The applicant gave oral evidence and was cross-examined over two days. He also provided affidavits and a statement.
The applicant says the offences were committed at a time in his life when he had experienced the death of his infant son from Sudden Infant Death Syndrome (SIDS) approximately nine months before. He said he was experiencing grief and severe anxiety at the time of the offences.
It was put to the applicant by Counsel for the respondent that he had not acknowledged the harm he had caused to the victim by his actions. The following exchange in cross-examination occurred between the applicant and Counsel for the Respondent.
Q. Did you think that combining counselling on her grief experience and kissing her in a storage cupboard was good for her?
A. No. No. Not at all. Did-do I think that or did I think that?No.
Q. Did you think that at the time?
A. I stopped that behaviour because I realised it was harmful, inappropriate and wrong. (Transcript 20 November 2017, 45 at 20-25)
At the meeting with the victim in May 2015 that was recorded by Police the applicant acknowledged when asked by the victim as to "who did the wrong thing" that it was him. Also during that meeting the applicant told the victim that he now saw his conduct with her as "horribly manipulative" although he did not see it as that at the time. In our view the applicant has acknowledged that his actions caused harm. He acknowledged this in his evidence before the Tribunal. That acknowledgment of harm by the applicant is consistent with his statement to Police. During his record of interview with Police he described his actions with the victim as the "brutal imposition on a young and vulnerable person by an adult."
The applicant also gave evidence that he has reflected on his actions and now has a clear understanding of the importance of maintaining appropriate professional boundaries. When asked about his understanding of those boundaries he gave a number of examples of how he would ensure appropriate professional boundaries were maintained if he were to work with children again as a teacher. He said he would not initiate conversation of a personal nature with a student and that if he had any concerns about the welfare of a student or that a student had formed an attachment to him he would refer them to an appropriate professional such as a school counsellor or welfare co-ordinator. He said he would also take steps such as ensuring that any one-on-one lessons required with students were conducted in a public place such as a library. He was very clear that he would refer a student to someone appropriately qualified rather than deal with the situation himself if any personal issues were raised by the student or he had concerns about an emotional attachment forming either on the part of a student or on his part. Up until his dismissal in 2015 the applicant continued to teach. However there was no compelling evidence before us of any concerns regarding the applicant maintaining appropriate professional boundaries with students after a letter in 2008 from his school requesting that he desist from certain behaviours.
The applicant gave evidence that he had provided his personal e-mail and mobile phone number to students to facilitate his teaching of extension English to these students. He says he attended a birthday party for one his students at the invitation of the child's parents and took students participating in public speaking to events outside school hours. Counsel for the applicant submits that seeing students outside school hours for curricular and non-curricular educational purposes demonstrates the applicant's commitment as a teacher. We consider the applicant's actions were most unwise and were not consistent with appropriate professional boundaries applicable to teachers at the time. The evidence available however does not lead to an inference that the applicant did these things for the purpose of grooming students. We accept the applicant's evidence that he now understands the importance of maintaining appropriate professional boundaries and would not do these things now.
The applicant gave evidence that he has engaged in pro-social activities such as coaching junior cricket and soccer teams including at a representative level over many years including both before and after the disqualifying offences.
We accept that since the offending conduct the applicant has reflected on the impact of his conduct on the victim, accepts that he alone has responsibility for his actions and now appreciates the importance of maintaining appropriate professional boundaries in his dealings with students.
[2]
Evidence of Dr Emma Collins
The applicant relies on a report dated 16 November 2016 of Dr Emma Collins, Clinical and Forensic Psychologist. This report was prepared for the purpose of the criminal prosecution against the applicant. Dr Collins also gave oral evidence in the present proceedings and was cross-examined.
In her written report Dr Collins says she used both actuarial and dynamic risk assessments, being the STATIC-99 and the Risk for Sexual Violence Protocol (RSVP) in determining the applicant's risk of re-offending. Dr Collins said she could find no evidence, on the material available to her, that the applicant has any risk factors of note.
The report sets out that the applicant has a number of protective factors that have been assessed by Dr Collins as important. These are said to highlight the applicant's good functioning and stability in the community. Dr Collins found no evidence of unhealthy sexual interests, attitudes or the presence of sexual deviance. She also notes there was no evidence of maladaptive resolution skills or resorting to antisocial means to solve problems. Dr Collins also identified a positive attitude towards desistance by the applicant.
Factors which were seen by Dr Collins to increase the applicant's risk of re-offending were psychological coercion over the victim given the applicant's role of authority, his hazardous use of alcohol at the time of her assessment although this was not a relevant factor in terms of the disqualifying offences. The applicant was also noted to have some history of problems in intimate sexual relationships evidenced by the applicant's admission that he had numerous extra-marital affairs during his first marriage although Dr Collins thought this was not a factor that was currently relevant. Dr Collins conceded in cross-examination that given the applicant's current wife had refused to have sex with him since the disqualifying offence came to light indicated there are some current intimate sexual relationship issues for the applicant.
In her report Dr Collins concludes that based on the evidence available to her, the applicant does not demonstrate any ongoing sexual risk or a specific risk to the safety of children. No offence-specific treatment is considered to be required by the applicant to help manage any potential risk issues according to Dr Collins with no need for monitoring or action to help manage risk. The report concludes by saying the offences appear isolated and out of character as opposed to an ongoing pattern of behaviour that impacts risk.
During her oral evidence Dr Collins was asked a number of questions about the allegations which were the subject of AISNSW investigation and findings. Dr Collins was not aware of the alleged conduct the subject of the AISNSW investigation at the time of her original risk assessment. Dr Collins was uncertain whether there would be an elevation to the next category rating, being below average risk, if she were to conduct a re-assessment of risk taking into account the AISNSW investigation and findings. Significantly, she was of the view that the allegations found to be sustained in the AISNSW report would all be coded as an index cluster of offences. Dr Collins said that the risk categories have changed for risk assessments generally since her report was prepared. The risk categories are now very low risk, below average risk, average risk, average, above average and well above average risk. Dr Collins said potentially the applicant could go up to below average risk but not necessarily if the additional allegations of an ongoing sexual relationship were true. Counsel for the respondent acknowledged in her submissions that Dr Collins' evidence was to the effect that the allegations found to be sustained in the AISNSW report did not significantly increase the applicant's risk of re-offending as the offences would all be coded as an index cluster of offences.
Dr Collins presented as a balanced and professional witness. We found her opinion compelling and persuasive. It was not contradicted by other expert opinion.
[3]
Does the applicant pose a risk to the safety of children?
In reviewing the decision of the Children's Guardian to refuse the applicant's application for a clearance, the Tribunal must also consider whether the applicant poses a risk to the safety of children, having regard to the factors in s 30(1) of the Act. The test to be applied is whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26].
Set out below are our findings in relation to each of the s 30 (1) factors.
[4]
The seriousness of the offences and the period of time since those offences occurred (s 30(1)(a) and (b)).
The applicant pleaded guilty to the offences and under s 10 of the Crimes (Sentencing Procedure) Act 1999 (the CSP Act) the charges were dismissed by the Magistrate without recording a conviction. On appeal by the prosecution that sentence was upheld. We accept that the penalty imposed reflects that the seriousness of the offences was at the lower end of the range for such offences. However overall we find that the objective seriousness of the offences is a factor that weighs against granting an enabling order (s 30 (1) (a)).
We consider that the length of time since the offences occurred weighs strongly in favour of the applicant being granted an enabling order. The offences occurred approximately 30 years ago. The applicant has no criminal convictions either before or after these offences. He has come to the attention of authorities on one occasion since then when he pleaded guilty to driving with a mid-range blood alcohol level with the matter being dismissed under s 10 of the CSP Act.
[5]
The age of the applicant at the time the matters occurred, the age of the victim at the time the matters occurred and any matters relating to the vulnerability of the victim, the difference in age between the victim and the applicant and the relationship between them, whether the person knew the victim was a child and the applicant's present age (s 30 (1) (d)-(g))
The applicant was 32 at the time the offences occurred. The victim was 15. There was therefore a difference in age of 17 years. It is clear that as the applicant was the victim's teacher and they were attending a Year 9 retreat at the time of the first offence he was aware the victim was a child. The victim had disclosed that she was suffering grief as a result of the deaths of certain family members and by reason of this was vulnerable. These factors weigh against the applicant.
The applicant is now 62.
[6]
The seriousness of the applicant's criminal record, the conduct of the applicant since the offences occurred, the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition (s30 (1) (h-i))
The applicant continued to teach from the time the disqualifying offence occurred to 2015 when he was dismissed from his employment. Since the criminal proceedings and his dismissal as a teacher, the applicant gave evidence which was not contradicted by other evidence before us, that he has been employed in a number of different positions ranging from office work, his own plant business, cleaning and delivery jobs. He is in a stable long-term relationship with two young children from that relationship. His wife continues to be employed as a teacher and he has responsibilities, which he takes seriously, for the care of his two youngest children who are from his second marriage. We accept this evidence which was also not contradicted by other evidence before us.
We formed the view that the applicant was frank in his evidence and demonstrated an awareness and understanding of the inappropriateness of his actions, particularly in circumstances where he was responsible for the care of the victim and he was performing duties in the course of his employment as a teacher. We also formed the view the applicant shows genuine remorse for his conduct, and recognises the harmful impact on the victim.
It is likely that being charged and sentenced was a humiliating experience for the applicant and, one would expect, if such a personal deterrent were needed, that the experience would operate very powerfully as one. We accept the applicant has learned from the experience and has undergone both a change in behaviours and attitudes. This factor weighs in the applicant's favour.
We accept the applicant's evidence that he has significantly reduced his consumption of alcohol which was identified by Dr Collins as a current risk factor at the time of her report although not at the time of the offences.
We accept that the applicant has the support of family and friends should he require it.
It is clear that the impact on a child of any repetition of the same type of conduct that the applicant perpetrated on the victim as outlined above, would be traumatic for a child and could have lasting adverse psychological and emotional effects on the child.
It is now 30 years since the disqualifying offences occurred and approximately 27 years since the alleged sexual relationship with the victim ceased. He has had no criminal convictions since that time and one drink driving offence which was dismissed under the CSP Act. We consider the applicant has learned further and gained insight from the experience of being subject to a formal warning letter from his employer in relation to the importance of maintaining appropriate professional boundaries in his dealings with students.
When the applicant was sentenced in relation to the disqualifying offences the Magistrate said he accepted that the applicant was immediately contrite to the victim during the meeting in a park with the applicant on 29 May 2015. Further the Magistrate remarked that the applicant would have had no idea that the conversation was being recorded and in the Magistrate's opinion the applicant showed complete contrition during that conversation. Based on the evidence available to us which included the transcript of the meeting recorded by Police between the applicant and the victim in 2015 we agree with those comments of the Magistrate.
Remorse for offending behaviour is not on its own necessarily a mitigating factor in relation to risk. However, the remorse expressed by the applicant in relation to his behaviour, as recorded in his evidence before the Tribunal, statements he made to Police and to the victim during their 2015 meeting is coupled with insight into that behaviour. We are satisfied that the applicant has real insight into the gravity of his offending and sincerely regrets his actions and the adverse impact these had on the victim. He has learned from those actions at considerable personal cost.
We have placed substantial weight on the opinion of Dr Collins that even if the further allegations against the applicant the subject of the AISNSW report occurred these would all be clustered together as one set of index offences and that she was not sure if this additional conduct would result in an elevation of his risk of re-offending to below average risk from very low risk.
The offences were committed at a time when the applicant's social and family situation was quite different to what it is now. At the time he was experiencing difficulties in his marriage to his first wife and had recently experienced the death of his infant son in tragic circumstances. He is now in a stable relationship and his wife has provided a statement in support of his application for an enabling order. He has the support of people in the community who are aware of the offences and a number of those people have given written character references for the applicant.
Evidence before the Tribunal is that the applicant had eight sessions with a psychologist in 2016 to deal with the impact of the criminal investigation and that he has engaged in a range of strategies to manage his stress and anxiety.
In our view, having regard to all the evidence, the likelihood of the applicant reoffending is low. In making this finding, we found persuasive the evidence of Dr Collins that even if the further allegations which were sustained in the AISNSW report occurred this would not necessarily result in the applicant risk of re-offending being elevated to a below average risk category from very low risk.
[7]
Information given by the applicant in, or in relation to, the application (s 30(1)(j))
The applicant has provided sworn statements. In addition his wife has provided an affidavit in which she sets out that the disqualifying offences have placed strain on their marriage but that she stands by the applicant as she believes he is of excellent character. She says the applicant disclosed to all of the parents that live on their street that he had pleaded guilty to the disqualifying offences and that those parents still allow their children to play at their home. The applicant's wife holds no concerns about him being alone with their two children. We accept her evidence which was not challenged by the respondent. In our view her evidence supports the applicant's case that he should be granted an enabling order.
The applicant has also provided affidavits in these proceedings from people who know him and know of the disqualifying offences and attest to his good character and standing in the community as well as the high regard in which he was held by these people because of his skills as a teacher. These people include two former female students of the applicant and a doctor whose son was taught by the applicant. The applicant's sister-in-law says the applicant has looked after her infant children on many occasions and she has no concerns with him having unsupervised contact with them. She also speaks of the high esteem in which she holds the applicant.
In addition the applicant provided over 20 character references tendered on his behalf on his sentencing for the disqualifying offences. Whilst such references cannot provide an opinion about an applicant's level of risk, their observations can provide an insight into character.
Each of those character referees have stated they were aware of the nature of the disqualifying offences and speak of the high regard in which they still hold the applicant. A number of referees speak of the positive contributions he has made to their lives or the lives of their children who were his students. These referees include a number of former students of the applicant, parents of former students, fellow teachers and a former serving Police officer who is a friend of the applicant.
Two of the referees who were former students of the applicant were cross-examined in the present proceedings. One of them conceded that she had initially learned of the nature of the disqualifying offences through her sister rather from the applicant and that she had not discussed the offences in detail with the applicant. Counsel for the respondent put to both character witnesses in detail, the allegations which were the subject of the AISNSW report and which were found sustained by the investigator. When asked about the further allegations the subject of the AISNSW investigation both of these referees confirmed their opinions expressed in their statements regarding their positive view of the applicant's character at the time he was their teacher and maintained their view that they did not consider the applicant a risk to children.
[8]
Any other matters that the Children's Guardian considers necessary (s30(1)(k))
Counsel for the Children's Guardian submits that the applicant did not give full and frank disclosure of relevant matters as he was required to do under s 28(5) of the Act. This submission relates to the applicant not disclosing to the respondent that he was the subject of an ongoing investigation by the AISNSW into reportable conduct. Counsel submitted this information was obtained by the respondent directly from the school where the applicant had been employed. However we accept the submission by Counsel for the applicant which is supported by a letter dated 21 April 2017 (the letter) from the applicant's Solicitor that the office of the Children's Guardian was aware of these additional allegations. In the letter the applicant's Solicitor informed the Respondent that the applicant was the subject of a risk assessment by his school before he was terminated in 2015 and that risk assessment started as a result of the police investigation prior to the applicant being charged.
[9]
Conclusion
By reason of his disqualifying offences there is a statutory presumption that the applicant poses a risk to the safety of children. The question is whether he has rebutted that presumption. Having regard to all of the material before the Tribunal we are satisfied that the applicant has rebutted that statutory presumption and does not pose a real and appreciable risk to the safety of children. Since the disqualifying offences and the alleged conduct 27-30 years ago, the applicant has an almost unblemished record; he has sought assistance in relation to his mental health; he has been assessed by a forensic psychologist who is an expert in the area as presenting a low risk of re-offending and who maintained that view even if he did commit the additional offences.
In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act we are persuaded that the applicant does not pose a real or appreciable risk to the safety of children. We have placed weight on the seriousness of the offence, that the applicant was in a position of trust and authority as a teacher and the vulnerability of the victim and that there may have been other sexual offences by the applicant against the victim as found to be sustained by the AISNSW investigation. However in reaching our conclusion we have placed substantial weight on the following factors which we consider weigh in the applicant's favour and support the conclusion that he has discharged the onus on him as the applicant for enabling order:
1. It has been approximately 27 to 30 years since the disqualifying offences and the allegations the subject of the AISNSW report occurred or are alleged to have occurred.
2. There has been no further criminal conduct by the applicant of a similar nature.
3. The applicant has shown genuine remorse. His conduct since that time includes pro-social activities.
4. He has the support from family, friends, and the broader community as evidenced by the character references he has provided.
5. We have reached the conclusion that he is a low risk of reoffending.
[10]
Would a reasonable person allow his or her child to have direct, unsupervised contact with the applicant whilst he is engaged in child-related work? Is it in the public interest to make the orders sought by the applicant?
Section 30 (1)(A) of the Act applies to this application. That section provides that the Tribunal may not make an order which has the effect of enabling the affected person to work with children in accordance with the Act unless the Tribunal is satisfied that :
1. a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in child-related work, and
2. it is in the public interest to make such an order
The onus is on the applicant for an enabling order; in VQB v The Secretary to the Department of Justice [2013] VCAT 789 the Tribunal said this test requires:
the application of an objective standard based upon the views of the reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all the matters that have been placed before me, giving the applicant for a positive assessment the right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
The information that a reasonable person would require to properly consider this test is the applicant's criminal history, the evidence of his former employer regarding the warning issued in 2008, the AISNSW report and findings, the risk assessment report and oral evidence of the Psychologist Dr Collins and the evidence from the applicant's family and members of the community.
We are satisfied that a reasonable person would have regard to the fact it is 27 to 30 years since the disqualifying offences and the further allegations against the applicant were alleged to have occurred. The reasonable person would have regard to the fact that the applicant has not been convicted of any other offences since the disqualifying offences. The reasonable person would also have regard to the applicant being in a long term stable relationship and that he has a close and positive relationship with his sister-in-law's young children. The reasonable person would have regard to the numerous character witnesses who provided references with knowledge of the disqualifying offences, stating they have no concerns about their children being in the applicant's company unsupervised. We are also satisfied, from our own assessment of the material before the Tribunal and from observing the applicant give oral evidence, that a reasonable person would leave his or her child in the applicant's unsupervised care.
Having regard to all the evidence available to us and for the reasons set out above, we are satisfied that a reasonable person with knowledge of this information would allow his or her child to have direct unsupervised contact with the applicant whilst he is engaged in child-related work.
The Tribunal must also be satisfied of the second part of the test in s 30 (1)(A) that the order is in the public interest.
The Tribunal must consider the public interest in the context of section 4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, is the paramount consideration.
The meaning of the term "public interest" was considered by the Victorian Court of Appeal in Secretary Department of Justice v LMB, Secretary Department of Justice v PMY[2012] VSCA 143, at [23]-[26]. The Court said
As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140]:
The term 'in the public interest' is one of broad import. When used in a statute the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.
In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in protecting children from sexual or physical harm. The Act does this by 'ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body.
The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of notice will be in the public interest.
The onus is on the applicant to establish this. The applicant committed sexual offences against a 15 year old child 30 years ago. It is not in the public interest that the Act operates where a person does not pose a risk to children, to preclude that person from working or volunteering with children. Having regard to the available evidence we are satisfied that it is in the public interest to make the orders sought by the applicant. We accept that the applicant has acquired skills and knowledge as a secondary school teacher in the course of a long teaching career and there is evidence before us which we accept that indicates he has been a positive role model for some of his former students who have provided character references for him. The references provided for the applicant support our view that based on the other material before us that enabling the applicant to work with children is in the public interest.
[11]
Conclusion
Having regard to all the above factors, the Tribunal finds that the applicant has proven that he does not pose a real and appreciable risk to children. On this basis, the applicant should not be treated as a disqualified person for the purposes of the Child Protection (Working With Children) Act 2012.
[12]
Application for costs
The hearing took place over four days. At the conclusion of the second day of hearing on 13 March 2018 the applicant made an application for costs. This application arose from the filing by the respondent of the AISNSW investigation report on 12 March 2018. The tender of the report was opposed by the applicant's Counsel including on the basis that it had only become available on the day prior to the hearing. However the Tribunal decided to allow the tender of the report and adjourn the hearing. This decision was to afford the applicant procedural fairness by providing him with a reasonable opportunity to consider and respond to the report. The applicant sought a costs order for the costs thrown away by reason of the adjournment.
Subsection 60(1) Civil Administrative Tribunal Act (CAT Act) provides that the starting point is that each party pay its own costs. Subsection 60(2) gives the Tribunal a discretion to award costs if it is satisfied that there are 'special circumstances warranting the award of costs.'
Clause 13 of Schedule 3 of the CAT Act provides that the Tribunal may not award costs in proceedings for certain Division proceedings including a decision for the purpose of Child Protection (Working With Children) Act 2012 (WWC Act).
Counsel for the applicant submitted that a decision to adjourn the proceedings is a decision made pursuant to s 51 of the CAT Act rather than a decision under the WWC Act. As such, he says Clause 13 does not apply and the Tribunal has power to make a costs order in favour of the applicant.
Clause 13 states that the Tribunal 'may not award costs in proceedings.' Costs are defined in the CAT Act as the 'costs of, or incidental to, proceedings in the Tribunal.'
An application under s 28 of the WWC Act is a proceeding within the meaning of s 39 of the CAT Act.
Division 4 of the CAT Act deals with the conduct of proceedings. Section 51 provides that the Tribunal may adjourn proceedings to any time and place.
In our view a decision made under Division 4 to adjourn proceedings is a decision made for the purpose of the WWC Act. Although such as a decision is made pursuant to the power conferred by the CAT Act it is made for the purpose of the WWC Act. Therefore the power to award costs is ousted by the operation of Clause 13 Schedule 3 of CAT Act.
We therefore dismiss the applicant's application for costs.
[13]
Orders
For all of these reasons, we make the following orders:
1. Declare that the applicant is not to be treated as a disqualified person for the purposes of the Child Protection (Working with Children) Act 2012 (NSW) in respect of the offence of assault with an act of indecency (2 counts), Crimes Act 1900 (NSW), s 61E
2. Pursuant to s 28 (6) of the Child Protection (Working with Children) Act 2012 (NSW), the respondent is ordered to grant the applicant a Working With Children Check clearance.
3. The applicant's application for costs is dismissed.
[14]
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 April 2019
Section 4 of the Child Protection (Working with Children) Act 2012 (the Act or WWC 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 this Act."
The Children's Guardian is not permitted to grant a Working With Children Check clearance to a person convicted of an offence specified in Schedule 2 to the Act, if the offence was committed as an adult: s 18(1)(a). The offence of assault with an act of indecency, under s 61E of the Crimes Act 1900 (NSW), is an offence specified in Schedule 2.
Having committed a Schedule 2 offence, the applicant is a "disqualified person" (the Act, s 18(1)). However, the Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of the Act in respect of an offence specified in the order (an enabling order): s 28(1). If the Tribunal makes such an order, it may also order the Children's Guardian to grant the person the subject of the order a clearance (s 28(6)).
In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children: the Act, s 28(7).
When determining an application, under s 28(1) of the Act, the Tribunal is to have regard to the following matters which are set out in s 30(1) of the Act:
"(a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b) the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the offences or matters occurred,
(d)the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred,
(i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(i1)any order of a court or tribunal that is in force in relation to the person,
(j) any information given by the applicant in, or in relation to, the application,
(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,
(k) any other matters that the Children's Guardian considers necessary."
Investigation by the Association of Independent Schools New South Wales (AISNSW)
The applicant was the subject of an investigation by AISNSW in relation to separate allegations about other conduct alleged to have occurred with the victim between 1989 and 1992. There were also other allegations about conduct by the applicant in 2008 that were the subject of investigation by AISNSW.
Originally other charges against the applicant in relation to his conduct with the victim were made including that he had sexual intercourse with the victim. However these other charges were later withdrawn by the Crown.
The reason why the additional criminal charges against the applicant were withdrawn are not known although we accept the evidence before us that there was a process of charge negotiation that took place involving the applicant, his legal representatives and representatives of the Director of Public Prosecutions (DPP). These additional allegations were investigated by AISNSW and encompassed 9 allegations against the applicant which included that he put his penis in the victim's mouth and ejaculated in her mouth, performed oral sex on the victim and penetrated the victim's vagina with his penis and finger. The applicant has consistently denied these allegations.
On 9 March 2018 the report on the investigation into the further allegations of sexual misconduct by the applicant authored by Ms Amanda Robertson found a range of further allegations sustained on the balance of probabilities to the Briginshaw standard. The findings that were sustained included that the applicant had engaged in a sexual relationship including having sexual intercourse with the victim up until after she had left school in 1992.
The author of the AISNSW report, Ms Robertson was extensively cross-examined by the applicant's Counsel during the hearing. The applicant's Counsel was critical of the reasoning process Ms Robertson used in reaching her conclusion that the further allegations were sustained. For example he was critical of Ms Robertson's approach to take the applicant's admission of one allegation as proving another allegation. Ms Robertson's conclusion that some of the additional allegations were sustained was also challenged on the basis that she did not have appropriate regard to inconsistencies in the victim's recall of different allegations. Ms Robertson acknowledged that her investigation and report was principally based upon the evidence gathered in the investigation into the applicant's alleged conduct with the victim by NSW Police. Ms Robertson offered the victim the opportunity to provide further information for the purposes of the workplace investigation and Ms Robertson spoke to the victim by phone. Her report is detailed and thorough in its consideration of the written material available to her. We have had regard to the findings made by Ms Robertson that the further allegations were sustained.
Further, pursuant to s 30(1A) of the Act, the Tribunal must be satisfied of certain matters before making an order which has the effect of enabling a person to work with children. Section 30(1A) provides:
"(1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and
(b) it is in the public interest to make the order."
The issue for determination is whether the applicant has established, on the balance of probabilities, that he does not pose a risk to the safety of children: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 at [35]; BHA v Children's Guardian [2014] NSWCATAD 161 at [26].
The amendments effected by the Child Protection (Working with Children) Amendment (Statutory Review) Act 2018 commenced after the applicant had filed his application for an enabling order in the Tribunal. We are satisfied that they do not apply for the purposes of these proceedings.
The definition under s 5B of a "risk to the safety of children" draws upon the common law test which applied to the determination of risk under the the Actand earlier child protection legislation before it was enacted. This test was whether the risk posed by the applicant is "a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on children": Commission for Children and Young People v V [2002] NSWSC 949 at [42]; BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26]; CFJ v Children's Guardian [2016] NSWCATAD 62 at [38]; CJT v Office of the Children's Guardian [2016] NSWSC 738 at [40]-[44].
s 28(7) of the Act provides that it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.
In CJT v Office of the Children's Guardian [2016] NSWSC 738, Fullerton J observed that Young CJ's remarks about the meaning of risk in Commission for Children and Young People v V [2002] NSWSC 949 at [42] have "been consistently applied in construing the concept of a 'risk to the safety of children' for the purposes of ss 27 and 28 of the Working with Children Act". In BKE v Office of the Children's Guardian [2015] NSWSC 523 at [26] (a case concerning an application for an enabling order), Beech-Jones J referred to the meaning of "risk to the safety of children" in s 28(7) of the Act and said that this was to be understood by reference to the comments of Young CJ in Eq in Commission for Children and Young People v V [2002] NSWSC 949 at [42]. His Honour also said that "the effect of s 28(7) is that applicants must displace a presumption that they pose a risk to the safety of children" (at [28]).
There may be cases where the Tribunal can be satisfied that an allegation of sexual abuse against an applicant is established. Or, the Tribunal may be affirmatively satisfied that the relevant incident did not occur. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, the Tribunal 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 the existence of a risk has not been disproven: Children's Guardian v CKF [2017] NSWSC 893 at [55]; BKE v Office of Children's Guardian [2015] NSWSC 523 at [33].
Where "a lingering doubt or suspicion" remains, this does not count against an applicant, it is simply a matter to be considered when all of the evidence is weighed up in assessing whether the applicant poses a risk to the safety of children: Children's Guardian v CKF [2017] NSWSC 893 at [56].
In Children's Guardian v BRL [2016] NSWSC 1206, BRL sought a Working With Children Check clearance but was refused by the Children's Guardian and he applied for review of that decision to the Tribunal. BRL had been charged with the sexual assault of a child in 1998. At trial the victim did not complete her evidence and the trial judge discharged the jury. The Children's Guardian had sought to tender in evidence a number of witness statements for the purpose of proving the truth of those witness statements. Fagan J commented at [29]-[31]
In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the victim and other witnesses cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none).
If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on that basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, inherent probability or otherwise, agreement with objectively proved surrounding facts and so on. Examination of the evidence of allegations on that basis would be a foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be a weak basis for an affirmative conclusion without explanation of the victim's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016.
It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.
The applicant has consistently denied that he had sexual intercourse with the victim or engaged in a sexual relationship with her over a period of approximately three years as the victim alleges. Counsel for the applicant has referred us to the inconsistency between the victim's accounts and the recollection of three witnesses to whom the victim said she disclosed the allegations of the sexual relationship with the applicant. One of the witnesses to whom the victim said she disclosed the relationship with the applicant said that disclosure did not occur. Another witnesses' evidence revealed an inconsistency between the date that the victim told Police and told the witness when the first sexualised contact occurred with the applicant. A third witness denied the victim disclosed any sexual behaviour between the victim and the applicant although the victim maintained she did disclose to this witness. We have examined the victim's Police statements and the other material gathered in the course of the Police investigation. We consider that the victim's accounts in statements she made to Police of these additional allegations that she had a sexual relationship with the applicant over a period of three years, have been largely consistent. We accept that there are some inconsistencies in her written statements. The victim and the witnesses to whom she is alleged to have disclosed were not however cross-examined in the present proceedings or at a criminal trial. The meeting between the victim and the applicant in a park in 2015, which was recorded and transcribed by Police, does not assist in determining the truth of these further allegations. There was no specific reference made by either the victim or the applicant to the further allegations of misconduct.
In our view having regard to the material before us and considering the gravity of the additional allegations there is insufficient evidence to make a finding that the additional allegations of sexual misconduct which were the subject of the AISNSW report and findings have been made out.
In the absence of an opportunity to test the complainant's evidence, and in circumstances where the applicant has provided the Tribunal with a sworn denial of the allegations, we are unable to make a positive finding that the additional conduct the subject of the charges which were withdrawn, occurred. We have however explored those allegations to the extent this was possible at the hearing. We consider that in the circumstances of this case that there remains a "lingering doubt or suspicion" about whether this additional conduct occurred which needs to be considered when all the evidence is weighed up in assessing whether the applicant poses a risk to the safety of children.
We consider the evidence of the alleged additional sexual misconduct with the victim is of relevance to the question of whether the applicant poses a risk to children now. The alleged additional sexual misconduct is serious and if it occurred would undoubtedly have had a significant effect on the victim. However, this lingering doubt or suspicion must be weighed up with all the other factors in determining whether the applicant poses a risk to the safety of children now.