CLL v Children's Guardian

Child Protection (Working with Children Act) 2012

1. The Child Protection (Working with Children) Act 2012, came into force on 15 June 2013. Its object is to protect children by not permitting certain persons to engage in child related work and requiring persons engaged in child related work to have a working with children check clearance.
2. The Act was amended by legislation that came into force in November 2015. However CLL's application was made prior to the commencement of the amended legislation and the Tribunal applied the legislation as it stood at the time of the application.
3. Section 4 of the Act provides that the safety, welfare and well being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of the Act.
4. The words "well-being" of children as they appear in the Child Protection (Working with Children) Act 2012 did not appear in the previous Act, the Commission for Young Children and Young People Act 1998. Arguably, their inclusion in the Child Protection (Working with Children) Act 2012 broadens the previous considerations which were for the safety and welfare of children.
5. The Act adds to those words, that "in particular" protecting children from "child abuse" is the paramount consideration.
6. The Act does not define "abuse". However, some guidance might be found in legislation aimed at protecting children. The Family Law Act 1975 (Cth) provides that the "best interests" of a child include consideration of the matters set out in section 60CC of the Family Law Act 1975 (Cth). In particular, the matter given primacy in determining the child's best interests is referred to in section 60CC(2)(b) as follows: "the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence."
7. Section 4(1) of the Family Law Act 1975 defines "abuse" as including: "causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence"
8. The meaning of the word "risk" was considered, by Young CJ in Commission for Children and Young People v V [ 2002] NSWSC 949. At paragraph 41 His Honour states that the sole criterion should not be to protect children from "any possibility of abuse". At paragraph 42, His Honour said that the word, as it appeared in the former Child Protection (Prohibited Employment) Act 1998, meant: "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."
9. The former Administrative Decisions Tribunal construed the meaning of "risk", as it appeared in subs 33J(1) of Part 7 of the Commission for Children and Young People Act 1998 to have the same meaning (see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]).
10. Taking into account all of these matters, it is our view that the meaning of "risk" is as set out by Young CJ in Commissioner for Children and Young People v V (supra), that 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.
11. The Tribunal's review function is provided under Part 4 of the Act. Subsection 30 (1) sets out the factors the Tribunal must consider in determining a review application. These are: 1. 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 2. The period of time since those offences or matters occurred and the conduct of the person since they occurred, 3. The age of the person at the time the offences or matters occurred, 4. 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, 5. The difference in age between the victim and the person and the relationship (if any) between the victim and the person, 6. Whether the person knew, or could reasonably have known, that the victim was a child, 7. The person's present age, 8. The seriousness of the person's total criminal record and the conduct of the person since the offences occurred, 9. The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, 10. Any information given by the Applicant in, or in relation to, the application, 11. Any other matters that the Children's Guardian considers necessary.
12. Subsection 27(4) of the Child Protection (Working with Children Act) 2012 requires that an Applicant must fully disclose to the Tribunal any matters relevant to the application.
13. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on an Applicant but to minimise possible risks to the safety of children.
14. In this administrative review, neither party bears the onus of proof. There is no presumption that the Applicant poses a risk to children as would be the case pursuant to s. 28(7) of the Act if he were a disqualified person.
15. The burden of proof is the balance of probabilities. The decision of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 establishes that there is some flexibility of decision making when applying the balance of probabilities test and this principle was affirmed by the High Court in the matter of Neat Holdings Pty Ltd v Karjan Holdings Pty Ltd (1992) 110 ALR 449 in which the High Court stated that: "the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". This principle, which is also expressed in section 140(2) of the Evidence Act 1995 NSW, establishes that where a court is required to make a decision based on the balance of probabilities, the court may take into account: 1. the nature of the cause of action or defence, and 2. the nature of the subject-matter of the proceeding, and 3. the gravity of the matters alleged.
16. In BKE v Office of the Children's Guardian [2015] NSWSC 523, His Honour Justice Beech-Jones referred to the issue of risk in the context of an application under section 28 of the Act as follows at [29], and [31]-[33]: [29] In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ("Briginshaw") in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a "question of law". It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an Applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J). [31] In M v M the High Court accepted that a positive finding that an allegation of sexual abuse is true should not be made "unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw" (M v M at p 76). The Court also stated (at p 77 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ): "It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case." [32] The Court held that the relevant test was that access to a child by a parent will be denied if there exists "an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access" (M v M at p 78). [33] The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V supra). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. 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.
17. The Tribunal notes that in this matter, unlike the matter in BKE v Office of the Children's Guardian, the Applicant does not bear the onus of proof.
18. The approach outlined above was considered in respect of an application under s.27 (1) of the Child Protection (Working with Children) Act in the recent matter of Office of the Children's Guardian v CFW [2016] NSWSC 1406 (the CFW matter). In that matter Harrison J considered an appeal by the Children's Guardian against a decision of the Tribunal. His Honour decided to set aside the orders of the Tribunal and remitted the matter to the Tribunal for consideration to be dealt with according to the law. In reaching his decision His Honour states: 16 Even if not positively satisfied that the acts occurred on the balance of probabilities, if "a lingering doubt or suspicion remains" then this should count against the defendant, although it is not necessarily fatal to an Applicant's efforts to obtain a clearance: see for example BSR v Office of the Children's Guardian [2015] NSWCATAD 264 at [41]. … 23 In my view the Tribunal has misapplied the test articulated in M v M in the context of s 18(2) of the Act. The inability to exclude the "possibility" of relevant unlawful or inappropriate conduct may, depending upon the particular facts and circumstances, indicate that the requisite degree of risk exists. Having determined that the veracity of the allegations made against the defendant "remain[ed] open", the Tribunal should then have asked itself how that "open" conclusion, together with all of the other material before it, bore upon the question of risk … 24 That was the point made by Buss JA in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 at [85], where his Honour said in the context of the equivalent Western Australian legislation: "[85] Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the Applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described… The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a court proceedings. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions." … 30 There is nothing in the Tribunal's reasons to indicate that it approached its 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. This is particularly so having regard to the Tribunal's earlier observation at [97] that the Local Court found that the defendant's actions were "very suspicious", notably an observation that the Tribunal did not question. 31In my opinion, the Tribunal failed properly to have regard to or to assess those matters that it considered to be "open". In doing so it misapplied the statutory test in s 18(2) of the Act, thereby failing to discharge its statutory functions and duties conferred or imposed by Part 4 of the Act and s 63 of the Administrative Decisions Review Act. … 48 The possibility that the defendant had engaged in the relevant criminal or inappropriate conduct … were necessarily bound up in the mandatory consideration of the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition … That demonstrates the importance of undertaking the analysis identified by Buss JA in Grindrod (No 2): weighing all such reasonable suspicions in the process of determining what might happen in the future. The Tribunal instead put to one side its "open" finding and correlative suspicions and thereby failed to satisfy the statutory command that it "must consider" the matters identified in s 30(1).

THE EVIDENCE

1. The Applicant tendered the following documents in support of his application: 1. The application filed on 22 February 2016 seeking a review of an interim bar imposed on 7 April 2015. 2. Affidavits of CLL dated 6 May 2016, 29 June 2016 and 29 September 2016 3. References in the form of an affidavits dated 15 June 2016 (two affidavits), 17 June 2016, 22 June 2016.
2. The Respondent tendered the following documents: 1. Section 58 material - filed on 29 January 2016 2. Section 58 material - filed on 8 April 2016 3. Section 58 material - filed on 13 April 2016 4. Section 58 material - filed on 24 June 2016 5. A bundle of Documents filed on 8 August 2016 comprising documents produced by Department of Communications & Arts and documents provided by the Australian Federal Police (AFP) 6. Documents produced by NSW Police - filed on 8 August 2016 7. Documents produced Karen Chapman, Psychologist - filed on 15 September 2016
3. The s.58 documents filed by the Respondent include the prosecution brief relevant to the hearing of the charge against CLL. In his written submissions, Counsel for the Applicant submitted that half of the Internet sites referred to in the prosecution brief are no longer in existence and are inaccessible to the Applicant and the Respondent to verify and that this situation disadvantages the Applicant. He submits that procedural fairness should apply and the Tribunal should exercise its discretion as to whether or not to act on the material contained in the failed prosecution brief.
4. In respect of this submission the Tribunal was of the view that the material provided by the prosecution in the trigger matter provides relevant information about the matter with which CLL was charged and without it the nature of the trigger matter and the transcript of the court proceedings are not able to be properly understood. Therefore the Tribunal was satisfied that, as a whole, the material is highly relevant and should be admitted. Counsel for the Applicant also objected to specific items included in the prosecution brief and these objections are considered below.
5. The Police Facts Sheet in relation to the charge against CLL indicates that police were conducting a nationwide operation focusing on people who were using the Internet to download images of child pornography. As part of this operation they attended the home of CLL and seized electronic equipment including two computers and a hard drive. One computer contained three images of children and they were subsequently "refused classification" by the Office of Film and Literature Classification. That category of items is defined as "films that depict in a way that is likely to cause offence to a reasonable adult, a person who is, or looks like, a child under 16 (whether the person is engaged in sexual activity or not).
6. A statement dated 16 February 2005 by a police officer with the State Electronic Evidence Branch indicates that he examined the computers of CLL and located a number of emails between the Applicant and various Internet billing companies and receipts for access to websites that had been paid by credit card in the name of the Applicant.
7. The s.58 material provided by the Respondent includes a statement dated 30 June 2005 by an electronics expert (Mr W) with annexures. In the document Mr W describes, and in some cases reproduces, what he found upon examining CLL's computers. Counsel for CLL objected to the admission of Mr W's statement on the following grounds: 1. The statements refer to copies of data made in 2004 from computer hardware seized from CLL. The hardware was not available and the device on which the copy was made was not given to the Applicant and the Applicant had no chance to examine the device. 2. Mr W was not available for cross-examination 3. It would constitute a breach of natural justice to accept the material into evidence when it could not be tested. 4. The material refers to websites that are no longer in existence. 5. When cross examined at the trial of CLL Mr W made an important concession 6. CLL has "moved on" since the time of the matters referred to in the statement.
8. In reply on this point, Counsel for the Respondent submitted that: 1. Mr W's statement was allowed into evidence at the court proceedings of CLL without objection and was tested in cross-examination. The concession made by Mr W could be taken into account by the Tribunal. 2. The Applicant had been provided with the Respondent's documents in April and had not requested the presence of Mr W or the device he used. 3. The material was relevant even though some of the websites were no longer in existence and CLL might have "moved on" since the time of the matters referred to. 4. The Children's Guardian had taken the statement into account in reaching its decision. 5. The Tribunal considers a number of factors in its review including matters for which the Applicant has been found not guilty. 6. If the Tribunal were of the view that Mr W was required to give evidence, the matter could be adjourned and the Respondent would inquire as to his availability and attempt to have him give evidence at the hearing.
9. Counsel for CLL objected to a proposed adjournment of proceedings to seek the attendance of Mr W. He submitted to the effect that nothing was known about Mr W's whereabouts and that an adjournment would disadvantage the Applicant who wanted to move on with his life.
10. In support of his submission that CLL would be denied procedural fairness in the absence of Mr W and the device he used to make his findings, Counsel for CLL handed up a paper headed Natural Justice or Procedural Fairness written by Justice Alan Robertson of the Federal Court of Australia and dated 4 September 2015 and in particular drew the attention of the Tribunal to paragraphs 30 and 31 where His Honour states that when evaluating the elements that comprise procedural fairness a court considers: 30 The nature of the decision maker, the subject matter of the decision, the terms of power or the width of discretion, the potential consequences for the person affected … 31 … … the repository satisfies the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of power would adopt in circumstances when the power is exercised. When the question for the court is whether the condition is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair.
11. This issue was discussed in the matter of Commissioner for Children and Young People v FZ [2011] NSWCA 111 (9 May 2011) (the FZ matter) in which the Young JA stated: [70] The real question is whether to admit the evidence of a witness on a core matter when the Tribunal knows that it cannot be tested by cross-examination and may deny the Applicant a fair court proceeding. It may be that even when there is a clear and compelling reason why that witness is unavailable, the Tribunal might still consider it appropriate not to receive the evidence.
12. Hodgson JA and Handley AJA agreed with the judgement of Young JA in the FZ matter but placed more emphasis on whether the witness was truly unavailable.
13. The relevant facts in the FZ matter concerned the acceptance into evidence of a hearsay statement by a person alleging indecent assault by the Applicant, for which he had never been charged.
14. In deciding to admit the statement of Mr W and its annexures, the Tribunal took into account the following matters: 1. The Tribunal was of the view that the material provided important contextual information regarding the charge against CLL and that without the material it would be difficult to understand the transcript of the proceedings in which the charge was dismissed. 2. Section 36 of the Civil and Administrative Tribunal Act 2013 requires that the Tribunal adopts procedures that facilitate "just, quick and cheap resolution of the real issue in the proceedings". 3. No prior notice had been given by the Applicant that Mr W would be required for cross examination even though the Applicant was aware that the s58 material included his statement and its annexures. 4. The Tribunal had no information regarding the ease with which Mr W could be located and noted that it was more than eleven years since he had given the evidence as a member of the police services. 5. Counsel for the Applicant had opposed adjourning the matter to facilitate the attendance of Mr W. If he was not present, and if the statement were excluded, the Tribunal would lack important contextual and explanatory material about the trigger matter. 6. The statement of Mr W was made on 30 June 2005 and comprises a description by him of the searches he made of the electronic equipment of CLL and text of material he found on that equipment. The nature of the material canvassed in the statement and the annexures was such that it was unlikely that Mr W would recall details taking into account the period of time since the statement was made. 7. Mr W had been subjected to cross examination at the court proceedings of CLL and the transcript of those proceedings was available to the Tribunal. 8. The material is relevant to the Tribunal's determination of the issue of whether or not CLL poses a risk to children. Whilst Counsel for the Applicant submitted that CLL has moved on since the time of these proceedings, CLL's conduct since the trigger incidents would be taken into account as required in the s.30 matters to be considered by the Tribunal. 9. Whilst it is not possible to bring to the Tribunal further evidence regarding websites that are mentioned in the statement and are apparently no longer operating, the Tribunal has an obligation to consider the matters that resulted in a refusal to grant the WWCCC, including the references to the websites contained within the statement of Mr W and its annexures. 10. The material to which objection was made was substantially different from the material that was the subject of the FZ matter (above). 1. The allegations made in the FZ matter were additional to the trigger matter and, if true, would have constituted criminal activity. 2. The material considered in the FZ matter was described as "unsworn and untested" and had not previously been subjected to cross-examination. 3. The witness who made allegations of indecent assault would be expected to be in a position to recall details of the matter alleged if called to give evidence at the hearing. 1. The Applicant had a sufficient opportunity to request the attendance of Mr W for cross-examination and had not done so. Whilst this would not be determinative of the matter if the matters in issue were such that the only way to test the evidence was to call Mr W to provided evidence, this was not the case in this matter where the material had previously been tested in evidence and was of such a nature that it was unlikely that, if called to give evidence at the hearing, Mr W would recall specific details of the matters contained in his statement and annexures.
15. The statement of Mr W and its annexures includes matters to the following effect: 1. An examination of CLL's Apple iBook computer revealed 12 files in JPG format depicting young females apparently less than 16 years of age in sexual poses. He also recovered five other files in JPG format from the same website. 2. HTML fragments were found on CLL's Apple iBook computer including the images that were the subject of the charge. There were also text messages including the following which are provided at Annexure C to the statement of Mr W : June 01 2003, issue #1 Dear friends? Greetings about the first issue of our new magazine! It features true stories which happened to three girls (12, 13 and 14 y.o.) Excellent quality of photo and video sets show the wide range and wilderness of young ladies' erotic fantasies. June 15 2003 issue #2 We're going on with our magazine. The second issue is available now! It features true stories which happened to two girls (12, 13 y.o.) Excellent quality of photo and video sets show the wide range and wilderness of young ladies' erotic fantasies August 1 2003, issue #03 Proudly we would like to inform you that this issue is far better and the most exclusive of all our previous publications! More than 800 absolutely exclusive professional photos of high quality and 2 hours of video will impress every our member. August 25 2003, issue #04 Proudly we would like to inform you that this issue is far better and the most exclusive of all our previous publications! More than 800 absolutely exclusive professional photos of high quality and 2 hours of video will impress every our member. February 26 2004 issue # 10 Dear Members and New Comers! We would like to call your attention to our new edition of LS-Magazine - Issue 10. Our fashionable lolitas invite you to spent (sic) with them absolutely unforgettable and dreadfully interesting day of their life! Their breath taking beauty both with superb sense of taste are irresistible! The minute after you enter, they'll catch your attention and you will involuntary dive into the bottomless lakes of their eyes. Dishy looks and cheerfulness make dream and enjoy every minute being with them. May 15 2004, issue #13 Dear members and New Comers! With this issue we are trying to fulfil numerous requests of those, who love and appreciate the natural beauty of little girls, beautiful flowers. This new issue of our Magazine presents you pictures and videos featuring two charming babies, so sweet and innocent and at the same time so erotic and attractive. LS Team hopes that these girls will become your favourites and you'll love them! April 09 2004 issue # 11 Dear Members and New Comers! "Confidential" is our new extraordinary issue of LS Magazine! In this issue we tried to take off the curtain from the life of young and stunningly beautiful lolitas! And we hope that this issue will show you something, which you have not seen before or you will look at from the new point of view! Young and stunning emancipated lolitas were pictured and filmed while enjoying every second and every minute before the camera! We beg you to sit down while watching this issue, otherwise you will fall down …" April 22 2004, issue #12 Dear Members and New Comers! We proudly present you new, so longed and wished for magazine featuring young and innocent lolitas! This issue is devoted to two beautiful girls whose lively spirits will make you laugh and make you go crazy! These darlings are so charming, so irresistible and they will show you the way to happiness while sitting and relaxing. Enjoying every free minute and the artistic representation of young women's bodies … Come on over and enjoy it …
16. Twenty-nine emails were recovered from CLL's Apple iBook computer regarding subscription and membership communication to a number of named sites between July 2002 and September 2004. The emails were to and from two different email accounts. Under cross examination CLL said that one of the email addresses is his address (email address (a)). In respect of the other address, (email address (b)) CLL said that it is no longer his email address. When asked if it had ever been his address his said "possibly" and when asked if it was his email address in 1998 he said that he could not remember. When asked if it was his email address when it received an email dated 7 July 2002 regarding membership of LS Club he said "I believe so, yes".
17. Some of the retrieved emails which are reproduced in Annexure A and B to the statement of Mr W are cited in the following paragraphs: 1. Email addressed to email address (b) dated 7 July 2002 stating: Dear (number) You have been successfully registrated (sic) as a member of LS Club Card … 1. An email dated 8 July 2002 addressed to admin@is-clubcard.com from email address (b) with the subject "Two LS Club Cards" stating: I tried to register with your card today. Both times I tried my VISA card was refused. Now I have two messages from you saying I've been registered twice. Please cancel 1. An email dated 29 July 2002 from a third email address under the name of CLL and an identical email from email address (a) to support@cardbilling.net with the subject "Cancel subscription" and stating: I do not wish to renew my subscription to http://www.lolitas-art.net when it expires Thank you (name of CLL) 1. An email dated 21 September 2002 to email address (a) stating: Congratulations (CLL) You have just subscribed to the LPS Site. Your user name is… Your password is … To enter the member zone use this link: http://members.littlepussy.info/2 1. An email dated 20 May 2004 addressed to email address (a) stating "Your subscription with Nubiles.net has been cancelled (sic) as of 2004-05-19 and will become inactive on 2004-06-07.
18. Twenty-three emails were recovered from CLL's Power Macintosh computer regarding subscriptions to and membership of a number of named sites between December 1997 and August 2002. The websites included www.little-nymphets.com, www.ukranian-nymphets.net/members/ and nude-teens.com. The emails included the following which are reproduced in Annexures D and E to the statement of Mr W: 1. An email to email address (b) including a receipt for the amount of $3.95 charged on 10 April 1998 with a note "this is a recurring subscription to Nude-Teens. You will be rebilled $9.95 on 4/17/98 and every 30 days until you cancel this subscription. 2. A related email dated 17 April 1998 from email address (b) stating "I wish to cancel my subscription". 3. An email dated 26 September 2001 to email address (b) stating: Thank you for purchasing a membership of Ukrainian Nymphets. Please, read this information carefully to avoid any problem exploring your membership … 1. An email dated 7 November 2001 to email address (b) stating: Dear (CLL) Unfortunately Your membership Has Expired Site Name: Ukrainian Nymphets … … Your login combination has been deactivated, you can no longer access the site. …. … 1. An email dated 30 April 2002 from email address (b) addressed to support@billcards.com stating: Login …. Site: www.littlenymphets.com I signed up on 25 April. Five days later and the password still doesn't work. I sent you an email on 25 April - no reply. I sent you an email on 26 April - no reply. I sent the webmaster an email on 27 April - no reply. If you can't issue me with a password that works I want a refund. Please reply (CLL) 1. An email dated 30 April 2002 to email address (b) stating: Dear (CLL) Per your request for lost login here is the information you need:Your Login: ….. List of active memberships: ……….Little Nymphets.com*httpe://little-nymphets.com 1. An email dated 20 July 2002 from email address (b) to support@loilitas-art.net stating, in part: After downloading a .zipmovie from your site … and opening it … I get file called … which none of the players … recognise as a video file. It appears to be a text file. The same happens when I use …….on the Mac machine to open the .zip file. Can you help? An email in response to preceding email stating: Dear Sir, Please read http://www.lolitas-art/faq.html 1. An email dated 21 July 2002 from email address (b) to support@lolitas stating: I read your FAQ page again. I have got the three players that you recommend. I followed your instructions exactly. The only files that cause any problems are the .zip files. After downloading a .zip file from your website … and opening it with a WinZip … I get a file called … which none of the players … recognise as a video file. It appears to be a text file … 1. An email dated 4 August 2002 addressed to email address (b) stating: Dear (first name of CLL), The period of your stay on the site ends soon CardBilling Administrator.
19. In addition to the matter with which CLL was charged, the matters considered by the Children's Guardian also included the material outlined above including the alleged contact with the named sites.
20. The s.58 material includes a statement dated 22 February 2005 by a Detective Senior Constable in which he states that the Electronic Evidence section of the police "located a number of e-mails sent to and from the accused to a number of child pornography sites". Counsel for the Applicant objected to the admission of that statement on the basis that it had not been proved that the sites were "child pornography sites". The Tribunal admitted the statement of the Detective Senior Constable on the basis that: 1. It was part of the s58 material and relevant to the matters considered by the Children's Guardian. 2. The description of the websites as "child pornography sites" was the descriptor used by the Detective Senior Constable and was not evidence that the sites were child pornography sites.
21. Counsel for the Applicant also objected to clause 12 in the statement of the Detective Constable regarding a compact disc onto which were downloaded images depicting three naked young girls which had been found to have been deleted from CLL's electronic equipment. The Detective Constable states that the compact disc was classified by the Office of Film and Literature to be "refused classification". Counsel for the Applicant submitted that as the images were advertising they should not have been classified. In the alternative he submitted that the Tribunal should place little weight on the material because CLL was found not guilty of the offence as alleged because it was not proved that he was in possession of the material. In respect of this matter: 1. The Tribunal notes that this matter was pursued when the matter was dealt with at the court when it was submitted on behalf of CLL that the images found on the computer of CLL were exempt from classification because they were advertisements and not "publications". 2. The Tribunal is satisfied that in respect of the matter before us, CLL was found not guilty of the offence as charged because the presiding magistrate was not satisfied that he knowingly possessed the images. 3. The appropriateness of classifying advertisements as opposed to film or publications is not an issue for this Tribunal. The issue for this Tribunal is whether CLL poses a threat to the safety of children taking into account all of the circumstances, including that the images of young naked girls, however classified, had been deleted from his computer.
22. Having taken into account the matters noted in the preceding paragraph, the Tribunal was of the view that it was relevant to the matters before the Tribunal, that the material deleted from the computer of CLL was of the type that would be "refused classification" even if, because it was advertising and not a "publication" or a "film", it was wrongly subjected to classification. On that basis the Tribunal admitted the statement,
23. The bundle of documents filed by the Respondent on 8 August 2016 includes material provided under summons by the Department of Communication and Arts. It includes information to the following effect regarding the images that were provided on the CD ROM. 1. The CD Rom comprises three JPG files each of which contains a magazine cover format with text and coloured photographs. The photographs depict young females in poses of sexualised nudity, some of which appear to be girls under the age of 16. They include the following: 1. "UnallocatedClusters - 577.JPG shows a page heading "LS. Magazine.com no3 August 01 2003 and five colour photographs of which three contain depictions of girls who appear to be under 16 years of age. On the left … is a photograph of two naked girls. The dark female … is facing the camera in a crawling position. The fair haired girl … sits with her feet together and knees open, an object held in her mouth. From their facial features and bodily proportions the girls appear to be under 16 years of age. 2. Also on the left … is a photograph of two naked females, seated side by side, legs tucked up beside them in a 'mermaid' pose. The blonde haired female … from her proportions and stage of bodily development appears to be under 16 years of age. 3. The central depiction shows a naked child fully frontal to the camera squeezing her own chest. Her nipples are obscured by text. She appears, from her facial features, rounded body and limbs and proportions of head to body to be under 7 years of age" 4. "UnallocatedClusters-578.JPG shows a page with the heading LS.Magazine.com no 4 August 2003. The main depiction is colour photograph of two naked young females kneeling facing each one another. (The breast of a third female who is otherwise obscured, is visible between them). From their facial features and bodily proportions the girls appear to be under 14 years of age". 5. "UnallocatedClusters-587.JPG LS.Magazine.com no 13 May 15 2004 and a colour photograph of two naked girls. The child on the right of the frame has her right hand on the buttock and her left hand on the chest of the girl on the left of the frame. The girls appear, from their facial features, bodily proportions and stage of development to be under 10 years of age".
24. The material filed on 8 August 2016 also included material provided by the AFP in response to a summons issued by the Children's Guardian. Counsel for the Applicant objected to the tendering of this evidence. The material comprises information as to the background of the AFP's "Operation Auxin" and the application of a "risk assessment process" applied to CLL. The objections of Counsel for the Applicant were to the following effect: 1. The author of the document is not identified and is not available for cross-examination. 2. The material contained in the document is highly prejudicial. 3. The material is meaningless without further explanation. 4. If the Children's Guardian is seeking to rely on the material it should have prepared the matter so that the material could be properly considered. 5. It was not enough to propose, as Counsel for the Respondent proposed, that the matter could be adjourned to facilitate the attendance of the author of the report as this would involve unnecessary delay and cost.
25. In response to the submissions on behalf of the Applicant on this matter, Counsel for the Respondent submitted: 1. The material was relevant because it explains how the Applicant was identified in the police operation. 2. If the Applicant had a real concern about the admissibility of the material he should have requested the attendance of the author of the document. 3. The material clearly references CLL and is relevant. The weight to put on the evidence is a matter for the Tribunal.
26. Having considered the submissions on this point the Tribunal accepted the material into evidence on the basis that it forms important contextual information about the police operation that resulted in the arrest of CLL. However in the absence of an explanation regarding the risk profiling scores applied to CLL the Tribunal was not able to place weight on those scores.
27. The contextual information about the police operation that resulted in the arrest of CLL includes the following: 1. In 2003 authorities in the United States identified a US based company that acted as a collection agency in respect of the sale and provision of access to online pornography. Searches revealed the details of those seeking access to child pornography sites including details of their credit cards. Analysis of the data suggested that there were 717 Australian based identities that had purchased child pornography using the payment site. 2. The 717 identities were profiled and a risk assessment procedure was conducted in respect of them. As a result, CLL was subjected to the risk assessment. 3. A bank card number was cited as belonging to CLL. In a letter dated 5 April 2005 addressed "To Whom it May Concern", the Manager, ANZ Issuing Fraud confirms that an ANZ Visa card of the same number was issued to CLL who is the only person authorised to use the card.

Court proceedings

1. The transcript of the court proceedings in the Local Court resulting in the dismissal of the charge that resulted in the assessment requirement includes matters to the following effect: 1. The three images that were the subject of the charge had been deleted from CLL's computer and it was not possible to state when they were deleted. 2. Mr W agreed that the images were in the form of promotional material for a publication and advertisement for the publication. 3. Mr W was not able to tell if the images were received by email. 4. The prosecution case was to the effect that: 1. The fact that CLL had engaged in email exchanges with the named websites demonstrated that he knew the images were pornographic material. 2. The Applicant had engaged in email exchanges with websites listed and had paid membership to a website Ukrainian nymphets. 1. The presiding Magistrate found that "there could be some prima facie case or at least some case built around the surrounding circumstances as it were" but was not satisfied that there was proof of knowledge on the part of CLL about the images and therefore dismissed the charges.

Affidavits of CLL

1. In an affidavit dated 6 May 2016 CLL makes statements about his past. We have not included several statements which could lead to his identification. Otherwise, he makes statements to the following effect: 1. There was extensive media coverage of the hearing of the charges against him and as result he decided to retire from teaching and left the town where he was last appointed as a schoolteacher. 2. He moved to his current location in 2005 and commenced sports coaching of people of all ages and had continued in that role until the notice of the WWCCC interim bar in August 2015. 3. Prior to 25 September 2004 he had subscribed to websites that showed naked females. 4. The police officer involved in his arrest had shown him on a computer screen three thumbnail images of naked female children that were alleged to have been on one of his (CLL's) computers. They appeared to have been sent in an unsolicited advertising email which he had previously deleted from his computer. 5. In the material before the Office of the Children's Guardian and at his court proceedings there were references to a number of websites and it was alleged that they were child pornography sites. In fact some were Internet payment transaction sites. There was no evidence to the Court that any of the sites were child pornography sites. 6. The s58 material indicates that one site "metgirls.com" complies with a US classification which requires the models on the site to be aged 18 years or over. 7. In his coaching practice he has ensured the he is never alone with children. There have been no complaints made about his conduct to any children. He wishes to resume coaching as soon as possible. 8. He has not sought references from people is his hometown because he would be embarrassed if people there knew about this matter. 9. He has had 40 years of contact dealing with children and has not had one complaint of untoward behaviour towards children.
2. In an affidavit dated 29 June 2016, CLL makes additional statements to the following effect: 1. The Children's Guardian had expressed the view that CLL had "declined to provide" details of his child related employment". He denies that there was ever a firm request for such information and that he declined to provide information. Had details been requested he would have provided them. 2. The Children's Guardian also said that CLL had "refused to provide information about his coaching". He had not refused to provide that information and had provided it prior to the final decision of the Children's Guardian. 3. He has "never been in child related employment activities since 2004". He has been a self-employed coach who contracts with athletes and their parents. 4. When he lodged the application for a WWCCC he was coaching only one child and had been coaching him since September 2014. He did not coach any other children before he ceased coaching on19 August 2015. 5. He believes that he was treated harshly in his previous home town when the trigger matters were being heard and he does not wish information about the current proceedings to be spread throughout his current location. 6. He has, however, obtained and submitted additional references.
3. In an affidavit dated 29 September 2016 CLL makes statements to the following effect: 1. His internet research indicates that the following websites of the 29 related to emails found on his computer referring to paid subscriptions and membership communications were certified as using models over the age of 18 years:

• Nubiles.net
• Metart.com
• www.hegre
• ftv.girls.com
• domain.com 1. He was not able to locate the following sites:
• Is-clubcard.com
• Ufs-online.co.uk
• www.lolitas-art.net
• www.video2000.net
• members.little-pussy.info
• Fast Pay Card

CLL's resignation from the Department of Education

1. The Department of Education furnished the Children's Guardian with a document headed Employee Performance and Conduct Directorate (EPAC) Working With Children Check Records Response. The document provides information to the following effect: 1. On 6 October 2004 EPAC advised CLL that he was being placed on alternative duties pending the outcome of the police investigation of the charges comprising the trigger matter. On that day CLL advised that it was his intention to resign immediately from the Department. 2. On 22 October 2004 CLL accepted in writing that he would be placed on the "Not to be re-employed" (NTBE) list. 3. On 29 October 2004 the EPAC advised CLL that his resignation was accepted and that he would be on the NTBE list. 4. On 25 July 2005 the EPAC was advised that the charge had been dismissed. 5. On 9 August 2005 the EPAC investigation into the matter was closed because CLL had resigned. It was open to CLL to seek a review of his NTBE status and if he did so the investigation could be re-opened. 6. CLL was placed on NTBE list because of the nature of the allegations and the potential risk.

Material produced by Karen Chapman, Psychologist

1. Ms Chapman provided records of her involvement with CLL including Progress Notes and invoices. They include the following: 1. CLL sought counselling for assistance in supporting an athlete he was coaching. He told her he was a teacher who has retired and who works as a professional coach. The coaching client was a female adult and CLL told her that there was no romantic involvement. He said that she had difficulties with her mental health and it was emotionally draining for him. 2. In a report to CLL's referring doctor, Ms Chapman comments to the following effect: 1. CLL presented with moderate anxiety symptoms and significant pessimism for the possibility of future personal relationships. 2. The Cognitive Behaviour Therapy approach was utilised for treatment and CLL responded well, attended all sessions and completed all tasks that were requested of him. CLL attended 6 sessions commencing on 22 January 2009. 3. CLL attended a further 5 sessions, the last one being on 7 December 2009.

References submitted by CLL

1. CLL provided references based on his association with fellow teachers during his teaching career. They are canvassed below.
2. In a reference dated 21 August 2015 submitted to the Children's Guardian as part of the risk assessment, the headmaster at CLL's last school comments to the following effect: 1. CLL was a member of his staff from 1991 and was still employed there in 1997 when the referee retired. 2. CLL has "excellent" experience in working with children and organised and conducted overseas excursions for students. 3. CLL's contact with students in the classroom and on excursions was "excellent". 4. CLL never demonstrated inappropriate behaviour towards children, he supported the school's welfare policy and encouraged staff to contribute to the well being of children. 5. CLL taught the daughter of the referee and she travelled on an excursion supervised by CLL.
3. In a reference dated 16 September 2015 submitted to the Children's Guardian as part of the risk assessment, a previous teacher at CLL's last school comments to the following effect: 1. He knew CLL over 14 years of teaching during which time CL was the head of his Department. He has remained friends with CLL. 2. He has observed CLL working with children in the classroom, counselling difficult children in trouble and coaching children with learning difficulties. He has always demonstrated standards of utmost professionalism, respect and concern from the welfare of the child. 3. CLL has always dealt with children in a manner that reflects the ethos of professionalism and acting in the best interests of his charges "be they adults or children". He has never seen CLL act inappropriately towards a child as a teacher or as a coach and does not "believe him capable of such actions". 4. In his view CLL has paid a high price for what was "demonstrated in court to be a charge that was not supported by any evidence. He was never a risk to children. He remains no risk to children today". He offers opportunities to adults of which they will be deprived if he is not able to be a coach.
4. When CLL was asked under cross examination about the reference dated 16 September 2015 he said words to the effect that he told the referee that there the charges against him were not supported by any evidence because that is "what I remembered which turned out to be wrong". He also said words to the effect that he might have told the referee that there was no evidence to support the charges, or that might have been the impression formed by the referee based on CLL's poor recollection.
5. In a reference dated 17 September 2015 submitted to the Children's Guardian as part of the risk assessment, a retired teacher at CLL's last school comments to the following effect: 1. She worked with him from 1991 to 2004 she was the Head Teacher of Student Welfare and he was also a Head Teacher. 2. Students were keen to be in his class and he was highly respected by staff and students. 3. To her knowledge he has not demonstrated inappropriate behaviour or abuse towards children. 4. CLL is a person of integrity.
6. In a reference dated 18 September 2015 submitted to the Children's Guardian as part of the risk assessment, a retired teacher at CLL's last school comments to the following effect: 1. She worked with CLL at that school for 10 years until 2004. 2. She accompanied CLL on an overseas trip and his "leadership and care of the students was exemplary". At no time were students alone with him. 3. To her knowledge he has not demonstrated inappropriate behaviour or abuse towards children.
7. In a reference dated 22 September 2015 submitted to the Children's Guardian as part of the risk assessment, the referee comments to the following effect: 1. She is now a lecturer/tutor at a university but has known CLL for more than 20 years when both were teachers. 2. CLL has professional approach to students and parents. 3. She accompanied CLL on an excursion with male and female students. He was "highly aware" of protocols of "school based activities". 4. She has worked closely with CLL in school activities and on the overseas excursion and he has never demonstrated any inappropriate behaviour or abuse of children. 5. CLL has always displayed a professional approach in his dealings with staff, parents and students.
8. In a reference dated 28 September 2015 submitted to the Children's Guardian as part of the risk assessment, a teacher at CLL's last school comments to the following effect: 1. She has known CLL for 18 years. He was the Head Teacher of her faculty at the school. 2. CLL was an excellent teacher who was held in "high regard" by students, staff and the wider community. 3. She always found him to be "a professional". 4. To her knowledge he has never demonstrated inappropriate behaviour or abuse towards children. 5. She has "utmost respect" for CLL and believes him to be of "good character", an exceptional teacher and mentor.
9. In a reference dated 2 October 2015 submitted to the Children's Guardian as part of the risk assessment, a retired teacher at CLL's last school comments to the following effect: 1. She worked with him from 1991 to 2004. He was the head of her faculty. 2. He was the "consummate professional" in dealing with the "best and worst students" 3. He commanded respect from students because of his professional and dedicated approach. 4. To her knowledge he has not demonstrated inappropriate behaviour or abuse towards children and on occasions that he was required to drive children home after detention he has asked her or another member of staff to accompany him. When dealing with students he always remained in full view of other staff members. 5. She held him in "high regard" and still respects him for his "professional and caring approach to his staff and students".
10. In her written submissions Counsel for the Respondent notes that only the reference dated 16 September 2015 indicates that the referee was aware of the allegations that constitute the trigger matters.
11. In his affidavit dated 6 May 2016, CLL states that the seven referees whose references he had provided were advised of his circumstances and were also interviewed by an officer of the Office of the Children's Guardian who confirmed that they knew why they had been asked to provide a reference.
12. In a Children's Guardian Employer Reference dated 25 May 2016 and an affidavit dated 15 June 2016 a mother of children coached by CLL comments to the following effect: 1. CLL had coached her daughter (then aged 10) and her son (then aged 15). He ceased coaching them in August 2015. He was very professional and made it clear that she was to be present during all of the coaching sessions. 2. He was a very effective coach.
13. In a Children's Guardian Employer Reference dated 25 May 2016 and an affidavit dated 15 June 2016 an adult client coached by CLL comments to the following effect: 1. CLL has been her coach since 2009 with weekly group training sessions and other regular contact. 2. She has seen him dealing with children in the group training and he is respected and liked 3. He does not put himself in a position where he would be alone with children and avoids physical contact. 4. His absence from coaching has been a loss for younger athletes.
14. In a Children's Guardian Employer Reference dated 27 May 2016 and an affidavit dated 17 June 2016 an adult client coached by CLL comments to the following effect: 1. He has trained with CLL for the past six years. To his knowledge CLL has never demonstrated inappropriate behaviour towards children. 2. The referee has three children and if they had an interest in distance running CLL would be their coach.
15. In a Children's Guardian Employer Reference dated 27 May 2016, and an affidavit dated 22 June 2016, a client of CLL comments to the following effect: 1. In her seven years of training with CLL she has never known him to be alone with children. 2. CLL also coached her daughter from when she was 15 years old when she was 17 years old and she had no concerns about her daughter being at training with him when she could not be there. 3. Her daughter has never raised any issues about CLL and has said that she would like to return to being trained by him in the future. 4. I her view he is "completely appropriate, decent and well mannered around children and adults alike". 5. CLL is "reliable and trustworthy".

The evidence of CLL at the hearing

1. CLL said that he has ceased his coaching practice since being refused a WWCCC because it is his belief that if he limited his practice to coaching adults others would have questioned why he had stopped coaching children. He also said that Athletics Australia requires coaches to have a WWCCC to obtain accreditation as a coach.
2. Under cross examination CLL said words to the effect that: 1. He did not recall seeing the images referred to in the documents provided by the Department of Communications and Arts in response to a summons. 2. He did not remember seeing images depicting females aged less than 18 years but accepts that the images were on his computer so he "must have seen" at least the first one before deleting the images. 3. He did not recall receiving the email stating that he had "registrated" for the LS Club Card. 1. When asked if the email address to which the email was sent was his address he replied to the effect "I believe so, yes". 2. When Counsel for the Respondent observed that the email records that he had subscribed to LS Club Card he replied to the effect "that's what it says". 1. In respect of the email copied into Annexure A of the statement of Mr W, that states in part "I tried to register with your card today … please cancel": 1. When Counsel for the Respondent observed that the email appeared to be to CLL from LS Club Card he replied "apparently". 2. When asked if LS Club Card was associated with LS Magazine he replied that he did not remember. 3. When asked if he agreed that he had tried to access the Club Card he replied to the effect "that's what it says". 1. CLL said that he did not recall receiving the email stating in part "To enter the member zone use this link: http://members.littlepussy.info/2"; that he could not recall what sort of site it was and therefore could not agree that it was a pornographic site. 2. In respect of the emails involving a website called "Ukrainian nymphets" CLL said that: 1. He did not recall subscribing to the website and was not aware that "nymphet" was a term coined to refer to girls aged 9 to 14 years. 2. He was did not remember if he ever accessed the site. 3. He was unable to locate the site when he conducted the check to which he refers in his affidavit dated 28 September 2016. 1. When asked about the HTML fragments printed in Annexure C and in particular the fragments dated 15 May 2004, 22 April 2004, 9 April 2004 and 3 February 2004, CLL said words to the effect that: 1. He did not recall receiving those texts. 2. He did not know if LS Magazine and LS Card were related 3. He knew that the term "Lolita" could be used in a sexual context to refer to girls of less than 18 years old 1. In relation to the email stating "I do not wish to renew my subscription to http://www.lolitas-art.net when it expires": 1. When asked if he subscribed to such a website CLL said words to the effect of "according to that email, yes". 2. When asked if he agreed that the website is one that sells pornographic material related to people under the age of 18 years he replied "no". 1. CLL said that he did not recall the email starting "Congratulations … little pussy". He also said that he could not remember the website and was not able to comment on whether it was a pornographic site. 2. When asked what he was trying to download in the matter referred to in the email stating "After downloading a .zipmovie from your site CLL said that he did not remember. When asked if he was trying to download child pornography he replied that he did not remember. 3. CLL said that he had used a website named CC Bill to make payments to access pornography sites. 4. CLL said that he could not recall the number of his ANZ Visa card, but said words to the effect that the letter from the ANZ fraud manager "says it was mine" and that "apparently" he had an ANZ Visa card. The number of the card was the same as the card number cited by the AFP. 5. When asked whether, when looking for pornographic sites on the internet he checks that they comply with requirements that the images used are of people over 18. He said that he does so, but not all the time as it might be obvious that the subjects are over 18. He said that if it were not obvious he would check. When asked if he did that in 2002 to 2004 he said that he could not remember. 6. When questioned about the website nubiles.net, CLL said that he did not agree that "nubiles" was a reference to young girls and said that in his opinion the term "nubile" refers to people of marriageable age. CLL said that he does not recall if he checked the compliance of this site with the requirement that the subjects were older than 18. 7. When questioned about the email stating "Site: www.little-nymphets.com "I signed up on 25 April …" that was reproduced in Appendix D of the statement of Mr W, CLL said that he did not recall sending the email, and words to the effect that after some 14,15 or 16 years he did not remember if he frequently encountered problems when attempting to log on to the website. He said that he did not recall subscribing to the website. 8. With respect to the emails reproduced in Appendix E to the statement of Mr W that refers to a "recurring subscription to Nude-Teens", and an email bearing the name (CLL) stating that the author wished to "cancel my subscription" CLL said that he did not recall receiving the email, subscribing to that website or sending the email cancelling the subscription. 9. When it was suggested to CLL that in addition to subscribing to adult pornography he also subscribed to child pornography, CLL replied to the effect "I don't think so, if I give a yes/no answer the implication is that I know what was on the sites and I don't remember. I don't remember subscribing to child pornography". 10. When asked if he had ever looked up child pornography CLL replied to the effect of "to the best of my recollection - no". 11. CLL said that he had not sought the removal of his name from the NTBE list because he had no intention of seeking re-employment with the Department of Education.
3. When questioned by the Tribunal, CLL said that: 1. He did not dispute that the emails reproduced by Mr W were found on his computer. 2. He assumed the emails found on his computer had been sent to him because he subscribed to adult pornography sites. 3. A site called "nude teens" need not refer to children because "teens" could be aged 18 or 19 years.

Submissions of Counsel for the Applicant

1. Counsel for the Applicant made written and oral submissions which were considered by the Tribunal and which were to the effect summarised below. 1. In respect to the seriousness of the matters: 1. CLL has not been found guilty of an offence. The charge against CLL was dismissed because it was not established that he knew that the content of the images involved children under the age of 16. He had deleted the unsolicited advertisements. Additionally the images were defined as being advertisements and therefore not items to which the Classification (Publications, Films and Computers Games) Act 1995 would apply. 2. There is no credible evidence that CLL has ever paid a subscription to website containing child pornography or that he has ever accessed child pornography sites on a website. 3. The transcript of the court proceedings of CLL indicates that the prosecution was not able establish that the site on which the subject images were posted was a site for child pornographic material. The transcript also indicates that it was not possible for the prosecution to show that the website to which CLL had membership was the website that released the images that were the subject of the charge. 4. There is no evidence that CLL accessed child pornography on any of the websites referenced in emails and in his evidence he has said he has no memory of doing so. It is reasonable that he does not recall circumstances of emails from some 12 years ago. 1. Regarding the time since the matters, it is 12 years since 25 September 2004 when the alleged offence is said to have occurred. 2. In respect of the age of the Applicant and of victims, the Applicant was aged 52 at the time of the alleged offence and is now 64. There is no evidence of any victim. 3. In respect of the Applicant's total criminal record and conduct since the alleged offence: 1. CLL has no criminal record; 2. CLL was a high school teacher for some 30 years until 26 October 2004 and for the past 9 years has coached adults and children in athletics in a total of 2,400 training sessions of approximately 4,800 hours without any complaints being made against him. 3. The welfare of children also includes matters of positive contributions to welfare and through his teaching and coaching activities CLL has contributed to the welfare of children. 4. Since the matters that formed the charges against CLL he has not been mentioned as a person of interest by police and it would be expected that he would have been noted as such if concerns were held about his risk to children. 1. In respect of the likelihood of any repetition of the conduct, there is no evidence of any illegal conduct by the Applicant and a number of referees have attested to his good fame and character. 2. The Applicant does not pose a risk to children and "mere suspicion cannot be elevated to the status of proof sufficient to find an unacceptable risk to children".

Submissions of Counsel for the Respondent

1. Counsel for the Respondent made written and oral submissions which were considered by the Tribunal and which were to the effect summarised below. 1. The dismissed charge of possessing child pornography is a serious matter as children are the victims of such offences and accessing the material provides a market for the exploitation and abuse of children. 2. Whilst the charges were dismissed by the court, the standard of proof applied by the Tribunal is the civil standard and not the criminal standard. It is open to the Tribunal to conclude that the Applicant had a paid subscription to child pornography websites, whether directly or through a gateway payment site and that he had accessed or sought access to child pornography websites. 3. It is open to the Tribunal to conclude that LS Magazine which was referenced in the advertisements including the images that were subject to the charge, was related to LS Club of which CLL had membership. 4. The Applicant bears the onus of addressing the evidence that he had paid membership to websites containing images of child pornography and that he sought access to such sites and sought assistance from site administrators to access those sites. It is insufficient for the Applicant to rely on the fact that the charges against him were dismissed and that the images about which he was charged were sent to him in an unsolicited email. 5. In his evidence CLL was frequently unable to recall matters about which he was asked. Whist the matters were some years ago, the Tribunal is required to treat as paramount the protection of children and the Applicant should conscientiously address the matters before the Tribunal. 6. Whilst a number of the websites referred to in the statement and annexures of Mr W appear to no longer be in existence, the evidence supports a conclusion that they did exist in 1998 to 2004 and it is open to infer that they have been shut down by law enforcement officers. 7. Whilst the matters were dismissed by the presiding Magistrate, the dismissal was on the basis that the Applicant lacked knowledge of the presence on his computer of the images and therefore could not be said the "possess" the images as required by (the then) s.s.578B(2) of the Crimes Act 1900. The decision was not based on the defence available under (the then) s.s. 578B(5) of the Crimes Act 1900 which provided that it is a defence if the defendant did not know, or could not reasonably be expected to know, that the material contained pornographic material involving a child under 16. 1. In respect of the age of the Applicant at the time of the matters, his current age and the age of victims: 1. Whilst the age of the victims is not known exactly the Tribunal can infer that the people depicted in the images were children and that there is an age difference of at least 34 years between an 18 year old and the age of CLL at the time of the matter charged. 2. By reason of the fact that the images were of children the Tribunal should be satisfied that the children had been subjected to abuse. 3. A person who accesses such sites feeds the market for such abuse and indirectly participates in child abuse. 4. The Tribunal should infer that CLL knew that the images were of children because he immediately deleted the images. 1. In respect of the seriousness of the Applicant's total criminal record and conduct since these matters, he has no criminal offences or charges and has not been the subject of any complaints or disciplinary action of which the Respondent is aware. 2. In respect of the likelihood of any repetition of the trigger matter or conduct that caused the refusal of the WWCCC and the impact on children of such a repetition: 1. CLL denies the charges and states that he immediately deleted the images. 2. CLL has not obtained a psychological risk assessment. In the absence of expert evidence it is difficult for the Tribunal to be satisfied that he does not pose a risk to children. 3. The titles of the websites accessed by CLL are sufficient to cause real concern that CLL has sought to access and subscribed to websites that, based on their names, could well contain child pornography and it is open to the Tribunal to conclude that they did contain child pornography. 1. The Respondent further considers it necessary to note that it is inappropriate that as an Applicant for a WWCCC the Applicant has failed to provide a candid response to the credible evidence that he has had paid membership to websites containing child pornography. It is a likely risk to children to view or access child pornography because it perpetuates the abuse of children and arguably exposes children to a general risk of harm. 2. The magistrate hearing the charges gains CLL expressed the view that there could be some prima facie case or at least some case built around the surrounding circumstances as it were". Taking into account this comment and the other matters raised by the Respondent, this is a matter where the Tribunal should form the view that there is a "lingering doubt or suspicion" of the type referred to in the CFW and BKE matters (above).

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

1. CLL was found not guilty of possessing the images that formed the basis of the charges against him because it had not been established that he knew that the images were contained in the material that he deleted from his computer.
2. Emails reproduced from CLL's computer sent to an email address that he believes was his address, refer to him being a member of LS Club. The text accompanying the images refers to LS Magazine and the LS Team. The Tribunal is of the view that it is reasonable to infer that there is a link between LS Club, the LS Team and LS Magazine. This does not establish, however, that CLL knew that there was a connection between the LS identities or that he solicited the information.
3. During the hearing CLL had nothing to say about the possible link between the LS identities and said that he did not recall being registered as an LS Club Member. The Tribunal accepts that the email regarding the LS Membership was dated 2002 and that in 2016 CLL might not recall what memberships he had some 14 years ago. However the emails and the possibility that the LS Club was in some way connected to the LS Magazine was raised at the hearing of the criminal matter in 2005. The Tribunal considers it reasonable that in 2005 CLL would have remembered that he had received an email about registration in a club of the name of the magazine referred to in the criminal matter and that in 2016 he would have recalled his views about those matters because they were important matters at the court proceedings in respect of the trigger matter.
4. Whilst CLL was found not guilty of the trigger matter he said during the hearing that he must have seen at least one of the images before he deleted them. He did not admit to any specific memory of seeing such an image.
5. The Tribunal is of the view that in the absence of further explanation about the receipt of the images, the viewing of them and the deletion of them, it is at least possible that they were in the possession of CLL for a time before they were deleted.
6. The Tribunal is of the view that possessing pornographic pictures of young girls is a serious matter as it promotes the exploitation of such girls as victims to produce the images.
7. In addition to emails received regarding the LS club, CLL's email address, and another which appears to have been used by him and which he does not deny was used by him, contain correspondence about membership and subscriptions to websites including with the following:

• nude-teens.com (emails dated 1998)
• www.ukranian-nymphets.net/members (emails dated 2001)
• www.lolitas-art (emails dated 2002)
• http://.little pussy.info/2member (emails dated 2002)
• www.little-nymphets.com (emails dated 2002)

1. During the hearing CLL said that he could not recall these emails. He said that he could not recall sending the email referring to difficulty accessing the "little nymphets" website. As noted above, these emails are dated some years ago and in the normal course of events it might not be reasonable to expect that a person would remember details about the emails after the passage of up to 18 years (in the case of the "nude-teens" matter) and 14 to 15 years in the case of the other named sites. However these matters were raised at the hearing of the criminal matters in 2005 and the Tribunal is of the view that it is reasonable to assume that CLL would have considered these matters at that time and that in 2016 he would have a memory of his views at the time of the court proceedings.
2. CLL did not deny that he was in email correspondence with the named sites and the Tribunal is satisfied on the balance of probabilities that the emails sent to and from email addresses (a) and (b) were sent to and from CLL.
3. Whilst CLL said that he subscribed to adult Internet pornography he did not offer an explanation as to why he was in email correspondence with the named websites. The Tribunal is of the view that under the circumstances, including the names of the websites, CLL should provide some explanation as his access to the websites and payment of subscriptions to them and about his view of the likelihood that they would provide for access to child pornography. He has not done so.
4. In the absence of an explanation to the contrary, the Tribunal is of the view that a reasonable person would consider it possible that the sites named at paragraph 87 would contain pornographic material related to young people. The Tribunal is satisfied on the balance of probabilities that the emails amount to subscribing to and seeking access to internet sites, the names of which would suggest to a reasonable person that they are likely to provide access to pornographic material regarding young people.
5. The Tribunal is of the view that dealings with sites that promote or use pornographic material related to children is a serious matter as it promotes the exploitation of children as victims to produce the material.

The period of time since those offences or matters occurred and the conduct of the person since they occurred

1. CLL's electronic equipment was seized by police in September 2004 and the images were found in unallocated space on his computer after that time. It is more than 12 years since that time.
2. As noted above CLL was involved in correspondence with websites reasonably thought to be involved with matters of child pornography since 1998. It is more than 18 years since then, and more than 14 years since the emails dated 2002.
3. Over the 30 years that he has taught school and the 9 years that he has been involved in coaching athletics, to the Tribunal's knowledge, CLL has not had any other allegations made against him and has not come under further notice of police.
4. CLL has provided a number of references from people who knew him across the period when he was teaching. They are supportive of him personally and in relation to his conduct in respect of children. In particular they speak of him having escorted children on overseas excursions and of his appropriate conduct around them.
5. Only one of the referees refers to the charges against CLL and CLL has indicated that he provided incorrect information to that referee about the disposition of the charges against him. Whilst CLL submits that the referees were contacted by the Office of the Children's Guardian, the Tribunal is not satisfied that they were properly aware of the trigger matter when they provided the references. The weight that can be placed on the references in therefore reduced.
6. The Tribunal is satisfied that over the time referred to by the referees, being up until the time CLL left his teaching career, CLL was paying for subscriptions to websites and seeking and gaining membership of websites where a reasonable person would assume it was possible that child pornography would be promulgated. CLL has also provided references from people he has coached more recently, and from parents whose children he has coached. These references, some in the form of affidavits, attest to CLL's appropriate behaviour around children whilst coaching and are in his favour.
7. Whilst the Tribunal accepts that the referees have not observed overt problematic behaviour by CLL in respect of children, the Tribunal is of the view that CLL's accessing of sites reasonably assumed to contain child pornography and the possibility that he possessed pornographic images of are not matters that would fall within the knowledge of work associates.

The age of the person at the time the offences or matters occurred, 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, The difference in age between the victim and the person and the relationship (if any) between the victim and the person, Whether the person knew, or could reasonably have known, that the victim was a child.

1. At the time of the 1998 email, CLL was aged 46 years and at the time of the 2002 emails he was aged 50. At the time his computer was seized in September 2004 he was 52 years old.
2. The Tribunal does not know the ages of any victims involved in the websites with which CLL was involved and which it could be reasonably assumed to include child pornography. The difference in age between an 18 years old and CLL in 2004 would have been 34 years.
3. The information provided by the Department of Communications and Arts indicates that the images that were the subject of the trigger matter were of girls whose ages ranged from 7 years old to under 16 years of age. The age difference between a 7-year-old child and CLL in 2004 was 45 years and the age difference at that time between CLL and a 16 year old was 36 years.
4. The information provided by the Department of Communications and Arts indicates that the assessment of the ages of the girls depicted in the images was made on the basis of their facial features, body shape and body proportions. During the hearing CLL said that he must have seen one of the three images at the time he deleted them. Whilst there is no indication which image he saw, the Tribunal is satisfied that he would have known that image was that of a child by reference to the facial features, body shape and face that informed the Department of Communications and Arts staff.
5. As noted in preceding sections of these Reasons, the Tribunal is of the view that a reasonable person would expect that the websites named above (in paragraph 87) would be involved in matters involving children in sexualised contexts.

The person's present age

1. CLL is now 64 years old.

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

1. The Applicant has no other criminal charges or matters recorded against him. The Tribunal is of the view that this is in his favour in an assessment of the potential risk he might pose to children.

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

1. In the matter of BKE (supra) in discussing the Briginshaw (supra) warnings against the use of inexact proofs in the context of making serious findings, Beech-Jones J expresses the view that "NCAT would be well advised to have regard to them if it was considering making a positive finding that an Applicant sexually abused a child in circumstances where they were not convicted of doing so".
2. In the current matter the evidence was not sufficient to prove, to the criminal standard, that CLL knowingly possessed the images as charged. On the available evidence the Tribunal is also not able to be satisfied on the balance of probabilities that he knowingly possessed the images. However the Tribunal is satisfied that it is possible that he knowingly possessed the images for the following reasons: 1. The view of the presiding magistrate that there could be some "prima facie case built around the surrounding circumstances". 2. The surrounding circumstances including: 1. CLL's emails suggest that he was a member of LS Club and the magazine advertised using the images was called LS Magazine and the text accompanying an image referred to the LS Team. 2. Emails on CLL's email accounts indicate that he was a member of or subscribed to other websites with names that suggest that they were involved in child pornography. 3. Whilst CLL has said that he accessed adult pornographic websites he has not provided the Tribunal with any explanation as to why he was in communication with the websites the names of which are suggestive of sexual material related to children.
3. Section 27(4) of the Child Protection (Working with Children) Act requires that the Applicant "must fully disclose" any matters relevant to the application. 1. CLL has not provided any information about the images that were deleted from his computer, including any information about the deletion of the images from his account or any information about any steps he took to investigate how or by whom the images were sent to his computer. 2. CLL was not able to recall information asked of him under cross-examination about his access to the named websites. 3. The Tribunal is of the view that CLL's evidence is insufficient to overcome a conclusion that it is more probable than not that he was accessing sites that would be reasonably be expected to contain material related to child pornography and that it is possible that he committed the offence that constitutes the trigger matter.
4. Even if the Tribunal is not satisfied to the civil standard that it is more probable than not that CLL committed the offence constituting the trigger matter, the decisions in M v M (supra), BKE (supra) and CFW (supra) establish that where the Tribunal cannot exclude the possibility that he committed the offence, or retains a "lingering doubt" that he might have committed the offence, then this counts against the Applicant and the Tribunal must conduct "a close analysis of the possibilities and the probative value of the doubts or suspicions" (see CFW, supra) which should take into account "all of the information and material properly before the Tribunal" (Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASC 28 at [85] as cited in CFW (supra).
5. In accordance with the decision of Harrison J in the matter of Office of the Children's Guardian v CFW, the Tribunal must consider those matters for which it is satisfied that CLL is responsible and also matters for which it is not satisfied that he is responsible, but for which it retains a "lingering doubt" that it is possible that he is responsible.
6. In reaching its conclusions the Tribunal has taken into account the possibility that CLL committed the offence as charged and also the circumstances surrounding that matter, including his access to internet sites that the Tribunal is satisfied would reasonably be thought to contain child pornography.
7. If there were a repetition of the alleged offence, or of the behaviours involved in accessing sites reasonably assumed to include child pornography, there would be an adverse impact on children as a result of creating a market for child pornography.
8. There have been no allegations or charges against CLL other than the matter for which he was found not guilty. It is possible that after being charged for such a matter CLL would have been the subject of some police intelligence gathering and if so, it is in his favour that he has not again come under adverse police notice. However the Tribunal has no evidence regarding whether or not there has been continued police intelligence involving CLL.
9. The nature of the matter for which CLL was charged and his access to sites reasonably assumed to include child pornography took place in his own home and would not be expected to give rise to notification by community members.
10. As noted in the section of these Reasons dealing with the conduct of CLL since the trigger matter, whilst he has provided references from referees who speak highly of him and his conduct with children, there is credible and unchallenged evidence that over the period that the referees from his teaching years knew him, he was accessing the sites that the Tribunal is satisfied would reasonably have been assumed to involve child pornography.
11. CLL has not provided the Tribunal with any expert evidence to assist in determining whether he is a risk to children taking into account the possibility that he possessed images of child pornography, and also the surrounding circumstances, being his email communications with websites with names that suggest involvement in child pornography.
12. CLL has also not provided the Tribunal with any evidence that he has sought any professional assistance with any matters that might have contributed to the behaviours referred to in the preceding paragraph. Nor has he provided testimony indicating his views about these matters.
13. Whilst there have been no reported concerns about the behaviour of CLL since the alleged offence, the Tribunal has no evidence of any changes in circumstances that would support a conclusion that if he did commit the offences as charged, he would not do so in the future.
14. Taking into account that the behaviours are those that are conducted in private the Tribunal places less weight on the absence of adverse notice than would be the case with offences of a more public nature.
15. These are finely balanced matters. It is significantly in the favour of CLL that he has not been found guilty of any criminal activity and that he has a long history of working with children with very positive references from fellow professionals and coaching clients no adverse notice of which the Tribunal is aware. However for the reasons outlined the Tribunal retains a lingering doubt that he was knowingly in possession of the images as charged and is satisfied that he was accessing and seeking access to internet sites that a reasonable person would assume were likely to contain pornographic material related to children.
16. Taking all of these matters into account the Tribunal is satisfied that on balance, CLL poses a real and appreciable risk of harm to children as a result of his involvement with sites reasonably assumed to be involved in child pornography and also the possible possession of pornographic images of young girls.
17. It follows that the orders of the Tribunal are: The decision of the Children's Guardian made on 18 May 2016 to refuse to grant the Applicant a WWCCC on the basis that he poses a risk to the safety of children 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: 08 March 2017