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[2014] NSWCATAD 146
NCAT Administrative and Equal Opportunity
2014-06-24
Original judgment source is linked above.
INTRODUCTION 1Justin Bieber is a Canadian and a pop vocalist star known to young Australians. It appears from some of the material that in October 2012 it was reported on the internet that his laptop had been stolen containing some "personal footage". Subsequently a Twitter site began tweeting allegedly with links to private videos of Mr Bieber taken from the stolen laptop. According to rumours on the internet the footage included nude pictures of Justin Bieber. 2Subsequently, the Applicant saw on the internet a fake "nude photograph" of Justin Bieber. The photograph included the head of Justin Bieber, but the body was the naked body of a 13 or 14 year old male, including an erection. The Applicant saved the photograph/image on his computer. 3Accordingly, when Police searched his computer in January 2013, they found the image and he was charged under s.91H(2) of the Crimes Act 1900, with possession of child abuse material. 4He defended the charge. On 8 August 2013, the Campbelltown Local Court found the offence proved but without proceeding to conviction placed him on a section 10 Bond to be of good behaviour for 2 years. 5The Applicant is 35 years of age. Prior to the Court decision he had worked for the Department of Juvenile Justice in a juvenile detention centre for more than 7 years. He had also worked for the Department of Corrective Services for about 5 years, Parramatta Youth Service as a Youth Worker for about 3 months, and Sylvan Vale Disability Services since October 2013. 6However, since the decision of the Campbelltown Local Court finding the offence proved, under the Child Protection (Working with Children) Act, 2012 the Applicant is a disqualified person because of the offence and the Children's Guardian is under the legislation prohibited from issuing him with a Working with Children Check Clearance. 7Without that clearance he cannot obtain work in any employment that involves working with children and he has had employments that he had already commenced terminated. 8In addition, the Applicant has numerous young male friends, some of whom are under 18, and has worked with such people promoting them in various sports and activities and has also conducted since October 2013 a business called "Blackstar Management" which is about promoting and advising young males in relation to careers in various sport and other activity.
THE EVIDENCE 9The evidence in the hearing comprised:
RELEVANT PROVISIONS OF THE ACT 10Section 4 provides that: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 11Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 12Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 13Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 14Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 15Section 12 provides that there are two classes of Working With Children Check Clearances which are: a) Volunteer - authorising workers to engage in unpaid child-related work; and b) Non-volunteer - authorising workers to engage in paid and unpaid child-related work. 16Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance. 17Subsection 18(1) prohibits the Children's Guardian from granting a Working with Children Check Clearance to a person who is a disqualified person and provides that one category of disqualified persons is "a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult". The Applicant was an adult at the time of the offence. 18In Schedule 2 to the Act, the offence of which he was convicted under the Crimes Act, 1900 is included in the specified offences that are disqualifying offences. 19Accordingly, the provisions of the Act referred to above prohibited the Children's Guardian from issuing a Working with Children Check Clearance to the Applicant because of the offence in 2013. The Children's Guardian therefore refused to issue a Working with Children Check Clearance for the Applicant. 20Section 28 provides: (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if: (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled, because the person is a disqualified person. (4) The Commission is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Commission to revoke an interim bar or to grant the person a clearance. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) An appeal lies on a question of law to the Supreme Court by any party to the proceedings. 21Section 30 provides: (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each H of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the H, (e) the difference in age between the H and the person and the relationship (if any) between the H and the person, (f) whether the person knew, or could reasonably have known, that the H was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Commission considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Commission under this Act relating to the applicant pending the determination of the matter. Note. Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act 1997 enables a decision the subject of an application under section 27 of this Act to be stayed by the Tribunal. (3) Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 does not apply in respect of a decision of the Tribunal under this Part.
a) The seriousness of the offences 22The offence was that the Applicant downloaded the picture and did not delete it. In cross-examination he said that he did not know if the body was a young or old person. He said he believed that Justin Beiber or his promoters had prepared the image as a stunt. He said he saw it as humorous. He said he thought he would send it onto friends, but had not done so.
b) The period of time since those offences and the conduct of the person since they occurred 23The offence occurred on about 11 January 2013, some 17 months before the hearing. There have been no other conviction or offence proved since the offence. There is no evidence of any untoward conduct or offence since the offence or prior to it.
c) The age of the Applicant at the time of the offences. 24The Applicant was 33 years of age.
d) The age of the victim at the time of the offences and matters relating to the vulnerability of the victim 25The only victim according to the evidence is the owner of the body in the image. It appears that the victim was 13 or 14 years of age. The vulnerability of the victim would be limited to the fact that the victim was unable to prevent the Applicant storing and possessing the image of the victim's body. There was no relationship between the victim and the Applicant.
e) The difference in age between the Applicant and the victim and the relationship between the victim and the Applicant 26The difference in age was 19 years.
f) Whether the person knew the victim was a child 27Section 91FA in its definitions provides that a "child" for the purposes of the Division, which includes s.91H, means a person under 16 years. 28The photograph, such as it is, is not such as to enable the Tribunal to conclude without further evidence that the Applicant knew or ought to have known that the body was a body of a male under 16. The body appears to be post pubescent. In cross-examination, the Applicant said that he did not know whether the body was one of a younger or older person. He "did not see it as a child's body". The Tribunal is not satisfied that the Applicant recognised the body as being the body of a person under 16. However, it seems that he should have recognised that the person could be under 16.
g) The Applicant's present age 29The Applicant is now 35 years of age.
h) The seriousness of the Applicant's total criminal record and the conduct of the Applicant since the offence occurred 30The Applicant has no criminal convictions and the only offence found proved against him is the subject offence in 2013.
i) The likelihood of any repetition by the Applicant of the offence of conduct and the impact on children of any such repetition. 31The offence did not involve a photograph taken by the Applicant. Nor was the composition of the image done by him. 32In addition, it is relevant that there was an extensive search of his computer and only this one image was found and that became the subject of a charge. One would expect that if the Applicant had an interest in child pornography or child abuse images, there would not just be one image of that type on his computer, particularly as there are hundreds of images of young males on his computer and in framed pictures on his walls Including those in Exhibit R1 (including some images of naked adult males, and some of those images include a penis). 33The Police did not charge the Applicant with the offence in January 2013 when his computer was searched using a warrant. He was not charged until July 2013. 34It is abusive of children who are portrayed in naked images that offend the section to save, download or possess such an image. It is abusive of the child whose body is portrayed and of children in general. However, the anonymity of the body limits the abuse of the particular child. 35Given that of hundreds of images of young males on his computer and his walls, it was a single image that was abusive of children, and the particular circumstances, the Tribunal is not satisfied that there is a likelihood of repetition by the Applicant. This is particularly so because of the scrutiny that has been directed to the Applicant as will be set out in the discussion in relation to paragraph (j).
j) Any other information given by the Applicant in relation to the Application 36The Applicant is a homosexual man. But, as he reminded the Tribunal, being homosexual does not mean that you are a paedophile, just as being a heterosexual male does not infer that you are likely to sexually abuse female children. 37It appears that the Applicant was employed or on training with the Juvenile Justice Section of the Department of the Attorney General & Justice from about June 2001 to about April 2009. From September 2002 to April 2009 he was employed as a Youth Officer in a detention centre. There were no professional conduct matters raised against him nor were there any disciplinary proceedings against him. 38In April 2008 he commenced employment as a trainee Probation and Parole Officer. His employment was later terminated in November 2009 on the basis that he was not competent for the role. But he was subsequently placed in a temporary position as a "temporary accommodation support worker" at the Campbelltown Community Offender Support Program until January 2012 when he was unsuccessful in gaining a permanent position through a recruitment action. 39But until in January 2013 he was somehow still employed by the Department of Corrective Services when it became aware that he had been charged with an offence of "assault with act of indecency". Initially on 17 January 2013 he was suspended with pay and then on 25 January 2013 asked to show cause why his services should not be dispensed with. He made a submission but his employment was terminated by the employer on 28 February 2013. 40The Applicant then worked from March 2013 to July 2013 as a Youth Worker with the Parramatta Youth Service. It appears that that work was not full time and he also undertook full time work with Sylvanvale Disability Services from May 2012 to approximately January 2014. He also worked part time for an employment service, Edmonds Staffing Solutions from 2012, but he left there when he undertook full time employment with Sylvanvale. 41The Applicant has had his employment terminated by various employers since the subject offence was found proved. 42He has been subject to some false allegations of sexual offences against young people. While he was working as a youth officer in the detention centre, on 7 May 2005 one of the male inmates made an allegation that the Applicant had taken the complainant male into a room of the detention and put him onto a bed face down and attempted to anally rape him. 43The allegation was investigated internally and also by the Police. Both investigations concluded that the allegation was a fabrication. One aspect of the evidence was that there were CCTYV cameras which filmed the entrance to the room in which the assault was alleged to have occurred. There was film available of all of the times in the relevant period that the Applicant was rostered to work. None of those films showed the Applicant or the complainant enter or leave the room. 44Although the Police searched the Applicant's computer in January 2013, they did not charge the Applicant with the offence until July 2013. Meanwhile, the proprietors of an indoor skate park had become suspicious of the Applicant's association with young men and boys and had questioned some of the boys about the Applicant and his interactions with the boys, particularly his habit of giving massages to them. 45Ms T K one of the proprietors of the indoor skate park, had drawn aside a boy C.B., and questioned him. He answered "yes" to a question whether the Applicant had ever given the boy a massage. She then asked a leading question, "did his hand go down between your bum cheeks and around your balls?" to which he said, "yes". In addition her partner, after she had reported to him that conversation, asked the boy. "What happened with these massages?", and the boy had alleged that the Applicant had: "touched my ass and played with my balls. I told him to stop and he did.". 46The Police had become involved and had prepared statements of 11 January 2011 and then exercised a warrant to search the Applicant's computer. 47But it is clear that these indecent assault allegations were also a fabrication. They are contradicted by statements that were obtained from other boys. The statement that the Police prepared for C.B. was signed by him on 10 January 2012, but was subsequently contradicted by him (at age 15) when on 27 June 2013 he signed a statement saying that his description of the alleged assault was untrue, that the persons present were different to who he had alleged, and the assault that he had alleged to the Police was different to what happened. 48In addition, the version of the assault that he gave to the Police was different to what he had said to the proprietors of the indoor skate centre. The Police charged the Applicant with an alleged indecent assault of a person under 16 but when the matter was before Campbelltown Local Court on 8 August 2013 the charge was amended to change the date of the alleged assault from 11 January 2013 to 27 December 2012. 49On the day when the offence of possession of child abuse material and the offence of alleged indecent assault of a person under 16 were both for hearing, the Director for Public Prosecutions withdrew the charge of indecent assault, as the Complainant's statement and oral evidence differed and the Magistrate had advised the Prosecutor after hearing the complainant's oral evidence that he would have to give himself a Prasad Direction about the reliability of the complainant. 50The evidence before the Tribunal also shows considerable inconsistencies between other witnesses' statements in relation to the alleged assault and those of the alleged victim. 51In his statement attached his Application the Applicant stated: "In January 2013 an associate of mine contacted the Police claiming that he had been informed that I had indecently assaulted his best friend's son (aged 14) who also worked for him. I was later advised that this had occurred as this associate believed I was attempting to open the same business as his and therefore make his business close. Due to this my house was raided and I was charged with assault with an act of indecency. I immediately lost my job as I worked for the NSW Government and subsequently found myself unemployed. "In March 2013 I secured a new job in disability services working with adults. However, I was seen by Police in a work vehicle and when the police contacted my employer, I again found myself unemployed. "In approximately June 2013 the alleged victim admitted that he had lied regarding the allegation against me, however, made a statement regarding another alleged incident. The first charge was dropped and I was subsequently charged with aggravated indecent assault. "In approximately July 2013 following the review of my seized personal computer I was charged with possess child abuse material. Out of the thousands of photos on my computer the photo in question was a fake nude picture of the celebrity Justin Beiber. A fake nude picture refers to a picture that has been digitally edited so that the celebrity's face is put on to the body of a naked person. This picture was not produced by myself and I saw it on social media and was it was saved on my computer. "In August 2013 I attended Court for the final hearing and sentencing at which point evidence was produced by a Crown Witness which show the conversation between himself and the alleged victim where the victim admitted that no offence had occurred and was worried about attending Court due to this. The Judge heard this new evidence added with 5 Crown Witness statements of the people who were present during the time of the alleged assault which all indicated that no assault had occurred, added to the alleged victim's courtroom account of the alleged incident and due to all this evidence the charge was dropped. "The Judge proceeded with the charge of possess child abuse material." 52He said in the later in the statement: "Since this legal matter commenced I have lost several jobs, lost my security licence, lost being a Justice of the Peace, lost my professional reputation and financially have almost gone bankrupt. I claimed I was innocent from the beginning and the truth came out in the end. However, now I find myself continually fighting battles like this so that it does not affect my life any more than it has." 53The evidence from the Children's Guardian bundle under Tab 9 shows that a search of the Department of Family & Community Service records against the names of 8 of the young persons with whom the Applicant has associated, and also against the name of the Applicant, could not find any of them on the KIDS data base or any record relevant to the capacity of any of them to work with children. 54The Applicant was employed by the Parramatta Mission from 24 February 2012 to 23 August 2012 in a position of a youth worker at their refuge facility at Parramatta. His roles included:
k) Any other matters that the Children's Guardian considers necessary 59In submissions for the Children's Guardian it was raised that the nature of the role of the Applicant with the young men and teenage boys that he associates with is mentoring and assistance. It was submitted that it includes psychological mentoring and a position of power. The submission was that the Tribunal should not treat the absence of complaints as persuasive as it was submitted complaints are unlikely where there is such a relationship. 60It was said the references were scant. However, the Applicant was not legally represented, and of the 20 character references he provided, only 5 were admitted into evidence because the others had not been signed. But the references that were admitted were very supportive and impressive. 61Attention was drawn by Counsel for the Children's Guardian that the persons the Applicant has signed up through his business Blackstar Management were mostly 18-20 years of age and this is mostly a very young age. But this is young adults and it not surprising because it is mostly young people who are involved in the sports of scooter riding, skateboard riding, and BMX riding. It was suggested that because of the age difference between him and the young men and boys that he assists, he was in a position of power over them. This was submitted that the age difference involved a greater risk. 62It was also submitted that the Respondent does not properly define boundaries between himself and under-aged persons as many of his photographs in Exhibit R1 of people in his home shows boys and young men without shirts. 63There was also one incident where he, in breach of his employment conditions, formed a friendship later with a young man who had been a detainee.
CONCLUSIONS 64The offence did not involve any contact with a child or exposure of a child to the image that the Applicant possessed. Nor is there any evidence that he attempted to expose a child to the image. 65The Applicant has no other convictions nor is there any evidence of any other charge other than the charge of an indecent assault of a person under 16, which like the allegation of anal rape, was bogus. 66One has to take into account in considering whether the Applicant poses any risk to children to take into account the considerable scrutiny that he has been under by the Police Department in relation to the more recent bogus allegation. Yet there has been no other allegation of misconduct and only a single offensive image. 67In Commission For Children and Young People -v- V [2002] NSWSC 949 Young CJ in Eq in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "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 to the safety of children". Young CJ in Eq held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] "One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 'risk' with the words that follow, namely, 'to the safety of children'. 68The Tribunal is satisfied that the Applicant has displaced the presumption that he is a risk to children. The finding is that the Applicant does not pose a real risk to children. 69Enabling Orders should therefore be made.
ORDERS 70The Orders of the Tribunal therefore are:
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2014
BFW
The Children's Guardian