ECQ v The Children's Guardian - [2021] NSWCATAD 217 - NSWCATAD 2021 case summary — Zoe

NSWNSWCATAD

ECQ v The Children's Guardian

[2021] NSWCATAD 217

NCAT Administrative and Equal Opportunity|2021-01-22|Before: Emeritus Professor P, Foreman AM

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2021-01-22

Before

Emeritus Professor P, Foreman AM

Catchwords

(2011) 243 CLR 506

Source

Original judgment source is linked above.

Catchwords

(2011) 243 CLR 506

Judgment (49 paragraphs)

[1]

Introduction

The applicant filed an application for administrative review on 14 November 2019, requesting review of a decision dated 8 November 2019 of the Children's Guardian (the Decision), to refuse to grant a working with children check (WWCC) clearance to him on the ground that he was a disqualified person.
The applicant is a disqualified person under s 18(1) of the Child Protection (Working with Children) Act 2012 (the Act), having been convicted in May 2011 of the offence of Assault with an Act of Indecency pursuant to s 61L of the Crimes Act (NSW) 1900 to which he pleaded not guilty. The applicant was placed on a good behaviour bond for 2 years. The applicant was also convicted of common assault after entering a not guilty plea, and was required to enter into a bond for 12 months.
The applicant appealed the convictions on the ground that he was not guilty and he also appealed the severity of the sentences imposed. The NSW District Court upheld the convictions in September 2011. However, the sentences were reduced to convictions without penalty.
The applicant sought a WWCC clearance in October 2019 because he hopes to be appointed to a panel of lawyers established by Legal Aid NSW in order to act as an Independent Children's Lawyer and represent children in proceedings before the courts, in particular, the Family Court of Australia.
The respondent opposes the orders sought by the applicant.
In this application, the applicant seeks orders that the respondent's Decision be set aside. He also seeks an enabling order pursuant to s 28(1) of the Act that he is not to be treated as a disqualified person for the purposes of that Act in respect of his 2011 conviction and an order under s 28(6) requiring the respondent to grant him a WWCC clearance.

[9]

Background

At the time of making his application for a WWCC clearance, ECQ was aged 65. He is married, with children and several grandchildren. He has owned two businesses with his wife, including a childcare centre for approximately 13 years.
The applicant obtained his qualifications to practise as a solicitor in 2008 and practises in family and criminal law. He attended a 3-day National Training Program for Independent Children's Lawyers in November 2015, and as already noted above, has aspirations to represent children in court proceedings.
In connection with the criminal proceedings in 2011, the applicant's wife who worked as a nurse, provided a character reference attesting to her husband's good qualities as a husband, father and provider. She described her husband's involvement in local community activities and school activities associated with their children's education and sporting pursuits.
In his affidavit evidence filed in the proceedings before this Tribunal, the applicant described the incidents which resulted in being convicted of two offences as "a poor decision" for which he had been paying for almost ten years.
Apart from his convictions arising from the criminal trial in 2011, the applicant acknowledged a conviction for a mid-range drink driving offence.
Following his two assault convictions, the applicant was required by his professional association, the Law Society of New South Wales (the Law Society), to obtain a risk assessment in relation to sexual offending. This was required in order to determine the level of potential risk for recidivism he posed should he continue to work as a solicitor, given that some of his female clients are in vulnerable circumstances. The Law Society's letter in October 2011 to the applicant advised that it was in his best interests and "for the protection of the community" to undergo counselling for a period of 12 months.
The applicant attended 13 psychological counselling sessions with Ms Sky who issued the two reports dated March 2012 and October 2012 which were annexed to the applicant's affidavit and tendered as evidence in the proceedings before this Tribunal.

[24]

Reports from the treating psychologist, Ms Ely Sky

Despite what the Local Court Magistrate described as a "blanket denial" by the applicant of the assault allegations, he told Ms Sky that he had "indecently touched" the complainant and was guilty of the offences for which he had been charged and convicted.
Having pleaded not guilty in the Local Court and District Court proceedings, the applicant then made a full admission of guilt to Ms Sky. Her report dated October 2011 (in documents produced under summons on behalf of the respondent) is predicated on her understanding of the applicant's confessed guilt. She noted that his version of events matched the NSW Police Force Fact Sheet and reported that he said to her: "I'm guilty" and "it was wrong". Her report noted that the applicant was oriented to time and place based on his verbalisations to her.
Likewise, Ms Sky's report in March 2012 is also predicated on her understanding that the applicant accepted full responsibility for his conduct. Her report stated that the applicant did not deny or minimise his behaviour toward the female complainant and that the applicant: "…remained frank about his actions and admitted his conduct towards the female was inappropriate. He took complete responsibility for what he recognised was a foolish act, showing remorse and regret for his lapse of judgment."
Ms Sky's March 2012 report confirmed that the applicant had asked for psychological intervention to address any risk factors for sexual re-offending following his conviction. By way of background, the report noted that the applicant had been required by his professional association to obtain: "…an independent assessment to determine the level of potential risk for recidivism that he posed should he continue work in his profession, given that some of his clients are female and are in vulnerable circumstances."
Using an actuarial tool (Static-2002), Ms Sky concluded that the applicant's risk of sexual recidivism fell in the low risk category. "He is likely to be like others who have one apprehension and sanction for sexual offending who do not repeat behaviour that jeopardises the lifestyle which has taken decades to establish."
Further, Ms Sky opined that the consequences of the applicant's actions would exert a strong reminder of how he "must maintain appropriate boundaries at all times in all circumstances."
Ms Sky's notes of her consultation with the applicant 5 months later, in August 2012, disclose that he said his wife was upset that he had not told her about the criminal trial until he was convicted. The notes also disclose that the applicant had maintained his innocence to his wife because he believed that she would leave the marriage if she knew he had "grabbed" the complainant. The notes state that the applicant has "lies upon lies to contend with".
Her report in October 2012 again affirmed that the applicant: "…accepted full responsibility for his offending and at no time denied or minimised his behaviour. He continued to admit his conduct towards the female victim was inappropriate and did not blame the victim for coming on to him nor for taking the matter to the Police. He showed remorse and regret for his lapse of judgement. He expressed the view that his foolish behaviour was out of character though he recognised how his attitudes and circumstances at the time contributed to his miscontruals (sic) of the victim's intentions and actions."
The October 2012 report reiterated that the applicant accepted full responsibility for his offending and at no time denied or minimised his behaviour. Ms Sky reported that two risk assessment instruments had been used to provide an objective assessment of the applicant's risk of sexual reoffending. First, using the Static-2002, Ms Sky again assessed the applicant's risk of sexual recidivism, based on historical factors, was likely to be low. Second, the Risk for Sexual Violence Protocol, used to ascertain which factors are present in an individual that could pose a risk for sexual reoffending, indicated that the applicant had no factors that are associated with a risk of sexual reoffence operating at that time or over the previous months.

[25]

The applicant's evidence before the Tribunal

In a somewhat rather surprising development, the applicant's oral testimony before the Tribunal contradicted parts of his affidavit evidence and completely overturned the basis on which Ms Sky had treated him for a period for 12 months and the basis on which she had assessed his risk of recidivism.
Although the applicant had himself tendered into evidence Ms Sky's March 2012 and October 2012 reports by annexing them to his affidavit, his oral evidence contradicted the fundamental proposition that he had advanced in his sessions with Ms Sky, namely that he was guilty of the conduct for which he was convicted. The applicant said that he had undergone the counselling sessions with Ms Sky under duress.
His oral evidence was that he had not done anything to the complainant and that he had to admit the offence to Ms Sky, in order to keep his practising certificate. He said that he would not have seen Ms Sky if not for the Professional Standards Department of the Law Society requiring him to undergo counselling for 12 months.
When asked about the events that were the subject of the criminal trial, the applicant said he did not recall whether the complainant had entered his office on the day in question, seeking to sell a restaurant card.
When asked whether he had told the complainant he was single, he said he did not recall.
In response to a suggestion that he had behaved in a sleazy manner, he also said he did not recall.
In answer to the question whether he had tried to kiss the complainant, the applicant replied "no".
The applicant denied he had commented that the complainant's waist was small.
In response to a question whether the complainant would feel uncomfortable, the applicant said "it never happened".
In short, the applicant either could not recall the circumstances of the event, or insisted that the incident had not taken place.
In response to Counsel for the respondent taking the applicant to the Magistrate's comments in the criminal trial that he had been "defensive" and "hostile", the applicant agreed, saying that he was hostile then and "today" as in before this Tribunal.
Counsel for the respondent then took the applicant to that part of his affidavit tendered in these proceedings which said that he had made a "poor decision". The reference in his affidavit to a "poor decision" appeared contextually to refer to the conduct for which he was found guilty. However, in giving his oral evidence, the applicant said that he should not have shut the door to his office or not allowed the complainant to enter his office, suggesting that that had been his "poor decision", and not the conduct which resulted in his conviction.

[42]

Summary of the applicant's case

The applicant's case is that at no time has he ever been inappropriate with children and that there is no risk of harm in providing him with a WWCC clearance. He maintained that he had operated a child care centre for 15 years without incident.
The applicant argued that, with respect to his sessions with Ms Sky, he was fighting to maintain his practising certificate, and that, in the criminal trial, he was fighting for his innocence.
ECQ's affidavit evidence is that he made a "poor decision" in 2010, that he has paid for that "decision" for "almost 10 years". Although it was not entirely clear, it appeared from the applicant's oral evidence that the "poor decision" to which he referred was either a decision to allow the complainant to enter his workplace, or a decision to close his office door.
The applicant's oral evidence before this Tribunal is that the matters for which he was convicted "didn't happen".
Likewise, the applicant's oral evidence was dismissive of the 1999 Charge and the 2014 Complaint, and he maintained that they, too, "didn't happen".
The applicant submitted that, with respect to s 30(1A) of the Act, a reasonable person would not regard him as a risk to children.
In his submission, a 5 year embargo until he is entitled to make a further application for a WWCC clearance is too harsh a punishment.
The applicant cited in his affidavit the case of CVS v Children's Guardian [2017] NSWCATAD 154 (CVS's case). In that case, the applicant pleaded guilty, had no other charges against him, underwent recent forensic psychological assessment and produced a report that was described by the Court as being "sound and thorough", provided 6 character references in support of his application and the Children's Guardian neither supported nor opposed the application. The proceedings before us can be distinguished from the facts and circumstances in CVS' case in a number of areas, namely: 1. ECQ pleaded not guilty (despite his affidavit evidence to the contrary and Ms Sky's reports); 2. both the 1999 Charge and the 2014 Complaint involve similar circumstances to the disqualifying offence which resulted in his conviction and were reported to the NSW Police; 3. ECQ did not provide a recent risk assessment report from a forensic psychologist or psychiatrist; 4. ECQ provided no character references in support of his application; and 5. the respondent is not neutral, and opposes the application.

[44]

Conclusion reached in relation to s 30(1)(a)-(k) matters

We have considered the evidence before us.
We have taken into account the fact that the applicant failed to disclose details of the allegations reported to the NSW Police in 1998 and 2014, matters which we consider to be relevant to the application and ought to have been disclosed by him in accordance with his statutory duty under s 28(5) of the Act.
The applicant's conflicting accounts of the disqualifying offence and his inconsistent evidence relating to his guilt or innocence with respect to the disqualifying offence, are that: 1. he pleaded "not guilty" in the criminal proceedings; 2. he subsequently made a full admission of guilt (albeit dishonestly) to Ms Sky, his treating psychologist, in September 2011; 3. he maintained his admission of guilt (again, dishonestly) to Ms Sky during 13 counselling sessions from September 2011 until October 2012; 4. in addition to maintaining his admission of guilt, he explored in some depth with Ms Sky the motivation for his conduct that led to his conviction; 5. he maintained the position of guilt as a deliberate ploy to appease the Law Society's concerns about the need to protect the community in light of ECQ's conviction; 6. he was aware that Ms Sky's assessment of his risk for recidivism would be provided to the Law Society and relied upon by the Law Society as a condition for his practising certificate; 7. his affidavit evidence to this Tribunal was that he had "made a poor decision" and had been paying for that decision for almost 10 years, that he had worked on his "issues", that he "will never again disrespect a woman", and that there had been "no offences committed by [him] since 2010", all of which contributed to the overall impression that the applicant acknowledged in writing his conduct and guilt that led to his conviction; 8. and yet, his oral evidence before this Tribunal was that the offences of which he was convicted "never happened", entirely contradicting the impression created by his written evidence and expressly contradicting the position he had knowingly put to Ms Sky and the Law Society.
The applicant's oral evidence, that he only admitted to his guilt and only underwent psychological counselling as a condition imposed by the Law Society upon his practising certificate, appears to us to be as disingenuous as his affidavit evidence.
As a result, we regard the applicant to be a person who, in the words of Ms Ely Sky, must contend with "lies upon lies", including in relation to his application before this Tribunal. In light of his fabrications to Ms Sky and the Law Society as a contrivance to maintain his practising certificate under false pretences, and the applicant's cavalier approach to his duty of disclosure under the Act, we do not accept him to be a reliable witness who has truthfully disclosed all matters of relevance to his application.
The 1999 Charge, the 2011 conviction and the 2014 Complaint all involved women unknown to the applicant, whom he allegedly inappropriately touched either in the workplace or in connection with the offer of work or following the performance of work. We acknowledge that the 1999 Charge and the 2014 Complaint were not tested, and we note ECQ's denials of the allegations. Against those matters, however, is the fact that all three complainants felt the need to report the matters to the NSW Police, and did so. The 1999 Charge and the offence resulting in the applicant's conviction in 2011 both involve allegations of sexual impropriety that were reported contemporaneously (the following day). The 2014 Complaint was reported to the NSW Police within two weeks of the alleged sexual assault, and that particular complainant wanted to protect other women from the applicant.
Therefore, on the balance of probability, the allegations are more likely to be true than not. At the very least, they suggest a pattern of behaviour in the applicant, misinterpreting situations with women and crossing acceptable boundaries of conduct. However, it is the applicant's failure to disclose the 1999 Charge and the 2014 Complaint as matters having the same nature as the allegations that were made in relation to the disqualifying offence and relevant to this application, that is significant. Accordingly, we find that the applicant has not complied with his statutory duty under s 28(5) of the Act to disclose all matters relevant to his application.
If the oral testimony of the applicant is to be believed, the opinion of Ms Sky that the applicant represents a low risk of reoffending, is based on a false premise. We have not given any weight to that opinion.
We acknowledge that no matters of complaint about the applicant with respect to children have been disclosed. There is, however, a likelihood that, in acting as an Independent Children's Lawyer, and in providing legal services to and on behalf of children, the applicant may come into contact with adult females who have the care of children whom he seeks to represent. Associated with that likelihood is the risk that he may cross the boundaries of appropriate behaviour with women whose children he is assisting. Such behaviour would have indirect adverse effects on those children. In addition, we believe there is a risk of inappropriate behaviour towards older teenage females (under the age of 18) whom he could be assisting as an Independent Children's Lawyer.
Having regard to the applicant's pattern of sexualised behaviour, we consider the risk to the safety of children in the above circumstances is real and not fanciful, consistent with the reasoning in CXZ's case. The applicant's own oral evidence is that in his practice he deals mostly with women. We have considered this risk in light of the Law Society's expressed concern for the "protection of the community" and the applicant's own evidence that his period of psychological counselling for more than 12 months was based on representations that he now asserts were false. The applicant's pattern of behaviour in crossing boundaries and making sexual advances with adult females remains unaddressed having regard to the 2014 Complaint which followed his therapeutic counselling with Ms Sky, albeit under false pretences.

ECQ v The Children's Guardian

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Judgment (49 paragraphs)

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Cases Cited (15)

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