DKR v Children's Guardian

(a) Seriousness of the matters that caused a refusal of the applicant's application for a clearance

1. The offences of which the applicant was charged in 2011 were very serious in that they carried a maximum penalty of 20 and seven years imprisonment. Had the applicant been found guilty of these charges, his offending would also have been very serious. In such circumstances, the applicant would be a 'disqualified person' under s 18(1) of the WWC Act and presumed to pose a risk to the safety of children by reason of such offending: see WWC Act, s 28(7).
2. The applicant submitted that, based on his evidence, we would have little difficulty in concluding that he did not commit any offence on the night in question and, at the time of the incident, he was unaware of any concerns the complainant may have had about what had occurred.
3. The respondent submitted that it was open to us to find, on the material before us, that it was more probable than not that the acts and omissions the subject of the 2011 charges did in fact occur. In this regard the respondent contended that the complainant's account of events should be preferred and accepted, as despite vigorous cross-examination during the applicant's committal hearing and the trial of Mr A and Mr B, her account of events did not vary. While the accounts of the applicant, Mr A and Mr B differed from each other, in some respects the accounts of Mr A and Mr B provide some corroboration of the allegations the complainant made against the applicant. For example, Mr B's evidence, in which he said the applicant had told the complainant to give him and Mr A 'a go' and Mr A's evidence that the applicant had engaged in sexual intercourse with the complainant on the mattress.
4. In our opinion, there is no basis to depart from the detailed findings of the Magistrate in regard to the applicant's alleged 2011 offending.
5. In deciding whether to commit the applicant to stand trial, s 64(1) of the Criminal Procedure Act did not require the Magistrate to determine whether, on the material before the Court, it was more probable than not that the allegations against the applicant were proven or likely to be proven to that standard (i.e. the civil standard of proof). A much lesser standard of proof was required, namely whether there was a reasonable prospect that a reasonable jury, properly instructed would convict the applicant of the charges. At the applicant's committal the Magistrate was not satisfied that the evidence before it met this reasonable prospect standard. Hence, in the absence of the respondent placing before us any new evidence relevant to the 2011 incident, it is difficult to see how it could be argued that it was open to us to find that it was more probable than not that the applicant had committed one or more of the offences of which he was charged.
6. Nor has the applicant put on any evidence that would warrant us looking behind the findings of the Magistrate in regard to the complainant's account of events, which were extensively tested by the applicant's barrister. We note that the Magistrate did not make a finding that the complainant had fabricated her evidence or that she was lying. Yet the applicant appears to ask us to make such a finding, on the basis of his recent denials of any involvement in what the complainant alleged to have occurred on the night in question. In our view, while the applicant did not deny he arranged for the complainant to meet him that evening, his evidence, unlike the complainant's evidence, could not be tested by her in these proceedings. Again, in our view, the more contemporaneous and tested account of events is to be preferred.
7. We accept that Mr A and Mr B were not found guilty of the charges laid against them. But this does not mean that the events as alleged by the complainant did not occur. As Mr A and Mr B are not applicants for a clearance in these proceedings it is unnecessary for us to determine this issue. However, we do note the allegations of the complainant in regard to Mr A and Mr B and accept something happened that night which caused the complainant to make her complaint to police.
8. In any event, the question we need to address is the seriousness of the 2011 charges which caused the refusal of the applicant's clearance. For the reasons we have given, we accept the findings of the Magistrate and do not find, on the material before us, that it is more probable than not that the applicant committed the offences as charged.
9. While we do not find the 2011 charges proven to the civil standard of proof, in our opinion, the circumstances surrounding the incident nevertheless did give rise to an issue concerning risk to the safety of a child for the purpose of the WWC Act in that it was the applicant who: 1. invited the complainant to meet with him around 2.30am on the night in question with the intention of being intimate with her; 2. invited the complainant even though he had been drinking alcohol for many hours together with Mr A and Mr B; 3. arranged and paid for the taxi to bring the complainant close to Mr A's home; 4. knew when he arranged for the complainant to meet him: 1. the complainant was a 16 year old student at Mr A's school; 2. Mr A and Mr B were also present and awake at Mr A's home; and 3. he, Mr A and Mr B were all adult men; 1. started kissing and being intimate with the complainant in front of Mr A and Mr B and willingly, at the suggestion of Mr B went into the spa with the complainant.
10. Although this conduct is not criminal, given the protective nature of these proceedings, the question is whether the existence of a risk of this kind continues as of today if the applicant were to be granted a clearance. We have dealt with this issue below.

(b) The period of time since those offences or matters occurred and the conduct of the person since that time

1. Seven years have passed since the charges were laid against the applicant. There is no evidence of any reports of the applicant having engaged in any inappropriate conduct since that time.

(c) The age of the applicant at the time the offences or matters occurred

1. The applicant was 20 years of age at the time of the alleged offending. We accept the observations of Mr Fordyce, at [43] of his report, that the applicant and the complainant's interaction on the night in question appeared to be 'immature in nature'.

(d) The age of each victim of any relevant … conduct at the time they occurred and any matters relating to the vulnerability of the victim

1. The complainant was 16 years of age at the relevant time. At [44] of his report, Mr Fordyce, observed that, based on the text messages the complainant had sent to the applicant on the days after the night in question, she acted and communicated in a manner he would expect of a girl her age.
2. At the hearing, the applicant said he did not think the complainant was vulnerable. He said that had he thought this to have been the case, he would have stepped in. He said he thought she was confident and was sexually active.
3. For the reasons we have given above, we agree with the respondent that at the time, the complainant was vulnerable in that the applicant had invited her to come and join him at Mr A's home when he knew that the complainant was a student at the school where Mr A taught and that he, Mr A and Mr B had all been drinking for some hours. Yet he did not think twice whether it was appropriate to arrange for the complainant to meet him there. In his evidence before us the applicant acknowledged that in hind sight he now realises he should not have invited the complainant to join him at Mr A's house that night.

(e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person

1. There was almost four years difference in the age of the complainant and the applicant. Mr B, on the evidence of the applicant was also about four years older than the complainant. Mr A, on the other hand, was considerably older than the complainant. He was 33 years of age.
2. At [44], Mr Fordyce went on to say that given the applicant's impression that the complainant was mature implied that, at the time, they were of similar psychosocial maturity.

(f) Whether the person knew, or could reasonably have known, that the victim was a child

1. The applicant either knew or could reasonably have known that the complainant was 16 years of age. He knew she was a school student and that she was in year 11.

(g) The person's present age

1. The applicant is currently 27 years of age. In his report, at [61], Mr Fordyce expressed the opinion that the applicant's psychosocial maturity had increased since 2011 in that he had developed a stable intimate partnership and a more stable lifestyle, including employment.

(h) The seriousness of the person's total criminal record and the conduct of the person since the matters occurred

1. There is no evidence of the applicant having been charged, or come to the notice of police, or any other relevant authority, prior to the 2011 incident or thereafter.

(i) The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition

1. The applicant relied on the risk assessment report of Mr Fordyce as to the likelihood of him offending or reoffending in the manner that gave rise to the 2011 charges having been laid against him.
2. Mr Fordyce's approach was to assess risk on the basis of the complainant's account being accepted and also on the basis of the applicant's account of events given in these proceedings.
3. In his report, at [43] to [50], Mr Fordyce made a number of observations about the applicant from responses he gave to questions about the incident, which included the following: 1. a lack of understanding about the potential power imbalance where the complainant was in another person's home, with three significantly older males, one of whom was a teacher (at [45]); 2. while the applicant expressed feeling uncomfortable when Mr A and Mr B commenced acting in a sexual manner towards the complainant, he appeared to be reasonably accepting of what he stated to have transpired, as he did not immediately desist from his involvement in the activity (at [46]);
4. Nevertheless, at [48], Mr Fordyce said that the applicant evidenced an awareness of some risk management factors in relation to possible allegations of sexual misconduct when he said: 1. he should not have met with the complainant early in the morning or he should have ensured that the sexual interaction between them remained private; 2. since 2011, he become more cautious in his initiation of intimate situations, in order to prevent further allegations being made against him. He said he did not engage in 'casual' sexual partnerships, and focused instead on building a stable relationship with any potential sexual partner
5. At [49] of his report Mr Fordyce gave the following summary of the applicant's account of the incident: … he evidenced a pattern of sexualising the complainant and limited insight into a possible power imbalance, or concern for her wellbeing in the situation. However, I note that [the applicant's] level of insight was not unusual given his relative inexperience in intimate partnerships and lack of engagement in specialist treatment, and the significant negative effect that the allegations have had on his life. [The applicant] demonstrated some awareness of risk management issues, in that he expressed ways in which he could have acted differently to avoid the allegations being made against him and how he has changed his behaviour since the incident.
6. At [61], Mr Fordyce said that based on the applicant's account, he: … did not present with notable risks in relation to sexual deviancy. … [he] did not endorse a history of deviant sexual interests, hypersexuality, sexual preoccupation or sexual self-regulation issues. He demonstrated an age appropriate progression from more casual sexual partnerships to a stable intimate relationship. [The applicant] demonstrated a sound understanding of sexual consent and expressed attitudes which oppose sexual abuse. [The applicant] does not evidence a history of antisociality, and described a history of stable and prosocial functioning. To this end, it is my view that [the applicant's] accounts of events would be best explained within the context of situational factors, including his psychosocial immaturity, lack of a stable intimate relationship, disinhibiting effects of alcohol, influence of his peers, a sexualised view of the complainant and a lack of insight into a possible power imbalance in this situation. In my opinion, these factors, which were reportedly confined to the incident, have been moderated by his increased maturity, the development of a stable intimate partnership and a more stable lifestyle, including enjoyment.
7. At [67], Mr Fordyce concluded: In relation to [the applicant's] current risk of sexual violence, if the Tribunal accepts the complainant's account, I consider that [the applicant's] dynamic risk factors of extreme minimisation, attitudes which support his sexual violence and problems with self-awareness, would maintain his average risk of sexual recidivism. Although this would have been partially moderated by his time at liberty without further charges and protective factors. If the Tribunal accepts [the applicant's] account of the incident, there is no evidence to suggest that he poses a risk of sexual violence. Furthermore, the factors which precipitated his involvement in the incident have been moderated by positive changes to his lifestyle and personal strengths.
8. We accept the abovementioned remarks of Mr Fordyce in regard to his observations of the applicant concerning the incident. However, this does not mean we accept the applicant's denial of any involvement in what occurred on the night in question as alleged by the complainant.
9. We also agree with the conclusion of Mr Fordyce that, as at the date of the hearing, the likelihood of the applicant engaging in sexual violence in future is very low. He has not been convicted of such an offence in the past and there have been no further reports of the applicant having behaved in the manner he did behave and was alleged to have behaved in 2011. For the same reasons we are also satisfied that the applicant is unlikely to place himself in the same situation he placed himself in when he invited the applicant to join him on the night in question.

(j) Any information given by the applicant in, or in relation to, the application

1. It is evident from the references written by family members of the applicant that the applicant has and continues to have their support. Many of those who gave references referred to the allegations of the complainant as being fanciful or a fabrication. The basis on which such remarks were made were not explained, but we doubt any of the applicant's referees have actually read the transcript of the applicant's committal hearing.
2. The remaining references were from people who had known the applicant since he was a child, at school or who had met him through work. Some noted that the 2011 charges laid against the applicant had been discharged, while others made no reference to the applicant having been charged. However, they all said he was of good character and a man of pride, and principle. He was honest, trustworthy, determined, hard-working and kind hearted. He was a talented sportsman in his chosen sport and deserves the right to be allowed the enjoyment of coaching and helping his community.
3. In his written submissions, the solicitor for the applicant contended that the applicant had shown a great level of insight when he consented, without admission, to a 2 year apprehended violence order being made against him following the dismissal of the charges. It was also submitted that the applicant had shown insight when giving his evidence in these proceedings.

(k) Any other matters that the Children's Guardian considers necessary

1. Counsel for the respondent contended that on the material before the us, we could comfortably be satisfied that the applicant poses a risk to the safety of children if he were to be granted a clearance. Of particular concern to the respondent was the applicant's ongoing lack of insight into his behaviour and the impact it had on the complainant. Instead he blames the complainant for what has happened to him since he was charged with the offences.

Can we be satisfied that the applicant poses a risk to the safety of children?

1. In determining whether we can be satisfied that the applicant poses a risk to the safety of children, we reiterate the paramount consideration in the operation of the WWC Act (i.e. 'the safety, welfare and well-being of children and, in particular, protecting them from child abuse).
2. As we have noted, we must determine risk in the context of any child-related work and not in the context of the child-related work the applicant seeks to work in.
3. For the reasons set out above, we cannot be satisfied that the applicant poses a real and appreciable risk to the safety of children. While the offences of which the applicant was charged in 2011 were very serious, they were dismissed early, following a committal hearing where the complainant gave evidence and was extensively cross-examined.
4. Nor have we found, on the material before us that it is more probable than not that the applicant committed the offences as charged. Instead we accept the findings of the Magistrate, which did not go so far as to find that the complaint had lied or that her account of events had been fabricated. Nevertheless, we have some concerns about the applicant's involvement in the circumstances giving rise to the 2011. We accept that while the applicant was an adult at the time he was immature for his age.
5. It is now seven years since the incident occurred. We accept the evidence of Mr Fordyce that, since that time, the applicant has matured and there are now many dynamic factors protective against a risk of offending in favour of the applicant. Hence, it is unlikely that he would in the future engage in conduct of the kind he was charged with in 2011, including placing himself in the same situation he placed himself when he invited the complainant to join him on the night in question.
6. We share the concerns of the respondent about the applicant's apparent lack of insight into his involvement in the 2011 incident. However, as noted by Mr Fordyce, the applicant's responses to what happened in 2011 need to be considered in their proper context. First, the applicant presented as a nervous and fairly serious person. And he, like many applicants who have been refused a clearance because of charges having been laid against them in the past, minimise their involvement in the incident the subject of the charges laid against them, as they see an application under WWC Act as being a trial of the charges, which were dismissed many years ago. It is accepted that minimisation and lack of insight into their involvement and the impact that had on the victim does not, on its own, give rise to a question of risk of harm to children today.
7. In our view, despite a lack of insight, when this is weighed against the many factors in the applicant's favour, we remain of the view that, on the material before us, we cannot be satisfied that the applicant poses a real and appreciable risk to children as at the day of hearing.

Are we satisfied a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the affected person is engaged in any child - related work?

1. The reasonable person test was considered in VQB v The Secretary to the Department of Justice [2013] VCAT 789 where it was said that the 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.
2. In order to properly consider this test, a 'reasonable person' would need to know about the charges brought against the applicant in 2011, their dismissal at committal and the other material before us, including the report of Mr Fordyce.
3. For the reasons set out above, we are satisfied that a reasonable person, having knowledge of all the information that is before us, would allow his or her child have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in child related work.

Is it in the public interest to make an order?

1. The public interest consideration in s 30(1A(b)) of the WWC Act is a broad concept giving priority to the broader interests of the community over private interests, including 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 (WWC Act s 3): see WWC Act, s 3, Smith v Commissioner of Police [2014] NSWCATAD 184 and ZZ v Secretary, Department of Justice [2013] VSC 267, at [206].
2. In our view, it is in the public interest to make the order sought. The evidence is that, in all respects, the applicant today does not pose a real and appreciable risk to the safety of children and he has the necessary skills and experience to coach young players in his chosen sport.

Conclusions and Orders

1. For the reasons set out above, we find that we are not satisfied that the applicant poses a real and appreciable risk to children. We are also satisfied of the matters prescribed in s 30(1A) of the WWC Act. On this basis we also find that the decision of the respondent is not the correct and preferred decision and should be set aside. In substitution of that decision we make a decision that the applicant be granted a working with children check clearance.
2. For the reasons set out above, the we make the following order: 1. The decision of the respondent, made on 2 March 2018, to refuse the applicant application for a working with children check clearance is set aside. 2. In substitution for the decision of the respondent, the following decision is made: the applicant is granted a working with children check clearance.

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: 30 April 2019