CHK v Children's Guardian

CHK v Children's Guardian - [2016] NSWCATAD 276 - NSWCATAD 2016 case summary — Zoe

[3]

Role of the Tribunal

Section 27 of the Act makes provision for administrative review by the Tribunal of a number of decisions of the Respondent, including a decision to refuse a WWCC clearance. That section relevantly provides: 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) … (3) … (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 (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
Having jurisdiction to review the decision of the Respondent, the role of the Tribunal is to decide what the correct and preferable decision is having regard to all of the material before it, including any relevant factual material which may not have been before the Respondent: Administrative Decisions Review Act 1997, s 63.
That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: YG and GG v Minister for Community Services [2002] NSWCA 247, at [25].
The jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: BJB v Office of the Children's Guardian [2014] NSWCATAD 111 at [110]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61]; and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130]
The guiding principle to be applied to practice and procedure in the Tribunal "is to facilitate the just, quick and cheap resolution of the real issues in the proceedings" consistent with the objects and principles under the Act: Civil and Administrative Tribunal Act 2013, s 36.
The Tribunal may determine its own procedure in relation to any matter for which the Civil and Administrative Tribunal Act, or the Civil and Administrative Rules 2014 do not otherwise make provision. The Tribunal is not bound by the rules of evidence, except in relation to privileged disclosures (Evidence Act 1995, s 128) and is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: Civil and Administrative Tribunal Act, s 38 and s 67.
Procedural fairness and other aspects of natural justice, of course, apply to these proceedings and the Tribunal has a discretion to act on material which is rationally probative, but must determine in all the circumstances whether it is proper to act on that material and must act fairly towards the parties: Commission for Children and Young People v FZ [2011] NSWCA 111; Roberts v Balencio (1987) 8 NSWLR 436.
In BKE v Office of the NSW Children's Guardian [2015] NSWSC 523 (BKE) at [29], Beech-Jones J noted that while the Tribunal is not bound by the rules of evidence, it should have regard to the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 set out at p 362 per Dixon J , in making a positive finding that an Applicant had sexually abused a child in circumstances where the Applicant had not been convicted of doing so.
At [30], His Honour said "significant guidance as to the approach to be adopted" in such cases could be derived from the High Court's decision in M v M [1988] HCA 68; 166 CLR 69. At [33], His Honour summarised the Tribunal's fact finding task as follows: "33 … [Thus] in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an Applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."

[5]

Child Protection (Working with Children) Act 2012

Subsection 30 (1) of the Act sets out the factors the Tribunal must consider in determining a review application under section 27 of the Act. (These replicate the factors set out in s15(4) to which the Respondent may have regard when conducting its risk assessment) : 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 meaning of the word "risk" was considered by his Honour Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word "risk" as it appeared in the former Child Protection (Prohibited Employment) Act 1998: 'What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children".'
These remarks have been accepted to equally apply to the word "risk" as it appears in the 2012 Act: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [39] and BKE, at [26].
In BKE, at [27], Beech-Jones J noted that the assessment of risk under the Act is not limited to the circumstances for which an Applicant seeks a clearance and whether he/she poses a "risk to the safety of children" in those circumstances. Instead, an Applicant is "subject to the full gamut of assessment which is applicable to persons who seek work in a child-related area."

[9]

1992 aggravated sexual assault charges

The principal matters that caused the refusal of the Applicant's application for a clearance were two charges of aggravated sexual assault on 27 September 1992. It is relevant to note that complete copies of the prosecution brief of evidence and transcripts of the relevant criminal proceedings were not in evidence before the Tribunal. A partial transcript of the committal proceedings in the Local Court on 23 August and 21 October 1993 was in evidence. There was no transcript available from the District Court trial and no evidence which would assist the Tribunal in relation to the circumstances which led to the Applicant's acquittal on both charges.
The Tribunal did have the benefit of some statements to Police including those made by the complainant and Police records of interview with the Applicant conducted shortly after the alleged incident in 1992.
There can be no argument that the offences for which the applicant was charged involving aggravated sexual assault of a child are inherently serious. The charges alleged the victim was an 11 year old girl (the complainant). The complainant, according to both her version and the applicant's version of events, was in the company of two other minors who were all passengers on a bus being driven by the Applicant. The complainant alleged that she and her two companions made a number of trips on the bus driven by the applicant that evening and he let them ride for free. In her statement to Police dated 27 September 1992 the complainant alleges that in the early hours of the morning, after the two boys with whom she had been travelling on the bus alighted, there were no other passengers on the bus. She says the Applicant drove her back to the bus depot. When they arrived at the bus depot he is alleged to have told the complainant to wait in the bus while he took the takings from his bus run to the office. At some point after they returned to the bus depot the complainant alleges that another male got on the stationary bus and she heard the Applicant say to this person "You stupid bastard, you scared the shit out of me." After the other man left, the complainant says the Applicant gave her $10.00 which she had seen him remove from the bus takings, and told her to go and buy dinner. She further alleges the Applicant then grabbed her and attempted to kiss her, forced her to perform oral sex on him and inserted his finger in her vagina. After this the complainant says the Applicant put her in his vehicle and attempted to leave the bus depot with her. However the complainant says she managed to escape and sought refuge at a nearby house, whose occupants called the Police.
As noted earlier, the circumstances surrounding the acquittal of the Applicant in the District Court criminal trial in 1994 are not known as attempts by the Respondent to obtain copies of the transcript of the trial were unsuccessful.
It is conceded by the Respondent that there are aspects of the complainant's statements that are inconsistent or unclear. One such aspect of the complainant's evidence was her statement to Police (s.58 documents at p.112) that when the Applicant forced her to perform oral sex on him she had pulled his penis out of her mouth and "there was all this sticky stuff on my hands off his penis when I tried to pull it out my mouth."
The complainant then says she wiped the "sticky stuff" down the left leg of her jeans. Forensic examination of the jeans worn by the girl on the night of the alleged offence did not detect the presence of semen on the jeans.
The complainant is alleged to have told one witness that the Applicant kept her on his bus from about 4.00pm on the afternoon in question (R1 at p.271). This contradicts her statement to Police that she willingly caught a number of buses travelling the same route including the one driven by the Applicant from the afternoon of 26 September 1992 to late that same evening.
In his record of interview with Police following the girl's complaint, the Applicant denies that he took the complainant to the bus depot after completing his last run. He says he dropped her off at a roundabout near the depot. He states she told him that one of the boys she had been travelling with was drunk and that she said I kicked from the, (sic) her mother and father. I say that I got to be home. And she say, I got no money.(R1 at p166)
The Applicant says the complainant asked him for some money as she had none and he gave her $10.00.
The Respondent says the fact that the applicant admits that he was aware that the complainant was a young, vulnerable girl and did not act protectively towards her when she was travelling late at night on his bus, raises concerns.
The Respondent also says there are a number of matters that support the complainant's account including that she made an early and detailed complaint to Police. The Respondent says the complainant's evidence that she was on the bus at the depot when another man came on board and spoke to the Applicant is supported by the account of another employee of the bus company where the applicant worked, who gave evidence at the committal proceedings that he had come on board the Applicant's bus on the night in question after the Applicant had finished his shift and had startled the Applicant. Further support says the Respondent, is found for the complainant's version of events that she was taken to the bus depot, from her description of the layout out of the depot which was consistent with the description given by an employee who gave evidence in the criminal proceedings.
The allegation of sexual assault is particularly serious. The maximum penalty for the criminal offence of aggravated sexual assault was imprisonment for 20 years. The complainant was 11 years old at the relevant time. There is no witness who observed what happened between the complainant and the applicant that night. The complainant made immediate complaint and report of the offence. There is some support for the account of the complainant that she was on the bus at the depot when another employee boarded the bus.
The allegations are such that, if true, the applicant may present a serious risk to the safety of children.
As set out earlier in these reasons the Tribunal did not have the benefit of the transcript from the District Court criminal trial at which the Applicant was acquitted. There was also no other evidence before the Tribunal that would assist in determining what led to the Applicant's acquittal. Based on the available evidence, the Tribunal makes no finding that the events alleged by the complainant to have occurred on 26 September 1992 which formed the basis of the Applicant's 1992 criminal prosecution did or did not occur. However, as noted in BKE, the circumstances surrounding the allegations are matters the Tribunal is, as was the Respondent, required to take into account in determining whether the applicant poses a risk to the safety of children.

[18]

(i) The likelihood of any repetition by the Applicant of the conduct and the impact on children of any such repetition

The Applicant provided two statutory declarations dated 3 May 2015 and 16 May 2015 to the Respondent as part of the risk assessment process.
The Applicant relied on a report of Dr Stephen Allnutt, Psychiatrist, dated 6 June 2016. Dr Allnutt was provided with the submissions of the Solicitor for the Applicant and Counsel for the Respondent, the recommendations for refusal and reasons for decision of the Respondent in refusing his WWCC clearance together with Police records. Dr Allnutt interviewed the Applicant on one occasion in May 2016.
Dr Allnutt describes the Applicant's recollection of the events which led to the 1992 charges as poor. He notes that since the events in question there have been no complaints of sexual misconduct against the Applicant. At the time of Dr Allnutt's interview he said the Applicant was manifesting a number of mild anxiety and depressive symptoms secondary to the chronic stressor of the WWCC procedure. In Dr Allnutt's view the Applicant has no major psychiatric, anxiety or psychotic disorder and no evidence of cognitive disorder.
Dr Allnutt says most risk assessment tools are applied to sex offenders who have been convicted and in a case such as the present there are difficulties in applying this sort of risk assessment tool. Dr Allnutt reports he used the Risk for Sexual Violence Protocol (RSVP) in assessing the Applicant together with the Static 99 test but with the qualifier that the reliability and validity of this tool have limited applicability in this case.
Factors which Dr Allnutt says are absent in this case which can be associated with increased risk for sexual recidivism include a sexual violence history that is chronic, diverse and escalating, problems with stress or coping, problems with non-intimate relationships, problems with treatment and diagnosis of a major mental illness.
Factors associated with increased risk of sexual recidivism that are present in this case are psychological coercion, evidence for sexual deviance and extreme minimisation and denial.
Factors which are ambiguous are a history of non-sexual criminality, being the reports of domestic violence, problems with intimate relationships and physical coercion.
With regard to the Static 99, had the Applicant been convicted of the sexual offence, Dr Allnutt says he would now fall into a group of sex offenders at low risk of sexual recidivism as compared to other sex offenders who were in the study on which the Static 99 was based.
Overall, Dr Allnutt says that if the Applicant committed the alleged sexual offence he would fall into a group of sex offenders at low risk of future sexual offending as compared to other sexual offenders.
The Tribunal found Dr Allnutt's report, which was not contradicted by other expert evidence, compelling and persuasive. The Tribunal accepts the evidence of Dr Allnutt and that the applicant is at low risk of future sexual reoffending as compared to other sexual offenders.
Clearly if the Applicant's alleged conduct was to occur in the future, the impact would be significant on a victim, either a child or adult victim.

[21]

Consideration

In this matter, the role of the Tribunal is to review the decision of the Children's Guardian to refuse the Applicant a WWCC clearance, and to decide what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable law.
There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act.
The applicable law includes the Child Protection (Working with Children) Act, which provides that the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, is the paramount consideration. Importantly, the jurisdiction of the Tribunal is protective and not punitive in nature. In this matter, the Tribunal is tasked with determining whether, on the balance of probabilities, the Applicant poses a risk to the safety of children.
Relevantly, a WWCC clearance must be granted to the Applicant unless the Tribunal is satisfied that the Applicant poses a risk to the safety of children. It has previously been held by this Tribunal that no conditions may be placed on the issue of a WWCC clearance.
As set out above the Tribunal is unable to make a positive finding that the alleged sexual assault by the applicant in 1992 either occurred or did not occur. It therefore remains open as to whether or not it did. In Office of the Children's Guardian v CFW [2016] NSWSC 1406, Harrison J found that the Tribunal failed properly to have regard to or to assess those matters that it considered to be "open". At para 30 his Honour stated There is nothing in the Tribunal's reasons to indicate that it approached it's task in the manner identified in these authorities. Its "open conclusion" suggests that there remained at least some degree of suspicion or doubt as to whether the defendant had engaged in criminal or "inappropriate conduct". That open conclusion necessarily called for a close analysis of those possibilities and the probative value of the doubts or suspicions that seemingly remained, having regard to the fundamental inquiry about whether the defendant posed a risk to the safety of children.
In this matter the Tribunal has given due consideration to the probative value of these doubts and suspicions that remain. The Tribunal finds that on the applicant's version of the 1992 incident there are concerns raised by his behaviour. His decision to drop an 11 year old girl, who was a passenger on a bus he was driving, very late at night on her own, speaks of a serious lack of judgment and insight on his part.
There is some support for the complainant's version of events as set earlier in these reasons. However, the behaviour is not part of a pattern of ongoing events, is not recent, and the length of time since the alleged events together with the process of being charged and tried has allowed sufficient time for the applicant to reflect upon his behaviour.
The behaviour, if repeated, would be more likely than not to do significant harm and the consequences are likely to be serious to children. The paramount principle under the Act includes protection of children from abuse and suffering emotional or psychological harm of such a kind that the emotional or intellectual development of the child or young person is, or is likely to be, significantly damaged.
Recurrence of the concerning behaviour has not happened over a significant period. It has been over 24 years since the sexual offence alleged to have been committed by the Applicant occurred. It has been over 10 years since the last alleged event of domestic violence by the Applicant. The Tribunal noted the Applicant's long employment history as a bus driver, described in paragraph 83 above. It noted that there appears to be no other records alleging inappropriate behaviour or alleged sexual assault.
Regardless of whether the complainant's allegations of sexual assault are true or instead the Applicant's version of events as given to the Police in his record of interview is accepted, it is likely that being charged and tried was a very humiliating experience. If such a personal deterrent were needed, the experience would operate very powerfully as one. When there is no further evidence or intelligence of further involvement in alleged criminal activity on the part of an individual this suggests that either their original claims of innocence were correct or that they have learned from experience and changed their behaviour to a more socially acceptable mode. Either way, it appears to the Tribunal that this factor weighs in the Applicant's favour.
The Tribunal considers that the expert evidence of Dr Allnutt that the Applicant is of low risk to children is not out-weighed by other evidence suggesting the risk is more than low.
Having considered all the evidence before it, the Tribunal is not satisfied that there is a likelihood of the applicant engaging in any sexual misconduct or any offending behaviour.

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