The Commissioner for Children and Young People v IK

[2005] NSWSC 1136

CITATION:	The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136
HEARING DATE(S):	2/11/05
JUDGMENT DATE :	10 November 2005
JUDGMENT OF:	Cooper AJ at 1
DECISION:	1) The appeal is dismissed; 2) The orders of the Tribunal are confirmed; 3) I invite submissions as to costs.

LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998
CASES CITED:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
PARTIES:	The Commissioner for Children and Young People (Plaintiff) IK (First Defendant) The Adminitsrative Decisions Tribunal (Second Defendant)
FILE NUMBER(S):	SC 30035/05
COUNSEL:	Plaintiff: P Singleton Defendant: R Killalea
SOLICITORS:	Plaintiff: Crown Solicitor's Office Defendant: Brock Partners Solicitors

LOWER COURT JURISDICTION:
LOWER COURT JUDICIAL OFFICER :	Ms A. Britton

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ACTING JUSTICE COOPER

THURSDAY 10 NOVEMBER 2005

30035/05

The Commissioner for Children and Young People (Plaintiff)
v
IK (First Defendant)
The Administrative Decisions Tribunal (Second Defendant)
JUDGMENT

1 HIS HONOUR: This is an appeal against an order of the Administrative Decisions Tribunal (Judicial Member Ms A Britton) dated 17 March 2005 that the Child Protection (Prohibited Employment) Act 1998 does not apply to the first defendant in respect to two offences of “indecent assault male” for which he was convicted on 9 May 1975.

2 The second defendant has filed a submitting appearance and it is the first defendant who has resisted the order sought on the appeal.

BACKGROUND TO THE PROCEEDINGS BELOW.

3 At the time of the hearing before the Tribunal the first defendant was a forty nine year old man who wished to apply for employment as a driver of buses and/or coaches. Included within his duties could be employment on school buses or at overnight camps for children.

4 Such employment constitutes “child-related employment” within the meaning of section 3 of the Child Protection (Prohibited Employment) Act 1998.

5 In May 1975 the first defendant had been convicted on two charges of indecently assaulting two boys then aged five and three. The offence had occurred in 1974 when the first defendant was twenty years of age.

6 These offences were “serious sex offences” within the definition in section 5 of the Act. Consequently the first defendant is a “prohibited person” within the meaning of section 5 (1) of that Act.

7 Under section 6 of the Act a prohibited person, such as the first defendant, commits an offence if he applies for, undertakes or remains in child related employment.

8 The effect of these provisions is to preclude the first defendant from employment of the type that he was seeking.

9 Section 9 of the Act gives to the first defendant the right to apply to the Administrative Decisions Tribunal (ADT) for an order declaring that the Act is not to apply to him in respect of the two offences referred to above.

10 The first defendant made such an application to the ADT and, following a hearing, the Tribunal ordered on 17 March 2005 that the Act does not apply to the first defendant in respect of two offences of “indecent assault male” for which he was convicted on 9 May 1975.

11 Subsections 4 and 5 of section 9 of the Act provide:-

“(4) A relevant Tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk for the safety of children.
(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 victim,

(d1) the prohibited persons present age,

(e) the seriousness of the prohibited persons total criminal record,

(f) such other matters as the Tribunal considers relevant.

12 Subsection 11 of section 9 provides that an appeal lies on a question of law to the Supreme Court by any party to the proceedings. It is pursuant to this subsection that the present plaintiff brings the appeal to this court.

THE PROCEEDINGS BEFORE THE TRIBUNAL

13 It is conceded by the present plaintiff that the Tribunal correctly stated that the Applicant carried the onus on the Briginshaw standard to establish that he is not a risk for children and further, that the meaning of the word risk was correctly defined in paragraphs 6 to 8 of its judgment.

14 It is also conceded that the Tribunal correctly identified and described the offences which had occurred in 1974 when the first defendant was twenty years of age. He was at the time of the hearing forty nine years of age.

15 There is no complaint about the description of the first defendant’s criminal record contained in paragraph 14 wherein it is stated that it includes a number of convictions that postdate the index offences, none of which is of a sexual nature. They include break and enter with intent and various dishonesty offences. All but a recent conviction for driving with a low range PCA were committed when the Applicant was in his twenties. He has served four separate custodial sentences.

16 The evidence before the Tribunal was that the first defendant is now a happily married man. He and his wife met in 1996 through a parents’ group and they have been in a relationship since 1999. They have an eighteen-month-old daughter and his wife has two children from a prior marriage aged eight and ten. The first defendant also has two children from a former marriage, a daughter aged ten and a son aged seven, and he is in regular contact with them and they routinely stay with his current family group on weekends and during holidays.

17 His wife gave evidence in the proceedings before the Tribunal and was not required for cross-examination. She is a primary school teacher and has attended training courses through the Department of Education designed to assist, identify and recognise children who have been abused.

18 Her evidence was that she had observed her husband over an extended period interacting with her own and other children in a wide variety of circumstances and asserted that she never had any reason for concern. He looked after her children from time to time and his conduct was exemplary. Throughout 2001 he cared for her four year old son three days a week whilst she was at work.

19 She was confident in her belief that the first defendant posed no risk to her children.

20 Evidence was also called from a Reverend gentleman who had been a neighbour of the first defendant and his family for the past three years. The two families were in close and regular contact and he said that the first defendant’s stepchildren and biological children appeared comfortable and happy in his presence and he observed no signs of abuse.

21 In addition the then Applicant (now the first defendant) tendered testimonials and references from people who stated that they had observed him to be a good father and trusted him to look after their children.

22 The substance of the first defendant’s evidence was his claim that the two offences in 1974 were the only time that he had acted inappropriately towards children and he denied any sexual thoughts or feelings or attractions towards them.

23 In effect the case of the first defendant before the Tribunal was that the offences in 1974 were part of a single occurrence which was a one-off event not indicative of any long term paedophiliac ideations or behaviour. This contention was supported by the evidence of other people who had observed him looking after children on his own in circumstances where, if he had committed any improper acts towards them, they would have been detected. Since 1975 he has never been charged with nor convicted of any sexual acts involving anybody, let alone children.

24 It is upon this factual evidence that the expert evidence of two psychiatrists is superimposed. Dr Christopher Lemmings was called on behalf of the first defendant and Professor David Greenberg was called on behalf of the Commissioner.

25 In its judgment at paragraphs 31 and following the Tribunal pointed out that the principal point of difference between the evidence of the two experts was in relation to their diagnosis. Professor Greenberg formed the view, on the basis of his understanding of the history of the index offence, that, at the time of the offence the Applicant “had a paedophiliac arousal with pre-pubescent children” and that he had an underlying paedophilic sexual attraction towards young children. Furthermore, paedophilia is an incurable condition.

26 On the other hand Dr Lemmings, while agreeing that at the time of the offence the first defendant’s paedophilic interests had been aroused and that the offences constituted an extremely significant deviant act and that paedophilia is an incurable condition, he did not agree that this was the appropriate diagnosis in this case.

27 The Tribunal then considered in some detail the reasoning of the two psychiatrists and stated at paragraph 53:-

“While I accept Professor Greenberg’s general assessment that the Applicant, from an actuarial point of view, constitutes a low but material threat to children, that assessment must be placed in the balance with what we know of the individual and the reasonable possibility that the Applicant committed his offence as a result of a combination of psychological factors excluding a paedophilic orientation. The observations of those that know him and whose children have been placed in his care over the past several years are critical. Their confidence supports the Applicant’s claim that he has not acted inappropriately towards children for an extended period.” (Emphasis added)

28 The Tribunal went on to say at paragraph 56:-

“In my opinion, the opinion of Dr Lemmings is to be preferred in this case. One does not lightly reject the arguments of a psychiatrist as learned and emminent as Professor Greenberg but, in this case, it seems to me that Dr Lemmings’ analysis is more consistent with what is known of the Applicant’s behaviour over the last thirty years and, indeed, with common sense than is Dr Greenberg. Dr Greenberg gave significant weight as a risk factor to the antisocial behaviour exhibited by the Applicant as a young man. In my opinion, he gave too much weight to that and not enough to the probable explanation for it and the obvious stabilisation of the Applicant’s behaviour as he matured and apparently came to the realisation that his mother was not to blame for his father’s death.” (Emphasis added)

29 At paragraph 57 the Tribunal said:-

“It is, of course, always difficult to prove a negative but the Applicant has a powerful argument when he says that he has done nothing to children since 1975 and there is not a scintilla of evidence advanced to contradict him. While those who gave character evidence for the Applicant could not possibly know what was going on in his mind (conscious or otherwise) each were well placed to observe first hand over an extended period whether his claims lacked veracity. While as the respondent points out none are experts in the field of paedophilia, this Mrs IK and Reverend A each have had some training in identifying abuse and therefore could be expected to have some ability to identify untoward conduct. This suggests that Professor Greenberg’s tentative diagnosis, while not unreasonable, is nevertheless tenuous.”

30 I have set out these passages at length because they show in a concise way the steps in the reasoning of the Tribunal which led to its ultimate conclusion. The Tribunal did not just accept the views of one expert to the other in isolation. On the contrary, it carefully considered and then accepted the evidence of the Applicant’s witnesses that for the past several years the Applicant had behaved appropriately towards children for whom he had cared. It then came to the logical conclusion that the facts established by those witnesses were more consistent with the reasoning of Dr Lemmings that that of Professor Greenberg.

31 These steps in the reasoning of the Tribunal have to be kept in mind when considering the grounds of the present appeal.

THE PRESENT APPEAL

32 It must be pointed out that the appeal before this court is limited to questions of law based upon three grounds.

33 The first ground of appeal is that, as a matter of law, the Tribunal was not entitled to rely on the opinion of Dr Lemmings because he had resiled under cross-examination from that opinion.

34 The relevant passages upon which the argument is based appear at pages 82 and 83 of exhibit A and are as follows:-

“Q. When IK gave evidence – and this may be consistent with what you recall of the interview or you may not recall it – that he still maintains today that both children initiated the contact. Firstly is that a matter that you knew of and specifically took into account in your report?

A. He didn’t tell me that when I spoke to him. He told me that he took responsibility for his behaviour. So I didn’t take that into account in my report because that’s not what he told me when I spoke to him. He said he knew it was wrong, he had his own kids, doesn’t want to think that someone could do the same – basically I’m paraphrasing now – doesn’t want to think that someone else could do the same thing to his children, and he didn’t at any point tell me that the children would have initiated the activity. So the answer to your question - I’m just checking my notes, just to make sure there’s no other notations otherwise - the answer is I did not take that into account because he didn’t tell me that.
Q. I am paraphrasing his evidence, and if I’ve put it too strongly, I’d ask the Tribunal to correct me, but even a version of that which, as my memory – and I of course was cross examining and there’s no transcript – but my memory was that I was asking questions along the lines of, “Well do you still say that the three year old uninvited and unencouraged came and put his mouth over your penis”. And the answer was “Yes”. So that was the sort of line of my questioning, does that cause you some concern to hear that evidence in the context of this matter?
A. I have to admit that it does, in as much as it seems to be different from the things that he was telling me. So it does cause me some concern. It would have led me to an additional line of questioning in my interview, which I obviously didn’t undertake because at the time he was telling me, he was indicating that it was a dreadful thing, that he took responsibility, that he understood that he as a parent who had children, that it was something that people do to children, so pursued that line of questioning rather than questioning associated with a notion that somehow or another children could exercise responsibility for sexual activity with adults. He just didn’t go there, I mean, that wasn’t what he covered with me in the interview.”

35 It is worthy of note that Counsel for the Commissioner did not ask the next obvious question namely, that if the witness assumed that the first defendant had made such a statement would his opinion be different. Consequently there is no evidence that Dr Lemmings did or would have resiled from any part of his opinion.

36 But even more important is the fact that both counsel for the Commissioner and Dr Lemmings have failed, in the question and in the answer, to distinguish between the first defendant having a recollection that the children had initiated the events on the one hand, and the first defendant accepting responsibility for his misconduct on the other hand.

37 It is clear from his answer that Dr Lemmings interpreted the question as inferring that the first defendant had abrogated responsibility and sought to impose it upon the children.

38 The first defendant’s recollection (thirty years after the events) and the acceptance of responsibility for those events are two totally different matters as appears from his evidence.

39 A consideration of the cross examination of the first defendant before the Tribunal appearing at pages 52 and following of exhibit A shows that he gave the following evidence at page 52 line 28 and following:-

“Q. You’ve had to go over this by reading all the documents. You told the police in the record of interview that the five year old Ramon said to you, “Please suck me” or some words to that effect. Now, was that the truth? That the five year old actually said those words, that’s what you told the police the next day.
A. Well, if that’s what I said, then that’s what happened.”

40 And at line 53 and following:-

“Q. And in relation to the three year old you told the police that, without any encouragement or any explanation, he came over to you and put his head on your penis. That’s what you told the police. You didn’t use those exact words, and we’ll go to it if you need to, but essentially, that’s what you told the police. Do you recall that?
A. Yes.

Q. Do you say that that’s true?
A. Yes I do.

Q. That’s what the three year old did without any encouragement from you.
A. Yes
. . . .

Q. And you took no steps to stop it.
A. No I did not.”

41 At page 53 of exhibit A from lines 46 onwards the first defendant was cross-examined from evidence which he gave before Judge Martin during the sentencing proceedings in 1975. After part of it was put to him he was asked:-

“Q. Now, that’s the position that you hold today, is it not that it’s just one of those things that happened and you don’t – is that what you say?
A. It is one of those things that happened, but I should have taken responsibility and stopped it, yes.”

42 From this it can be seen that in the mind of the first defendant the fact that the children had initiated the conduct was quite distinct from his responsibility for it. He clearly agreed that he should have taken responsibility and stopped it.

43 In my view it is quite clear that the question put to Dr Lemmings was misunderstood as an assertion that the first defendant was abrogating his responsibility and seeking to impose it upon the children. Unfortunately, probably due to the absence of a transcript, the entirety of the relevant part of the first defendant’s evidence was not put to Dr. Lemmings. That entirety demonstrates that the first defendant did accept responsibility and that his evidence was consistent with the information he had given to the doctor on which the doctor (in part) based his opinion.

44 In any event there is nothing in Dr Lemmings’ evidence to indicate that he resiled from his opinion that Professor Greenberg’s diagnosis of continuing paedophilia was not appropriate.

45 It should also be borne in mind, as pointed out above, that what motivated the Tribunal to find as it did was the lay evidence of the first defendant’s appropriate conduct towards children over the past several years.

46 Accordingly this ground of appeal is rejected.

47 The next ground of appeal is that the plaintiff was denied natural justice because the Tribunal relied on material which was not in evidence and gave the plaintiff no opportunity to consider it or to make submissions upon it.

48 The plaintiff’s argument here is that the Tribunal used the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM IV) as a basis of her decision when that document was not in evidence. It further argues that the Tribunal had indicated that it would not use that document for the purposes of arriving at its conclusions in its judgment.

49 From pages 100 to 108 of exhibit A, the Tribunal’s Judicial Member, Ms Britton, was questioning Dr Greenberg.

50 At page 105 she asked:-

“Q. Can I just interrupt you for a minute? In terms of DSM IV do you think the six month test is a fair measure?

A. No, well, I have to explain. The DSM measure is, if you read the DSM, which is another DSM 4TR, right in front of the manual, it specifically states that the purpose of the DSM is not for medico-legal purposes. It’s a criteria which has been set out for purposes really of research and doing studies of the like, follow up studies, and basically talking the same language.”

51 The answer goes on to point out that the purpose of the DSM classifications is not to settle criteria for the courts and continues:-

“In order to come to a diagnosis, a clinical diagnosis, especially with people with sexual, what we called paraphilia sexual deviant behaviour, one has to go on one’s clinical expertise and the key issue of, if you read the textbooks, the key issue is the sexual arousal of the sexual acts involving children. Because sexual fantasies people will not acknowledge and certainly they won’t acknowledge that they’ve had sexual urges. And that maybe why the instance with the eight year old child may be relevant, in that it seems to suggest there may have been something, at the very best, something, at the very least, something inappropriate but in terms of this, it could be something sexual.

Q. If we go back to DSM IV, and I accept what you say, in essence, I don’t think there would be an argument there, that it’s a very crude measure and that there’s no substitute for looking at an individual and all of the circumstances surrounding that individual. But if we were to look at that, wouldn’t that indicate that there is some expert opinion which might be of the view that the act – fantasy or whatever, involving children would have to be something other than a one-off act or fantasy?”

52 On behalf of the plaintiff it is submitted that the words in the question “I accept what you say” amounts to an undertaking by the Tribunal that it will not use the DSM IV in reaching its ultimate decision in the case.

53 In my view this reads into these words something that is not there. Those words follow a rather long answer in which a number of things are stated, particularly that one has to rely on clinical expertise rather than tick the boxes in DSM IV.

54 Far from saying that DSM IV would not be considered by the Tribunal the questions starts “If we go back to DSM IV”.

55 It should be mentioned that DSM IV was referred to not only in the passages just referred to but also during the course of the evidence of Dr Lemmings at pages 12, 13 and 14 of exhibit A as well as at pages 108, 109, 110 and 111 of that exhibit during the evidence of Professor Greenberg.

56 It is quite clear, therefore, that the relevance and effect of DSM IV was considered by witnesses called on behalf of the Applicant and the respondent before the Tribunal and each was given an opportunity to consider and respond to it.

57 But perhaps the most significant answer to the plaintiff’s submission is that DSM IV was not the basis of the Tribunal’s decision.

58 In paragraph 54 of the judgment the Tribunal says:-

“It is common ground that paedophilia is almost invariably an incurable life long sexual orientation. Anyone suffering from the condition, no matter how self disciplined he or she may be, therefore poses some degree of material risk to children. According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edition 1994) (DSM IV), a manual accepted in Australia as an authoritative psychiatric text, the diagnosis criteria for paedophilia include “recurrent, intense sexual arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally aged 13 years or younger) over a period of at least six months.”

59 This passage was clearly alluded to in the evidence. But the basis of the Tribunal’s decision is set out in paragraph 56 which is quoted earlier in this judgment. It is not based upon DSM IV but upon the consistency of what is known of the first defendant’s behaviour over the past thirty years.

60 The plaintiff also relies upon the opening words of paragraph 57:-

“The view I have formed is strengthened by the fact that there is no evidence that the Applicant meets the DSM IV criteria of six months of recurrent fantasy about prepubescent children.”

61 This does not mean that the decision is based upon the absence of that class of recurrent fantasy in the six months period. It just means that the previously reached conclusion which was set out in paragraph 56 (which is independent of DSM IV) is supported by that part of DSM IV.

62 Accordingly this ground of appeal fails.

63 It should be mentioned here that the arguments presented by the plaintiff were framed as if the only evidence before the Tribunal was that of the two psychiatrists. As pointed out earlier, it was not. There was substantial other evidence as to the conduct of the first defendant from 1975 to the present date indicating that he had not in any way sexually abused or acted improperly towards children. It was in this context that the Tribunal assessed the weight to be given to the respective views of the psychiatrists.

64 I now pass to the third ground of appeal which claims that the Tribunal reversed the onus of proof.

65 In support of this, the plaintiff relies upon four passages in the judgment.

66 The first passage appears in paragraph 35 where it is said:-

“Professor Greenberg’s opinion does not, however, refute the possibility advanced by Dr Lemmings that the behaviour is explicable on the basis of other factors combining, nor does his opinion explain the apparent contradiction in the fact that the Applicant’s sexual relations up to the time of the offence had been with peer aged females, a pattern that has apparently prevailed ever since.”

67 The submission is that this indicates that the Tribunal was looking to the Commissioner’s witness, Professor Greenberg, to refute the evidence of Dr Lemmings. Consequently it reverses the onus of proof. It is submitted that what should have been considered was whether Dr Lemmings’ evidence more probably than not to the comfortable satisfaction of the Tribunal had refuted the evidence of Professor Greenberg.

68 In my view this completely misconceives what the Tribunal was saying. It is in a section of the judgment headed “Expert Evidence” which contains a summary of the various views enunciated by the respective psychiatrists. It does not in my view indicate any reversal of the onus of proof. Rather it summarises parts of the evidence.

69 The next impugned paragraph of the judgment is paragraph 49 which starts with the words:-

“In my view it is not clear that the Applicant was deliberately untruthful in relating the ages of the children concerned.”

70 It is submitted that it is not enough for the Tribunal to not be clear about the matter. It has in fact to be satisfied on the probabilities to the Briginshaw standard that the Applicant was not deliberately untruthful.

71 The fallacy of this submission is that the impugned words are looked at in isolation rather than in the context of the balance of that particular paragraph which sets out a number of factors and concludes with the words:-

“I think that it is probable that this was an inadvertent error on the Applicant’s part rather than some amateurish attempt to deceive the Tribunal. In my opinion the Applicant appeared to be an honest witness.”

72 The next impugned passage appears in paragraph 55. The portions upon which the plaintiff relies are:-

“One of the gaps in the evidence, of course, is that apart from the Applicant’s own evidence and the evidence relating to the index offence itself, we do not have an indication of how long he had sexual fantasies or urges in respect of children.”

73 The plaintiff also relies upon the following portion of that paragraph reading:-

“While Professor Greenberg’s qualified diagnosis may be correct it is necessarily tentative because of the gap in the evidence. Dr Lemmings’ analysis is that the stronger possibility is that the Applicant was simply a stressed, immature young semi-adult when he committed the offence in question and that there is insufficient evidence to suggest a diagnosis of paedophilia”.

74 The plaintiff submits that the Tribunal ought to have said that the Applicant had comfortably satisfied it that the sexual fantasies had not continued. By saying that there are gaps in the evidence the Tribunal was reversing the onus of proof. The submission continues that, in effect, the Tribunal was looking to see if Dr Lemmings’ evidence could be displaced and whether the Applicant’s evidence was uncontradicted whereas it should have been examining the question of whether the Applicant had persuaded the Tribunal comfortably on the balance of probabilities.

75 The submission continues that the onus was upon the Applicant to establish that he was truthful and that his expert witness was to be preferred to the Commissioner’s expert. Instead the Tribunal was looking to the Commissioner to prove that the Applicant’s evidence was wrong.

76 In my view these submissions are based on a complete misreading of the paragraph. They are based on taking two sentences out of a much longer passage. When one looks at the totality of paragraph 55 it is clear that the Tribunal was there examining aspects of the evidence and was not considering any question of who had proved what.

77 The final passage impugned is in paragraph 57 and in particular the words:-

“…there is no evidence that the Applicant meets the DSM IV criterion of six months recurrent fantasy about prepubescent children”.

78 The plaintiff submits that the fact that there is no evidence that the Applicant meets the DSM IV criterion indicates that the Tribunal had reversed the onus of proof and was looking to the Commissioner to provide the evidence of recurrent fantasy about prepubescent children in that period.

79 Here again this submission is based upon words taken in isolation and out of context. The balance of this paragraph is set out earlier and clearly indicates the reasoning of the Tribunal upon which it came to its ultimate conclusion.

80 Furthermore, there are clear words in this paragraph indicating that the Tribunal acted upon the basis that the onus of proof was on the first defendant, namely:-

“It is, of course, always difficult to prove a negative but the Applicant has a powerful argument when he says that he has done nothing to children since 1975 and there is not a scintilla of evidence advanced to contradict him.”

81 Here the Tribunal is indicating that the onus is upon the Applicant and that the Applicant has to prove a negative which is always difficult.

82 In the case of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the High Court pointed out that a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision maker.

“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

And:-
“ [These propositions] recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

83 It should also be noted that in paragraph 6 of the judgment the Tribunal clearly and correctly stated that the Applicant carried the onus on the Briginshaw standard to establish that he is not a risk to children.

84 This does not mean that in respect of each individual piece of evidence considered by the Tribunal it has to be satisfied to that extent. What it does mean is that at the end of the deliberations after having considered the totality of the evidence the Applicant has satisfied the Tribunal to the appropriate standard that he is not a risk to children.

85 In my view the reasoning of the Tribunal clearly complied with this requirement.

86 For all of these reasons the plaintiff has failed to establish that the Tribunal committed any error of law.

87 Accordingly, I make the following orders:-

1) The appeal is dismissed

2) The orders of the Tribunal are confirmed.

3) I invite submissions as to costs.

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