BKV v Children's Guardian [2015] NSWCATAD 65 | Case summary

BKV v Children's Guardian [2015] NSWCATAD 65 | Case summary | Zoe

Introduction

The applicant, known as "BKV" in these proceedings, on 29 July 2014 filed in the Tribunal an application for review under section 27 of the NSW Child Protection (Working with Children) Act 2012 ("the Act") concerning a decision of the Children's Guardian, made on 14 July 2014, to refuse him a Working with Children check clearance. The respondent determined that the applicant poses a risk to children. That decision is the subject of this review.
This matter was heard on 24 October 2014 by Senior Member Andrews who has since then become unavailable and not able to complete the written decision. The President has replaced the Senior Member pursuant to section 52 of the Civil and Administrative Tribunal Act 2013 which provides: 52 Reconstitution of Tribunal during proceedings (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member: (a) becomes unavailable for any reason, or (b) ceases to be a member, or (c) ceases to have a qualification required for participation in the proceedings. (2) The President may not replace a member unless the President has first: (a) afforded the parties an opportunity to make submissions about the proposed replacement, and (b) taken any such submissions into account. (3) The Tribunal as so reconstituted is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
The opportunity referred to in section 52(2) of the Civil and Administrative Tribunal Act was afforded by letter dated 6 March 2015 from the Divisional Registrar, which gave the parties until 13 March 2015 to make any submissions about the replacement. The parties did not make any such submissions.
In order to complete the written decision, the material which has been filed and a sound recording of the evidence at the oral hearing has been provided and utilised. The record of the hearing is just over 52 minutes in length and has been heard three times in coming to this decision.
An order was appropriately made by Senior Member Andrews under section 64 (1) Civil and Administrative Tribunal Act restricting publication of information that will identify the applicant, any victims, non-professional witnesses, or evidence given and received in the Tribunal hearing or in relation to the proceedings which is likely to identify those persons. This order will continue. The interim bar was said by the Senior Member to continue. In reality the decision of the respondent to refuse a clearance remains valid until set aside under the review pursuant to section 27 of the Act.
The applicant applied for a Working with Children check clearance from the respondent on 4 February 2014 due to a change in his employment arrangements and that resulted in a review of records which triggered a risk assessment under the Act: see Part 3, Division 3 of the Act.
The Act came into force on 15 June 2013. The applicant's previous clearance was granted under the repealed legislation, the Commission for Children and Young People Act 1998 (NSW), but after acquittal of the 11 charged matters under section 66C (2) and section 66C (4) of the Crimes Act 1900 (NSW) on 16 June 2011.
That assessment in 2014 under the Act now in force, the Child Protection (Working with Children) Act, resulted in an interim bar on 20 March 2014 which made it an offence for the applicant to work in child-related roles, whether paid or voluntary. The applicant was notified on 19 June 2014 that the respondent proposed to refuse his application and requested any further information the applicant wished to provide in further support of the application. The applicant provided further information. The application was refused on 14 July 2014. Consequently, the applicant is deemed a "disqualified person". If the applicant works in a child-related role the applicant will be committing a criminal offence due to the provisions of section 8 of the Act, punishable by maximum penalties of 100 penalty units or imprisonment for 2 years or both.
The issue the Tribunal is to decide in these proceedings is what "the correct and preferable decision is having regard to the material then before it" including material which may not have been before the Children's Guardian: section 63 Administrative Decisions Review Act 1997; YG & GG v Minister for Community Services [2002] NSWCA 247, Hodgson JA (with whom Foster and Brownie AJJA agreed) at [25].

[3]

The evidence relied upon in the hearing

The applicant relied upon the following documentary material: 1. Affidavit by BKV filed 30 September 2014 including the Exhibit 'BKV'1 to that affidavit (which consists of approximately 400 pages of transcript in the District Court on 1 June 2011 to 10 June 2011)- Exhibit A1; 2. Psychological Risk Assessment Report by Dr Emma Collins dated 29 September 2014 and filed 30 September 2014- Exhibit A2; 3. Judgment by Judge Keleman in relation to the costs of the applicant in the criminal proceedings dated 22 July 2011- Exhibit A3; 4. Submissions in written form by Mr Jewell of counsel on behalf the applicant dated 21 October 2014- Exhibit A4.
The respondent relied upon the following documentary material: 1. documents filed pursuant to section 58 of the Administrative Decisions Review Act - Exhibits R1 to R22; 2. Printed copy of the applicant's "Criminal History-Bail Report" dated 9 October 2014- Exhibit R23.
The applicant was cross-examined. Dr Collins was also cross-examined. Oral submissions were received by the Tribunal. Senior Member Andrews reserved her decision saying that there were "novel" and important issues raised by the matter. Because of the importance of the matter to the applicant and the relative novelty of the process, these reasons will therefore be more extensive than might otherwise have been the case.
A statement contained in these reasons of a factual matter is a finding of fact based upon the evidence referred to in these reasons.
In oral submissions before Senior Member Andrews reference was made to the decision of the Tribunal in BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164, which both counsel agreed was a correct statement of the applicable provisions, where it was said at [32]: "In the helpful written submissions provided by the respondent's counsel Ms Hartstein, it was observed that there is currently no precedent decision in relation to the standard of proof or onus of proof which is applicable on a review pursuant to section 27 of the Act. That may change in the event that any of the decisions are taken on appeal to the Supreme Court. For present purposes the relevant applicable standard is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act. As adverted to earlier in these reasons the Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the CAT Act; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]-[17]. Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997."
The paragraph quoted is a considered statement of the relevant principles to be applied in a review under section 27 of the Act, based upon High Court authority, and those principles shall be applied in this decision. Further support for these principles, particularly about onus of proof in proceedings such as these in this Tribunal, can be found in the judgment of Justice Basten in Re Sophie (No 2) [2009] NSWCA 89, where His Honour stated at [98]: "Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct."

[4]

Legislative Provisions relevant to the decision

The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse".
There is no definition of "child abuse" contained in the Act. The Children's Guardian who is the respondent to these proceedings is appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998. An offence is created in section 227 of the Children and Young Persons (Care and Protection) Act which refers to child abuse and is as follows: "Child and young person abuse A person who intentionally takes action that has resulted in or appears likely to result in: (a) the physical injury or sexual abuse of a child or young person, or (b) a child or young person suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged, or (c) the physical development or health of a child or young person being significantly harmed, is guilty of an offence. Maximum penalty: 200 penalty units."
The conduct of the applicant referred to in this decision, if accepted as having occurred, would by any relevant definition constitute 'child abuse'. More specifically it is beyond dispute that it constitutes sexual abuse of a child.
The objects of the Act are set out in section 3 which provides: "Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances."
"Children" is defined in section 5 (1) of the Act to mean "persons under the age of 18 years."
Pursuant to section 14 of the Act there is a requirement to conduct an assessment of the applicant. The section provides as follows: "14 Assessment requirements A person is subject to an "assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person."
The matter referred to under Schedule 1 of the Act which triggered a risk assessment by the Children's Guardian is the matter referred to in clause 1 (b) of Schedule 1. That is, relevantly: "…(1) Proceedings have been commenced against a person: (a) … (b) for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person."
There has been no conviction of the applicant for an offence under section 66C of the Crimes Act 1900 (NSW), which is an offence provision specified in clause 1 of Schedule 2 of the Act. The applicant was charged on 14 May 2009 with offences relating to sexual intercourse with a child above the age of 10 and under the age of 14, that is, he was charged with a total of 11 offences under section 66C (2) and section 66C (4) of the Crimes Act. There were apparently two juries discharged due to 'jury issues' (hearing aid issues and a juror withdrawal), leading to a third retrial: Exhibit A2, at [19]. The victim gave evidence in the two earlier trials prior to the discharge of the juries, but the applicant did not, according to his oral evidence to the Tribunal. The applicant was acquitted by the third jury on 16 June 2011. The trial went from 31 May 2011 to 16 June 2011: Exhibit R16, page 216. District Court Judge Keleman who presided over the trial awarded the applicant costs under the Costs in Criminal Cases Act 1967 (NSW) and that judgment is an exhibit: Exhibit A3.
The applicant has maintained his innocence and stated in his affidavit: "I have always denied the Alleged Offences. My denial was vindicated by the Acquittal (sic).": Exhibit A1, at [14].
The applicant was previously granted a certificate for self-employed people in child-related employment by the Commissioner, NSW Commission for Children and Young People, under the repealed Child Protection (Prohibited Employment) Act 1998, indicating to the world that he was not prohibited from child-related employment at the time it was issued on 23 October 2012 and that certificate was expressed to "expire" on 23 October 2015: Exhibit A1, Annexure B.
The current hearing before the Tribunal is pursuant to an application under section 27 (1) of the Act. The requirement for an internal review imposed by section 53 of the Administrative Decisions Review Act 1997 does not apply to this decision: see section 27 (7) of the Act.
Pursuant to section 27 (4) of the Act "the applicant must fully disclose to the Tribunal any matters relevant to the application."
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: section 36 of the Civil and Administrative Tribunal Act.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or Civil and Administrative Rules 2014 do not otherwise make provision. Additionally, the Tribunal is not bound by the rules of evidence (except in relation to privileged disclosures, for example under section 128 of the Evidence Act 1995), and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: sections 38, and 67 of the Civil and Administrative Tribunal Act.
Procedural fairness and other aspects of natural justice, of course, are to apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balancio (1987) 8 NSWLR 436.
The Administrative and Equal Opportunity Division ("AEOD") of the Tribunal has its practice and procedure prescribed by reason of Schedule 3 of the Civil and Administrative Tribunal Act. Relevantly, a party to proceedings in this division is entitled to be represented by a lawyer without requiring leave of the Tribunal and there are no costs awarded in proceedings under the Act. A party aggrieved by a decision made under the Act in AEOD may appeal directly to the Supreme Court on a question of law: see sections 16, 17 and Schedule 3, clauses 9, 15, and 17 of the Civil and Administrative Tribunal Act.
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD to 9, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
The test to be applied when considering earlier predecessor legislation is whether the risk posed by the applicant is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was). That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra); BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164. This is also the test to be applied in these proceedings.

[6]

Consideration of the Evidence

The Tribunal "must consider" those factors set out in section 30 (1) in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of section 27 of the Act it is appropriate to have regard to both sections 30 (1) and section 15 (4) considerations as required by both sections. Provided that the matters which must be considered in section 30(1) of the Act are taken into account, the review will comply with the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. That review will also fulfil the requirements of both sections, taking into account the nature of the administrative review.
Section 15 of the Act provides as follows: 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following: (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (j) any information given in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
Section 30 of the Act provides as follows: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's 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 Children's Guardian considers necessary. (2) On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children's Guardian under this Act relating to the applicant pending the determination of the matter. Note : Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
The evidence will be considered under each of the following subheadings. Each of the subheadings will refer to the considerations under section 15(4) and section 30(1) of the Act. The evidence described is also placed under subheadings within the required considerations under the Act.

[7]

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

The applicant is not a "disqualified person" under the Act because schedule 2 does not apply. The applicant has been acquitted of the offences with which he was charged. If the applicant had been convicted then schedule 2 of the Act would apply. The onus of proof in a criminal trial is "beyond reasonable doubt", whereas in a civil matter and for the purposes of this risk assessment the civil onus "on the balance of probabilities" is the relevant standard as modified by section 140(2) of the Evidence Act: see BJB v NSW Office of the Children's Guardian (No 2) [2014] NSWCATAD 164 at [32].
The purpose of the risk assessment is protective of children and not punitive of the applicant, as stated earlier. The offences with which the applicant was charged and acquitted are matters sufficient to cause the risk assessment.
Also as previously stated, because the rules of evidence do not apply in these proceedings, the restrictions imposed by the Evidence Act do not apply and hearsay evidence is permissible because in particular sections 59, 60 and 91 of the Evidence Act are not applicable: section 38 of the Civil and Administrative Tribunal Act; but see also LA v Commissioner for Children and Young People [2012] NSWSC 1454. The Tribunal may therefore look at the surrounding circumstances and any evidence in relation to the offences with which the applicant was charged and has now been acquitted in his criminal trial before a third jury: section 63 of the Administrative Decisions Review Act.
The victim was a student of the applicant who is a "black belt" in a particular martial arts discipline. The victim ultimately also later became a "black belt" in that discipline.
The applicant and his young female student commenced their pedagogical relationship in about the beginning of 2007. It was alleged that in about March 2007 the applicant and the victim engaged in penile/oral and penile/vaginal sexual intercourse. It was alleged that this sexual relationship continued until December 2008 (i.e. approximately 21 months). The victim is reported to have stated that she had counted approximately 85 separate occasions of sexual activity with the applicant. It is not asserted in the evidence before the Tribunal that the victim kept a diary of all the events. The victim was asked whether she kept a diary and she told the JIRT interviewer on 13 May 2009 that she did not because it "wouldn't be safe at home": Exhibit R15, page 209.
It is important to know that the relationship was 'consensual', in so far as a sexual relationship between a teacher and student with such a large age difference could ever be properly considered as 'consensual'. That is, there was no allegation of forced, physically coercive or violent sexual activity. At the time of the commencement of the alleged sexual intercourse the young girl was aged 13 and the applicant was aged 34. That fact means that 'consent' is irrelevant to the prohibition of the alleged conduct.
If these allegations are considered true then the alleged offences or matters, are most serious.
The content of the allegations is most conveniently found in the material produced by the Department of Family and Community Services to the Children's Guardian.

[9]

The allegations

The Department received a risk of harm report on 9 May 2009 from a mandatory reporter that the victim disclosed the previous night that she had a sexual relationship with her martial arts instructor over the last 2 years and that she was 13 when they began a sexual relationship. This marks the beginning of the investigation. It was stated that they decided to stop having sex at the end of last year just prior to his wedding: Exhibit R1B, page 18. It was reported they are not in a romantic relationship now and the relationship is "just professional": Exhibit R1B, page 19. The reporter stated they were told the victim and the instructor are not engaged in any sexual acts at this time. The victim and the instructor had gone overseas together for a martial arts tournament. The child told the reporter that she loves the instructor and 'consented' to having sex. The child said "if he wasn't married, it wouldn't be an issue." She said she would want to be with him if he was not married and did not really want to stop. The victim sees him once a week on Tuesday night for the martial arts. He picks her up and drops her home in his car. The child's parents did not know about their relationship. The child understood that this relationship was illegal and was upset about the report to the Department. The child victim, it is recorded, wanted to protect the instructor. The assessment was that the child was vulnerable because the risk of harm was serious due to the length of time over which the abuse occurred and the victim's past experience of abuse: Exhibit R1B, page 19. It was reported that the victim disclosed she had sex with her instructor 60-90 times over a two-year period beginning when she was 13 years old: Exhibit R1B, page 20.
The victim was interviewed at the JIRT on 13 May 2009 where she disclosed that she first had sexual intercourse with the applicant between 1 April and 30 May 2007 at one of the high schools where the martial arts training took place: Exhibit R1A, page 8; Exhibit R12, page 169; Exhibit R15, page 184. The sexual encounter occurred following training. The rest of the class departed prior to the sexual encounter. The victim stated that they moved onto a stage in the school hall where they started kissing. The applicant then put his hands into the victim's pants and inserted his finger into the victim's vagina. The applicant told the victim he wanted to make love to her. The parties removed their clothing. The applicant fitted a condom onto his penis. The applicant and victim then had sexual intercourse. The victim described in an appropriate and apparently physiologically accurate way what happened during the sexual encounter and how she knew when the applicant was ejaculating and his comments: Exhibit R15 page 203. The applicant afterwards conveyed the victim home in his car. The victim told JIRT that she had engaged in sexual intercourse with the applicant on 3 other specific dates where he always wore a condom and conveyed her home afterwards. On 12 May 2009 detectives attended the victim's home and received 2 handwritten notes written by the victim and found by the victim's mother in a pocket of the victim's jeans. The applicant was arrested and charged 2 days later: Exhibit R1A, page 8; Exhibit R12, page 171.
The victim attended JIRT on 4 September 2009 and alleged two further incidents of sexual intercourse, one of which occurred during a prearranged "fake" martial arts class. The victim alleged the applicant and she had sexual intercourse in the girls' toilets at that high school. The victim alleged the other incident occurred at a different high school: Exhibit R1A, page 8.
The victim attended a final JIRT interview on 16 September 2009. During the course of that interview victim alleged 5 further specific incidents. Three of these incidents occurred on a Tuesday evening between 1 June 2008 and 21 December 2008. In these incidents the victim alleged that she performed oral sexual intercourse on the applicant on the way home from a martial arts class.
The victim alleged on a Saturday between 1 February 2007 and 1 July 2007 the applicant digitally penetrated the victim in her vagina, she then masturbated his penis following a martial arts class.
The victim alleged on a Monday between 1 October 2007 and 12 October 2007 the applicant attended her house prior to a training session where they engaged in sexual intercourse.
The victim alleged that on a Saturday between 1 July 2007 and 1 December 2007 sexual intercourse occurred at a high school following a martial arts class: Exhibit R1A, page 8.
The victim told JIRT on 13 May 2009 that while she was in England with the applicant at a tournament they had sex 8 times: Exhibit R1B, page 25. It was also at that interview the victim told JIRT that she had added up the amount of times they have had sex and the tally came to a total of 85 times. The victim spoke clearly about the details of the relationship.
The victim described the way in which the relationship evolved. The relationship commenced with the applicant kissing her on the cheek, then kissing her on the lips. The victim said that she performed oral sex (fellatio) on the applicant and then had sexual intercourse with him. The victim identified that the relationship progressed over a 2 month period from when he kissed her on the cheek leading at the end of that 2 month period to having sexual intercourse.
The victim's parents were informed after the interview about the length of time the relationship had been continuing. They were upset and surprised. The victim's parents were understanding and supportive of the victim. The victim's parents wanted the applicant charged for what he had done to their daughter: Exhibit R1B, page 25.
The victim was told even though she stated to the applicant that she consented to having sex with him, legally she could not consent because of her age. The victim was hesitant at first about counselling, but agreed to undertake it and during the discussion about counselling, it became apparent to the departmental caseworker that the victim had been subjecting herself to self-harming behaviours: Exhibit R1B, page 26.
The victim was reported to have been upset and asked questions about whether the applicant would be arrested and was distressed by being told that this would happen. The victim appeared to care for the applicant and this was assessed to increase her vulnerability to harm. The victim was concerned that by disclosing what her instructor had done to her that she was jeopardising her future plans in that particular martial art. It was assessed that the victim was overly concerned with what would happen to the applicant leading to psychological harm to the victim: Exhibit R1B, page 29.

[10]

The applicant's response to the allegations

The applicant gave oral evidence to the Tribunal but in relation to the allegations his evidence is limited and contained in the affidavit at paragraph [14] which is extracted earlier in these reasons. That evidence is simply a bare denial of the alleged offences. The applicant did not give evidence about texts, telephone calls, or computer communication. The applicant did not go into further detail.
The applicant gave evidence of some further detail in cross-examination: that he gave a lift to the victim in his motor vehicle on more than a dozen occasions, could not say to how many other students he gave lifts, and admitted being alone with the victim during the course of those lifts in his car. The applicant gave oral evidence in cross-examination that he and the victim had discussions concerning the victim's problems with her mother, sometimes about school, about arguments with her parents, and the fact that her father was quite ill. The applicant agreed that he and the victim talked about her problems at home. The applicant agreed that he gave the victim lifts frequently but not for every lesson.
The applicant agreed that they travelled to England in 2007 to participate in a competition for the martial art which he taught and which the victim learned. During the time in England the victim was the youngest in their group and the applicant admitted to being alone with her on the trip. The applicant admitted walking with the victim alone to breakfast. The applicant also gave evidence that he would never do anything like that again due to his experience of the legal system, and he said words to the effect that if he did that it would be "leaving yourself open to possible attack".
The applicant gave evidence that he thought the victim was motivated by having a "fanciful" "fantasy", and the possibility of financial gain, either through victims' compensation or by a damages award against him. In his statutory declaration dated 18 March 2014 the applicant stated: "A person made allegations against me and it still seems to be unclear if this was for financial gain or some type of fantasy. Within four weeks of becoming married to my wife this person made allegations against me." Exhibit R1G, page 60. There is little detail concerning the allegations or their denial by the applicant in the statutory declaration.
The applicant submits that a letter which forms part of the evidence adduced by the respondent, Exhibit R1C, page 38, from his former employer "is not objective independent evidence of the alleged offences." In that letter, it is stated: "Once the accusations had been made, our staff interviewed the girl in question. She confirmed her allegations of a sexual relationship while a minor, and as a consequence we discontinued our contractual relationship with [the applicant]." Exhibit R1C, page 38.
The respondent did not call the victim to give oral evidence or to be cross-examined about the allegations. It was said by Mr Moore that she was not called in circumstances where it is obvious she had been cross-examined on 3 occasions in the 3 different trials (the first 2 of which were aborted due to jury issues) by lawyers representing the applicant. Mr Moore did not say that the victim was "unavailable" but merely that the Children's Guardian did not call her. The Tribunal was not informed when or indeed whether the victim was required by the applicant for cross-examination. There was no application for an adjournment to have the victim made available for further cross-examination about matters which presumably she had already been confronted with in the 3 times she gave evidence in the criminal matter. The Tribunal was not informed whether either party issued a summons for the victim to give evidence. It appears from the Tribunal file that no summons to provide oral or documentary evidence was ever issued to any person or body during the course of these proceedings.
The victim has been subjected to lengthy and exacting cross examination in the course of the three trials to which she has been subjected. There is no evidence from the applicant which would weigh against many of the allegations. The failure of the applicant to provide further detailed denial or explanation means that the allegations and hearsay evidence may be accorded greater weight than is deserved. The hearsay evidence is admissible because the rules of evidence do not apply. It will be taken into account particularly because the transcript of the evidence of the victim at the trial corroborates the allegations. The oral evidence of the applicant in the Tribunal also partly corroborates the evidence of the victim.

[11]

The Transcript of evidence in the criminal proceedings in June 2011 (exhibited to Exhibit A1)

The victim gave evidence that she was interviewed three times on 13 May 2009, 4 September 2009 and 16 September 2009 by Detective Saywell. Those interviews were recorded on DVDs and apparently played to the jury during the course of the trial. The first interview lasted approximately three hours: Transcript page 30.
The victim was graded for her black belt and was awarded it at the end of April 2009: Transcript page 394.
The victim gave evidence in chief that she used only one mobile telephone during 2007 until 2009: Transcript page 113. The computer tower used by the victim "died" sometime in 2007 or 2008 and was replaced by a computer which was obtained from the church: Transcript page 114. The police took both computers after the first interview with the victim: Transcript page 115. The MSN chats between the victim and the applicant were not saved to the computer: Transcript page 116. The applicant communicated with the victim by "Bebo" (which she explained is like Facebook) and the victim did not think those communications were saved anywhere: Transcript page 118. The victim stated in evidence that early on in the relationship and once later the applicant stated to her that he would lose his job and he that he would be in trouble if the sexual relationship between them were discovered: Transcript page 119-120.
The cross-examination of the victim in the first trial was recorded and replayed to the jury in the third trial Transcript page 126, 128. Due to issues with the quality of the sound recording a transcript of that cross examination was provided to the jury as an aide memoire: Exhibit 2 in the trial, Transcript, page 134.
The cross examination of the victim in the third and final trial commenced on 7 June 2011: Transcript, page 144.
The victim denied colluding with her mother to change the mother's evidence: Transcript page 146; page 354.
The trial judge requested that the barrister representing the applicant make the questions clear, because they were not prior to the request: Transcript page 152 line 17. The trial judge repeatedly asked counsel for the applicant to pause between questions, and to slow down on a number of occasions: e.g. Transcript page 154, 155, 156, 166, 307.
It was put by counsel for the applicant on more than one occasion that the victim had fabricated or just made up a story, to which the victim replied that she was telling the truth and denied it was a lie: e.g. Transcript page 165, line 30; page 171 line 30; page 172 line 3; page 176 line 1; page 183 line 11; page 190 line 32; page 192 line 34; page 217 lines 18 and 31; page 218 line 16; page 234 lines 28,31; page 269 line 41; page 270 line 48; page 274 line 1; page 315 line 28; page 328 lines 11, 49; page 406.
The victim also stated that the records kept by the martial arts school/organisation were incorrect: Transcript page 187 line 29, MFI 13 in the trial; page 274 line 42; page 400 line 38. There were no records for 2007: Transcript page 334 line 26.
Although the victim did not keep a diary, she marked on a calendar in her phone, using letters as a code for when she and the applicant met and had sex, but she was not sure whether it was still there when she spoke to the Detective saying in response "I think so.": Transcript page 219 line 10. The victim agreed that when the Detective looked on her phone he couldn't find the entries, or emails or Bebo, because she said he didn't know how to get into it: Transcript page 220 line 3; page 224 line 42; page 225 lines 3-40. There is no evidence form the Detective before the Tribunal, going to this issue.
The victim's father was ill and there were times when it was thought he would die; Transcript page 221 line 42. The applicant gave lifts to the victim at that time: Transcript page 403.
The victim specifically in the third trial stated that she couldn't remember everything from a date 3 years earlier: Transcript page 298 line 39. The victim stated that she recalled what happened in the event but she can't remember the exact dates, and if she was reminded of the location then she would remember: Transcript page 299 line 3; page 368.
The victim was cross-examined about incidents of fellatio and digital masturbation and the physical locations and detail of the events between the applicant and the victim at Transcript 324-365. The victim gave accounts confirming the detail of those events. There is no evidence before the Tribunal from the applicant concerning these matters.
The victim was cross-examined about the timing of her disclosure of the relationship. It was put to her that she was angry and upset and jealous which she denied and stated that the applicant and she were still friends at some time in 2009: Transcript page 393. In fact, the victim attempted to contact the applicant in June or July 2009 and he may have breached his bail conditions by teaching at a martial arts lesson when the applicant was there: Transcript page 397.
There is no record produced to the Tribunal of the evidence given by the applicant in the criminal trial. Therefore much of the evidence of the victim remains uncontradicted by the applicant except in the most general sense.

[20]

Dr Collins' Evidence

The applicant relies on the opinion evidence of Dr Emma Collins, psychologist: Exhibit A2. Dr Collins states in her report that she has read and agrees "to be bound by the Expert Evidence and Reports Practice Note No 14 of the Administrative Decisions Tribunal, and the Expert Witness Code of Conduct as contained in Schedule 7 of the Uniform Civil Procedure Rules, 2005." The relevant code of conduct for expert witnesses in the Tribunal is NCAT Procedural Direction 3 dated 7 February 2014. That Procedural Direction is based upon schedule 7 of the Uniform Civil Procedure Rules 2005.
Dr Collins is a respected expert in her field and places a cautionary note in her assessments to which she has referred in this report at Exhibit A2, par [26]. This was referred to with approval by the Tribunal in BGW v NSW Office of the Children's Guardian [2014] NSWCATAD 179 at [67]. It is as follows: "Dr Collins draws attention to the caution which should be exercised in respect of the practice of risk assessment. Relevantly, Dr Collins states in Exhibit A3 at [39]: 'Whilst risk assessment can be beneficial in providing important information about risk management, the practice in and of itself has limitations. Firstly, the base rate of sexual offender recidivism is low, which hence renders the prediction of such an uncommon behaviour as difficult. Secondly, risk assessment actuarial tools are normed upon groups of individuals and hence it is always unclear how any one individual will perform relative to the group that was studied. Furthermore, risk assessments are time-limited and only as good as the information on which they are based. They can change as new information becomes available, and all risk assessments have an appreciable level of error built into them. Risk assessments help to remove less clinical factors such as "gut feeling" and prejudice that can influence judgment. Although research typically highlights the superiority of structured risk assessment over unstructured clinical judgment as aforementioned, the evidence supporting such assessments is moderately valid only. Hence, decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such source of data (for a more detailed discussion see Mullen & Ogloff, 2009).' (References omitted)"
Dr Collins gave oral evidence on 24 October 2014. During her examination in chief, cross examination and re-examination, Dr Collins elaborated upon the conclusion at Exhibit A2 [33] that the applicant "does not present with any risk issues other than having been charged with a sexual offence. His risk is assessed to fall within the low range." The elaboration of that conclusion was to the effect that that was no category of risk in the formal categorisation below the "low range". Dr Collins said however that in her opinion, based upon the material provided to her and her assessment interview, but subject to the cautionary note referred to previously, the applicant posed "no appreciable risk" about which phrase Mr Moore then cross-examined. It was put to Dr Collins by Mr Moore that this was a legal term rather than a psychological term. Dr Collins appeared to state in re-examination that better terminology to describe the applicant's assessed risk is "minimal risk" rather than "low risk" or "no appreciable risk".
Dr Collins records in her report that the applicant maintains his innocence to the allegations and he is seeking a clearance based on his report of no wrongdoing: Exhibit A2 at [8]. This is consistent with his evidence to the Tribunal.
The applicant completed the Personality Assessment Inventory (PAI) as part of the assessment by Dr Collins. The applicant presented himself favourably and minimised any experience of distress. The positive impression management may reflect the fact that he does not have any major mental health issues rather than simply being a reflection of defensiveness, according to Dr Collins: Exhibit A2 [24]. The PAI profile did not reveal any issues of note.
The applicant also was scored on the Static-99 which placed him in the "low risk" category. The recidivism rate for people in this category is 3.2-10.3% over the next 5 years, and 2.6-15.8% over the next 10 years, for a sexual related offence: Exhibit A2 [28]. Dr Collins states that these statistics serve only as a guide and have not been specifically validated for Australian conditions and populations.
The applicant was also assessed using the Risk for Sexual Violence Protocol (RSVP) which suggests that the applicant poses a low risk of re-offence: Exhibit A2 [29]. Since the applicant has been found not guilty in his criminal trial applicant has not offended any criminal laws.
While these assessment tools have limited validity in predictive terms, they are based on the applicant's self-report to Dr Collins and proceed from the assumption that the applicant did not have a sexual relationship with the victim, and more importantly that he has no convictions for sexual offending. As previously noted, the civil onus is less exacting than the criminal onus. The question remains whether on the balance of probabilities the evidence establishes that there was in fact a breach of the boundaries between an adult and a child in the relationship of teacher and student. The cautionary note sounded by Dr Collins in her report and previously quoted, identifies that risk assessments are only as good as the information on which they are based, can change depending on new information or a conclusion based upon existing information, and there is an appreciable level of error built into them. To that extent, the use of these tools is flawed by circular logic. Dr Collins makes it clear that the only real risk issue is that the applicant has been charged with a sexual offence (but not convicted). The assessment tools do not validate whether the events actually occurred as alleged, a task which the Tribunal must perform based on the evidence before the Tribunal weighed in the scales using the balance of probabilities formulation.
The likelihood of any repetition of the conduct is assessed by Dr Collins as minimal. The Tribunal has to form its own opinion about the likelihood or risk of recurrence of the alleged offence independent of any expert opinion. An indicator of future behaviour is the evidence of past behaviour and any insight developed since that behaviour which may modify the way in which that person behaves.
If there is a repetition of the conduct the impact on children is likely to be highly damaging.

[22]

The costs judgment

His Honour Judge Keleman's judgment dated 22 July 2011 considers the application of section 3 (1) of the Costs in Criminal Cases Act 1967 (NSW) to the facts of the criminal prosecution. It was observed by His Honour that the "evidence in the Crown case depended entirely upon the evidence of the complainant." His Honour observed that when she gave her evidence the victim/complainant was unable to give specific dates in relation to the majority of the offences charged and nearly all of the uncharged sexual encounters: Exhibit A3, page 3. The specific dates that she did give were not supported by independent objective evidence, and His Honour said that evidence: "largely in the form of attendance records for the particular [martial art] classes conducted on those occasions, not only did not support her account in respect of those occasions, but indicated that those occasions could not have occurred." Exhibit A3, page 3
The issue which His Honour decided with the benefit of hindsight was this: "if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute proceedings.": Exhibit A3, page 2.
This is a different issue to that which is before this Tribunal.
His Honour Judge Keleman considered that the absence of evidence of mobile telephone calls and computer communication, "the absence of any objective independent evidence to support [her] account of events where it would have been expected if [her] account was both truthful and reliable", and the motivation to make the disclosure of the alleged sexual encounters only after the applicant married in March 2009 "totally undermined" the credibility of the victim as a witness. His Honour was therefore of the opinion that it would not have been reasonable to have instituted proceedings against the applicant for the offences with which he was charged if the hypothetical prosecutor had been in possession of all the relevant facts: Exhibit A3, page 4. His Honour therefore found that it would not have been reasonable to institute proceedings. His Honour also determined to exercise his residual discretion (that is, to refuse to grant the certificate) in favour of the applicant and thus granted the certificate: Exhibit A3, page 5.
It was submitted by the respondent that the costs judgment should be given limited weight.
The evidence in chief of the victim was played to the jury by way of DVD recordings an example of which is at page 78 of the transcript of 2 June 2011. The trial in June 2011 occurred more than 4 years after the first of the alleged events in early 2007 when the victim was aged only 13.
However, the victim stated that the records kept by the martial arts school/organisation were incorrect. There were no records for 2007. There is no primary evidence before the Tribunal to contradict her evidence. The victim stated that she couldn't remember everything from a date 3 years earlier. The victim stated that she recalled what happened in the events but she can't remember the exact dates, and if she was reminded of the location then she would remember. This is not an inherently improbable explanation for her inability to recall exact dates. It must be remembered that according to her evidence the victim and the applicant were engaged in a mutually consensual relationship and the details were not something about which she kept a comprehensive track of at the time they occurred.
But the victim did not keep a diary, she only marked on a calendar in her phone using letters as a code for when she and the applicant met and had sex, but she was not sure whether it was still recorded there when she spoke to the Detective. When the Detective looked on her phone he couldn't find the entries, or emails or Bebo on the computers, because the victim stated he didn't know how to get into it. There is no evidence from the Detective about this before the Tribunal. The evidence of the victim is not inherently implausible and accords with the most likely probability explaining the absence of the information.
Of course, as previously observed, the standard of proof in criminal matters is proof 'beyond reasonable doubt'. The civil standard is not as exacting. The jury is the fact-finding tribunal and the judge does not normally make findings of fact in a criminal trial (unless sitting in a judge alone trial). The trial judge makes rulings on admissibility and the effect in law of factual matters produced as evidence in a trial. The applicant submits that because of the absence of objective independent evidence to support the girl's account of events the Tribunal would accept as "findings of fact" the statements in Exhibit A3 made by His Honour about the evidence given by the girl. Those comments primarily relate to the credibility issue and the absence of factual corroborative evidence.
The victim's credibility was attacked in cross-examination as recorded in the transcript. The Tribunal is in the position where the evidence of the victim is primarily uncontradicted by any of the other evidence before the Tribunal. It is generally accepted that cross-examination questions are not evidence of the propositions which they contain. The evidence must be found elsewhere.
It is possible that the trial judge's summing up to the jury is reflected in his assessment of the credibility of the victim in the costs judgment. The onus of proof in a criminal prosecution lies upon the prosecution. The defendant generally does not have to prove anything. While the evidence must meet the higher standard of proof in a criminal trial, the existence of some doubt(s) does not mean that the standard of proof on the balance of probabilities has not been achieved by the same evidence. The Tribunal accepts the submission of the respondent and gives the costs judgment little weight for the reasons set out in the preceding paragraphs.

[24]

Determination and conclusion

The paramount consideration set out in section 4 of the Act refers in particular to protecting children from "child abuse". The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature.
There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126.
In Director General of Department of Community Services; Re "Sophie" [2008] NSWCA 250, per Sackville AJA (in the plurality) at par [67] and [68], the Court of Appeal stated: "[67] The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was highly improbable. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father. [68] As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities."(Citations omitted).
In that case, Re "Sophie", it was alleged that the father had sexually abused his daughter because she contracted gonorrhoea. The father had, prior to the infection of the daughter, contracted gonorrhoea from a prostitute. The father in that case called extensive expert evidence in an attempt to establish that gonorrhoea can be transmitted by other vectors than sexual contact. The most probable explanation for transmission of that infection was through sexual contact. The alternative hypotheses, however, could not be totally excluded.
Although the consequences of making a finding in this matter that the allegations made by the victim are established on the balance probabilities are serious and will affect the applicant adversely, a finding should be made if the evidence satisfies the standard of proof.
The JIRT investigation concluded that the applicant was a person causing harm to the victim based upon the allegations contained in the records of the Department of Family and Community Services and the interviews of the victim. The applicant did not participate in that process, as is his right, probably due to his legal advice.
The applicant gave oral evidence to the Tribunal but in relation to the allegations his evidence is limited and contained in the affidavit at paragraph [14] which is extracted earlier in these reasons. That evidence is simply a bare denial of the alleged offences. The oral evidence he gave was partially corroborative of the events detailed by the victim. The applicant did not give evidence to the Tribunal about texts, telephone calls, or computer communication. The applicant did not go into further detail. The victim's credibility was attacked in cross-examination in the criminal trial as recorded in the transcript. The victim repeatedly denied that she was lying or that she had made up a story. The Tribunal is in the position where the evidence of the victim is basically uncontradicted by other specific evidence before the Tribunal. There is no record produced to the Tribunal of the evidence given by the applicant in the criminal trial. Therefore much of the evidence of the victim remains uncontradicted by the applicant except in the most general sense.
The assessment tools utilised by Dr Collins have acknowledged limited validity in predictive terms. They are based on the applicant's self-report to Dr Collins and proceed from the assumption that the applicant did not have a sexual relationship with the victim, and more importantly that he has no convictions for sexual offending. Risk assessments are only as good as the information on which they are based, can change depending on new information or a conclusion based upon existing information, and there is an appreciable level of error built into them. If the Tribunal assesses that the evidence establishes on the balance of probabilities that there was an abusive sexual relationship between the victim and the applicant, which was denied by the applicant, then the risk assessment performed by Dr Collins, with great respect to her expert knowledge and skill, has limited evidentiary value or weight to the Tribunal's function.
In summary, the allegations, which have been made and lead to the applicant being found on the investigation as a person causing harm to the victim in the Department of Family and Community Services material, are serious. The applicant's previous employer conducted their own investigation and as a result of this investigation terminated their association with the applicant on the basis of the victim's report to them which they treated as valid and serious: Exhibit R1C, page 38.
On the balance of probabilities, and taking into account the gravity of the allegations of sexual misconduct, the Tribunal finds that the evidence before the Tribunal is sufficient to make a finding that the applicant has engaged in instances of aggravated sexual assault with the victim when she was a vulnerable child.
The behaviour of the applicant involved unlawful sexual intercourse with his student while he was in a position of authority. The applicant has not acknowledged his wrongdoing and shows little insight into the effect of his behaviour upon the victim's life. Instead, the applicant has concentrated upon the effect of the criminal proceedings, and the renewed requirement for a working with children check clearance, upon his own life.
The applicant has matured with age and is committed to his family which are factors in his favour.
If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes that there is a real and appreciable risk of harm to children.
The evidence received by the Tribunal establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act.
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance.
The order of the Tribunal therefore is: 1. The decision of the Children's Guardian dated 14 July 2014 to refuse to grant the applicant a Working with Children check clearance is affirmed. 2. The application for review of the decision of the Children's Guardian filed 29 July 2014 is otherwise refused and dismissed. 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: 09 April 2015

BKV v Children's Guardian

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Judgment (24 paragraphs)

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Cited By (50)