CZF v Children's Guardian

CZF v Children's Guardian - [2017] NSWCATAD 347 - NSWCATAD 2017 case summary — Zoe

Facts of the offence

CZF pleaded guilty to the offence of sexual intercourse with a child between 14 and 16 years. The police facts were agreed between the police and CZF's solicitor. The relevant facts stated that CZF attended a party with the victim and several other young people on 28 July 2006. CZF was 19 years old at the time and the female victim was 15 years and 7 months. They had not met personally but had communicated previously on social media. All young people appear to have been drinking alcohol during the evening. At some stage in the evening, the victim was in a private closed bedroom with CZF. They kissed and this led to them having sexual intercourse but the sex only lasted about a minute before another young man, the co-accused entered the room. CZF pulled up his pants and listened to music on a computer. At some point CZF turned around and observed the victim having sex with another young person, the co-accused. CZF told police the co-accused had pulled the bed in front of the door and CZF asked them to stop having sex so he could get out of the room. However, the victim told the co-accused not to stop, so CZF "tried to blank it out" and continued to listen to music until they stopped and he left the room.
The victim told police she remembered seeing CZF standing in the room near the bed. However, she did not remember having sexual intercourse with CZF. She did remember having sexual intercourse with the co-accused. The police interviewed CZF. He told police that he did not know the victim was under 16 years at the time. He only found out the next day. He stated to police that she "looked a bit drunk, but not like, she wasn't like laying on the ground or couldn't walk or whatever". The police charged CZF based on the admissions he made to police during the interview.
CZF pleaded guilty to the charge of sexual intercourse with a child 14 to 16 years. On 19 September 2007, the Court ordered that he enter a section 10 Bond to be of good behaviour for 12 months.

[3]

CZF statement and evidence

CZF provided a statement and gave oral evidence.
In his statement, CZF stated: 1. He struck up a friendship with the victim, through a mutual friend. He had not met her before but spoke over the internet as friends. He then attended the same party as the victim on the 28 July 2006 2. He believed the victim was 16-17 years of age. She was friends with a girl that was a sister of a good friend of his. He knew the sister to be between 16-17 years old and believed they were the same age. 3. A few weeks after the offence occurred he learned that the victim was 15 years old at the time. 4. He pleaded guilty to the offence accepting the advice of his solicitor that the law did not provide a defence at that time of reasonably believing the victim was over 16 years old.
CZF also gave oral evidence in the hearing and was cross-examined. He confirmed the facts as agreed with police. That is, he believed the victim was 16 years or over. He had penetrative sex with the victim for only a short time before the co-accused entered the room. He agreed the victim was intoxicated but at no time did he believe she was not consenting. He agreed with respondent Counsel that given the victim did not later remember having sex with him, he may have 'mistook' her level of intoxication at that time.
The respondent suggested the Tribunal should consider an allegation raised in the initial police investigation regarding the victim's level of intoxication and a further allegation, that both CZF and the co-accused were alleged to have had sex with the victim at the same time. These allegations were denied by the CZF at the time. CZF's solicitor sought to cross-examine the relevant witnesses regarding these allegations. However, the prosecution did not press these allegations. The Tribunal has considered these further allegations and gives no weight to them. They are untested allegations and not relied on by the prosecution. Further, the Tribunal has no statements from the witnesses attesting to or relating to these further allegations.

[4]

Applicable law

The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child related work to have working with children check clearances; Section 3 of the Act.
The paramount consideration is the safety, welfare and well-being of children, in particular, protecting them from child abuse; Section 4 of the Act.
As stated, CZF pleaded guilty to the offence of sexual intercourse with a child between the age of 14 and 16 years. This offence is listed as a disqualifying offence under Schedule 2 of the Act. Subsection 18(1) of the Act states the Children's Guardian must not grant a clearance to a person convicted of a Schedule 2 offence. A conviction also includes a finding of guilt.
Subsection 28 (1) of the Act provides that the Tribunal may make an order declaring that the person is not to be treated as a disqualified person. This is called an enabling order.
Subsection 28(7) of the Act places the onus on the Applicant to satisfy the Tribunal that he does not pose a risk to the safety of children.
The meaning of the word "risk" in the previous child protection legislation was considered by his Honour Young CJ in Commission for Children and Young People v V (2002) NSWSC 949. He stated the word 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".
The issue for the Tribunal to decide is whether CZF has discharged the presumption under section 28(7) of the Act that he does not pose a risk to the safety of children.
In determining this issue, the Tribunal must first have regard to the factors set out in section 30(1) of the Act. If the Tribunal is considering making an order enabling an applicant to work with children, the Tribunal must then consider the two-part test set out in section 30 (1A) of the Act.

[18]

Section 30(1A) of the Act

The Tribunal must now consider the tests outlined in s.30(1A) of the Act. The Tribunal must first determine whether a reasonable person would allow his or her child to have direct contact with the CZF in circumstances where he would not be directly supervised by another person while engaging in child related work.
The case of CHB v Children's Guardian [2016] NSWCATAD 214 held that s.30(1A) assumes the reasonable person is acquainted with all the relevant facts of which the Tribunal is aware. The relevant facts would include the agreed police facts, the police interviews of CZF and the victim, the transcript of the evidence of the coach in support of CZF and the report of the forensic psychologist, Jenny Howell. Based on the relevant facts the Tribunal is satisfied that a reasonable person would leave a child unsupervised in CZF's care. This is also consistent with the evidence of the coach who trusted CZF 'implicitly' with his own young children. This view was after knowing CZF for an extended period and also, knowing about the 2006 offence.
The second part of the test of s.30(1A) is the public interest test. The Tribunal must consider the public interest in the context of s.4 of the Act, which provides that the safety, welfare and well-being of children and in particular, protecting them from child abuse, being the paramount consideration.
The concept of public interest has been determined on the basis of giving priority to the broader interests of the community over private interests; see Smith v Commissioner of Police [2014] NSWCATAD 184. The Tribunal also refers to ZZ v Secretary of the Department of Justice [2013] VSC 267 where Justice Bell reviewed the authorities in relation to the public interest test and adopted the analysis that included consideration of factors such as the right of a person to engage in work and in the community affairs, and people with appropriate skills and experience having contact with children.
CZF has worked full time in the building trade continuously for the last 11 years, without incident. He has also contributed significantly to the life of his local sporting club as a member, player, volunteer and junior coach. His head coach gave evidence that CZF is highly regarded as a member and coach by his peers, children and parents at the club. He has been involved at the club since 2012 and requires a clearance so he can continue to contribute as a volunteer and coach. In the circumstances, the Tribunal is satisfied that it is in the public interest to grant CZF a working with children check clearance. It therefore follows that the correct and preferable decision is for the Tribunal to make the following Orders.

At a glance

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Judgment (20 paragraphs)

Parties

Cases Cited (5)