CGZ v Children's Guardian

The criminal proceedings

1. The prosecution tendered a witness statement from a woman (NA), the friend who the complainant sent text messages to on her way home. It includes transcripts of these text messages, which say "give me a minute pls I just got assaulted at work and I need to make a couple of calls". NA said "I tried calling her a number of times before being able to speak to [the complainant]. She was clearly scared and very upset and crying whilst speaking to me. We spoke on the phone for a bit where she told me some things. She described to me what happened". The complainant's counter manager also provided a witness statement. The complainant sent her a message that night which said "I'm very upset; you have no idea what that man [name] did to me". They also spoke on the phone and the complainant told her she had been assaulted by the Applicant.
2. The Learned Magistrate said in her findings that, "I am absolutely convinced that [the complainant] was telling the truth… she was able to give a great amount of detail about where she had been and what had happened and in my view, her account was very consistent. I have some concerns. As I have said, I recognise that it is a difficult matter to defend. But in circumstances where I have absolutely no doubt about the honesty and reliability of [the complainant]".
3. During cross examination the Learned Magistrate asked the Applicant whether he was sure about his evidence that he walked back to the counter separately and not together with the complainant. He said he was sure. The Learned Magistrate, acknowledging that the timing of certain events was in issue, referred to "Exhibit 2", which was a CCTV image of him walking together with the complainant. In response the Applicant said "Okay, my understand (sic) of walking with her was if for example she waited for me to get ready, so we walked out of the room together. She was ahead of me a few - a few feet". He was asked if he was confident this was at the end of the treatment and not the start and he said that he was.
4. The Learned Magistrate said in her findings that "in circumstances where I am of the view that [the Applicant] is not telling the truth with respect to time and not telling the truth with respect to how the parties left the treatment at the end of the session. He did not give the prosecutor the opportunity to really ask him questions about it. He just simply answered "that's not correct" without in fact looking into his memory and trying to respond to things appropriately. I am satisfied beyond a reasonable doubt that the assault with act of indecency as alleged by [the complainant] has been proven".
5. The Applicant tendered an affidavit in the District Court, which refers to some of the evidence he gave in the Local Court. It referred to questions asked by the Learned Magistrate about what transpired with the complainant after the treatment. The Applicant said "During cross examination by the Magistrate, I remembered that I was mistaken when I said that I met [the complainant] back at the counter after the treatment. In fact, [the complainant] and I did walk back to the [product] counter together after the treatment, but not side-by-side. This was a correction from my earlier evidence". The Applicant confirmed in his affidavit that the complainant walked a few steps ahead of him back to the counter. The Applicant also referred to the Learned Magistrate asking him about the image contained in Exhibit 2. He said his evidence about him agreeing that the image showed them to be walking back from the counter was misunderstood, and that this image was of them walking to the treatment room (and not from the treatment room).
6. The Applicant's solicitor tendered an Affidavit in the District Court which said that he had misunderstood the Applicant's instructions that the image contained in Exhibit 2 was of them after the treatment when it was an image of them before the treatment.
7. The District Court appeal addressed the Learned Magistrate's adverse findings of the Applicant's evidence of timing and whether the image contained in Exhibit 2 was of them going to or leaving the treatment room, as well as the manner in which he answered questions under cross examination. His Honour had all the transcripts of evidence and all the material presented by the prosecution and defence. The Applicant also gave oral evidence before His Honour and his Counsel made detailed submissions in relation to his grasp of the English language, the timing of events before and after the treatment, and the nature of the conversations between the Applicant and complainant. The Applicant's submissions referred to the complainant conceding that she had the opportunity to leave the treatment room and that it was unusual to give out a card with her first name on it and invite the Applicant to call given what she said had happened during the treatment. His Honour said "I find that a most amazing piece of evidence. I must say human experience of course varies a lot and human beings act in mysterious ways but I have never struck before someone in my life who claimed to have been sexually assaulted who'd calmly complete a purchase and hand out a business card with a telephone number on it. That seems very strange to me".
8. His Honour ultimately concluded that in "my opinion the appellant's version is just as probable as that of the complainant's. There is nothing to choose between them. There are some things that go to support her version. She did make the complaint fairly soon afterwards, she did go to a police station. To support his version of events that occurred after this treatment up at the counter she sold him these products and gave him her business card. I am unable to choose between the two versions, I am unable to be satisfied beyond a reasonable doubt, therefore I set aside the conviction and I find the appellant not guilty".
9. The Applicant maintained throughout the criminal proceedings that he had been unjustly accused. Evidence was provided of his good character and it was submitted that the offence was not consistent with the perception of him by the people who provided references to the Court.
10. The Learned Magistrate was however satisfied beyond a reasonable doubt that the offence had occurred. This is not determinative in these proceedings but it does suggest the prosecution case was strong. It is also pertinent that His Honour was not satisfied that the offence was proven beyond reasonable doubt because His Honour said he could not "choose" between the two versions. The standard of proof to be applied by this Tribunal is the lesser standard of on the balance of probabilities.
11. The Tribunal was persuaded by the complainant's evidence in the Local Court. Her evidence was detailed and consistent. The Tribunal was not troubled about how she dealt with the Applicant at the counter because of the circumstances she found herself in. She was in her workplace and she said she was scared of the Applicant. The Tribunal considered her explanation that she was trying to keep up normal appearances as plausible in these circumstances. She told a friend she had been assaulted and reported it to the Police and her manager very shortly after it had occurred. The Tribunal is satisfied that the complainant was scared and distressed by what had occurred during the treatment.

Workplace complaints about the Applicant

1. In the course of the Respondent conducting a risk assessment, information was received from two former employers of the Applicant. The Applicant worked for these employers as an employment advisor. The Applicant worked for one employer for a period of about 5 months and no complaints or concerns were noted. The Applicant worked for the other employer for a period of about 18 months. This employer said a review of the Applicant's file revealed complaints or concerns raised by clients and by a colleague, however no requests were made for them to be formally investigated. This employer provided copies of emails and a file note containing information about the complaints. They describe the Applicant being rude to clients and the complaint from a colleague was about comments allegedly made by the Applicant that could be considered derogatory to women. These complaints were essentially of a minor nature, were never investigated, and were afforded little or no weight. Of more concern is a file note made by an employee, which contained an allegation made by a client that the Applicant had sexually assaulted her. It says the Applicant invited her to attend a Church service with him on Christmas Eve in 2013. The file note says that the alleged assault caused bruises to her arms and that the client was slurring her words and looked dishevelled. She was invited to return to discuss the allegations another time, however she never did so and nothing further eventuated. The Applicant accepted that this complaint was made but he denied anything untoward occurred with this client.
2. The Applicant's solicitor submitted that these complaints should be given minimal weight if any, given that they were never investigated and no findings were made in relation to any of them. Furthermore, they should be considered in the context of positive comments made about the Applicant in the workplace.
3. The Applicant provided a Certificate (undated) of Recognition for "1 year of loyal and dedicated service" and a letter dated August 2014 advising him that a salary review undertaken across the organisation resulted in an increase to the Applicant's salary based on business performance and internal and external market comparisons". The Applicant's solicitor submitted that if there were any concerns about the Applicant's conduct, he would not have been given this Certificate or given a pay rise. This could be the case but apart from the material provided by this employer which contained information about these workplace complaints, none of the references or any other material provided by this employer refers to these workplace complaints or the employer's attitude towards them. There was no direct evidence before the Tribunal about whether these workplace complaints were a concern to the employer or not.
4. A "Personal and Professional Recommendation" dated November 2015 was provided by a man (MG) who worked with the Applicant and held a senior role in the organisation where the complaints were made. It states that the Applicant has his "strongest possible recommendation" but he does not refer to any knowledge of either the offence or the workplace complaints. A reference from TA dated December 2015, says he has known the Applicant in both a professional and personal capacity, and hired him on two occasions as an employment advisor. He says that he is familiar with the offence and has never known the Applicant to behave inappropriately towards "children or vulnerable individuals". He also makes no reference to workplace complaints made against the Applicant.
5. "UA" has known the Applicant for 9 years in a personal capacity and provided a reference dated December 2015 that refers to the offence and that the Applicant has spent time UA's children and has never seen him demonstrate inappropriate behaviour towards children.
6. SB asked the Applicant about workplace complaints and noted in his report that the workplace complaints were not of a "sexual nature". The Applicant told SB that the complaints were "generic" in keeping with working with clients who are distressed and stressed generally. Respondent's counsel asked the Applicant why he did not tell SB about the allegation of sexual assault made by one of his clients. The Applicant agreed this allegation was not "generic" but he considered it to be "outside the workplace" so he did not tell SB about it.
7. The Tribunal found this explanation troubling. The purpose of SB's report was to assess the Applicant with reference to any risk he might pose to the safety of children following being charged of an offence that was of a sexual nature. Failing to disclose that an allegation of sexual assault had been made by one of his clients in recent history leaves open the suggestion made by the Respondent that it was a deliberate omission in order to present himself in a more favourable light with respect to SB's assessment of him for these proceedings. This also raises questions in the context of the Applicant's duty to fully disclose any matter relevant to his application (s 27, the Act).
8. Whilst the Tribunal did not make a formal finding in relation to whether the Applicant deliberately withheld this information from SB in order to present himself in a more favourable light, or did not meet his duty to fully disclose any relevant matters, the omission was seen as part of the Applicant's overall approach to the risk assessment which is dealt with in more detail below.

Applicant's approach to the risk assessment

1. The Respondent asked the Applicant for information about the offence in the course of conducting the risk assessment. The Applicant said that the matter had been "finalised in court and he did not want to answer any questions regarding this. He informed that if we required information we should look at the court information". The Respondent advised him that the court documents had been requested and the only information available at the time was from the police report of the incident, which did not provide his account of events. There is a file note which refers to the Applicant to have become "angry and informed that he was not prepared to answer any questions about the offence" (s 58 documents).
2. The Respondent notified the Applicant that part of the risk assessment process included obtaining information about his employment history and obtaining references from employers. The Applicant told the Respondent that he would not provide employer references and did not wish for past employers to know about the allegations. Despite an assurance that former employers would not be given details of the allegations, including being shown the template that is used to request this information, the Applicant maintained he would not provide this information and instead offered to provide a character reference from his partner and one from his friend.
3. SB asked the Applicant why he did not cooperate with the risk assessment. The report states that the Applicant "felt he was being asked to provide information not relevant, and perceived, rightly or wrongly, he was being victimised". SB concluded that the Applicant's frustration and anger in relation to his dealings with the Respondent, whom he perceives as having a "lack of competence" and "negligence" in managing his case, is "likely residual to the wrongful allegation which he eventually successfully defended in the District Court". SB suggested that the Applicant "feels the risk assessment was not necessary as the matter was dealt with by the District Court". He quotes the Applicant to have said "they kept wanting to go over it. I don't go over that stuff. I don't want to give details to previous employers". SB reports that "I do not believe [the Applicant's] attitude to the Office of the Children's Guardian should in any way be interpreted as him attempting to hid or diminish responsibility towards those in his care".
4. The Applicant's solicitor submitted that the Applicant's approach to the risk assessment should be seen in the context of the errors he says the Respondent made in conducting the risk assessment, which included not having all the relevant evidence, not properly balancing the evidence that was available, and not notifying the Applicant's current employer that he could continue to work as an employment advisor as long as he did not deal with clients under the age of 18 years. If the Respondent made errors in the course of conducting the risk assessment, this can provide a reasonable basis for the Applicant's frustration with the process. However the Respondent was obliged to determine whether the Applicant posed a risk to the safety of children and the s 58 documents reveal that the Respondent appropriately offered the Applicant opportunities to provide material in support of his application for a WWCC clearance.
5. The Respondent acknowledged that the Applicant was acquitted of the offence but noted "to date, the applicant has provided minimal information to the OCG and has demonstrated poor insight into the seriousness of the alleged offence". Also that the Applicant "has routinely expressed his frustration in having to participate in the risk assessment and has on numerous occasions, informed that he does not understand why he is subject to a risk assessment".
6. The Applicant said in his statement that it "was not the case that I was not prepared to speak about this. It was simply the case that I made it clear on a number of occasions to the OCG that I did not want to relive every moment of what had been a stressful incident given that the details about the incident could be obtained from the Court documents where I had given evidence in the witness box". The Applicant said that "it has been suggested by the OCG that I lack insight in relation to the criminal offence that was levelled against me. This is not correct. I am well aware that the charge against me was a serious one. The allegation has had an enormous personal, emotional and financial strain on me and my partner. However it is an offence for which I was acquitted. Because of this, it is always difficult for me to have insight into an offence that I did not do".
7. The Applicant's solicitor submitted that no adverse inference should be drawn because the Applicant did not want to repeatedly relive and/or reconstruct the offence in circumstances where he has given evidence at the Local Court setting out his version and for which he was ultimately acquitted in the District Court. The Applicant's solicitor submits that had the Respondent should have relied on these transcripts to be briefed with the material sought.
8. The Respondent was obliged to conduct a risk assessment even though the Applicant was acquitted in the District Court. The fact that the charges were dismissed was not necessarily sufficient for the Respondent to form a view that the Applicant's conduct did not scare or threaten the complainant, or cause her distress. The Applicant's acquittal did not, and does not, necessarily mean that it can be established on the balance of probabilities that he does not pose a risk to the safety of children.
9. SB's report notes the Applicant "continues to feel angered by being drawn into a process which is not of his doing". SB also notes that the Applicant "did not want to discuss the alleged offence, believing the matter had been dealt with by the Court".
10. The Applicant said in his statement, reinforced by the submissions made by his solicitor and by SB's report, that his insight into the seriousness of the offence is limited to the impact the offence and the criminal proceedings has had on him and his partner. The Applicant did not demonstrate to the Tribunal that he has any insight into the allegations of a sexual nature made about his conduct, at least one of which resulted in a complaint to the Police, in the context of the protective requirements under the Act.

Factors the Tribunal must take into account

1. Section 30 (1) of the Act provides the factors that the Tribunal must consider in determining an application under Part 4 of the Act: 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.

The seriousness of the offences or any matters that caused a refusal of a clearance

1. The Tribunal accepts that the offence was at the lower end of the scale. No physical injuries were reported but there is evidence of the complainant being made to feel scared, threatened and uncomfortable.
2. The offence comprised of allegations which were of a sexual nature which elevates the seriousness of the conduct being complained of. Although never investigated, there is a further allegation of an assault which is of a sexual nature by an unrelated woman, who was a client of the Applicant.

The period of time since the offence occurred

1. The offence occurred in August 2013 which is relatively recent.

The age of the person at the time of the offences

1. The Applicant was 39 years old.

The age of the victim

1. The complainant was 31 years old.

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

1. The age difference is about 8 years. The offence occurred in the complainant's workplace and she was providing a professional service to the Applicant.

Whether the person knew, or could reasonably have known, that the victim was a child

1. The complainant was not a child.

The person's present age

1. The Applicant is 41 years old.

The seriousness of the person's total criminal record and the conduct of the person since the offences occurred

1. The Applicant does not have a criminal record. He has received a Section 10 (no conviction) for a Drive Whilst Suspended offence.
2. A former employer of the Applicant provided information about workplace complaints made by clients and one colleague. They are of a minor nature with the exception of an allegation made by a client that she had been sexually assaulted by the Applicant. These complaints were not investigated but there is no dispute that they were made.

The likelihood of repetition of the offences or conduct and the impact on children of any such repetition

1. A pre-sentence report dated 22 July 2014, prior to the Applicant being acquitted of the offence, notes that the Applicant declined to discuss the "offending behaviour" with the Court Duty Officer. It recommended due to the sexual nature of the offence that a full pre-sentence report be prepared including a referral to the Community Corrections psychologist for an assessment. This report is dated 25 August 2014. It notes that the Applicant was assessed as a "low/medium risk of re-offending". A Static 99R risk assessment conducted by a Community Corrections Psychologist indicated a "low/medium risk of sexual re-offending relative to other male sex offenders". These assessments were conducted in light of a conviction in the Local Court later overturned in the District Court. No evidence was presented to the Tribunal about what impact if any, the acquittal would have on these findings.
2. SB's Static 99R test was administered after the Applicant's acquittal and the results indicated a "low risk of offending". SB conducted a Personality Assessment Screener, which demonstrated a low potential for emotional and/or behavioural problems and regarded as low compared to what is typical for adults in the community. SB noted that on the Depression Anxiety Stress Scale there was moderate depression. Anxiety symptoms were in the normal range, and there were symptoms of stress. SB notes that the Applicant has no prior history of psychiatric or psychological disturbance and no evidence of any such disturbance currently. However SB also said that the Applicant "remains psychologically traumatised and presents with mild to moderate symptoms of depression". SB does not believe that the Applicant poses a risk to any child or adult and that the Applicant "reacted strongly to wrongful accusations, and believes he continues to be treated as a guilty man".
3. SB said the "likelihood of [the Applicant] having to deal with the alleged offences and such allegations against a child are highly improbable". SB concluded that he does not "believe the applicant presents a risk to any child or adult".
4. The Tribunal was told that the Respondent had not requested SB attend the Hearing. SB's report was consequently presented to the Tribunal unchallenged. Whilst the Respondent's counsel raised the issue of the Applicant not telling SB about the allegation of sexual assault made against him by a client, there is no evidence as to how this information might have impacted on SB's findings. It is also the case that SB did not have, and indeed could not have had, access to all material before the Tribunal, who has the ultimate task of assessing the level of risk, if any, the Applicant poses to the safety of children.
5. The definition of "child" under the Act is up to the age of 18 years. If an incident of a similar kind to the offence were to be repeated against a young person up to 18 years of age, it could potentially have a significant and damaging impact on the victim.

Any information given in, or in relation to, the Application

1. The Tribunal notes the supportive evidence provided by the Applicant about his educational and professional development, as well as his community engagement with charities and volunteer organisations.
2. The Applicant's partner "LC" also provides in her statement evidence of a close and loving relationship. She said that she trusts him and has no concerns about his conduct or behaviour with women or with children. LC provides a strong endorsement of the Applicant but this of course in the context of their marriage-like relationship.

Conclusion and orders

1. The Applicant's solicitor referred to the case of BQE v Children's Guardian [2015] NSWCAT 89 and submitted that in the context of this matter, the fact the allegations were not ultimately proved, significantly reduces the weight that can be placed on those allegations as an indication of future risk. However the case of BQE also noted that a finding of not guilty is not determinative of whether the matters complained of did occur and the Tribunal ultimately found that BQE was involved in certain behavior and concluded that he posed a risk to the safety of children.
2. The safety, welfare and wellbeing of children and, in particular, protecting them from the risk of abuse, are the overriding objectives to which the operation of the Act is directed (CJT v Office of Children's Guardian [2016] NSWSC 738). In assessing whether there is an real and appreciable risk to the safety of children Her Honour said in CJT v Office of Children's Guardian [2016] NSWSC 738 that "The submission that an assessment of risk for the purposes of s 18(2) of the Working With Children Act dictates that some actuarial assessment of future risk needed to be undertaken by the Tribunal member (or the Children's Guardian) is to entirely misunderstand both the statutory scheme in the Act and the jurisprudence that has developed as the State and Federal legislatures have responded to the prevalence of child abuse in a wide variety of legislative contexts. The assessment of the risk an applicant for a clearance might pose to the safety of children, when the person has not been convicted of a scheduled offence, calls for an evaluative judgment based on all the information available to the decision maker".
3. The Applicant was acquitted in the District Court but the Tribunal was persuaded by the complainant's evidence that the Applicant's conduct made her feel uncomfortable, threatened and scared and caused her to be distressed. This occurred in her workplace and only relatively recently. The Tribunal was told of another allegation of a sexual nature made by an unrelated woman who was a client of the Applicant. This allegation was also made relatively recently.
4. The Applicant's evidence about why he did not tell SB about the allegation of sexual assault made by one of his clients raised questions about whether it was a deliberate omission in order to present himself in a more favourable light. It is in the context of his stated reluctance to engage in the risk assessment process notwithstanding his frustrations about the way in which the Respondent handled his application. SB said that the Applicant's "refusal to engage in risk assessment is motivated by his desire to protect his reputation, and get on with his life". The Tribunal found the Applicant had little or no insight into the seriousness of the sexual nature of the allegations made against him. Conduct of this kind could have a damaging impact on a child or young person up the age of 18 years especially in a situation where a professional service is being provided, or where there is a professional duty of care for the young person.
5. The supportive material presented by the Applicant does not in the Tribunal's view sufficiently address these issues. The material has led the Tribunal to conclude that that the Applicant poses a real and appreciable risk to the safety of children. The Tribunal carefully considered all the material presented in these proceedings and finds that the correct and preferable decision is to deny the Applicant a WWCC clearance.
6. The Tribunal orders that: 1. The decision of the Respondent to refuse a Working with Children Clearance is affirmed. 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: 06 October 2016