LA v Commissioner for Children and Young People

[2012] NSWSC 1454

Supreme Court

New South Wales

Medium Neutral Citation:

LA v Commissioner for Children and Young People [2012] NSWSC 1454

Hearing dates:

23 October 2012

Decision date:

30 November 2012

Before:

Schmidt J

Decision:

1. The appeal be dismissed.

2. Exhibits may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Catchwords:

APPEAL - appeal on questions of law against decision of the Administrative Decisions Tribunal refusing orders under the Commission for Children and Young People Act 1998 - operation of Act - whether applicant is a prohibited person - nature of applicant's criminal record - whether offence dealt with under s556A of the Crimes Act 1900 is a 'serious sex offence' as defined - whether the applicant should have been permitted to issue a summons to victim of 1984 offence - whether applicant should have been permitted to issue summonses to others - whether evidence should have been received from Professor Greenberg - no error of law established - costs

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Child Protection (Prohibited Employment) Act 1998
Commission for Children and Young People Act 1998
Crimes Act 1900

Cases Cited:

LA v Commissioner for Children and Young People [2012] NSWADT 13

Category:

Principal judgment

Parties:

LA (Applicant)
Commissioner for Children and Young People (Respondent)

Representation:

Counsel:
Mr M Higgins (Respondent)
Solicitors:
LA (unrepresented)
IV Knight, Crown Solicitor (Respondent)

File Number(s):

2012/154871

Publication restriction:

None

 Decision under appeal 

Jurisdiction:

9113

Date of Decision:

2012-02-02 00:00:00

Before:

S Higgins, Deputy President

File Number(s):

084034

Judgment

1. In 2008 the plaintiff, LA, made an application under s 33I of the Commission for Children and Young People Act 1998, seeking an order declaring that Division 2 of Part 7, Prohibitions on child-related employment, did not apply to him in respect of a specified offence, which had been dealt with in 1985 under s556A of the Crimes Act 1900. In February 2012, the Administrative Decisions Appeal Tribunal refused his application.

1. Under s 33I(7), LA has the right to bring an appeal on a question of law to this Court, in respect of that refusal.

1. LA is an 84 year old unrepresented litigant. At the hearing he explained that he was impecunious, but had at one time undertaken some legal studies. He drew the summons initiating these proceedings on the basis of an all grounds appeal, but finally directed his submissions to various matters of law which he sought to pursue. He particularly drew attention to his complaints about the retrospective operation of the Act; an alleged error in his criminal record; and charges he claimed had been wrongly laid against him, which had resulted in him becoming the victim of a conspiracy in which he had been wrongly identified to be a murderer and a paedophile.

1. LA submitted that he had wrongly been dealt with on the basis of hearsay, assumption and innuendo, on circumstantial and coincidental evidence, without direct evidence of anything. From the outset there had been an error of law when he was first identified as a prohibited person, because the offence he was originally charged with in 1984 had been 'downgraded', with the result that he had been dealt with for a lesser offence than that with which he was originally charged. In the result, he was not a prohibited person for the purposes of this legislative scheme.

La's first application

1. In order to understand the issues lying between the parties, it is necessary to appreciate that in 2003, LA first made a similar application under predecessor legislation, the Child Protection (Prohibited Employment) Act 1998. That application followed upon LA becoming a prohibited person, by operation of that Act.

1. That LA was a prohibited person only came to his attention after a working with children check was made under the Child Protection (Prohibited Employment) Act, after LA sought 'child-related employment'. That was then defined to include work as a volunteer. On his account, LA had to that point been involved in volunteer work with children for very many years, including as a coach for his children and grandchildren's sporting teams. It was then that advice was first given by the Commissioner, that he was a prohibited person. That led to his 2003 application to the Tribunal.

1. A prohibited person was then defined in s 5 of the Child Protection (Prohibited Employment) Act to include a person who had been 'convicted of a serious sex offence, whether before or after the commencement of this subsection'. The word 'convicted' was not defined, but the word 'conviction' was, the definition in s 3 providing:

"conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction."

1. LA's position had to be understood in the context of the then provisions of the Crimes Act 1900, which included s 556A, which relevantly provided:

"556A Power to permit release of offenders

(1) Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider, it is inexpedient to inflict any punishment, or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to conviction, make an order either:

(a) dismissing the charge, or

(b) discharging the offender conditionally on his or her entering into a recognizance, with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as may be specified in the order.

...."

1. A 'serious sex offence' was defined in s 5(3)(a) to include an offence involving sexual activity or acts of indecency committed in New South Wales, that was punishable by penal servitude or imprisonment for 12 months or more.

1. In 1984, LA was charged with an offence under s 78Q(1) of the Crimes Act, of an act of gross indecency with a male person under the age of 18 years. The maximum penalty for that offence was 2 years imprisonment. In proceedings in the then Magistrates Court, in which both the victim and LA gave evidence, he was dealt with under s 556A. That appeared on his record.

1. In the result, even though he was dealt with under s 556A of the Crimes Act, LA understanding as a result that he had no criminal record, the Commissioner took the view that LA fell within the statutory definition of a prohibited person under the Child Protection (Prohibited Employment) Act, which was later enacted. So it was that he eventually came to make his 2003 application, which failed on its merits. LA then appealed to this Court. That appeal was refused.

1. On this appeal in relation to his 2008 application under the current provisions of the Commission for Children and Young People Act, despite the conclusions reached in relation to his 2003 application, it was LA's submission that from the outset, he had incorrectly been identified as a prohibited person. This submission rested on his claim that while in 1984 he had initially been charged with an offence under s 78Q, at the hearing in the Magistrate's Court in 1985, he had in fact then been dealt with for a lesser offence.

The alleged conspiracy

1. LA also gave an extensive account of later events which have occurred over the course of the very many intervening years, which have left him with the view that he has become the victim of a very serious conspiracy, designed to cover up other people's responsibility for criminal offences of the most serious kind, including sexual assaults of male children and the murder of a young man. On his account, this murder eventually became the subject of Coronial proceedings, which finally delayed the hearing of his second application to the Tribunal.

1. I do not propose to detail his views about this conspiracy, which he believes needs to be the subject of a Royal Commission. Neither the proceedings before the Tribunal nor this appeal are concerned with his views about these matters, no matter how strongly held.

The nature of these proceedings

1. The Tribunal's jurisdiction was to hear and determine LA's application for a declaration under the current Act. In considering that application, it was bound by s 32 of the Act, which provides:

"32 Safety and welfare of children to be paramount consideration

The safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Part."

1. On this appeal both the parties and the Court must restrict themselves to dealing with the issues of law which lie between the parties, which LA is entitled to pursue under s 33I(7). That is the subject of this appeal, not LA's other wide ranging concerns, nor even the merits of the Tribunal's decision.

The proceedings before the Tribunal

1. The proceedings were commenced in 2008. In 2009 a preliminary question was determined as to whether LA's 1984 offence fell within the legislative scheme. The hearing of his application was then delayed while LA was involved in certain Coronial proceedings. They concerned the alleged victim of offences with which he had been charged in 1996, but of which he was acquitted, after the victim disappeared.

1. When the proceedings resumed before Deputy President Higgins in March 2011, the position was that LA had not provided any statement on which he wished to rely in support of his application, but he had filed written submissions, which explained his wide ranging purposes in bringing the application. The Commissioner relied on material which included LA's criminal history and evidence which had been received in the 2003 proceedings. It was tendered without objection.

1. LA's application that various people be summonsed was then considered. The parties had filed written submissions, which they addressed.

1. LA explained that he wished to summons Professor Greenberg, because his case was that evidence which Professor Greenberg had given in the 2003 proceedings had been the fundamental and only reason his first application had failed. There was no objection to Professor Greenberg being called and he later gave evidence.

1. As to the other summonses, LA explained that he wanted to call the other witnesses because his main object was not to let a number of murders be covered up and that he proposed to try and build the Tribunal proceedings into a Royal Commission. The Deputy President warned that this was not the Tribunal's role, but the issue of the summonses was pressed.

1. The Deputy President took the view that only two of the proposed witnesses could conceivably provide evidence relevant to LA's application. It was explained to LA that the Tribunal could not look behind the conviction in respect of which his application was made; that it had no power to investigate his allegations of corruption; and that it had to determine the question which arose on his application under the legislative scheme, which depended on the question of whether he posed a risk to children.

1. In the result LA's application was refused, although he was given leave to renew his application, in relation to one other person, who LA had explained in his submissions would be the main witness, if there was ever a Royal Commission. A record of interview by that person was in evidence, it was explained for the Commissioner, in order to establish that LA had been seen in the company of the alleged victim of the offences he had been charged with in 1996. That statement had been given in the course of a police investigation into his disappearance. As it later transpired, LA himself put in evidence material concerning these charges and made submissions about them. That he knew the alleged victim was finally not in issue.

1. Because LA had not filed any statement in support of his application, the proceedings were then adjourned, so that he could file any statement on which he wished to rely.

1. LA later filed a document, which was largely a further submission, to which was annexed various documents, including extracts from transcript of the 1996 proceedings, correspondence he had sent to members of Parliament and various authorities, explaining his complaints about failures to investigate various alleged corruption; newspaper and other media reports; Professor Greenberg's 2003 report; statements made by various persons, including police officers, in relation to the charges which he faced in 1996; as well as parts of the transcript of Coronial proceedings.

1. He relied on this material at the further hearing in May 2011, when the parties advanced their respective cases. Because LA had made a statement in the 2003 proceedings on which he was then cross examined, he was not required for cross-examination on this application. Professor Greenberg was then called and cross-examined by LA. After the Professor was re-examined, LA was given the opportunity to cross examine him further. The parties later put on written submissions.

The Tribunal's decision

1. The Deputy President approached her consideration of LA's application in the light of binding authority as to the nature of the proceedings and the onus which fell on LA under the legislative scheme. She observed at [19] - [21]:

"19 The Court of Appeal has recently confirmed that the exercise of the Tribunal's jurisdiction under section 33I of the Commission Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. That is, the purpose of this Act is not to impose additional punishment on a person, but to eliminate possible risks to children. The Repealed Act had a similar purpose: see R v Commission for Children and Young People [2002] NSWIR Comm 101 at [130].

20 The word 'risk' in the context of prohibited persons working in child-related employment was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour said that in the context of subsection 9(4) of the Repealed Act, 'risk' did not mean 'minimal risk', 'fanciful, or theoretical risk' to children. His Honour went on to say:

'...[what] one is looking for is 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. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children ''.

21 In making these remarks His Honour adopted the analyses that had been given by Haylen J in R v Commission for Children and Young People [2002] NSWIR Comm 101, at [104]. Some care must be taken in applying the entirety of this analysis, as the provisions of the Commission Act are not in exactly the same terms as the Repealed Act. However, the above remarks of Young CJ (Equity), have been followed by the Tribunal since the Commission Act has come into force."

1. The Deputy President referred to the procedural history, noting the decision given by Deputy President Britton in March 2009, as to the preliminary issue of whether LA's 1984 offence fell within the terms of the Act and to the 2011 decision on the issue of the summonses LA had sought to have issued.

1. The Deputy President noted that much of the material on which LA relied, related to his concerns and objections as to the manner in which other proceedings in which he had been involved had been conducted. She noted that LA had objected to certain evidence on which the Commissioner had relied, because his request for summonses addressed to people who had given evidence in those proceedings had been refused. The Deputy President said that in the result, she had determined LA's application without regard to that material, even though she did not accept his grounds of objection.

1. The Deputy President concluded that LA had not met the onus falling upon him to establish that he was not a risk to children. She explained that she had considered the evidence about the 1984 offence and LA's written submissions, in which he still contended that he had been found guilty of a lesser offence than that which appeared on his criminal record. She concluded that the evidence showed that the offence was objectively serious.

1. The Deputy President noted the time which had passed since that offence, but concluded that LA continued to lack insight into his behaviour towards the victim. She considered LA's criminal record, including the 1992 restricted substance offence. She also dealt with the alleged offences with which LA was charged in 1996. It had been dealt with in the 2003 proceedings, where LA had given evidence, to which she referred. She also dealt with a 1993 fraud offence and Professor Greenberg's evidence.

1. The Deputy President observed that while LA continued to challenge the findings made against him in these other proceedings, the proceedings before the Tribunal were not the forum in which such challenges could be pursued.

1. The Deputy President considered that although it had been 8 years since LA had made his first application, he had advanced no new material relevant to the issues arising on his application under the Commission for Children and Young People Act. In the result the Deputy President concluded that LA's application should be dismissed, because he had not discharged his onus under the Act, to establish that he was not a risk to children. She observed that his approach remained that identified by Professor Greenberg in his 2003 report, of continuing to challenge findings which had been made against him, even though the proceedings before the Tribunal were not the forum for such an exercise

1. The Deputy President was of the view that the question LA had to address was the steps he had taken to address his 1984 offending conduct, to which his application related. The evidence was that LA had not taken any, but had continued to develop and maintain inappropriate relationships with young boys, as evidenced by his 1992 conviction for supplying a prohibited drug and the relationship which gave rise to the 1996 charges laid against him. The fact that he had not been convicted of those charges did not mean that he posed no risk to children. His own evidence as to the nature of the relationship with the alleged victim of those alleged offences, gave rise to ongoing concerns as to whether LA posed a risk to children.

1. The safety and welfare of children being paramount, the Deputy President was not satisfied that evidence which showed only that no new allegations of offending conduct had been made, discharged LA's onus. The fact that the 1984 offence had occurred many years ago and that LA is now an elderly man who has not since been convicted of any further offences involving children, was in the Deputy President's view not a sufficient basis upon which to make the order sought.

Is LA a 'prohibited person'?

1. Child related employment is now regulated by Part 7 of the Commission for Children and Young People Act. A 'prohibited person' is there relevantly defined in s 33B as:

" (a) a person convicted of a serious sex offence, the murder of a child or a child-related personal violence offence, whether before or after the commencement of this subsection, or

..."

1. It may not be overlooked that the definition is concerned with convictions 'before or after the commencement of this subsection'. That the offence to which LA's application relates is an offence committed in 1984, plainly does not bring him beyond the scope of this statutory scheme.

1. A person 'convicted' of an offence is a person who has a 'conviction'. While the word 'convicted' is also not defined in this Act, 'conviction' is defined in broad terms in s 33 as:

"conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction."

1. In the result, notwithstanding LA's long held belief that because the 1985 offence was dealt with under s 556A of the Crimes Act, he had no criminal record, given these provisions of the current Commission for Children and Young People Act, he is 'a person convicted of an offence', for the purposes of s 33B.

1. That is because the 1984 offence was dealt with under the now repealed s 556A. Orders made under s 556A are such that under this legislative scheme, a person found guilty, but dealt with under s 556A, nevertheless has a 'conviction' for the purposes of this Act.

1. If such a 'conviction' is for a 'serious sex offence' as defined in s 33B, then such a person is a 'prohibited person' as defined. "Serious sex offence" is defined in s 33B relevantly to mean:

"(a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or..."

LA's 1984 offence is a 'serious sex offence' as defined

1. What offence LA was dealt with under s 556A in 1985 was a question of fact to be determined on the evidence led before the Tribunal.

1. LA contended on appeal that his criminal record was wrong and that the charge brought against him under s 78Q of the Crimes Act was not finally the charge pressed against him in the 1985 proceedings. His case was that it was a lesser offence of indecency, in respect of which the findings under s 556A were made. LA also contended that at the hearing in 1985, he had admitted the lesser offence and that was what was found proven and dealt with under s 556A.

1. He also explained that in 1985 his case was that he had acted in self defence when he was attacked. It was during that attack that he had grabbed the victim's testacles. That was an act of indecency, which he had admitted at the trial in 1985. He complained about the inadequacy of the evidence available about the 1985 proceedings, submitting that:

"it is wrong that I can be convicted of a crime with no transcript evidence other than assumption and I think it is a disgrace"

1. It was common ground that there was no transcript of the 1985 proceedings available to be tendered before the Tribunal. What was tendered included LA's NSW Police Criminal History record; the bench sheet which recorded the offence with which LA was then charged and how it was disposed of by the presiding magistrate; as well as a record of the 'master tape' of those proceedings; and a statement which LA had made to the police.

1. The bench sheet records that in 1985 it was a charge under s 78Q(1) of the Crimes Act, which was dealt with under s 556A. The bench sheet has recorded on it in handwriting: "Offence proven, dismissed section 556A CA". It is signed by the Magistrate, Mr Wooldridge.

1. The Master tape document is a written record about what the audio tape kept of the proceedings contains. It reveals by reference to counter references, the points of the recording at which both the victim of the offence and LA gave evidence, amongst other things. It also indicates that 'result Dismissed s 556A'. It does not indicate that LA was dealt with for some other offence than that referred to in the bench sheet.

1. It follows that the Master tape document does not establish that LA was dealt with for some offence other than the s 78Q(1) offence he was charged with. Nor does the bench sheet which the presiding Magistrate maintained. It refers only to an offence under s 78Q(1) having been dealt with in those proceedings. The orders made in the 1985 proceedings were valid until set aside. There is no suggestion that any such application has ever been made. In the result, they could not be challenged in the proceedings before the Tribunal, as LA sought to do.

1. Also to be considered is that at the time, the Crimes Act does not appear to have included a lesser offence of indecency, as opposed to the s 78Q(1) offence of gross indecency, as LA claimed. The maximum penalty for a s 78Q(1) offence was 2 years imprisonment. That brings LA's offence within the definition of 'serious sex offence'.

1. To establish his case LA relied on observations made in 1992 by a District Court judge, Flannery J, in remarks on sentence at a later criminal trial, that he had no previous convictions. On LA's approach, it followed that the conclusions reached by the Tribunal as to his record were wrong.

1. Whether or not LA fell within the definition of a 'prohibited person' depends on his criminal record and whether it brings him within the relevant statutory definitions. It does not depend on how that record was later treated, for different purposes, under another statutory scheme.

1. In any event, the remarks LA relied on do not establish any error of law on the Tribunal's part. There is no suggestion that in 1992 LA disputed that his record included a conviction for a 'gross act of indecency', the s 78Q(1) offence. To the contrary, what Flannery J then said was:

"He has only one prior entry which was for committing a gross act of indecency for which he got a s556A for I am entitled to and do infer that it was a relatively minor matter...Apart from his good record ..."

1. Those remarks rather suggests that at that time, LA did not consider that there was any error in his criminal record.

1. In the result there was no error shown in the Tribunal's conclusion that LA was a prohibited person under the Commission for Children and Young People Act.

The onus in the ADT proceedings lay on LA

1. The way in which the s 78Q charge was dealt with in 1985 had the result that LA had the right, as a prohibited person, to make an application to the Tribunal for the orders which he sought below and it had jurisdiction to determine that application, on its merits.

1. One of the complaints which LA pressed on appeal was the inadequacy of the evidence before the Tribunal. This complaint had three aspects, the first, the inadequacy of the evidence about the 1985 proceedings; the second, the Tribunal's refusal to permit him to issue summonses to a number of people, including the victim who gave evidence in the 1985 proceedings; and the third, his complaint about the evidence led from Professor Greenberg.

1. All of these matters have to be considered in the context of the nature of the proceedings before the Tribunal and the onus imposed by the legislative scheme under which LA's application was brought.

1. LA made his application to the Tribunal under the Commission for Children and Young People Act, once he was permitted to do so, after a 5 year interval from the refusal of his 2003 application. Part 7 Child Related Employment of this Act has as its objects:

"31 Object of Part

The object of this Part is to protect children:

(a) by prohibiting certain persons from being involved in child-related employment, and

(b) by means of background checking administered by the Commission and other agencies"

1. Section 33I applied to the application. It provides:

"33I IRC and ADT may make declarations concerning prohibited persons

(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence.

(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or

(b) the Administrative Decisions Tribunal.

(3) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.

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

(5) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 33H in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal.

(6) Orders under this section may be made subject to conditions.

(7) The following applies to proceedings before the Administrative Decisions Tribunal under this section:

(a) the Tribunal may not award costs,

(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings."

1. The Commissioner opposed LA's application. The application for the issue of the subpoenas which he sought was also opposed, other than in the case of Professor Greenberg, who had given evidence in the 2003 proceedings.

1. LA's application had to be dealt with by the Tribunal in accordance with the requirements of s 33J, which imposed an onus on LA to establish that he did not pose a risk to the safety of children. Under s 33J(2) there is a presumption that until he proved to the contrary, he did pose such a risk. The section provides:

"33J Matters to be considered in determining review applications

(1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children.

(2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(3) In deciding whether or not to make an order in relation to a person, the Commission or a relevant tribunal is to take into account the following:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(b) the period of time since those offences were committed,

(c) the age of the person at the time those offences were committed,

(d) the age of each victim of the offences at the time they were committed,

(e) the difference in age between the prohibited person and each such victim,

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

(g) the prohibited person's present age,

(h) the seriousness of the prohibited person's total criminal record,

(i) such other matters as the Commission or tribunal considers relevant."

1. In the result it was LA who had to bring evidence which discharged the onus which fell upon him in the proceedings, to establish that he did not pose a risk to the safety of children. As I have explained, in doing so he could not challenge his criminal record, as he sought to do.

1. There was no issue that the Tribunal had the power to issue the summonses LA sought to have issued. The conduct of the proceedings was governed by the provisions of the Administrative Decisions Tribunal Act 1997.

1. By s 73 of that Act, the Tribunal was not bound by the rules of evidence. It could inquire into and inform itself on any matter, in such manner as it thought fit, subject to the rules of natural justice. It also had to act with as little formality as the circumstances of the case permitted and according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms. This obliged the Tribunal to act fairly in the particular circumstances before it and 'to avoid practical injustice', as discussed in a different statutory context by Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] - [38].

1. It is in that context that LA's complaints about the evidence have to be considered. The Tribunal's conclusions on the merits of the application do not arise for consideration on this appeal.

Should LA have been permitted to issue a summons to the victim of the 1984 offence given the available evidence about that offence?

1. LA had sought a direction under s 84(1)(b) of the Administrative Decisions Tribunal Act, for some 16 summonses to be issued to witnesses. The Commission opposed the application, except in the case of Professor Greenberg. It was refused.

1. In her final decision Deputy President Higgins returned to the refusal of this application. She noted that LA had provided comprehensive written submissions as to the reasons why those summonses should be issued to various people, including the victim of the 1985 offence. The Deputy President observed that LA had not established that the victim could give relevant evidence, LA having disclosed that he sought to call him, so that he could attack the evidence the victim had given in the 1985 proceedings. The Deputy President was of the view that this was an improper purpose for calling the victim.

1. On appeal, while the 1985 bench sheet indicates that LA entered a plea of not guilty, LA submitted that he had admitted the allegations at the hearing. That was inconsistent with another of his submissions, that he had acted in self defence. That account was consistent with the statement he made at the time to police, but it is an account which cannot have been accepted by the Magistrate, given his conclusion.

1. There was various evidence led as to what had occurred in the 1985 proceedings before the Tribunal, as I have explained, but the evidence which the victim had given in 1985 was not able to be tendered. The tape recording of those proceedings is no longer available, only the outcome of the proceedings. The outcome, having the matter dealt with under s556A, was clearly favourable to LA, particularly given his submission on appeal, that at the 1985 hearing he had confessed to the offence then dealt with.

1. The Deputy President considered LA's statement, in order to determine 'the essence of the conduct' involved in the matters which became the subject of the1984 charge. She noted that in his written submissions, 'LA asserted that his actions were an act of self-defence (i.e. 'LA ended the conflict by grabbing the attacker by the testicles to avoid further injury to his younger opponent') and not an act of 'self sexual gratification' as asserted by the Commissioner'.

1. The Deputy President did not accept this submission, given LA's police statement and the evidence LA had given. She concluded that it was clear from the Magistrate's finding of guilt of the offence of gross indecency, that to a large extent, the victim's account was accepted and LA's explanation, as contained in his record of interview, rejected.

1. The offence was concerned with LA grabbing the victim's testicles. Consistently with the finding of guilt, the Deputy President did not accept that LA had done this in self defence. The Deputy President was of the view that LA could reasonably have then known that the victim was under the age of 18 and thus a child.

1. The Deputy President concluded that the s 78Q offence the subject of LA's application was objectively serious, notwithstanding that it had been dealt with under s 556A. She also found that LA continued to lack any insight into his own behaviour and unlawful conduct as a 55 year old man, towards his victim, who was then aged 16.

1. It is in those circumstances that LA complains that it was procedurally unfair for him to have been refused leave to issue the summonses he had sought. He argued that he ought to have been entitled to demonstrate that his original charge related to an indisputable liar, a drug addict who in 1984/85 had a long criminal record as a 16 year old, while 'at that time and since I have been proved as a respectable citizen, character wise, irrespective of my criminal [case]".

1. It seems to me that no error in the Deputy President's approach to LA's application to issue a summons to his victim has been established.

1. Under both this statutory scheme and its predecessor, there is a presumption that the applicant is a risk to the safety of children, until such time as he satisfies the Tribunal that he does not present such a risk.

1. On appeal, LA explained that the evidence which he gave at the 1985 hearing was different to what he had earlier said in his statement. His concern was that the transcript or recording of the 1985 proceedings was not available to be tendered before the Tribunal.

1. It is apparent from the case which LA advanced below, however, that what LA sought to do by calling his victim before the Tribunal, was to support his evidence that he had acted in self defence in 1985. He wanted to advance a case that his evidence about that matter should be preferred over that of his victim, given their respective characters. Thereby he sought to challenge the conclusions reached in the 1985 trial.

1. Proceedings in the ADT under s 33I are not proceedings in which conclusions reached in such criminal proceedings can be so challenged. Such a challenge to the presiding Magistrate's conclusions on the evidence led at the 1985 hearing would require an appeal to be brought against that decision. There has never been such an appeal.

1. LA leading evidence as to the result of the 1985 proceedings and giving evidence as to what had then occurred, was certainly consistent with the obligation imposed upon him by s 33I(4) of the Commission for Children and Young People Act, to fully disclose to the Tribunal any matters relevant to his application. The tender of the statement which he had made to the police in 1985 about his offence, was also in accordance with that obligation.

1. What LA was not entitled to do in the proceedings before the Tribunal was to summons his victim, in order to challenge the conclusions which were reached in those criminal proceedings, as he sought to do. In making its decision the Tribunal was required by s 33J to have regard to his criminal record. He was not entitled to challenge it, before the Tribunal.

1. In the result, there was no procedural unfairness or other error of law in the Deputy President's refusal to issue a summons to the victim of the offence.

Should LA have been permitted to issue other summonses?

1. LA complains that he was denied procedural fairness by the refusal of his request to issue other summonses to other people, such as police officers and others he claims were involved in the matters with which he was charged in 1996 and matters which became the subject of the Coronial proceedings.

1. The Deputy President was of the view that LA had not established the relevance of the evidence which such persons could give, noting that what he sought to do was to attack the statements and evidence they had given in other proceedings.

1. In the 2003 proceedings LA gave evidence and made submissions about his criminal record after 1985, as well as the charges which he faced in 1996 and the circumstances in which he was acquitted of those charges. He made further submissions about these matters in the proceedings below. Given the nature of his record, the nature of the 1996 charges and the circumstances in which he was acquitted, it is apparent that these matters were all relevant to the application which the Tribunal had to determine. They were matters which LA was obliged to disclose to the Tribunal, in accordance with s 33I(4).

1. LA's criminal record included a 1992 conviction for supplying a restricted substance, rophynol and a conviction in 1993 for defrauding the Commonwealth in relation to unemployment benefits, over a period of some 10 years. LA's evidence and submissions before the Tribunal were that he had supplied such tablets to two boys, but he contended that he had done so in order to help them; that his conviction was obtained by corrupt police; and that he had not pressed an appeal against this conviction to the District Court, when informed that he could face a higher penalty.

1. The Deputy President also dealt with the 18 counts of sexual assault and 23 counts of aggravated indecent assault involving a young male victim aged between 15 and 16 years, with which LA was charged. They were offences alleged to have occurred in 1994 and 1995, after LA was released from custody in relation to the fraud charges. Because of his objections to the material on which the Commissioner relied, the Deputy President rested her conclusions on the evidence and submissions which LA made about these matters.

1. The Deputy President noted the account given by LA in his evidence, of how he came to be involved with the victim. He said that he knew the victim to be a street kid and a prostitute and that he had tried to help him. The Deputy President noted his denial of any sexual involvement with the victim and his denial of the offences with which he was charged. She also noted that while the victim had initially appeared at the hearing, a finding of not guilty to the charges was entered in favour of LA, by direction, after the victim failed to attend and could not be found. The victim was later the subject of the Coronial proceedings.

1. In his submissions on appeal, LA explained that he wanted to further examine witnesses and persons of interest in the Coronial proceedings in which he had been involved. He explained that he sought to call these people in order, through cross-examination, to bring 'closure' in relation to the victim's murder 'and others'.

1. So understood it is apparent that there was no error in the Deputy President's refusal of the application to issue these summonses. The proceedings before the Tribunal were not concerned with either a rehearing of evidence given by witnesses in other proceedings, or a murder investigation, or an investigation into the conspiracy LA believes others have perpetrated against him.

1. An application under s 33I does not involve a rehearing of criminal or other proceedings, so that evidence which witness in such proceedings have given can either be reheard or retested. LA gave evidence and made submissions about the 1996 charges, the evidence led in those proceedings and his acquittal. He made submissions and tendered documents about the Coronial proceedings. What he was not entitled to do was to further challenge the evidence the witnesses had given in those proceedings, by calling them to give evidence before the Tribunal, or to conduct the investigations he explained both before the Tribunal and on appeal, he considers requires a Royal Commission.

1. There was no error of law or denial of procedural fairness in the Tribunal's refusal to direct the issue of summonses to police officers and other witnesses involved in these various proceedings. The approach adopted accorded with the obligations imposed on the Tribunal by s 73 of the Administrative Decisions Tribunal Act. The Deputy President explained her approach to these matters, which seems to have been a fair one in the circumstances. In the result LA has not established that the refusal of his application resulted in any practical injustice.

Should evidence have been received from Professor Greenberg?

1. It was LA who sought to have Professor Greenberg summonsed. He had given evidence in the 2003 proceedings, having then undertaken a psychiatric risk assessment of LA, albeit without having then examined him. That was not opposed and so he was called before the Tribunal and gave evidence about LA's further application.

1. In those circumstances it is difficult to see the basis of LA's complaint as to any procedural unfairness in Professor Greenberg being called. The conclusions which the Deputy President reached about his evidence, do not arise for consideration on this appeal.

1. In oral submissions LA explained that his concerns related to the 2003 proceedings, where Professor Greenberg's report had not been served on him within the required timeframe. The difficulty with this complaint was that the Professor's 2003 report was dealt with in the 2003 proceedings, where LA's application was refused. That decision was appealed and LA there advanced his concerns about Professor Greenberg's report, but the appeal also failed. In those circumstances, no complaint is available to be advanced in these proceedings, in relation to how Professor Greenberg's 2003 report was served and dealt with in the 2003 proceedings.

1. LA could not identify any other concern about Professor Greenberg's evidence. It was clearly relevant to his further application. He had sought to have Professor Greenberg called, in order to establish the problems he considered existed in relation to his report. LA plainly did not succeed in that endeavour. Even so, in the circumstances, there was no error of law or procedural unfairness in the receipt of Professor Greenberg's evidence.

Costs

1. In the result, LA's appeal must be dismissed. The usual order is that costs follow the event, with the result in this case, an order that LA bear the Commissioner's costs, as agreed or assessed. Unless the parties approach to be heard within 14 days of this judgment, that will be the Court's order.

Orders

1. For these reasons, I order that:

1. The appeal be dismissed.

2. Exhibits may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

**********

Decision last updated: 30 November 2012