This is an appeal brought by the Children's Guardian (the appellant) against an order made by a Senior Member of the Administrative and Equal Opportunity Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) on 21 October 2015 granting BQJ (the respondent) a working with children check clearance (a clearance), pursuant to s 28 of the Child Protection (Working with Children) Act 2012 (NSW) (the Act).
The appeal-creating provision is cl 17(1) in Sch 3 of the Civil and Administrative Tribunal Act 2013 (NSW). The provision is as follows:
17 Certain decisions to be appealed directly to Supreme Court
(1) A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision:
(a) a Division decision for the purposes of the Child Protection (Working with Children) Act 2012
…
At the hearing, there was no dispute between the parties, pursuant to the above clause, that it is incumbent upon the appellant to show that the Tribunal made a legal error.
I accept the joint position of the parties before me that, for reasons that will shortly become apparent, the identity of the respondent must be anonymised, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
Chronological background
It is convenient to set out a thumbnail sketch in chronological form of events leading up to the hearing of the appeal before me.
The respondent was born in February 1967, and accordingly is now 49 years old.
On 21 September 1981, the respondent, then aged 14 years, lured an 11-year-old boy and a 5-year-old boy into some public toilets in the Sydney suburb of Willoughby.
The respondent allegedly performed fellatio on the 11-year-old boy, who later escaped and raised the alarm. When police returned to the scene, they found the 5-year-old to be deceased, he having suffered 14 stab wounds, including one to the heart. The respondent was charged with the murder of the 5-year-old and indecent assault upon the 11-year-old.
At a subsequent trial by jury in this Court, the respondent did not dispute that it was he who had unlawfully killed the five-year-old victim. Nor did he dispute that, save for the operation of a statutory defence, the Crown had proven the elements of the offence of murder. However, he relied upon the defence then contained in s 23A of the Crimes Act 1900 (NSW): namely, diminished responsibility. At the time of the offence, that section provided at s 23A(1):
Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.
The jury accepted that the respondent had established that defence on the balance of probabilities, and accordingly returned a verdict of not guilty of murder but guilty of manslaughter.
Separately, the jury returned a verdict of not guilty of indecent assault. On the evidence placed before me, it is impossible to determine the basis upon which that verdict was returned (and verdicts of juries are inscrutable in any event).
On 5 March 1982, Hunt J imposed upon the respondent a head sentence of imprisonment of 10 years, with a non-parole period of 4 years, each to date from 22 December 1981 (that being three months after the respondent was taken into custody, and after he had served a sentence of three months for separate offences that I shall now discuss).
At the same time, his Honour imposed wholly concurrent sentences of imprisonment for three months for two counts of common assault to which the respondent had pleaded guilty. The respondent had committed those offences on 15 August 1981. In a nutshell, the respondent induced two young girls (aged 8 and 10 years) into a school bathroom, and then produced a knife and threatened to hurt them. He then tied up and gagged the 10-year-old girl, and directed the 8-year-old girl to pull down her pants and lie on the floor. The respondent proceeded to lie on top of the 8-year-old girl and kissed her.
I interpolate to say that, although the respondent was convicted of common assault, not indecent assault, it can be seen that those two offences had an undoubtedly sexual flavour. It is also significant that those offences were committed in a public toilet, just as the manslaughter was.
Of course, the foregoing events call for mandatory anonymisation, pursuant to the stature to which I have referred.
The respondent did not serve the entirety of his non-parole period, one presumes due to remissions. In fact, he was released to parole on 12 October 1984, having spent approximately three years in juvenile detention centres. The evidence shows that, both whilst detained and on parole, he was thought of very highly by the authorities.
After his release, the respondent achieved a remarkable degree of success in his life, bearing in mind the deplorable homicide that he had committed as a juvenile. The evidence shows that he has married and fathered two children; has been in virtually constant employment; and has been a very valued player, coach, and administrator within one of the two rugby codes. Indeed, for a period of over 25 years leading up until 2012, he was involved in coaching that sport, including as a coach to young men and to boys under the age of 16.
Although the criminal record of the respondent has not been unblemished since his release from juvenile detention, it has been very insubstantial.
In 1994, he was convicted in the Local Court of making what is colloquially known as an obscene phone call, which allegedly stemmed from a neighbourhood dispute. On appeal to the District Court of New South Wales, that conviction was quashed.
In 1998, he was convicted of driving with a low range prescribed concentration of alcohol in his blood, and was fined $350.
In 2013, he was issued with an infringement notice for shoplifting from a large hardware store, and subsequently fined.
Finally there have been two incidents (in 2002 and 2009) where the respondent was noted by police to be in public toilets said to be places of sexual assignation for gay men. He was never charged, let alone convicted, of any offences as a result of those asserted sightings.
Procedural History
It was explained by counsel for the appellant that, in 2012, a new statutory regime commenced that extended the need for working with children clearances from paid employees to include those who are volunteers as well. Accordingly, although the respondent had been closely exposed to children for well over two decades, as a result of the new regime he required such a clearance if he was to continue with his involvement in children's sport.
On 16 April 2014, the respondent made an application for a clearance check to the appellant.
It was conceded by counsel for the appellant before me that s 18(2) of the Act imports a "default position" in favour of the respondent. The entirety of that provision is as follows:
18 Determination of applications for clearances
(1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons):
(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,
(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
(2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
(3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
(emphasis added)
It was agreed by the parties before me that the respondent falls within s 18(2) of the Act, in short because he was not a "disqualified person" as defined by s 18(1) of the Act.
On 20 June 2014, the appellant requested further information from the respondent as a result of identifying records (no doubt of his convictions) that required a risk assessment. There was subsequently a period of correspondence, and the appellant issued an Interim Bar on 27 June 2014 (which meant that the respondent was required to cease engaging in paid or unpaid child-related employment).
On 27 November 2014, the appellant decided against the respondent, refusing to grant him a clearance and deeming him to be a disqualified person.
On 23 December 2014, the respondent applied to the Tribunal for administrative review of that decision. That application was pursuant to s 27 of the Act, which is set out in its entirety below:
27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(2) A person whose clearance is cancelled by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(3) A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.
(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.
(5), (6) (Repealed)
(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
(emphasis added)
The hearing before the Tribunal was held on 17 June 2015, and the decision of the Tribunal was given on 21 October 2015. The decision set aside the original decision of the Children's Guardian, and granted the respondent a non-volunteer working with children check clearance.
On 10 November 2015, the appellant lodged the appeal under consideration.
On 13 May 2016, the hearing was conducted before me.
Summary of impugned decision
As I have said, after the hearing before the Tribunal closed, the Tribunal reserved its decision, and delivered it some months later.
The reasons for decision is 78 paragraphs long. A noteworthy aspect of it is that it works its way explicitly through each of the factors contained in s 30(1) of the Act that are mandatory considerations arising from such a hearing.
It is not practical for me to extract the entirety of the decision in this judgment. It may be summarised as follows.
First, the Tribunal broadly examined the legislative scheme governing the decision, primarily the Act, and the operation and interpretation of the relevant provisions.
Secondly, the Tribunal turned to consider each of the eleven factors set out in s 30(1) of the Act. For convenience I set out that section in its entirety:
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.
(emphasis added)
The first factor considered was the seriousness of matters that caused the refusal of a clearance: s 30(1)(a). The Tribunal noted that the respondent was found not guilty of indecent assault, and there was no evidence to support the submission of the appellant that that was the result of a technical difficulty. The Tribunal noted the seriousness of the manslaughter conviction, and the two charges of common assault; and it noted an unsuccessful appeal by the respondent against severity of sentence. Conversely, the Tribunal also commented on the positive reports of the behaviour of the respondent while he was in custody and his trial was pending, which were taken into account by Hunt J on sentence.
The second factor was the period of time, and the conduct of the respondent, since those matters occurred: s 30(1)(b). The Tribunal noted that the offences took place over 30 years ago, and that the respondent was a model detainee while detained. The Tribunal proceeded to examine the subsequent criminal offences of the respondent in a way generally favourable to him.
The Tribunal then considered the third to seventh factors briefly: observing the age of the respondent when these matters occurred; the age of the victims; the age differences between the respondent and the victims; the fact that the respondent must have known the victims were children; and the present age of the respondent: s 30(1)(c) to s 30(1)(g).
The eighth factor considered was the seriousness of the respondent's total criminal record and conduct since the matters occurred: s 30(1)(h). The Tribunal observed the respondent's "extremely serious criminal record as a juvenile", but noted that he had lead a productive life and made significant community contributions since then (with the exception of the low range PCA and shoplifting offences). It analysed several positive references for the respondent, and the content of the respondent's own statutory declaration. The Tribunal was satisfied that the material established that the respondent was held in high regard, was a good role model and, with the exception of the "two relatively minor brushes with the law", had demonstrated exemplary conduct.
The ninth factor was the likelihood of any repetition of the offences or conduct founding the refusal, and the impact of any such repetition: s 30(1)(i). The Tribunal noted that there was "no doubt" that, if the respondent were to repeat his previous offences, the consequence to a child victim could be fatal, traumatic or very damaging. But it considered it highly unlikely, on the evidence before it, that the respondent would repeat the original offences.
The tenth factor was consideration of information provided by the respondent in relation to the application: s 30(1)(j). In that regard, particular consideration was given to a report of Dr Nielssen (an eminent forensic psychiatrist who was called in his case before the Tribunal), which concluded that he did not identify anything to indicate that the respondent posed a current risk of harm to children. The oral evidence of Dr Nielssen was to identical effect.
The eleventh and final factor was any other matters that the appellant considered necessary for the Tribunal to consider: s 30(1)(k). The appellant had submitted that the respondent had lied to Dr Nielssen in relation to the two common assaults, and was in breach of his obligation of disclosure to the Tribunal pursuant to s 27(4) of the Act. That submission was not accepted by the Tribunal, which concluded that the lack of clarity on the part of the respondent about his crimes committed three decades previously was due to the trauma associated with those events and the passage of time, rather than any deliberate misleading of the Tribunal by the respondent.
Finally, after considering all of the factors in s 30(1), the Tribunal concluded that the respondent does not pose a real and appreciable risk to the safety of children. It ordered that the decision of the Children's Guardian be set aside, and granted the respondent a working with children check clearance.
Grounds
An amended summons of the appellant was filed in court at the hearing before me, without objection by counsel for the respondent. The following four grounds were notified in that document and pressed before me:
1. The Tribunal erred in that it failed to exercise jurisdiction that it was required to exercise under s.30(1)(a) of the Child Protection (Working with Children) Act 2012, namely to determine the seriousness of the matters that caused the plaintiff to refuse to issue a clearance to the defendant; including by failing to determine for itself on the balance of probabilities whether or not the applicant:
a. had engaged in the conduct the subject of the charge of assault with an act of indecency of which he was acquitted in 1984
b. engaged in the improper use of a telecommunications service, with which he was charged, convicted and acquitted on appeal in 1994.
2.The Tribunal erred in that it was unreasonable for the Tribunal to have found that the defendant did not pose a risk to the safety of children, such that no reasonable decision maker would have made such a finding, in circumstances where:
a. there was no evidence that the psychological disturbance with which the defendant was diagnosed when he was 14 has been treated; and/or
b. there was no evidence that the defendant had insight into his offending conduct; and/or
c. there was evidence of recent conduct that made it unsafe to conclude that the defendant had completely rehabilitated.
3. The Tribunal erred in that it gave inadequate reasons:
a. for accepting that the defendant had successfully rehabilitated, in circumstances where there was objective evidence that the defendant had continued to have contact with the criminal justice system after his release from prison in 1985; or in the alternative
b. for finding that the successful rehabilitation of the defendant meant that the defendant did not pose a risk to the safety of children, in circumstances where rehabilitation of itself is not determinative of the question of risk.
4. The Tribunal erred in that it gave inadequate reasons for its decision that the defendant did not pose a risk to the safety of children, and specifically failed to give adequate reasons for its acceptance of the evidence given in character references, where those character references did not disclose awareness of the details of the defendant's criminal history, and where awareness of the criminal history was an essential precondition to the character evidence being relied on by the Tribunal.
It should be noted that an application for an amendment to ground 1, made during the oral submissions in reply of counsel for the appellant (after all the evidence had closed and counsel for the respondent had addressed), was opposed by counsel for the respondent and rejected by me. That was done on the basis that to permit the amendment would, in all of the circumstances, constitute a denial of procedural fairness to the respondent.
Agreed legal principles
A number of the legal characteristics of my task were the subject of agreement between the parties.
First, in light of the appeal-creating provision, combined with the pressed grounds, I am not engaged in a "merits review" of the decision of the Tribunal.
Secondly, I am not engaged in a de novo appeal with regard to the decision of the Tribunal.
Thirdly, neither an error of fact nor an error of mixed fact and law committed by the Tribunal would lead to the appeal being upheld.
Fourthly, the appellant must show that a question of law that was explicitly or implicitly determined by the Tribunal was determined erroneously.
Ground 1
This ground was explained by counsel for the appellant as being founded on the proposition that the Tribunal had failed to deal properly with the question of the previous offences alleged to have been committed by the respondent. Particular focus was placed upon the way in which the Tribunal dealt with the indecent assault, of which the respondent was acquitted at trial.
My attention was invited to s 30(1)(a) of the Act, and in particular the words "any matters that caused a refusal of a clearance or imposition of an interim bar", in support of the proposition that the acquittal on that count (for whatever reason) did not relieve the Tribunal of taking it into account.
As can be seen from the particulars of ground 1, an important part of the attack upon the reasons of the Tribunal was the proposition that, at least in the circumstances of this case, it was incumbent upon the Tribunal to come to a position as to whether or not the respondent actually committed a sexual offence against the 11-year-old boy, on the balance of probabilities. Reliance was placed upon the decisions of BKV v Children's Guardian [2015] NSWSC 1602 and BKE v Office of Children's Guardian [2015] NSWSC 523.
I was informed that there has been no consideration by this Court of the meaning of the word "matters" as it appears in s 30(1)(a) of the Act, and indeed in other sub-paragraphs of s 30(1). But it was said that whether that word extends not only to discreditable, disreputable or criminal acts of the respondent (that is, in the general nature of alleged offences), or extends further to all adverse matters taken into account in the decision of the appellant, on either basis it was incumbent upon the Tribunal to adopt the procedure for which the appellant contends.
In response, counsel for the respondent accepted that, in one or other of the ways discussed above, the indecent assault was a matter that fell within s 30(1)(a) of the Act. But he invited attention to the chapeau of the section, and submitted that it requires not "determination" of the seriousness of the indecent assault, but rather "consideration" of it; that is a different mental process, he submitted. And he placed emphasis on [22], [25] and [34] of the decision, in support of the proposition that the Tribunal had indeed explicitly reflected upon the indecent assault count; reflected upon the details of the allegation underpinning it; and considered the submission of the appellant that the verdict of acquittal was the result of a technical difficulty in the criminal law as it was understood at that time, and not upon the lack of proof of guilt.
Counsel pointed in particular to [72] of the reasons for decision, the entirety of which is as follows:
There can be no doubt that were [the respondent] to repeat the trigger offences the consequence to a child victim could be fatal, or traumatic and very damaging. The seriousness of the trigger offences is a significant obstacle to [the respondent's] application for a working with children check clearance.
(emphasis added)
Turning to my determination of this ground, I think there is force in the submission of counsel for the respondent that what was required, by way of the words of the section itself, was consideration of the seriousness of the "trigger offences", not determination of their seriousness. Although the distinction may seem a fine one, I consider that it is significant.
Reading the reasons for decision as a whole, I am of the view that the Tribunal certainly did give consideration to the seriousness not only of the manslaughter offence, but also of the alleged indecent assault. I consider that the two plural references in [72] demonstrates that proposition, as does the explicit reference in [12] of the reasons for decision to the indecent assault as a trigger offence.
Turning to the particular complaint made about the failure of the Tribunal to determine, on the balance of probabilities, whether or not the indecent assault was committed by the respondent, it is noteworthy that, at first instance, counsel then appearing for the appellant at no stage submitted that the Tribunal should undertake that task. That was acknowledged by counsel before me, who submitted that the request to do so was "not in words", but noted that counsel before the Tribunal referred to three trigger offences, including the indecent assault.
Speaking generally, I consider that one should be slow to criticise on appeal a failure of a court or tribunal below to undertake a particular legal task when it was neither mandated by statute nor sought by the party thereafter seeking to criticise that failure on appeal.
Separately, to my mind the cases to which I was invited demonstrate that, in appropriate cases, it is appropriate for a Tribunal to undertake the task of determining whether or not an offence that has been subject of an acquittal on the criminal standard is subsequently established on the civil standard: see BKV v Children's Guardian at [35]-[36]. And BKE v Office of Children's Guardian is authority for the proposition that, if that task is to be undertaken, each party must be given notice that it is to occur: see [71]-[73].
However, I do not interpret the cases to which I was invited as mandating that that process take place in every matter such as this. And, in any event, in light of the fact that the complainant in the indecent assault matter was not called before the Tribunal, and there is nothing to suggest that his written statements of over 30 years ago were placed before the Tribunal, it is difficult to see how that process could have occurred in any practical way.
In short, I do not consider that ground 1 has been established with regard to the allegation that the respondent indecently assaulted an 11-year-old boy in 1981.
As for the obscene phone call, the particular with regard to it was not formally withdrawn by counsel, but nor was it strongly pressed in oral submissions. Examination of the reasons for decision of the appellant shows that that allegation was not a matter that caused a refusal of a clearance or imposition of an Interim Bar. And contrary to the submission of counsel for the appellant, I do not consider that the general reference to the "criminal history" of the respondent brought the alleged obscene phone call within s 30(1)(a); to my mind, the criminal history of a person reflects matters of which he or she has been convicted, not acquitted.
Because the seriousness of the alleged obscene phone call does not fall within the definition of matters mandated to be considered pursuant to s 30(1)(a) of the Act, this part of ground 1 must fail as well. Counsel for the appellant came close to conceding as much.
In short, ground 1 must fail.
Ground 2
At the hearing, counsel and I used the shorthand "Wednesbury unreasonableness" to refer conveniently to the concept encapsulated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury's Case).
There was no dispute before me that what must be demonstrated is that the decision was "so unreasonable that no reasonable authority could ever have come to it": see Wednesbury's Case at p 230. The most important aspect that I have borne in mind of that extremely high test is that, simply because I might have decided the matter differently, that certainly does not mean that the test has been made out.
As can be seen from the particulars of ground 2, counsel for the appellant placed emphasis on a number of aspects of the evidence placed before the Tribunal in submitting that the decision ultimately arrived at was grossly unreasonable in the sense that I have explained.
It was said that a jury determined that the respondent was so mentally disturbed at the time that he repeatedly and fatally stabbed a five-year-old boy (thereby to my mind undoubtedly demonstrating an intention to kill, as opposed to an intention to inflict grievous bodily harm with regard to the count of murder) that the jury was content to return a verdict of guilty of manslaughter rather than murder. And yet, nowhere in the evidence placed before the Tribunal was there any evidence of psychiatric treatment of the respondent in the years since then, let alone successful psychiatric treatment.
Secondly, counsel for the appellant noted that, at the hearing, the respondent did not tender evidence that he had come to understand the enormity of what he had done, and why he had done it. To the contrary, the evidence of the respondent was that he had little memory of what had occurred; it was certainly not that he could provide some sort of explanation as to how and why it happened.
Thirdly, to the extent that the Tribunal accepted that the respondent is rehabilitated, and does not present a risk to children as a result, it was noted that the drink driving matter occurred in 1998; that on two occasions (in 2002 and 2009) the respondent was detected entering and remaining in public toilets that had a general connection to sexual activity - a very troubling matter, in light of the circumstances of the offences committed in 1981; and that, as recently as 2013, he committed a seemingly irrational shoplifting offence. It was submitted that, far from demonstrating psychological and psychiatric well-being on the part of the respondent, those events in combination give one serious cause to suspect that, in truth, all is not well with the respondent.
Counsel for the respondent simply submitted that the very high test that needed to be made out had not been made out, and that the aspects of the evidence emphasised by counsel for the appellant do not achieve that result.
Turning to my determination of this ground, one can readily accept that caution must be exercised in permitting a person who has committed a horrifically violent homicide upon a child to have ongoing contact with children, whatever the countervailing circumstances.
Secondly, one can also readily accept that other persons fulfilling the role of the Tribunal may have done so differently.
Thirdly, one can also accept that the absence of evidence of any psychiatric intervention over the past many years was undoubtedly an important factor upon which the Tribunal needed to reflect. So was the absence of explanation for the commission of the homicide, and the assaults on the two young girls. And so was the material to suggest that the respondent may have a proclivity to attend public toilets that have a sexual connotation, in light of the significant fact that the homicide and the alleged indecent assault were committed in such a setting, as were the two common assaults (which possessed, as I have said, an undoubted sexual flavour).
As I say, all of that can be readily accepted. But there was extremely powerful countervailing evidence before the Tribunal: that the respondent had refrained from any violent or sexual offence against any person, whether child or adult, for a period of well over three decades; that he had moved forward to live a productive, settled and contributive life since that time; that he was very highly thought of by members of the community, some of whose children he had had extended contact with; and, finally, the cogent evidence of a highly qualified forensic psychiatrist that he regarded the risk of the respondent offending again against a child as very low.
To my mind, weighing up on appeal the evidence placed before the Tribunal, including, by way of my reviewing of the transcript of all of the oral evidence, I do not consider that it can be said that no reasonable authority could ever have come to the decision to which the Tribunal came.
For that reason, ground 2 must fail.
Ground 3
It can be seen that this ground, and the subsequent ground, is each founded on the proposition that a failure to give adequate reasons "is itself an error of law": see Housing Commissioner of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 381; Soulemeizis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 257-8; and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441. That general proposition was not disputed by counsel for the respondent.
Counsel for the appellant made two main submissions in relation to ground 3. The first was that the Tribunal did not provide adequate reasons for finding that the respondent was rehabilitated, in light of his interaction with the criminal justice system on a number of occasions subsequent to the trigger offences.
The second was that the Tribunal did not provide adequate reasons for concluding that that level of rehabilitation meant that the respondent posed a low risk to children: counsel submitted that something more would have been required to be satisfied that the respondent could safely be granted a clearance.
Counsel for the respondent submitted that the reasons given by the Tribunal were a perfectly adequate and coherent explanation of the decision that was made.
Turning to my determination, and speaking of the reasons for decision as a whole, I consider that what was provided by the Tribunal was soundly adequate in light of what was required in the circumstances. The reasons for decision was not a short one, and the Tribunal outlined the evidence quite comprehensively. It also worked methodically through all of the factors statutorily mandated to be taken into account in determining the matter.
To my mind, the Tribunal gave perfectly adequate reasons for accepting that the respondent had been able to rehabilitate himself over the past three decades. I do not accept that the evidence of the far less serious "contact with the criminal justice system" has the inherent effect of showing that the reasons for decision provides inadequate reasons for that finding.
Similarly, to my mind ground 3(b) is premised on an invalid bifurcation between, on the one hand, rehabilitation of the defendant, and, on the other hand, the question of his risk to the safety of children. To the contrary, I think that those concepts are very much intertwined, if not virtually synonymous. By that I mean that underpinning the whole concept of rehabilitation of an offender is the proposition that he or she will not commit the crimes that he or she has committed in the past.
I consider that the Tribunal soundly dealt in its reasons with the very much related concepts of rehabilitation and risk of re-offending.
In short, I consider that ground 3 must fail.
Ground 4
As can be seen, this ground also focuses on an alleged inadequacy of reasons. It can be seen that it asserts that the Tribunal failed to deal properly with the question of risk to children. In particular, it is said that the Tribunal gave inadequate reasons with regard to acceptance of the character evidence tendered on behalf of the respondent.
Counsel for the respondent submitted that the reasons for decision discerns at [56] between written references that demonstrate knowledge on the part of the author of the homicide and those that did not. It was said that, far from being inadequate, the discussion in the reasons for decision of the character references was perfectly sufficient.
Turning to my determination, and speaking generally, I repeat my view that the reasons for decision taken as a whole is, in all of the circumstances, a soundly adequate exposition of the reasons why the Tribunal came to the view that the respondent should have a clearance to work with children.
I also think that the reasons for decision is soundly adequate in its dealing with the question of risk to children, including in its references to the fact that the respondent had not committed a violent or sexual offence for over three decades; the age of the respondent at the time of the trigger offences; the fact that the respondent had worked with children for many years since the offences; and the fact that the respondent was held in high regard within the community, including by those who were well aware of his criminal history.
Focusing specifically on the topic of the character references, [56] of the reasons for decision shows that the Tribunal was aware that some references (chiefly those with regard to employment) did not refer to the convictions and alleged offences of the respondent, but many of them did. Indeed, at [57]-[59], the Tribunal quoted at length from some of those references, thereby demonstrating that the authors of them were perfectly aware that the respondent was originally charged with the murder of a child, and ultimately was convicted of his manslaughter.
Whilst a criticism could be made, perhaps, of the references on the basis that no author has included material in his or her reference to show conclusively that he or she was aware of the entirety of the convictions and acquittals of the respondent, it is to be remembered that this ground is not an attack upon the probative value of the character evidence. Rather, it is an attack on the adequacy of the reasons given for placing weight upon the references, bearing in mind their asserted lack of probative value.
But to my mind, the probative value of the references - coming as they did from a number of people who knew that the respondent had been convicted of unlawfully killing a child, but nevertheless were quite content to have their own children in his care - was very high. And, in any event, far from dealing inadequately with the references and the assessment of the Tribunal of them, I respectfully consider that they were dealt with in detail.
This ground must fail.
Conclusion
No ground having been established, the appeal must be dismissed.
Costs
Except for a submission that the late amendment to the summons (if granted) could have a consequence for any costs order, neither party made submissions about costs, whether orally or in writing. And I neglected, at the end of the hearing, to invite them.
In those circumstances, I think that I should indicate that, unless I hear to the contrary, within seven days of the delivery of this judgment I shall simply make an order in Chambers that the appellant must pay the costs of the respondent of the proceedings before me.
If there is a notification by either party to the contrary, a brief hearing on a mutually convenient date will need to be conducted, to be assisted by concise written submissions of no more than four pages from each party, to be filed 48 hours before the time and date of such hearing. But for the time being, I shall simply order that costs are reserved, on the above basis.
Orders
1. Appeal dismissed.
2. Costs reserved.
[2]
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Decision last updated: 05 July 2016