CEV v Children's Guardian

Background

1. The applicant, who is now 75 years old, has been a bus driver for over twenty years. This has included working to transport athletes at the 2000 Olympic Games.
2. He had previously been the managing director of a specialist clothing and accessories business, which offered a cadetship program. A former cadet alleged that the applicant had sexually assaulted him and in 1990, the applicant was convicted of two counts of homosexual intercourse with a male person between 10-18 years. The Crown case depended on the uncorroborated evidence of the complainant. On appeal to the Court of Criminal Appeal, the applicant's conviction was quashed and a new trial ordered on the basis of fresh evidence. As the complainant did not wish to give evidence again, and the applicant had already served a substantial time in custody, the matter was no-billed. In light of these allegations, the Children's Guardian ordered that a risk assessment report be prepared for the applicant.
3. In 2012, a complaint was made to police in relation to alleged assaults by the applicant against a second former cadet. The assaults were alleged to have occurred in 1985. The former cadet declined to make a statement to police and did not wish the matter to proceed to trial.
4. In 2008, the applicant was convicted of six counts of obtaining a financial advantage by deception and ordered to pay reparations.
5. The Tribunal held a hearing into this matter on 21 September 2016. CEV gave oral evidence at the hearing as did the psychiatrist, Associate Professor Greenwood. Documentary material was also provided to the Tribunal, the relevant details of which are provided below.

Risk Assessment report

1. In its risk assessment report finalised on 9 July 2015, the Children's Guardian recommended that the applicant be refused a working with children check clearance for the following reasons:

• In 1990, the applicant had been convicted of 2 counts of homosexual intercourse with a male person ('the complainant') who was aged between 14 and 15 years at the time of the alleged assaults. In 1992, both convictions were quashed on appeal and the matter was subsequently no-billed due to the time already served by the applicant and because the complainant did not wish to give evidence again.
• In 2012, a further allegation of sexual assault was made against the applicant by a second former cadet ('the reporter') in relation to an offence that had allegedly occurred in 1985. The complaint was neither investigated or substantiated as the reporter did not wish to give a statement or proceed with a criminal investigation.

CEV

1. CEV was self-represented before the Tribunal.
2. In oral evidence before the Tribunal, he agreed that he had previously been the managing director of a business that designed and supplied naval uniforms, regalia and navigational material.
3. The business offered cadetships to assist young people to become pilots by using some of the profits of the business to pay for private flying tuition. This was because CEV was aware how hard it had been for him to raise enough money to pay for the lessons he had needed to become a pilot himself. The cadetship was the business's way to give 'young people a start in the world.' In total, the business offered 15 to 16 cadetships. CEV told the Tribunal that two former cadets are now pilots.
4. Cadets were taught deportment and etiquette to prepare them for the airline industry. CEV agreed that some of the cadets had stayed overnight at CEV's house. This, he told the Tribunal, was to facilitate being able to get to the airport by 5am.
5. Most of the applicants for cadetships would come to the company by word of mouth although only a third of them would tend to last the course.
6. The cadet who was the complainant in the applicant's criminal trial ('the complainant') was referred to the company by the applicant's sister who was friendly with the complainant's sister. He was interviewed for the cadetship by a female employee of the company.
7. According to the applicant, a decision had been made to terminate the complainant because he had 'begun to slacken off' and because money had gone missing, which the complainant was suspected of having stolen. Before the termination was made, however, the applicant was arrested on charges of having sexually assaulted the complainant.
8. The applicant agreed that, at trial, he had given an unsworn statement denying the allegations and that his barrister had cross-examined the complainant.
9. The applicant noted that the complainant had alleged that the applicant had assaulted him on the first time he had come into the office. According to the applicant, this was impossible given that the office was open and other people would have seen and heard it. In the end, the police did not pursue this particular allegation. Although this complaint did not become the subject of a charge against CEV, defence counsel for CEV raised it in cross-examination on the basis that it was inherently unlikely and therefore unreliable.
10. The applicant was told by one of the detectives that the complainant had had other problems at other workplaces. The applicant reported that his sister had also been warned by the complainant's sister to watch the complainant because 'he isn't happy, he's a little liar and he knows how to get his own back.'
11. He also told the Tribunal that he would not have been able to assault the complainant as alleged due to a head injury he had sustained during a car crash in the 1970s. As a result of the injury, he was unable to lift weights.
12. He agreed that he and his colleagues would take the cadets out to dinner, including the complainant. He agreed that once he had received the mother's permission, he let the complainant stay overnight at his house. Two other colleagues and a casual employee were also there.
13. The applicant was unable to comment on the allegations made by the second cadet ('the reporter'), as set out in the COPS event record except to say that the office was open and overlooked the street. He was aware that the allegations looked bad but queried why they had only been made 30 years after the offences were said to have occurred. In his submissions, the applicant makes the following statement in relation to the allegation: I cannot comment on this at all. From advice I've been given, it appears that this may be someone that is trying to gain financial advantage. This has happened to may others in the current climate. I have not be [sic] contacted by the police or charged. Nor has anyone attempted to sue me. His accusations are completed opposed to my moral beliefs and values.
14. He told the Tribunal that he had first been informed of these later allegations by the Children's Guardian.
15. He gave evidence that he was heterosexual by persuasion and denied having a sexualised interest in children. He also denied offering cadetships to children under the age of 16 years.
16. He denied ever having been alone in his apartment with the complainant.
17. In response to a question from Counsel for the Children's Guardian as to whether there was anything he had done in the 1980s that he wouldn't do now, the applicant told the Tribunal that some of his friends had given up teaching in primary school because that were so fearful of allegations being made against them. The applicant told the Tribunal that since being in gaol, he has been very careful never to put himself in a compromising position. He told the Tribunal that whilst it was very easy to make an allegation of sexual assault, it was nearly impossible to defend it. He told the Tribunal that he simply wished to continue driving buses and that he needed a working with children check clearance to do so. He told the Tribunal that in his capacity as a bus driver, there was always a supervising adult on the bus with him when he was driving children.

District Court

1. Contained on file are the following documents in relation to the criminal proceedings brought against CEV:

• the indictment;
• notes taken by the sentencing judge in relation to the sentence given to the applicant;
• the applicant's unsworn statement;
• statements of the arresting officers;
• a letter from the Office of the Director of Public Prosecutions dated 2012 confirming that the applicant's conviction had been quashed and the matter no-billed;
• judgment of the Court of Criminal Appeal quashing the applicant's conviction;
• police charge sheets;
• documents produced by the NSW Department of Corrective Services in relation to the applicant's conduct whilst in prison;
• criminal history (bail report) for the applicant.

1. In his unsworn statement, the applicant denies ever having sexually assaulting the complainant. He described the complainant as having been considered for a cadet scholarship offered by CEV's company. According to the applicant, the complainant did not receive the scholarship because his behaviour had become slack and unreliable and because the applicant had suspected him of stealing money from the company. According to the applicant, the complainant made the allegations after being told that he would not be receiving a company scholarship.
2. Neither statements by the complainant nor a copy of the trial transcript have been provided to the Tribunal.

Court of Criminal Appeal

1. In 1992, the Court of Criminal Appeal allowed the applicant's appeal, quashed his conviction and ordered a new trial (noting that the Director of Public Prosecutions had a discretion not to order a new trial in light of all of the evidence available in relation to the case and in light of the substantial amount of time the appellant had already spent in prison). The Director of Public Prosecutions subsequently no-billed the case on the basis that the complainant did not wish to give evidence for a second time and in light of the amount of time the applicant had already served in prison.
2. In reaching its decision, the Court of Criminal Appeal (per Gleeson CJ) noted:

• the strong character evidence called for the applicant in the trial; and
• the inconsistency between the evidence of the complainant as to what he had told an employee of the company and what the employee remembered the complainant saying to her.

1. Gleeson CJ also noted the fresh evidence submitted at the appeal, stating that 'in my view if the evidence…had been available at the time of the trial there is a significant possibility that [CEV] might have been acquitted.'
2. In light of the fact that the appeal court had not heard the evidence of the complainant or of another of the main witnesses, the court found that it was not in the position to find that the jury's verdicts were unsafe or unsatisfactory. On this basis, the court refused to enter a verdict of acquittal for CEV.

COPS database records

1. A COPS event record taken in 2012 is contained on file. According to the event, in 2012 a man ('the reporter') reported to police 'a sexual assault that occurred in 1985.'
2. According to the COPS event record, the reporter told police: That he was sexually assaulted in 1985 whilst he was on work experience and further more sexual assaults were committed over the space of 2 months by [CEV]. [He] told police that he started work experience…as required by his cadet program. [He] informed police that at the time he wanted to be a pilot and as part of his cadet program was required to do work experience aviation related. [He] informed police that while he was on work experience he was asked by [CEV] to allocate a day during the week in which he could help out at night times. [He] informed [CEV] that he could stay back and help on Wednesday nights. [He] was asked by [CEV] on his first day at work experience…if he had a girlfriend. [He] found this odd and noticed over the coming weeks attempts by [CEV] to touch him on the genital region. The first sexual assault…is when one night he was called into the office of [CEV] and has his clothes taken off by [CEV]. [CEV] has then removed his own clothes turned the office lights off and started playing with the victim's penis. [He] informed police that [CEV] attempted and did penetrate his anus with his fingers on the same night. [He] informed police that similar incidents like this went on for 2 months and that throughout the incident that he would go to school crying everyday and that he did not tell anyone because he was embarrassed and keen on becoming a pilot. [He] informed police some time after the two months that he decided not to pursue his cadet program and stopped work experience and did not see [CEV] ever again but heard through other cadet students that he was charged with similar offences on other students. [He] told police that he has not told anyone besides his solicitor recently after he felt as though he was traumatised from the incidents that occurred in 1985. On one of the nights that [he] attended [CEV's company], he was introduced by [CEV] to a friend of his…who gave [the man] a lift home that day, as they lived near each other. As [the man] went to get out of the car, [the friend] said 'Just be careful with [CEV] and he began to get tears in his eyes. [The man] thought nothing of this at the time but now believes [the friend] may have known of [CEV's] behaviour. [The man] has informed police that he is seeking compensation as a result of this incident, and has been requested by his lawyer to report the matter.
3. According to the COPS event entry, the reporter had initially told police that he wished the matter to be prosecuted and would be happy to provide any assistance needed by the police.
4. The COPS event entry later describes the matter as suspended as the reporter 'does not want any further action taken and [is] not willing to make a statement.'

Local Court

1. In 2008, the applicant was charged with obtaining a financial advantage. The case was proved without conviction with the applicant being discharged upon entering into a good behaviour bond for 12 months.

References

1. In a reference prepared for the applicant by the compliance manager at the bus company where the applicant has been a casual bus driver, he describes the applicant as being helpful and states that, to his knowledge, the applicant has never demonstrated inappropriate behaviour or abuse towards children.
2. A second employee at the bus company describes the applicant as being extremely reliable, well presented and with a very high standard of ethics. According to the employee: [CEV] is an excellent operator…is respected by his colleagues and spoken of highly by all our passengers.
3. In his reference for the applicant, the managing director of the bus company confirmed that he had known the applicant for a number of years and was fully aware of his situation. According to the managing director: [CEV] has been a valued member of our operation, has never given us any concerns whatsoever and accordingly we are more than happy to provide him with the opportunity to work with us.
4. The chief executive officer of a company where the applicant works as a casual bookkeeper stated that he is aware of the allegations made against the applicant and described him as 'exceptionally honest, outstanding in his field and always willing to provide that extra effort when circumstances required and of outstanding character.'
5. A colleague who works with the applicant in restoration projects describes him as pleasant, honest and reliable.

Psychiatric report

1. Associate Professor Greenwood, psychiatrist, assessed the applicant for the purposes of providing a report for this Tribunal.
2. In his report, Associate Professor Greenwood states that the applicant has been employed as a bus driver for the past twenty years without incident. He described the applicant as having significant arthritic back pain and diminished strength in both knees with associated pain.
3. According to Associate Prof Greenwood, during the consultation, the applicant was: clear and coherent in conversation, and displayed no abnormal behaviours. His cognition was intact and he did not display any deterioration of mind. He had normal perception, affect, anxiety, thought processes and mood.
4. He did express the view, however, that the applicant displayed evidence of major depression.
5. Associate Professor Greenwood made the following findings in terms of the applicant's risk to children: In terms of his safety to work with children I did not regard him as presenting any specific danger. Apart from his obvious age related diminished capacity, I did not detect any interest or desire to bring harm to any children. I did not find any evidence that he had any sexualised interest in children or any reason to suspect it.
6. In relation to the applicant's previous criminal proceedings, Associate Professor Greenwood expressed the following view: I accepted his explanation of the events of that time, and although I was not involved then and have no direct experience of what occurred, I thought his presentation to me was quite consistent with his explanation of what had occurred at the time. I accepted his claim of innocence.
7. Associate Professor Greenwood gave evidence before the Tribunal. He told the Tribunal that he had assessed the applicant for risk and found that he could not detect any interest in children. To reach this conclusion, he had examined the mental state and cognitive capacity of the applicant as well as making a clinical assessment of the applicant's desire to have sexual contact with children. He did not administer a PAI test as it is a 'psychological test about personality and not a psychiatric test about mental state.' According to Associate Professor Greenwood, the PAI has limitations in that its results may be influenced by mental disorders.
8. He explained the role of the psychiatrist as looking at 'mental state, speech content, mood, thought content and flow, cognitive assessment, orientation, arousal and general knowledge.' These skills, he told the Tribunal, would enable a psychiatrist to diagnose paedophilia, which is contained in the DSM 5.
9. He was aware that the applicant had stood trial on allegations of sexual assault and was aware that further allegations had been made against them. He noted that the applicant had told him that there was no substance to the further allegations and that he regarded the allegations to be repugnant, namely that he could be accused of having assaulted a child. According to Associate Professor Greenwood, the applicant told him that he had never had any sexual interest in children and that he was heterosexual.
10. Counsel for the Children's Guardian asked Associate Professor Greenwood the following question: assuming the allegations to be true, given the passage of time and the applicant's advanced age and the fact that no complaint had been made since 1989, was the likelihood of the applicant reoffending reduced? Associate Professor Greenwood replied that he didn't think that the applicant was in a position to assault anyone, and that he didn't think that he could pose a threat to children.
11. Associate Professor Greenwood told the Tribunal that in his view, the applicant did not pose a real and appreciable risk to children. This was because:

• in light of the absence of evidence, he had doubts as to whether anything occurred. Without any evidence either way, he assumed that the offences had not occurred;
• the applicant was severely physically restricted by his age;
• the applicant had no sexual interest in children at all; any interest he might had had was in the context of an adult heterosexual relationship and not with a child;
• there was no reason to believe that the applicant could be a threat;
• the psychiatric evidence, both verbal and through affect and thoughts, did not reveal that the applicant had any sexualised interest in children.

GP report

1. In a report prepared for these proceedings, the applicant's treating doctor writes that: [CEV's] health at 75 years is not perfect. He has chronic lung disease, arthritis, chronic lower back pain along with other ailments. [He] has financial stresses and is wholly dependent on his ability to drive...buses for his income I thought he displayed evidence of Major Depression a further noted the consequences of the refusal to grant

FINDINGS AND REASONS

1. In determining this application, the Tribunal "must consider" those factors set out in section 30 (1) of the Act. The evidence will be considered under each of the following subheadings.

The seriousness of the offences that caused an assessment and a refusal of a clearance or imposition of an interim bar (s30 (1)(a))

1. The matters that caused an assessment and the refusal of the clearance are:

• sexual assault charges brought against the applicant in relation to a 14-15-year-old boy who was undertaking a cadetship program at the applicant's place of work. In 1990, the applicant was found guilty of two counts of homosexual intercourse with a male between the age of 10 and 18 years. His conviction was subsequently quashed on appeal and a new trial ordered. The new trial did not proceed both because the complainant did not want to give evidence and in light of the custodial time that had already been served by the applicant;
• allegations contained in a COPS event sheet that the applicant had sexually assaulted a boy in 1985 who was part of the cadetship program offered by the applicant's company. The complainant did not provide a statement to police and expressed a wish not to press charges.

1. As submitted by the respondent, these allegations, if true, are very serious indeed.
2. There is, however, insufficient evidence before the Tribunal In relation to the criminal proceedings brought against the applicant to enable us to make a finding that the offences ever occurred.
3. As set out above, this is the extent of the documentary material before the Tribunal in relation to these proceedings:

• the unsworn statement of the applicant in which he denies assaulting the complainant;
• the judgement of the Court of Criminal Appeal, quashing the applicant's conviction and ordering a new trial;
• a letter from the Office of the Director of Public Prosecutions dated 2012 confirming that the applicant's conviction had been quashed and the matter no-billed;
• police charge sheets;
• documents produced by the NSW Department of Corrective Services in relation to the applicant's conduct whilst in prison; and
• a criminal history (bail report) for the applicant.

1. The Tribunal has not been provided with either the police brief of evidence in the matter or any of the trial transcript. No statements by the complainant have been provided to the Tribunal nor was the complainant made available to give evidence to the Tribunal. Accordingly, the Tribunal does not have any evidence of the allegations made by the complainant and, in the absence of the complainant being available to give evidence, the applicant has had no opportunity to test the allegations.
2. There is no affidavit by the respondent to explain the absence of any of this material.
3. In the light of such scant material and in the absence of information as to the availability of the complainant to give evidence to the Tribunal, the Tribunal finds that there is no material before it that could legitimately be regarded as evidence in the first place that the alleged offences actually occurred. For this reason, we give no weight to these allegations of sexual assault made by the complainant against the applicant.
4. In reaching this finding, we have been guided both by the judgment of Fagan J in Children's Guardian v BRL [2016] NSWSC 1206 and by the judgment of Harrison J in FZ v Commissioner for Children and Young Persons [2010] NSWSC 1144 (which was upheld on appeal to the Court of Appeal in Commissioner for Children and Young Persons v FZ [2011] NSWCA 111)
5. When considering the weight to be given to allegations made against an applicant seeking to be cleared to work with children, Harrison J stated that The plaintiff was entitled to more than merely an opportunity to know the evidence against him and to be heard in relation to it, as the authorities reveal. The fundamental issue was whether there was any material that could legitimately be regarded as evidence in the first place. That analysis could not properly be made, and was not made in the present case, by accepting [the complainant's] allegations at face value or without subjecting them to scrutiny. The suggestion that the plaintiff might in the circumstances have somehow had an advantage, because no criticism can be levelled at his evidence since it was not tested, only serves to recognise the significance of the plaintiff's principal proposition. It plainly fails to come to terms with the fact that the plaintiff's decision or obligation to respond to [the complainant's] allegations ought not on one view logically to have been triggered before the allegations had been subjected to forensic examination and testing.
6. In Children's Guardian v BRL [2016] NSWSC 1206, Fagan J described the issues to be considered by this Tribunal when deciding whether to grant a working with children check clearance to an applicant who had been the subject of allegations of sexual assault: The issue before the Tribunal, as before the Children's Guardian at an earlier stage, was whether the defendant "poses a risk to the safety of children" (s 18(2)). Given the absence of a conviction or finding by any competent tribunal that the alleged sexual assaults actually occurred, the primary sub-issue for the Tribunal was whether either (a) the assaults had actually occurred or (b) there was a real and appreciable risk that they had occurred. A second issue was whether, if they did occur or there was a real and appreciable risk that they had, there was also a real and appreciable risk that the defendant would commit a sexual offence in the future or that he had a tendency towards such conduct or other sexual misconduct. In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the complainant and other witnesses cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none). If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the complainant's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016. In the present case it is difficult to see how the Tribunal could have attributed any weight to these allegations if they had been received without testing by cross-examination in the absence of explanation as to why these serious matters had not been pressed by the complainant in 1999 and in the absence of any explanation of why she was not willing to come forward in 2015 or 2016. The submissions to this Court on behalf of the plaintiff sought to explain the absence of any such inquiries by repeated citation of s 4 of the Working with Children Act which stipulates that in the working of the Act the safety, welfare and well-being of children is the paramount consideration. This does not displace the need for the Children's Guardian diligently to make inquiries relevant to its own decisions and to place the product of those inquiries before the Tribunal in the event of a review under s 27. On the contrary, in the pursuit of the welfare of children and the avoidance of risk of harm to them from a possible potential abuser, the "working of the Act" required in relation to the defendant investigations of the kind to which I have adverted. Such investigations might have shown that the circumstances of termination of the 1999 prosecution indicated residual risk. Without investigation one would not know.
7. The COPS event record contained on file was created on 26 July 2012 and contains a complaint against CEV by a male person whose name is blocked out and who is simply described as a personal trainer. As set out above, the COPS event record details a complaint by the man ('the reporter') that he had been sexually assaulted over a two-month period by CEV in 1985 when on work experience at CEV's company. The reporter told the police that he 'has not told anyone besides his solicitor recently after he felt he was traumatised from the incidents that occurred in 1985.'
8. According to the reporter, he had met a friend of CEV whilst on work experience at CEV's company. The friend told him to 'just be careful with CEV.' The reporter told the police that 'he is seeking compensation as a result of this incident, and has been requested by his lawyer to report the matter to police in order to obtain details relating to the interview with detectives, and the previous offences which [CEV] has been charged with.'
9. The reporter offered to provide the police with a full statement and to assist the police as required, however the COPS event record describes the case as 'currently suspended as victim does not want any further action taken and not willing to make a statement.'
10. The Tribunal can give little weight to this COPS event record for the following reasons:

• the reporter is not identified;
• the reporter refused to make a statement;
• the reporter did not wish the police to take further action in the matter;
• the reporter was not made available to give evidence to the Tribunal.

1. For these reasons, the Tribunal finds that the record can only be used to show that a second complaint was made against CEV by a man who claimed to have also been a cadet at CEV's company.
2. The Tribunal accepts that in 2008 CEV was convicted of six counts of obtaining a financial advantage by deception contrary to s134.2 of the Crimes Act 1914 (Cth) and was ordered to pay reparations of $11544.06 to the Commonwealth. No submission has been made that this conviction can be used to show that the applicant poses a risk to the safety of children.

The period of time since those offences or matters occurred and the conduct of the person since they occurred (s30(1)(b)

1. It had been nearly 28 years since the first offence with which the applicant was charged and 24 years since the applicant's conviction was quashed and a new trial ordered.
2. A further complaint was made against CEV in 2012 in relation to alleged assaults which took place in 1985, however, the reporter declined to make a statement in the matter and did not want any further action taken in the matter.

The age of the person at the time the matters occurred (s30(1)(c))

1. The applicant was 47 years old at the time he was alleged to have assaulted the cadet. He was 44 years old at the time he was alleged to have assaulted the second complainant.
2. He was 67 years of age at the time of the offences of obtaining a financial benefit by deception.

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 (s30(1)(d))

1. The complainant was 14-15 years of age at the time of the alleged offences and was vulnerable to CEV by reason of the difference in their ages (thirty years) and the applicant's position of authority and control over the complaint.
2. In relation to the second complaint, neither the name or age of the reporter had been provided to the Tribunal. In his complaint, the reporter stated that he had been on work experience at CEV's company and would have been vulnerable in light of the applicant's position of authority and control over him. According to the COPS event record, the reporter stated that he was 15 or 16 years old at the time of the alleged offences.

The difference in age between the victim and the person and the relationship (if any) between the victim and the person (s30(1)(e))

1. There was a thirty-year age difference between the applicant and the complainant. The applicant was the complainant's employer.
2. According to the COPS event record, the second complainant stated that he was 15 or 16 years old at the time of the alleged offences in 1985. On this basis, there would have been a 28-year difference between the applicant and the second complainant.

Whether the person knew, or could reasonably have known that the victim was a child (s30(1)(f))

1. The applicant would have known that the first complainant was a child.

The person's present age (s30(1)(g))

1. The applicant is seventy-five years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred (s30(1)(h))

1. In 2008, the applicant was convicted of six counts of obtain financial advantage by deception and was ordered to pay reparation.
2. The applicant had driven buses and coaches for twenty years without incident.

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30(1)(i))

1. The evidence before the Tribunal is that CEV has been driving buses and coaches for twenty years. There is no evidence before the Tribunal that he has ever been the subject of complaint in relation to his behaviour towards children or passengers in general.
2. In his report, the psychiatrist Associate Professor Greenwood found that the applicant did not present any specific danger to children. In making this assessment, Associate Professor Greenwood told the Tribunal that his examination of CEV had involved an examination of mental state and cognitive capacity as well as a clinical assessment of the applicant's desire to have sexual contact with children.
3. In oral evidence before the Tribunal, when asked to assume that the allegations against the applicant were true, Associate Professor Greenwood expressed the view that given the applicant's advanced age and the fact that that no complaint had been made since 1989, he did not think that the applicant was in a position to assault anyone and did not think that he could pose a threat to children.
4. On the basis of all the evidence before us, and having particular regard to the report and evidence of Associate Professor Greenwood and the applicant long history of driving buses without incident, we are satisfied that there is little likelihood of CEV engaging in harm towards a child.

Any information given by the applicant in, or in relation to, the application (s30(1)(j))

1. The applicant maintains his innocence in relation to the allegations of sexual assault that have been made against him. In relation to the evidence that he had allowed cadets to stay overnight at his home to facilitate early departures to the airport, the applicant submitted that although that would not occur now, it was not considered to be crossing professional boundaries in the 1970s and 1980s.

Any other matters that the Children's Guardian considers necessary (s30(1)(k))

1. The Children's Guardian submits that the decision to refuse the applicant a working with children check clearance should be affirmed.

Conclusion

1. The question for the Tribunal is this: in light of all the evidence, does the applicant pose a real and appreciable risk to the safety of children? If the answer is no, he must be granted a working with children check clearance.
2. For the reasons provided above, on the material before us, we make a finding that the conduct of which the applicant has been accused in relation to the complainant did not occur.
3. Again for the reasons set out above, on the material before us, we cannot be satisfied that the applicant ever sexually assaulted the reporter. We accept the submission of the respondent that this allegation can be given only 'neutral' weight in light of the lack of contemporaneous complaint and the fact that the reporter declined to provide a statement.
4. On the material before us, the only thing we can be satisfied of is that two separate complaints have been made in relation to the applicant's conduct towards former cadets in his business. In the case of each complaint, for the reasons set out above, we are unable to be satisfied of their truth.
5. Weighed against this is material that would indicate that the applicant is not a risk to children, namely:

• the report by Associate Professor Greenwood, psychiatrist, expressing his opinion that the applicant does not have sexual interest in children and does not pose a danger to children. Even assuming the truth of the allegations made against CEV, Associate Professor Greenwood expressed the view that CEV was not a current risk to children and was in a position to assault anyone or to pose a threat to children;
• the fact that the applicant has worked with children, as a bus driver for over 20 years without incident; and
• the references that attest to the applicant's character.

1. The evidence and material referred to in these reasons do not establish that the applicant currently poses a real and appreciable risk to the safety of children.
2. In our view, having regard to all the material before us, we are satisfied that the applicant does not pose a risk to the safety of children. It follows that the correct and preferable decision is for the Tribunal to set aside the decision of the Children's Guardian.

Orders

1. The orders are as follows: 1. The decision of the Children's Guardian dated 24 August 2015 to refuse to grant the applicant a working with children check clearance is set aside. 2. In substitution for that decision, the following decision is made: the applicant is granted a working with children check clearance. 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: 13 January 2017