincent de Paul (which I discuss later),of self- righteous anger. R was not called to give evidence before me, although he gave evidence against the applicant in the criminal court in respect of the index offence, which occurred 2 weeks before the date of his statement. This is curious as R makes no reference to the indecent assault in his statement, which is otherwise so critical of the applicant. It also appears that the statement was prepared for the likely purpose of the employer of the applicant and R to defend wrongful dismissal proceedings that the applicant had brought, and should be considered in that context. Accordingly, unlike professor Greenberg, I am not prepared to accept the statement at face value, as it may well have been exaggerated.
d) E-mail and letters to Prime Minister.
29 The applicant had been teaching a social justice component in religion classes at Catholic primary schools, where he caused pupils to send letters to the Prime Minister's office commenting on the treatment of refugees. A letter in reply was sent by the Prime Minister’s office to the school which was in disapproving terms. As a result the principal of the school contacted Father M and said that the applicant was suspended from teaching. The applicant returned to school after discussions took place between him, the principal and Father M.
30 Whilst suspended the applicant received an e-mail from a one of the pupils. The pupil had previously requested the applicant’s e-mail address, indicating that he wished to send him some information, which the applicant never received. The substance of the email was that the class had become aware that the applicant had been taken to task about the letters sent to the Prime Minister and it requested him to return to teaching. Another student had tacked on a note at the bottom of this e-mail. It seems that someone had informed the class that the applicant had been suspended. There was no evidence that the applicant had done so. The applicant did not send an e-mail in response to the pupil’s e-mail, and nor had he sent one to the pupil before hand. He did, however immediately forward the email he received from the pupil to Father M.
31 Professor Greenberg, in his report drew incorrect and very damaging inferences from his wrong conclusion that the applicant sent an e-mail to a school student and he acted improperly by causing school children to write to the Prime Minister. There were 4 emails:
32 Professor Greenberg was briefed with the first two e-mails and the applicant produced the other two to the Tribunal. In the first e-mail by the applicant to Fr M the applicant attached the child’s e-mail to him, an action that can suggest nothing improper by the applicant. However in his report Professor Greenberg states:
i. From the applicant to Fr M dated 3 September
ii. From Fr M to the applicant dated 3 September
iii. From the applicant to Fr M dated 4 September
iv. From Fr M to the applicant dated 4 September.
33 It is significant that Professor Greenberg chose to omit some extremely important words from the section of the e-mail from which he quoted in his report as set out in the above paragraph. The words that Professor Greenberg removed from the e-mail and which he replaced with 4 dots between the word “young” and the word “I” in the penultimate line in the paragraph immediately above are:
“I note from the e-mails (dated 3rd September 2002) received from the Catholic Church, KF sent e-mail what was thought to be inappropriate correspondence t o a male child in the Class ’, which raised the concerns of (Fr M) (a supervisor?). (the applicant) defends his actions to Mr (M) and stated “it’s a shame that too many ‘old’ people don’t take as much time to listen to the voice of the young…. 1 can’t be doing too much wrong –can I? PS Happy Birthday (you are getting OLD –aren’t you!!!)”
34 The words omitted are the only words in the two e-mails with which Professor Greenberg was briefed that show that the applicant did not send an e-mail to a pupil but was sent one by the pupil. There are no words in the e-mails that suggest otherwise.
"it's a shame that too many 'old' people don't take as much time to listen to the voice of the young and hear what they have to say-because most of the time they make so much sense. Anyway, I was wondering how many other scripture teachers would get letters/emails like this? 1 can't be doing too much wrong can I? PS Happy Birthday (you are getting OLD -aren't you!!!)” The underlining is mine.
35 Fr M’s reply, being the second e-mail with which Professor Greenberg was briefed contained only one sentence that casts any light on this issue of sending or receiving an e-mail viz “How did you come to give your e-mail. Address to (the pupil)?” This implies that the e-mail was probably received from the child. No reading of the two e-mails could lead to the conclusion that the applicant sent any e-mail to a child. The only evidence points to the contrary conclusion.
36 The applicant denied sending an e-mail to any child under oath when he gave evidence on 2 June, during all of which time Professor Greenberg sat in the Tribunal hearing room listening and taking notes. Professor Greenberg was provided with a copy of the transcript, which he said he read before the next hearing date of 26 July when he commenced his evidence. He then stated that he never believed that the applicant e-mailed the child and that his report contained “typos” in this regard, not once but on 3 separate pages spread throughout the report (pages 3, 9 and 16) which are set out hereunder:
37 Here there are two alleged typos, one being the word “sent”, and another four words away being “to”. However, by going on and stating, that the supervisor believed that the applicant had shared information of his suspension with the children, Professor Greenberg is further implying that the applicant sent the e-mails, effectively making a typo of a further 16 words, and arguably a total of 19 words.
a) On page 3 of Professor Greenberg's report he described item 11 of the materials provided to him by the Respondent as:
Emails for 3rd September 2002 provided by the Catholic Church, concerning the applicant corresponding with two children.
b) On what should be page 9 of his report Professor Greenberg stated the following:
I note from the e-mails (dated 3rd September 2002) received from the Catholic Church, ( the applicant) sent e-mail what was thought to be inappropriate correspondence to a male child in the Class, which raised the concerns of (M) (a supervisor?). (The applicant) defends his actions to Fr (M) and stated "it's a shame that too many 'old' people don't take as much time to listen to the voice of the young 1 can't be doing too much wrong -can I? PS Happy Birthday (you are getting OLD -aren't you!!!)
Here there are two alleged typos, one being the word “sent”, and another nine words away being “to”. If he had meant to say that the correspondence was from the pupil, I wonder why did Professor Greenberg thought it necessary to claim that the pupil’s correspondence was “inappropriate”.
c) On page 16 of his report the following was said:
As stated (FR M) at the Catholic Church in Toukley in raise [sic] some questions that (the applicant) allegedly sent some inappropriate e-mail to a pupil at his Class and in the opinion of his supervisor inappropriately shared information of his suspension with the children.
38 Professor Greenberg was cross-examined about this. With respect to what is said on page 9 of his report about the email incident he said the following in cross-examination on 26 July 2004:
39 With respect to what is said on page 16 of his report the following was said in cross-examination on 26 July 2004:
Q. Page 9 you say the following: "I note from the emails dated 3rd September 2002 received from the Catholic Church (the applicant) sent email what was thought to be inappropriate correspondence to a male child in the class which raised the concerns of Jim M, a supervisor?"
A. Yes, what I'm referring to -maybe that I haven't worded it properly -what I'm referring to is that (the applicant) wrote to the supervisor in response to the supervisor's concerns about his emails, the emails from the child to him...
Q. You said that he sent email, didn't you, in your report? On two occasions, on page 16 --
A. Yes I'm reading it and I'm just trying to qualify what I meant. Perhaps I didn't word it in the correct way.
40 In cross-examination on 18 August 2004 Professor Greenberg admitted that he had made this "typo" on three occasions throughout his report. Asked if he was seriously suggesting that he had made a typo which involved an entire sentence he said:
Q. That's not what I'm talking about. What I'm talking about is how you said on two occasions in your report that (the applicant) sent email to a student. Now you say it on page 9 and you also say it on page 16, don't you? Middle paragraph, last sentence. You're saying (the applicant) allegedly sent some inappropriate email to a pupil at his class".
A. Yes. That is a, that is a, sorry, typing error...
41 So many typos in 3 separate sections of one report, together with the omission from his quote of the only part of the e-mails which constitute the only objective evidence on such an important matter, makes Professor Greenberg’s evidence on this issue unacceptable.
A. Well, what I mean by that is that my understanding at the time was that the child had sent an email to (the applicant). Somehow that had transposed into (the applicant) sending an email to the child.
42 An important matter it was indeed, as it was the only evidence that involved the applicant in direct dealings with children. If there was any factual matter that was would have been likely to get Professor Greenberg’s full focus this was it. Professor Greenberg admitted its extraordinary importance in cross-examination:
43 Furthermore the e-mails show that as soon as the applicant received the pupil’s e-mail he sent it straight to his supervisor, for which the applicant was not given any credit by Professor Greenberg. It is also important to note that the third and fourth e-mails produced to the Tribunal by the applicant show beyond doubt that the applicant did not send any e-mail to any child.
Q. In fact this is the only, the only real piece of material which is of some concern about (the applicant’s) conduct which relates to children in the material before you isn't it? A Yes
44 As well as wrongly interpreting the e-mails so as to ground his adverse opinion on the applicant’s risk, Professor Greenberg also took the opportunity of using the language that the applicant used to his supervisor which Professor Greenberg did quote in his report, (“You must be getting old” etc) as evidence of risk, a conclusion that can not be sustained.
45 Additionally, Professor Greenberg’s justification for his finding that the applicant shared information of his suspension which he claimed was inappropriate, was because he thought that the applicant’s supervisor believed that it was inappropriate. This is not bringing the independent mind of an expert to the issue. Rather Professor Greenberg is delegating his expertise to a school teacher.
46 Additionally in assessing the applicant’s potential risk Professor Greenberg included the inappropriateness of the applicant causing the views of his school classes on the treatment of refugees to be sent to the Prime Minister. After prevaricating Professor Greenberg ultimately admitted that he thought that this was inappropriate and a basis for finding that the applicant was a risk because the Prime Minister’s Office, as one might expect, as well as his supervisor each thought it was:
47 Again the witness is not using any personal expertise but adopting the views of non-experts. Furthermore Professor Greenberg went on to conclude that the applicant improperly shared with the pupil the fact that he was suspended because of the correspondence to the Prime Minister, when there is no evidence to show that he did so.
A. Well -my understanding was that he had -the children had written emails to the prime minister. It was a spiritual lesson and it was felt this was inappropriate. Or the minister's or the prime minister's office felt it was -had contacted and it was inappropriate.
DEPUTY PRESIDENT: Who thought it was inappropriate, the Prime Minister's office?
A. No. I'm just saying what they thought. I mean the Prime Minister's office apparently contacted the school.
Q. The Prime minister's office thought it was inappropriate? A. That's correct.
Q. And that was the inappropriateness in the mind of the Prime Minister's office. What's your thinking?
A. Well that's the perception, yes. The perception of the -of the -of the -my understanding of the perception of the school was, you know, that they had received a complaint form the PM's office that these emails were inappropriate. I think some of them used the word "shit" or to that effect.
Q. Did the school think it was inappropriate?
A. Well it says here, I'II read it to you. This is the child writing an email to (the applicant)--
Q. …That's not the question. I said, did the school say it was inappropriate or was it just the Prime Minister's office saying it was inappropriate? A. My understanding was that -
[NOTHING SAID]
HIGGINS: The document speaks for itself in my submission.
RAYMENT: This is relevant to this witness generally.
A. My understanding was that the Prime Minister's office had contacted the school and felt it was inappropriate.
DEPUTY PRESIDENT: Yes I know we understand the Prime Minister's office thought it was inappropriate. Did the school think it was inappropriate?
A. Well, my perception, my understanding was that this resulted in some form of temporary suspension of a week so they must have felt it was inappropriate.
e) The applicant’s conflict with A, who was his supervisor at St Vincent de Paul when the applicant worked as a volunteer with street kids.
48 The letter that the applicant wrote to A’s superiors complaining about her and her response were both couched in vigorous terms were both produced on summons. They showed a petty personal dispute or conflict that is common in volunteer organisations. It is not possible to say whom, if any one was in the right and the wrong. Little weight can be put on this matter which at its most adverse shows that the applicant can be assertive and difficult.
f) A letter from the bishop that the applicant did not settle into his training for the priesthood and was intimidating and overbearing.
49 Other than this letter the only evidence given on this basis was sworn evidence from the applicant who stated that he was unhappy with the conservative nature of the theology that was being taught. It is not possible to put much weight on this matter especially as the applicant was training for employment that ultimately required a vow of total obedience. Using this evidence on his attitude to authority in such a setting as a basis for his opinion of the applicant’s behaviour towards children can is highly speculative. At its most the evidence shows the applicant to be assertive and possibly not well suited to be a priest.
g) The applicant had been terminated 3 times from his employment in the past 20 years
50 Without some detail of the circumstances thereof it is not possible to put any weight on this. There is no detail other than the applicant’s version of the 1985 termination that his wrongful dismissal claim was settled out of court, and the employee R’s letter of complaint which is discussed in paragraph 27 above.
h) Dr Canaris said the applicant’s personality had a narcissistic flavour and he tended to show himself in a favourable light
51 A reading of Dr Canaris’ report shows that he referred only to the applicant’s denial of the index offence and did not form an adverse view about this. Dr Canaris did also note that the applicant’s affect was cheerful and affable and this gave his overall demeanour a narcissistic flavour, but he drew no adverse conclusions from this. In fact his report immediately went on to say that he could not find specific evidence to suggest that the applicant presented a danger to young people, and formed this favourable view having taken into account the Encompass finding that the applicant tended to present himself in an over favourable light. Professor Greenberg's comments do not accurately represent the content Dr Canaris’ report.
i) The negative report of a probation officer in 1985 together with its statements that one of applicant’s then nominated referees said he stole a TAB ticket from him, and his mother and brother stated he was a liar
52 This report was prepared in regard to an offence of dishonesty and as it must be considered in that context it does not advance the issue of his then honesty. The context and the relationship between applicant and his accuser who was not interviewed in 1985 nor 2004 and never gave evidence then or before me, are not known. The mother and brother were interviewed 20 years ago and there was no evidence of the then family dynamics nor their current views. The comments, if accurately reported were made by family members in the context of convictions for dishonesty 20 years ago. No weight can be put on this as a basis for an assessment of risk to children.
j) The 1985 probation officer’s report stated that Dr Pickering a psychiatrist, saw the applicant and stated that he was immature and dissociated from the consequences of his actions
53 Neither a report nor any evidence from this psychiatrist could be produced. It is hearsay evidence 20 years old and even if true and is not evidence of the applicant’s current level of maturity or current behaviour or diagnosis. This is an exercise of an expert witness delegating his function to another expert upon whose views no weight can be put.
k) Applicant’s previous criminal record
54 I have considered this in paragraphs 10 and 12 to 14 above.
l) Applicant’s disbelievable sexual history:
55 Professor Greenberg raised the issue of sexual disfunctionality as a component of risk based on the applicant’s evidence that he had previously had normal relationships with several women but not masturbated since he was 18 years, which Professor Greenberg stated in his report was somewhat unbelievable. When questioned about this he stated:
A. I think what I was saying [about] (the applicant) is his history -he gave a fairly sort of superficial history about the fact that he had gratifying and sexually satisfying relationships and sexual activity with the opposite sex and yet he stated that he had not masturbated since he was 18 I think, and that he never had sexual fantasies, never had sexual urges and had no need for masturbation. It seemed a bit improbable as your sexual drive is like your appetite, appetite for food. It's a biological drive. It just seemed unlikely --
DEPUTY PRESIDENT: Are you basing that opinion on any studies or empirical research?
A. Well yes it's based on -empirical research would show that you've got biological --
Q. No what's the empirical, what's the studies you're basing your conclusion on? A. What about sex drive?
Q. What you just said.
A. Well it's based on human beings' sexual drive --
Q. No you just told me it was based on some studies and empirical research. A. I don't think I used the word studies and empirical research.
Q. I do and you seemed to agree. I'll ask you the question again. A. Yes.
Q. Is your opinion in regard to this based on any studies that you're aware of or empirical research that you're aware of? A. Yes
Q. What is that?
A. Well the study of human physiology and human sexual behaviour.
Q. Quote me the studies. Are you relying on studies or are you relying on gut- reaction?
A. No I'm relying on textbooks. I mean you go to any textbook on human behaviour. People have --
Q. Well that's an opinion. That could be a study; that could be someone's opinion.
HIGGINS: Well it's an expert opinion, with respect Mr Deputy. He's entitled to express an opinion based on his area of expertise. If this comes within his area of expertise --
DEPUTY PRESIDENT: Well that's what I'm trying to find out.
HIGGINS: Well he's answering it with respect. But if you wish the names of the particular text and the particular study and when it was published then perhaps the professor can answer that --
DEPUTY PRESIDENT: That's what I'm asking.
HIGGINS: --if that's what you genuinely want to do.
A. What I'm saying is that, I'm not saying that its impossible buts it's unlikely that a person never has any sexual fantasies from the age of 18, has a very satisfying sexual relationships with female partners but has never have had a relationship of any extended duration.
DEPUTY PRESIDENT: You may be right. I understand what you're saying but I'm trying to see what the basis of it is. You've told me that it was, your opinion is based on studies and research. I want to know, I want you to quote to me, if that's the case, some of those studies.
A. Any standard textbook would have, you know, historical research on, well not res. Any standard textbook on human sexuality would have text about human sexuality, human sexual urges, human sexual fantasies, sexual behaviour. Q. Are there studies that say that someone would not, that it is not credible that someone would have satisfactory heterosexual relationships but not have urges or not masturbate if he is not having a sexual relationship?
56 This is one of several instances of the witness attempting to avoid a discrediting answer by prevaricating. Furthermore the above transcript shows that Professor Greenberg was unable to specify one study upon which he claimed he based his opinion. Moreover the hearing on the day the above evidence was given was adjourned and Professor Greenberg concluded his evidence three weeks later, when he still failed to produce or even identify any such study. This is the type of expert evidence that Gleeson CJ said should be rejected, when he warned of purported expert evidence that “ was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist” (HG v Then Queen 1999 197 CLR 414). Gleeson CJ went on to say: This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinions", (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which Mr. McCombie was to be invited to express appear to provide a good example of the mischief which is to be avoided.
A. No it's possible not to masturbate. Even people who are, for instance people who celibate who join monasteries and are not sexually active and they've adopted celibacy, which wasn't the case in KF' case, one would expect the person to have at some time in the last 20 odd years some sexual fantasies or sexual urges. Just: that's person's attractive. It might be a fleeting couple of second or two, or it might be more extensive. What I was saying, what I was being referred to by the, by Mr -sorry I forget your name -the barrister, Mr Rayment was that (the applicant) told me that he had had satisfying sexual relationships and yet he had never formed an intimate relationship of some duration, had never masturbated, had no sexual fantasies, had no sexual urges. It just, it seemed unlikely. I didn't say it was impossible, it just seemed unlikely.
m) The Encompass report and its evidence of KF’s reluctance to disclose his previous convictions and his tendency to put himself in a favourable light:
57 The applicant was charged with the index offence on 7 June 2002 which is a month before the date of the Encompass report. He was not convicted until 16 January 2003, 6 months after the Encompass report, so it was not possible for the applicant to disclose the conviction to the Encompass personnel.
58 As the applicant was vigorously defending this criminal charge it is not unreasonable for him not to raise this matter, which had then not then been determined. In any event Fr M provided a statement that said that in 2002 the applicant answered a questionnaire which contained the question: “Have you ever been arrested?” with details of the charge for which he had not then been convicted.
59 On the one hand, whilst criticising the applicant for alleged non disclosure, on the other hand Professor Greenberg gave the applicant no credit for voluntarily disclosing his 1990’s assault conviction which does not show up on the Police Criminal History computer print out.
60 When Professor Greenberg was asked about criticism of this as a basis for his opinion, he gave an unsatisfactory and enigmatic answer which does not assist the Tribunal in considering the weight to give to this matter as a basis of his opinion:
n) The fact that in 1985 Dr Pickering, a psychiatrist, said that the applicant would not offend again
Q. Professor Greenberg, to what extent did you rely upon the non disclosure history, if it can be called that, of (the applicant) in forming your risk assessment of him?
[Housekeeping interruption]
A. I think the issue of non disclosure, I mean it's very difficult to say to a doctor: hypothetically had the person not complained of loss of weight, had the person not complained of lethargy, had the person not told he's got a family history of diabetes, had the person told you X, Y and Z, hypothetically if he didn't do that what weight would you give to the diagnosis of--
Q. That question has been objected to successfully. I re-put the question --
A. I'm just giving an example. I'm just giving an example. What weight would you put to the diagnosis? I look at everything in totality. So the issue of non disclosure is one aspect...The point I'm trying to make is that it's just one aspect of a totality that one looks at before one comes to final view. The issue of weight of the fact that he did not disclose information which is relevant -it's just part of a big puzzle
61 The fact that Dr Pickering was wrong in 1985 and the applicant did subsequently re-offend is irrelevant to the issue of the applicant re-offending in the future.
o) The fact that the applicant stated that his counselling with the Encompass psychologist was successful and she stated the opposite
62 This does not advance the issue of risk at all. It may well be further evidence that the applicant puts issues involving himself in a favourable light. It may also suggest that the applicant would not be a suitable subject for additional counselling, a matter that would only be relevant to the Tribunal’s task of granting an exemption, if it was otherwise not satisfied that the applicant was a risk to children and young people, and wished to consider counselling as a condition of its order.
p) The applicant has worked almost exclusively with peer adults
63 Although Professor Greenberg did not list this when answering my request to list the bases of his opinion, it appears in his report, and infers that the applicant has not been tested in working with children. The evidence demonstrates that the applicant spent several years working part time both as a religious school teacher and with street kids. In both these positions the evidence shows that he was well monitored, and did nothing to base a conclusion that he a risk to children.
Possible bias
64 The applicant submitted with some persuasiveness, that the listing by Professor Greenberg of every possible negative aspect of the very considerable volume of material summonsed and assembled by the respondent regarding the applicant although of little relevance and doubtful accuracy, was evidence of a partisan approach by Professor Greenberg whereby he was acting as an advocate for the position of respondent which, until the conclusion of Professor Greenberg’s evidence, was opposing the application.
65 The applicant further submitted that evidence of bias can be seen in Professor Greenberg’ attempts to avoid answering questions in cross-examination that were pitched in a way that demonstrated matters that were favourable to the applicant. I have quoted one such instance in the section dealing with the e-mail matter.
66 Furthermore the applicant submitted that in answering questions Professor Greenberg often put an unnecessary sting in the tail of his answer which could only harm the chances of the application succeeding. The following illustrates this point:
67 The following cross-examination shows the same tendency:
Q. You've concluded in your report that it is more likely than not that (the applicant’s) index offence was not sexually motivated? A. Yes, that's my clinical opinion, yes.
Q. You don't have any cause to believe he's a paedophile, do you? A. No.
Q. You don't think he's a paedophile, do you?
A. I don't think he's a paedophile, no. I cannot absolutely say he's not, 100% with absolute but on the information available to me, no.
Q. You couldn't say that anyone in this room wasn't a paedophile, on that scale, could you?
A. Not everyone in this room has been convicted of a serious sexual offence so the risk is ….
68 And another example:
Q. Nor was there any evidence that (the applicant) has ever been responsible for emotionally abusing a child?
A. No but as I said in my report, when one looks at risk assessment the -for instance the Static 99 they do not distinguish between child offences and adult offences. In other words people cross over from adults to children and vice versa.
Q, I take it the answer to the question is no?
A. The answer to the question is no but in the context of risk assessment the actual assessments do not distinguish between child and adult offences. They are regarded as sexual offences.
69 There is other evidence that also raises concerns about the objectivity of Professor Greenberg’s evidence. Some of these concerns have been noted earlier in this decision. Notable examples include the e-mail evidence at paragraphs 29-47; his interpretation of Dr Canaris’ report at paragraph 51; his use of Dr Pickering’s opinion at paragraph 53; attempts to damage the applicant by his answers at paragraphs 66-68; the research that Professor Greenberg was never able to specify that he claimed grounded his conclusion that the applicant’s sexual history was unbelievable at paragraphs 55-56. The Tribunal has discussed the risk of mental health professionals becoming advocates for one party at paragraphs 45 to 52 of FD v Commission For Children and Young People 2003 ADT 261, particularly at paragraph 50 thereof, which quotes Dr Freckleton a specialist on expert evidence:
Q. Two schools. And in all of those cases don't you think there should be some that it's significant that there hasn't been a report of (the applicant) behaving in a way, in an aggressive way --
A. Yes but I have covered that -- Q. -towards children?
A. I have covered that in my report - Q. Sorry is that a yes?
A. Yes. I have covered that in my report. There is no other information to suggest there has been any sexually impropriety involving a child.
Q. And there's also, don't you think it's also significant that given that history, that there's been no evidence that he's put any child at any form of risk?
A. No. I disagree with you.
Q. Why?
A. There is documentation about some difficulties with (the applicant) in a school called (name of school) or --
HIGGINS: (name of school)
A.(name of school), where the person in charge of (the applicant)-I believe (the applicant) was teaching religion in the school -and the person in charge of him was of the opinion that he was inappropriate with some of his classes. And that involved him getting into something to do with refugees and how they were treated and the children at both these schools writing letters to the Prime Minister who responded accordingly.
Q. Is that putting a child at risk is it?
A. You asked me if there was any information to suggest anything inappropriate with children and I said to you that I disagreed with you
Character Evidence
Dr Freckleton has also noted a tendency on the part of mental health professionals towards findings of abnormality when being called as witnesses for a person in whose interest it may be for such a finding to be made. (Freckleton, I The Trial of the Expert p 198). Where mental health professionals give evidence, there can be a tendency on the parts of the witnesses themselves, subconsciously or consciously, to descend to the role of advocate for the client-patient.
70 The applicant produced various character references. One of these is worth more then the usual weight that is put on such testimonials. This was from Captain C of the Salvation Army and who was vigorously cross examined. She was the officer in charge of her organisation’s Youth Centre where for 12 months she worked alongside the applicant in assisting local homeless and transient youth at risk, as well as victims of sexual abuse, at a time when the applicant was undertaking this voluntary work for St Vincent de Paul. She told how well applicant properly, skilfully and empathically related to these children and young people. She stated that she observed him to be a man of truth and integrity, who could occasionally become annoyed when frustrated by such matters as bureaucratic red tape form the local council.
Conclusion
71 The Tribunal cannot refuse an exemption if the risk to children is a mere theoretical or possible risk. It must be a real and appreciable risk or an unacceptable or real risk or a likelihood of harm. The conduct which constituted the index offence although an unnecessary act of violence was very trivial and neither expert categorised it as likely to have been of a sexual nature, and is not sufficient to raise any relevant concern that the applicant is a risk to children. Nor do the other criminal convictions being an assault in the 1990’s, a driving offence, breach of a community service order and various dishonesty offences.
72 The Tribunal is left with the adverse opinion of Professor Greenberg and the matters upon which he based it. In considering expert evidence it is necessary for a court or tribunal to consider whether or not to accept the facts accepted observed or assumed as the proper basis for the expert’s opinion. The law on this was considered by the Tribunal in KP v Commission For Children and Young People 2004 NSWADT 174 at paragraphs 22-24. For reasons already given when discussing them, nearly all of the bases which underpinned Professor Greenberg’s opinion are either erroneous, unacceptable, irrelevant, exaggerated, discountable or explainable.
73 Furthermore, there are various instances which I have specified above where Professor Greenberg’s evidence raises concerns that he was not objective and was advocating for the position of the party who engaged him. An expert’s evidence should always be free of such concerns. This was recognised by Young J when he stated:
74 Professor Greenberg’s evidence on the degree of risk that the applicant represented was often confusing and inconsistent. Professor Greenberg stated on a number of occasions that the applicant was a probable risk, often with varying qualifications. The last time he said this he immediately went on to state that the applicant was a real and appreciable risk, which is a much greater risk than a possible risk. At this point the respondent stated, that taking Professor Greenberg’s evidence at its highest there was only a probable risk and moved its position from opposition to the application to one of neutrality.
In modern litigation it is axiomatic that expert evidence should be independent and the expert should virtually be the Court's expert to assist the Court in reaching the truth... I should take the opportunity of saying that the modern approach to expert evidence is that the expert should be beyond criticism of bias. CCYP v V [2002] NSWSC 949 per Young CJ in Eq at paragraphs 32 –34.
75 I am of the view that overall little weight should be given to Professor Greenberg’s evidence, which should not be preferred to that of Dr Canaris to whom the applicant was referred by the Catholic church, not for the for the purpose of this application, but to consider his suitability to be a priest. There is nothing to suggest that Dr Canaris was motivated to give anything other than an honest and objective report. His assessment on risk is clear, unambiguous and credible.
76 Dr Canaris gave his positive opinion after having considered the applicant’s sexual history. In fact Dr Canaris referred to the applicant’s denial of the index offence but did not draw any adverse conclusion from this. He also noted that applicant’s affect was cheerful affable and that his gave his overall demeanour a narcissistic flavour but drew no adverse conclusions from this and immediately went on to say that he could find no specific evidence to suggest that the applicant presented a danger to young people. Dr Canaris also formed his positive conclusion having taken into account the Encompass finding that the applicant tended to present himself in an overly favourable light.
77 The evidence of Encompass as well as other factual material before me show that the applicant may well be subjective in giving his personal history, and may be a possible financial risk to others and on occasions is given to impulsive and impetuous and angry outbursts. There is also evidence that he may at times be a difficult overbearing worker or supervisor. None of this is sufficient to establish that the applicant is likely to be a risk to children. The only acceptable evidence shows that the applicant has only ever caused relatively occasional and relatively minor harm to mature adults and never any harm or concern to children, in spite of working with children for several years; and that the index offence was not sexually motivated. I believe that there is an insufficient likelihood of the applicant constituting a real and appreciable risk to children and young persons not to grant him a declaration.
Order
The Child Protection (Prohibited Employment) Act 1998 is not to apply to KF in respect of the offence of indecent assault for which he was convicted on 11 April 2003.
15/04/2005 - Correct spelling of representative for applicant - Paragraph(s) Cover sheet
0