EQW v The Children's Guardian

EQW v The Children's Guardian - [2021] NSWCATAD 376 - NSWCATAD 2021 case summary — Zoe

This is an application for administrative review pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (the Act) of the decision of the Children's Guardian (the respondent) made on 29 April 2021 under s 18(2) of the Act (the Decision). The respondent's Decision refused to grant a working with children check (WWCC) clearance to the applicant on the grounds that, in its assessment, he poses a risk to the safety of children.
The applicant was granted a WWCC clearance on 16 September 2015 in connection with his work as a children's entertainer/magician.
An allegation that the applicant had sexually touched a three-year old girl (Child A) at another child's birthday party on 13 April 2019 (the 2019 Allegation) was reported to the sexual assault team at a relevant hospital and subsequently the Child Abuse Unit Central Metro of the NSW Police Force on or around 24 July 2019.
An investigation by the Department of Communities and Justice (DCJ) substantiated, on the balance of probabilities, that the applicant caused sexual harm to the three-year old girl during his employment as a children's magician. Consequently, the applicant was recorded as a 'person causing harm' to a female child. This information was provided to the Children's Guardian on 5 February 2020.
The information provided to the Children's Guardian also advised that the applicant had a 'person of interest' history in relation to another allegation that he had touched a five-year old child (Child B) on the penis at his birthday party on 8 December 2012 (the 2012 Allegation). This was also alleged to have occurred during the applicant's employment as a children's magician.
The police investigation into the 2012 Allegation had been suspended on 29 January 2013 on the basis that no offence had been detected. The police investigation into the 2019 Allegation was closed on 27 August 2020 on the basis that there was insufficient evidence to prove that the offence occurred beyond reasonable doubt. No criminal charges were made against the applicant in relation to either the 2012 Allegation or the 2019 Allegation.
DCJ advised the Children's Guardian that while the police did not proceed criminally due to the burden of proof being 'beyond reasonable doubt' and no criminal charges were made against the applicant, DCJ's substantiation was 'on the balance of probabilities'.
On 10 July 2020, the Children's Guardian issued a Notice of Interim Bar and Risk Assessment to the applicant, notifying him that DCJ had substantiated an allegation of sexual abuse against him and that he had been recorded as a 'person causing harm' to a female child. The notice advised the applicant that he was subject to an interim bar under s 17 of the Act and that, pursuant to s 15(3) of the Act, the Children's Guardian would be undertaking a risk assessment in relation to the applicant's current clearance status, to evaluate whether he was a person who can engage in child-related work.
The applicant provided material in relation to the 2012 and 2019 Allegations, including reports from an expert forensic psychologist.
Before the risk assessment was complete, the applicant's WWCC clearance expired on 19 March 2021 and he lodged a new WWCC application on 25 March 2021.
On 31 March 2021 the applicant was notified that he would be subject to a further risk assessment and was invited to submit material to inform the risk assessment. The applicant, through his legal representatives, informed the Children's Guardian that he sought to rely on the evidence he had provided in response to the first risk assessment, for the purpose of the second risk assessment.
The applicant was notified on 7 April 2021 that the respondent proposed to refuse his WWCC application and was provided an opportunity to submit further information for consideration by the Children's Guardian. The applicant stated that he would not provide further information.
The respondent's Decision set out the reasons why it was satisfied that the applicant poses a risk to the safety of children. The respondent opposed EQW's application for administrative review.
The applicant submitted that he does not pose a risk to the safety of children, that a reasonable person would allow him to work with their children unsupervised and that it is in the public interest for the respondent to grant the clearance.
The applicant asked the Tribunal to make orders to set aside the respondent's Decision and, in substitution of that Decision, order that his clearance be granted.
In this administrative review, neither party bears the onus of proof. There is no presumption that the applicant poses a risk to the safety of children.
The applicant has a statutory obligation to fully disclose to the Tribunal any matters relevant to his application.
For the following reasons, we have decided to set aside the respondent's Decision and order that the applicant's WWCC clearance be granted.

[6]

Material and evidence before the Tribunal

The following material was filed on behalf of the applicant: 1. Application for administrative review filed on 7 May 2021 which annexed a 3-page document setting out the grounds for the application; 2. Affidavit of EQW affirmed on 14 July 2021 with six annexures marked consecutively "Exhibit AJF-1" to "Exhibit AJF-6" (marked "Exhibit A1"); 3. A further Affidavit of EQW affirmed on 26 August 2021 with annexures A and B (marked "Exhibit A2"); 4. Affidavit of Patrick Sheehan, Clinical Psychologist, affirmed on 25 August 2021 with annexures "A" to "F" including Mr Sheehan's reports dated 8 March 2021, 30 July 2021 and 5 August 2021 (marked "Exhibit A3"); 5. Supplementary document to be read in conjunction with Mr Sheehan's assessment of the applicant, referred to as the Static 99-R Assessment Sheet filed on 7 October 2021 (marked "Exhibit A4"); 6. Affidavit of Ms LB, a solicitor employed by Santone Lawyers representing EQW, affirmed 14 July 2021 (marked "Exhibit A5"); 7. Affidavit of Ms A, a former client of EQW, affirmed on 14 July 2021 (marked as "Exhibit A6"); 8. Affidavit of Ms CF, daughter of EQW, affirmed on 14 July 2021 (marked as "Exhibit A7"); 9. Affidavit of Ms NF, former wife of EQW, affirmed on 14 July 2021 (marked as "Exhibit A8"); 10. Affidavit of Ms PF, daughter of EQW, affirmed on 14 July 2021 (marked as "Exhibit A9"); 11. Affidavit of Dean Alexander Lestal, Solicitor representing EQW, affirmed on 15 July 2021 (marked as "Exhibit A10"); 12. Affidavit of Ms L, current wife of EQW, affirmed on 14 July 2021 (marked as "Exhibit A11"); 13. Affidavit of Mr L affirmed on 14 July 2021 (marked as "Exhibit A12"); 14. Affidavit of Ms T affirmed on 13 July 2021 (marked as "Exhibit A13"); 15. Affidavit of Ms W affirmed on 15 July 2021 (marked as "Exhibit A14"); 16. Affidavit of Mr Z affirmed on 14 July 2021 (marked as "Exhibit A15"); 17. Outline of submissions dated and filed on 30 September 2021, with annexures A and B.
The following material was filed on behalf of the respondent: 1. Documents filed by the respondent on 10 June 2021 pursuant to s 58 of the Administrative Decisions Review Act 1997 (marked "Exhibit R1"); 2. Further documents filed by the respondent on 4 August 2021 (marked "Exhibit R2"); 3. Outline of submissions filed on 16 September 2021; and 4. Supplementary submissions dated 29 September 2021 and filed in the Registry on 6 October 2021.

[9]

Documents admitted into evidence on limited basis

The Tribunal considered the issues raised in submissions for the applicant dated 30 September 2021 regarding the documents relied upon by the Children's Guardian in this case and the basis on which those documents would be admitted in circumstances where the allegations of conduct have not been tested and the Children's Guardian did not propose to call certain witnesses and have them available for cross-examination.
In the applicant's submission, several items in the material filed by the Children's Guardian ought only be admitted for the limited purpose of establishing that the 2012 and 2019 Allegations were made against the applicant, as opposed to their admission for the purpose of establishing their truthfulness or accuracy, in circumstances where: 1. the 2012 and 2019 Allegations did not result in charges being made against the applicant; 2. no offences were detected; 3. the investigations into each of the 2012 and 2019 Allegations were discontinued by police; 4. the 2012 and 2019 Allegations remain untested; and 5. the respondent declined to make arrangements for eight witnesses (referred to in more detail below) to give evidence and be cross-examined in these proceedings.
The Tribunal was also aided by comprehensive supplementary submissions on behalf of the respondent dated 29 September 2021 addressing the natural justice and procedural fairness aspects of receiving the evidence of the allegations made by Child A and Child B on an appropriately limited basis.
Annexure A to the submissions for the applicant identified a number of documents contained in R1 and R2, in relation to which documents it was submitted on behalf of the applicant they should only be admitted into evidence in these proceedings for the limited purpose of establishing that the 2012 and 2019 Allegations were made against the applicant, as opposed to their admission into evidence for the purpose of establishing the truthfulness or accuracy of the allegations.
Annexure "B" to the submissions for the applicant comprised correspondence between the parties' respective legal representatives concerning the request on behalf of the applicant that eight persons be made available for cross-examination at the hearing. The respondent determined that, in the circumstances of this case, it did not propose to make enquiries of the availability of those eight persons to give evidence and did not intend to call any of those persons as witnesses.
The eight witnesses requested by the applicant to be made available for cross-examination at the hearing were: 1. With respect to the 2019 Allegation: 1. Child A; 2. the mother of Child A; 3. the brother of Child A who was interviewed by DCJ; 4. a witness (then aged 10 years) who was interviewed by DCJ; 5. the witness who arranged for the applicant to perform the magic show at her property. 1. With respect to the 2012 Allegation: 1. Child B; 2. the mother of Child B; 3. the grandmother of Child B.
The starting point for considering these issues, as pointed out in submissions made on behalf of both parties, is that whilst the Tribunal is not bound by the strict rules of evidence (with the exception of privileged documents: s 67 of NCAT Act), the principles of procedural fairness and natural justice do apply to all proceedings before this Tribunal.
With respect to the applicant's request for Child A, her brother and the witness who were both interviewed by DCJ in relation to the 2019 Allegation and Child B to be made available for cross-examination, the Tribunal accepts the respondent's arguments in paragraphs 35 and 37 of its supplementary submissions. We acknowledge that an approach to a child victim, complainant or child witness of sexual abuse has the potential to cause emotional trauma. We also accept that it is reasonable to assume that given the alleged victims were very young at the time of the alleged incidents, they may have no memory or consciousness of the alleged incidents. The potential for them to be subjected to distress, stress and embarrassment if they became aware that their disclosures were being raised in Tribunal proceedings cannot be discounted as having an adverse effect. Likewise, there is potential for the child witnesses to be subjected to stress if required to give evidence and be cross-examined in Tribunal proceedings of which they were previously unaware and it cannot be discounted as having an adverse effect upon them.
Citing Children's Guardian v BRL [2016] NSWSC 1206 (BLR), the applicant submitted that if the Tribunal was to allow the tender of untested witness statements in proceedings, in circumstances where the Children's Guardian provided no explanation of the failure to call those witnesses (which was not correct in these proceedings, as noted below), there would be a weak basis for concluding that the alleged conduct had in fact occurred on the balance of probabilities.
The respondent contended in paragraph 36 of its supplementary submissions that there were reasons why the other adult witnesses were not contacted. Those reasons were that the Children's Guardian did not have information about the current situation of those witnesses and their ability to manage the stress of being involved in legal proceedings which do not concern them and about which they were unaware.
Further, the respondent argued that contacting the relatives of the alleged child victims may have an amplified adverse effect in circumstances where that contact would be the first time they had been made aware that allegations concerning their children were the subject of proceedings before the Tribunal.
We are of the view that, as a general proposition, the adult witnesses would reasonably have expected there to be consequences resulting from sexual assault allegations involving their children, such as interviews by DCJ and the police. While it is less likely that the witnesses would have anticipated Tribunal proceedings such as this to flow from the allegations having been made, particularly since the police discontinued their investigations, we do not accept that being contacted by the respondent about these proceedings was likely to have had an amplified adverse effect upon the adult witnesses. We have therefore carefully considered the following caselaw in determining the basis on which to accept several items in the respondent's documents (R1 and R2).
In matters where allegations are serious, as they are in this case, with serious consequences for the applicant, BLR provides some guidance at para [29]: "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 complainant 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)."
As noted in both parties' submissions, at para [30] of BRL, Fagan J said: "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 complainant's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016."
Further, at para [31] of BRL, Fagan J added: "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."
In CGB v Children's Guardian [2018] NSWSC 76 (CGB), none of the three children the subject of the allegations made against the applicant for a WWCC clearance were called to give evidence. The Tribunal received the evidence as evidence that the allegations were made. The Court rejected the applicant's contention that the Tribunal had used the allegations for a hearsay purpose, and concluded that the Tribunal had acted consistently with the principles in BRL. Drawing from BRL, the court said at [78]: "To understand his Honour's explanation in paragraph [31], it is necessary to read the preceding paragraph [30]. His Honour was not saying in [31] that the Court should give negligible weight to representations which are adduced as evidence and allegations were made. To the contrary, his Honour said that such statements would be of some relevance in determining the more limited question of whether there was a real risk that the offences had occurred. This is a distinct question from proving the truth of the allegations that the offences actually took place. When statements are received on the more limited basis of proving representations were made, these can be looked at for internal consistency between the respective makers of statements, inherent probability or otherwise. Examination of the evidence of the allegations on this basis would, together with other evidence, be a foundation for the Tribunal to decide whether there was a risk that the allegation were true."
As correctly pointed out in submissions on behalf of the applicant, the more serious the nature of an allegation, the more probative or stronger the evidence is required to support that allegation: Briginshaw v Briginshaw (1938) 60 CLR 336 at [362] (Briginshaw); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at [449-450]. In Briginshaw the High Court of Australia cautioned about the use of "inexact proofs" in the context of making serious findings of fact (such that an applicant had sexually abused a child in circumstances where they had not been convicted of doing so).
The proper approach of the Tribunal in cases of disputed allegations is that set out in BKE v Office of Children's Guardian [2015] NSWSC 523 (BKE), approved in Tilley v Children's Guardian [2017] NSWCA 174 (Tilley), and reaffirmed in CXZ v Children's Guardian [2020] NSWCA 338 (CXZ). That approach does not require that the Tribunal must necessarily resolve disputed allegations one way or another.
In the circumstances of this case, where the witnesses requested by the applicant were not called, the Tribunal decided to receive the material detailing the allegations into evidence on a limited basis, that is, as evidence that the allegations had been made. This is consistent with the reasoning in BRL and CGB.
The Tribunal agreed with the respondent's supplementary submissions that, in the circumstances of this case, it would be inappropriate for the Tribunal to make positive findings on the factual matters in dispute which rely upon the account of the alleged child victims. Accordingly, in line with BKE, Tilley and CXZ, we do not propose to resolve the allegations made against the applicant, in determining this application.

[15]

Requirement for the Children's Guardian to be satisfied that a person is not a risk to the safety of children

Under s 18(2) of the Act, the Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 of the Act unless it is satisfied that the person poses a risk to the safety of children.
As noted previously, after being informed by DCJ that the applicant had been recorded as a 'person causing harm' with respect to a three-year old girl and was known to police in respect of an allegation in relation to a five-year old boy, the respondent assessed the applicant's record and formed the opinion that it was necessary to determine whether the applicant posed a risk to the safety of children, and to undertake a risk assessment, guided by the provisions of s 15(4) of the Act.
Whilst the Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder, in this case, the applicant was notified of the risk assessment in writing on 31 March 2021 and was invited to submit material to inform the assessment.
Under s 15(4A) of the Act, the Children's Guardian must not determine that an applicant does not pose a risk to the safety of children unless it is satisfied that: (a) 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 applicant was engaged in any child-related work, and (b) it is in the public interest to make the determination.
With respect to the reasonable person and public interest tests, based on the information before her at the time of her Decision, the Children's Guardian found the following: "Reasonable Person Test 24. At this time, it is considered there are insufficient mitigating factors to outweigh the risk and significant impact repetition of the alleged conduct would have on a child. Based on the information before the Children's Guardian and the existence of two similar allegations by two highly vulnerable children unknown to each other separated by 7 years, a reasonable person would not allow their child to have direct contact with the applicant if he were to be engaged in unsupervised child related employment. Public Interest Test 25. Due to the ongoing child safety concerns and associated risk, it is assessed that it is not in the public interest for the applicant to be granted a WWCC."

[19]

The approach to fact finding and the assessment of risk

In determining the application, the Tribunal is required to consider "the totality of the evidence": BKE at [28] citing The Commissioner for Children and Young People v IK [ 2005] NSWSC 1136 at [83]-[84]. The Tribunal is to make a decision based on the "cumulative effect" of the matters before it: CYY at [69]-[71].
Alleged incidents may be found to have occurred on the balance of probabilities having regard to the principles in Briginshaw or they may be found to have not occurred. In relation to the assessment of risk, the Tribunal is bound to follow the decision in BKE at [33]: "Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven."
In Office of the Children's Guardian v CFW [2016] NSWSC 1406 (CFW) at [14]-[15], per Justice Harrison: 1. the Tribunal should first consider whether: (a) "positive findings" can be made as to any alleged act(s) of wrongdoing on the balance of probabilities; or (b) whether the Tribunal has "no hesitation in rejecting the allegation as groundless"; and 2. if no "positive finding" can be made, unless the Tribunal can determine that the allegation is "groundless", the Tribunal must consider the question of risk: whether on the evidence there is a risk of harm occurring (such as sexual abuse).
Where the tribunal is unable to make a positive finding, if there is nonetheless a "lingering doubt or suspicion" which remains then such doubt or suspicion does not count against an applicant for a WWCC clearance: Children's Guardian v CKF [2017] NSWSC 893 (CKF) at [56], per Davies J. Equally, such doubt or suspicion is not fatal. Rather, 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: CKF at [56].
Relying on the analysis in CXZ at [51], a "very many cases" will not lend themselves to definitive factual determination. Where an allegation is neither "well founded" nor "groundless", this Tribunal must decide whether, on the evidence before it, the possibility that the conduct did occur justifies a finding that the applicant poses a risk to the safety of children: CXZ at [52]. The assessment and the weight to be assigned to allegations will depend upon the seriousness of the allegations the strength of any evidentiary support for those allegations, and the relevance of the conduct the subject of the allegations to the risk to the safety of children if a clearance is granted to the applicant: CXZ at [53].

[20]

Mandatory criteria for determining an application

In determining this application, the Tribunal must consider the matters set out in s 30(1) as set out below: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part - (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.
In addition, if the Tribunal is considering making an order enabling an applicant to work with children, it must then consider the two-part test set out in s 30(1A) of the Act: (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.

[26]

The 2012 Allegation

As to the 2012 Allegation, it was alleged that the applicant asked Child B to be his assistant in a magic trick that lasted around 10 minutes.
Child B's mother reported the allegation on 11 December 2012, 3 days after a birthday party she had arranged at a school hall on a Saturday for her son. The mother reported that the magician and her son were covered by "the cloth" and that Child B had stated that the magician had touched him on his penis and "pulled hard" on his penis. The reporter said that the cloth was removed and the child was observed to be very upset. The following Monday, the mother noticed that her son remained upset over the weekend and asked him what was wrong. The child said that the applicant had touched him on the "bottom" and pulled hard on his penis at the party. She encouraged him to speak with his grandmother on the phone about what had happened at the party and her son told his grandmother that the applicant had pulled his penis hard.
The mother reported the matter to the local police and observed that the child appeared to have a small injury (not further described) to his penis. The mother was not sure whether the injury was caused as a result of a recent accident the child had with a door frame or whether it was caused during the alleged assault.
The mother subsequently (on or around 18 December 2012) did not want her son to be interviewed with Christmas coming up, and said that she had doubts as to whether anything actually occurred. The mother said that she believed her son may have become a bit frightened whilst under "the cloak" as there was a lot of movement and activity going on under cover with numerous tricks being conducted, and that an intentional assault/touch may not have actually happened. In a follow up discussion on 19 February 2013 with the mother, an interview was scheduled to take place. However, on 5 March 2013, the mother advised that she had changed her mind regarding the interview and did not think it was in her son's best interest or appropriate to proceed with the interview, and cancelled it.
The police COPS report (pp 68 - 72 of R2) noted that it was alleged that the applicant's magic tricks were performed under a "cloak". It was alleged that during the performance, the applicant covered himself and the victim under a large cloak and that during the performance balloons and other items would escape from the cloak while the victim and the applicant remained "secreted" from view by the cloak. It was alleged that during this time the applicant indecently assaulted the child.
The report noted that the mother thought that her son may have become distressed and scared during the tricks and that any touch may have occurred "accidentally and unintentionally".

[27]

The applicant's denial of the 2012 Allegation

The applicant's affidavit evidence (A1) addressed the 2012 Allegation in some detail although he had no independent recollection or record relating to the performance at Child B's birthday party.
The applicant said that he was appalled by the allegation and sickened by its contents. He said that he would "never engage in or even contemplate engaging in any behaviour to hurt anyone and especially not a child" (para 54 of A1).
The applicant's evidence was that at no stage in his career had he ever covered a child and himself with a cloth, other than what he described as "the suspension chair trick" which involved a child laying on a flat chair/table and being covered by a cloth, and that he only started performing that trick in 2014 which post-dates the 2012 Allegation. That statement is qualified by his account in paragraph 58 of his affidavit (A1) about wearing a cloak or cape at a birthday party three years ago.
The applicant detailed with some precision in his written evidence (paras 59-63 of A1) that in 2012 he performed with a jacket where a child would be standing in front and the applicant's hands would come through the jacket to make it look like the child was performing the trick. The child and their arms are completely covered by the jacket and the child is in full view of the audience the entire time and their face is not covered or obscured at any time. Once the child is in the jacket, the applicant placed his hands through the sleeves of the jacket to make it look like the child was completing the magic tricks being performed. The applicant would either kneel or sit approximately 6 inches behind the child and there was no access through the sleeves to any part of the child's body and especially not to their genital region. While the trick is being performed in full view of an audience, the applicant's hands are in full view of the audience at all times. At the end of the trick, the applicant would take his hands out of the sleeves and quickly remove the jacket from the child, for the "big reveal moment" to the audience. No balloons were involved in the performance of that trick and the only props used were a silk hanky, flower, fake thumb tip, rope that goes stiff and loose (a magic rope) and a pack of cards.
The applicant's written evidence was that the only occasion where he has worn a cloak or cape at a birthday party occurred three years ago, although no further detail was provided as to whether it was at a children's party or a performance for adults. The applicant's oral evidence appeared to be almost exclusively given in the context of his magic shows for children and the Tribunal understood that the only context in which the applicant used a prop involving a cloth of any significance involved the trick using a jacket as detailed above and the suspension chair trick. In any event, his clear evidence was that he had never released balloons from under a cloak during a performance and that the only time that balloons are used are after the magic show finishes, to make balloon animals for the children at their request.
Under cross-examination, the applicant's oral evidence was clear, unequivocal and consistent. He said that "categorically" he did not perform tricks with a cloak or a large piece of material. He said that he has never covered a child with a cloak. When questioned about Child B's mother's account that the applicant and her child were both covered by a cloak, he said that he "never, ever used a cloak". When questioned about balloons escaping from a cloak and items secreted under a cloak, he said that the mother had not told the truth. In response to the mother's assertion that the applicant and the child were under a cloak for 10 minutes, the applicant said that his show lasts 35 to 40 minutes, with up to 30 children and that he cannot afford to spend 10 minutes on a trick because the audience would get up and leave. He said that he performs 14 tricks and at no point does a trick take more than 6 minutes. Again, he repeated that he has never used a balloon in his magic show.
When challenged under cross-examination that when he was under a cloak with Child B he had touched the child's penis and pulled hard, the applicant responded that it was "fabricated".
His further explanation under cross-examination of the trick involving the jacket, was entirely consistent with his written evidence.
The applicant said that he "categorically" denied the 2012 Allegation.
Ultimately, the case was suspended by police, on the basis of "No offence detected".

[28]

The 2019 Allegation

The 2019 Allegation was that on 13 April 2019 Child A and her family attended another child's birthday party and that the applicant performed a show in the lounge room of the birthday child's home. There were around 20 children on the floor of the lounge room during the magic show, with a few parents.
After the show finished, some children played outside. Child A and a few other children remained in the lounge, taking turns to hold a bunny rabbit.
Child A subsequently joined others to cut the birthday cake and was observed to eat a lot of cake which was said to be unusual for her. When Child A was at home later that day, her mother was getting her ready for bed and the child said "The magician made his hand disappear in my dress." Child A's mother then told her husband about what the child had said. At the time, the parents thought the child's statement to be odd but did not question it at the time.
Some months later, on 23 July 2019, the mother was dressing Child A who chose to wear the same outfit she had worn to the party in April, a dress with a cat print design. This was apparently the first time the child had worn the outfit since the birthday party. Once the dress was on, Child A said "the magician made his hand disappear in my dress".
The mother asked where the magician's hands had gone. Child A put her hand under her dress and pushed her hand forward through the material of the dress. The mother asked if the magician touched her anywhere else and the child pointed towards her pubic bone. The mother asked if the magician's hand went under her pants or touched her private part, to which the child said "he touched my gina". The mother reported that the child looked down at the ground and said "it really hurt when he done that". She then said that "when he done this it was so sore but I was wearing my sparkle shoes and I really wanted the dinosaur cake". The mother's report to the DCJ Helpline made reference to the applicant talking to the child about eating the birthday cake, that the child had eaten a lot of the cake and indirectly asserted that she thought the applicant may have encouraged the child to eat cake as a "blackmail/manipulate" gesture.
On 29 July 2019, Child A was interviewed by the Central Metropolitan Joint Child Protection Response (JCPR) team (pp 1-7 of R2). She said that the applicant put his hand through her 'catty' dress and under her pony t-shirt and used his finger under her dress, under her 'my little pony' pants, and underneath her undies, to "hurt my gina". With the use of a body chart, she clarified that her 'gina' was used to go to the toilet.
When asked what the man (who had allegedly touched her) looked like, Child A said "pancake head". No other information is contained in the material to particularise or describe what this means. When asked "Did magician talk to you about anything?" Child A said "nothing". When asked whether the magician had talked about eating cake, again Child A said "nothing". Child A said that the man had said he was "a bad guy".
The police COPS report (pp 37-38 of R2) contains more detail about the child's interview with the Central Metro Child Abuse Unit on 29 July 2019. The report stated that due to the child's age and communication level, it was "extremely difficult to obtain a clear uninterrupted version of what happened and it was difficult for her to particularise". The report continued on to say: "The SC (being Child A) said several different things that created doubt in her version. While she said that the man touched her gina, when trying to recount how he did that, often she would push her finger through her dress, which is consistent with magic tricks being shown to children (and witnessed by other adults and children). She said that the man used his finger to touch her and then changed it to say that it was her crown that he used to touch her vagina. When shown a body chart, she did indicate the vagina area on the girl body chart and on the boy chart when questioned about what he used to touch her, she circled two of his thumbs. During the interview, it was difficult to keep the SC on track and she was being nonsensical."
The COPS report noted that police spoke with numerous adults present at the party who stated that the magician was in and out of the house after the magic show. Between the end of the show and the cake cutting, the applicant was packing up in the lounge room and then went out the back and continued magic tricks in the presence of numerous adults who did not witness "anything adverse".
The police interviewed a 10 year old witness who had been nominated to look after Child A when her mother was not around. This witness said that at no time was the child on her own and that she did not wander into any other room alone. The witness corroborated the bunny story and said that the magician was playing tricks using a cloth on a number of the children. She said that the magician did not touch anybody and she did not see anything adverse occur.
Child A's brother (aged 5) was also interviewed and did not disclose anything about the applicant touching his sister or any other child. The brother did say that one of the other children at the party had pinched Child A on the hand which hurt her.
Child A's mother's statement made on 29 July 2019 (pp 44-48 of R2) recorded that after the magic show she observed her daughter sitting on a lounge, with a white rabbit on her lap. She recalled that there were two or three other children sitting on the lounge with her. Some 10 or 15 minutes later, Child A's mother went to retrieve her daughter as the birthday cake was about to be cut and she could not recall whether there was anyone else in the lounge room with her child apart from the magician. She observed that her daughter helped herself to pieces of chocolate from around the edge of the cake and thought it was unusual behaviour, however she and her husband were laughing about it.
The mother subsequently described the child's behaviour following interviews as being a "little clingy" and that she had "had a few tantrums". The mother was unsure whether this behaviour was associated with the interview and the disclosure or whether it was the child's normal behaviour. The mother also said that she was unsure as to whether the alleged touching was indecent or whether it was in the context of a trick/game and felt uneasy about never being able to know the truth.
The police COPS reported concluded that there was insufficient evidence to prove that the offence occurred beyond reasonable doubt since the child had not made a clear disclosure and her disclosure had not been corroborated. The police report also noted that the disclosure was made after being asked a direct leading question by her mother.

[29]

The applicant's denial of the 2019 Allegation

The applicant was offered but declined an interview with police. His affidavit evidence (A1) was that he first became aware of the 2019 Allegation on 11 October 2019 when contacted by DCJ. He said that he indicated that he would be willing to provide a statement about the allegation as he had nothing to hide and wanted to be fully transparent. However, despite wanting to provide a statement, the applicant relied upon legal advice not to speak with DCJ and subsequently, with the benefit of hindsight, said that he wished he had provided his side of the story at that time which could have potentially avoided the processes that followed. The applicant said that the only time he was contacted by police was in relation to the 2019 Allegation and the detective handling the matter informed the applicant's then legal representative that they would not be pursuing the matter further, and no charges were laid.
The applicant did not have any independent recollection or records in relation to his performance at the party. He emphatically denied the allegation and said he was "disgusted" by it, especially since he is the father to three female children. His affidavit (A1) evidence was that the allegation sickened him and he would "never engage in such repulsive behaviour".
The applicant denied ever touching the genital area of any child when performing magic tricks or at any other time. He said that he never serves cake to children although he has occasionally been asked to light candles on the cake, in full view of everyone present. He denied that he had had a discussion with any child about cake or encouraged them to eat more cake and said that he would never use cake or any other incentive to manipulate a child to engage in any behaviour of a sexual nature. He said that the suggestion appalled and disgusted him to the core.
His affidavit (A1) went into detail about making balloon animals for the children after the end of his magic shows, and how he allows them to play with the rabbit used in the show. His evidence was that there are very few occasions (less than 5% of the time) when there is not at least one parent or adult always present in the room during the after-show activities. Even if parents momentarily leave the room after the show, he deposed that they are then constantly walking in and out of the room to attend to their children. He said that the door to the room where the after-show activities occur is always open and accessible by parents and adults and children.
He deposed that there is never a need to have any physical contact with the children during the after-show activities, including activities involving the pet rabbit.
The applicant's further affidavit evidence (A2) provided his further response to the 2019 Allegation. Again, he denied touching Child A at all with any part of his body or with any implement (including a crown). He explained the "cloth" that he used to play tricks with as a multicoloured hanky that changes colours when he moves it through his hands from side to side, and that the trick does not involve any direct contact with children.
The applicant described himself as feeling "sickened and emotionally drained" each time he is required to address the allegations. In his own words, the allegations completely repulse him and are far removed from the person he claims to be, and how he has conducted himself in relationships with his own children and thousands of children before whom he has performed throughout his career as a magician.
Under cross-examination, the applicant said that he could not specifically recall the situation where Child A was on the lounge with the rabbit on her lap. However, he said that it would not be normal for a child to sit on the lounge with a rabbit on her lap by herself. When asked whether he had ever picked up the rabbit from a child sitting on a settee, the applicant could not recall any instance in 10 years of that taking place, but could not specifically recall this particular circumstance. When asked whether it was possible that his hands may have accidentally touched a child's private parts, the applicant answered "no". In response to the suggestion that, at the birthday party in 2019 the subject of the allegation, the applicant had put his hand under Child A's dress and under her pants, he said that the suggestion was "ludicrous". His evidence was that "categorically" and "emphatically", that had not occurred.

[30]

The Tribunal's analysis of the material detailing the 2012 and 2019 Allegations and the applicant's evidence

We have already addressed the inappropriateness of reaching findings about the 2012 and 2019 Allegations having regard to the limited basis on which the evidence has been admitted and the inability to test that evidence.
Nonetheless, we make a number of observations about the material detailing the allegations which reduce its reliability: 1. with respect to the 2012 Allegation, Child B's mother expressed doubt that any offence had actually been committed upon her son during the birthday party, and thought that any touch may have occurred accidentally and unintentionally. She felt that there were "other issues" at play with her son; 2. with respect to the 2019 Allegation, Child A's mother also expressed doubt that the alleged touching was indecent or whether it had been something in the context of a trick/game; 3. Child A's evidence is inconsistent with respect to how any alleged touching may have occurred (either with a crown or a finger or thumbs); 4. the police reported that it was extremely difficult for the child to particularise and for the police to obtain a clear and uninterrupted version of what had happened. The police also reported that the child was being "nonsensical"; 5. two corroborative witnesses with respect to the 2019 Allegation said that they did not observe any adverse conduct by the applicant; 6. according to one of the corroborative witnesses (a 10 year old) of the 2019 Allegation, Child A was not alone at any time during or after the magic show and did not wander into any other room alone; 7. numerous adults present at the birthday party in 2019 who were interviewed by police did not witness anything adverse; 8. the owner of the property where the magic show was performed (with respect to the 2019 Allegation) confirmed that adults in the kitchen and verandah had full view of the lounge room where the applicant was packing up after the magic show.
On the basis of the material before the Tribunal, it is impossible to reconcile the assertion by Child B's mother that the applicant and the child were under a cloak during the magic show, with the evidence of the applicant. The Tribunal considered the applicant to be a witness of truth. He gave clear, direct answers to all questions asked of him. His demeanour was that of an earnest and honest person, who had no hesitation in providing a detailed account of the types of magic tricks he performed, and the props that he used in those tricks. His oral evidence was compelling, and is to be preferred over the evidence referencing the use of a "cloak" or large piece of material. Taking the entirety of the evidence into account, we find the applicant's evidence to be consistent, plausible and persuasive.

[38]

The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition: s 30(1)(i)

If the conduct occurred, it would have had an adverse impact on the complainants. If the conduct were to occur again, it would have an adverse impact on a child, both emotionally and psychologically.
Mr Sheehan's affidavit dated 25 August 2021 included his reports dated 12 March 2021, 30 July 2021 and 5 August 2021 (A3) together with Static 99-R Assessment Sheet (A4). Mr Sheehan concluded in his report dated 12 March 2021 that the applicant was not evasive but a forthcoming individual, that he had no familial problems with substance abuse, domestic violence or criminality and has no affiliation with antisocial influences. Mr Sheehan relied upon the applicant's disclosures that he had a moderate level of sexual motivation and conventional sexual interests, and no history of sexual interest in children or interest in coercive sexual encounters. He found no sufficient evidence of paraphilia.
The applicant completed the Millon Clinical Multiaxial Inventory - III (MCMI-III), a standardised, self-report questionnaire that assesses an individual's personality and psychological adjustment. Mr Sheehan noted that the applicant's response style suggested a valid profile but did reveal a tendency to present desirably however this was considered to be within normal limits. The profile suggested psychological stability in mood and thought form, and this was found to be consistent with the applicant's presentation.
Since the applicant had never been convicted or charged with sexual or offences of violence, Mr Sheehan noted the questionable validity in assessing him against known risk assessment parameters in order to assess the risk of sexual re-offending. He reported that the applicant could not be validly scored against the Static-99R on the basis of the allegations alone. He therefore examined static and dynamic factors identified in the empirical literature as having an association with recidivism, to estimate which aspects of the applicant's functioning might contribute to episodes of offending. He acknowledged in cross-examination that this was a somewhat artificial exercise.
Mr Sheehan concluded that the applicant was placed in the Low or Below Average risk category relative to other male sexual offenders. He opined that the applicant has "very few or none of the features associated with risk of reoffending and a number of protective factors pertaining to his stability and prosocial orientation."
Mr Sheehan considered the dynamic factors using the RSVP tool, where the applicant was considered against a specific list of 22 dynamic risk factors. He noted that the applicant had few to none of the characteristics associated with risk of recidivism.
In his report dated 5 August 2021, Mr Sheehan did not substantially change his opinions although he noted that the applicant's upbeat affect was more fragile than previously. Mr Sheehan said the allegations suggest: "… a high level of sexual disinhibition and recklessness that is unusual but not unheard of with male sexual offender populations. When I have encountered this type of offending with convicted offences it has been accompanied with broader evidence of high density sexually disinhibited behaviour across contexts in my experience. That is not [Tribunal's emphasis] the case in this instance."
We note that the applicant provided evidence that he lost sexual function in 2010 after being diagnosed with prostate cancer, before both the 2012 and 2019 Allegations.
Additionally, Mr Sheehan opined: "Outside the allegations there is nothing evident by way of contextual background that could be seen as consistent with sexual offending. …In my opinion, considering the available evidence, and having reviewed [the applicant] against the empirically established correlates of risk, I am unable to conclude that there is a "real and appreciable risk" to the safety of children. … In my opinion, considering the available evidence I am unable to conclude that [the applicant] would be considered a risk to the safety of children or other members of the community."
Under cross-examination, Mr Sheehan expressed the opinion that the applicant was quite a well-adjusted individual, with pro-social attitudes, and that he had been stable prior to 2012.

[40]

Any information given by the applicant in, or in relation to, the application s 30(1)(j)

The applicant provided the following information in support of the application: 1. his two affidavits containing detailed responses to the allegations and the manner in which he has always conducted his magic tricks and behaved during and after performances with children; 2. affidavit evidence and reports of Mr Sheehan as discussed above, assessing the applicant to be in the low range of risk on the basis that the allegations were proven, and that the applicant would not have any risk score were the allegations deemed to be false or not proven; 3. an affidavit from Ms A (A8), a former client of the applicant, expressing surprise that any inappropriate behaviour would be inferred against the applicant, and deposing to his professionalism. She stated that she was comfortable leaving the applicant alone with children at a birthday party and that she would have no hesitation in rebooking the applicant to perform magic shows for her child's future birthday parties; 4. an affidavit from Mr L (A12), a professional magician who has observed the applicant undertaking magic shows for children via YouTube and on social media on multiple occasions prior to the interim bar being imposed on the applicant in July 2020. Mr L deposed that the allegations made against the applicant are "totally out of character and are inconsistent" with Mr L's dealings and conversations with the applicant. Mr L's affidavit explained why a magician's hands are in full view of the audience during a magic show expert including to demonstrate that the magician is not acting or doing anything inappropriate with a volunteer from the audience. Mr L attested to the applicant's extensive following and client base in Sydney and throughout NSW; 5. an affidavit from Ms T (A13), who has been an active member of a Rotary club for more than 25 years and has known the applicant for approximately 11 years. Ms T said that when the applicant learned of Ms T's involvement in Rotary, he offered his support by performing magic shows for the community and regularly gave his time to fundraising markets. Ms T deposed to the applicant's patience and kindness, describing him as "a very professional and honourable man". She said that in her observation the applicant has never acted inappropriately towards children or other persons present in his magic shows. Ms T said that she was shocked to learn of the allegations and did not believe them to be true. She said that she had never witnessed the applicant to engage in any conduct that would place a child at risk of harm or cause any risk to their safety. She said that the alleged behaviour is totally out of character for the applicant and is inconsistent with her experience of him; 6. an affidavit from Ms W (A14), whose children's learning centre has engaged the applicant to perform magic shows during xmas concerts which involved direct contact with the children both during and after the show. Ms W's affidavit corroborated the usual activities that the applicant engaged in including creating animal balloons and allowing the children to pet the rabbit involved in the show. Ms W's affidavit attested to the applicant's professional manner and conduct. She said that the applicant always requested a safe and open space for setting up his show, and ensuring a safe distance between the stage and the audience to ensure no one was injured during the performance. Ms W said that she never witnessed the applicant having any contact with a child during or after his shows that was inappropriate or caused them any distress. Based on her long-term working relationship with the applicant, Ms W said that she did not believe that he would engage in the conduct as alleged, and that the behaviour alleged does not accord with her experience of the applicant or his character. She was "more than happy" to recommend the applicant to the children's learning centre to have him perform future magic shows if he obtained a WWCC clearance; 7. an affidavit from Mr Z (A15), also a former client of the applicant. Mr Z said that the children who attended a birthday party and watched the applicant's magic shows were at times left on their own with the applicant and the rabbit in the living room without another adult being present but that he and his wife walked in and out of the room to attend to their children as required during that period. Mr Z said that he held no concern whatsoever about the children being left alone with the applicant. He said that he felt very comfortable allowing children to be supervised by the applicant whilst he was allowing them to pet the rabbit at the end of the show. Mr Z expressed surprise about the allegations made against the applicant and said they were completely inconsistent with his observations and experience of the applicant. He said that he would have no hesitation in re-booking the applicant for future magic shows if he was granted a WWCC clearance; 8. affidavits from his former wife (A8), current wife (A11), and two adult daughters from his first marriage (A7 and A9), variously attesting to the applicant's integrity, genuineness, his gentle and nurturing character and the safe environment the applicant created for his children and their friends while growing up; 9. 159 references and testimonials about his magic show which he received on his website.

[44]

Section 30(1A) matters on which the Tribunal must satisfy itself

Additionally, under s 30(1A) of the Act, the Tribunal may not make an order under Part 4 of the Act which has the effect of enabling a person (the "affected person") to work with children unless it 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 any child-related work; and 2. it is in the public interest to make the order.
Turning to the first limb of s 30(1A), the Tribunal has considered the evidence before it. This includes the submissions and evidence provided on behalf of the respondent, the comprehensive and detailed information provided by the applicant in his affidavit evidence, the applicant's oral testimony, references and testimonials supporting the application, the expert evidence of Mr Sheehan and submissions made on behalf of the applicant.
The Tribunal is satisfied that 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 engaged in any child-related work, on the following grounds: 1. the applicant's witnesses who gave affidavit evidence on the applicant's conduct and behaviour during and after his magic show performances were all aware of the circumstances of the allegations, and expressed their comfort about the applicant being left unsupervised with children, as a person who could be trusted with them; 2. the applicant has successfully completed child protection training and has stated that he intends to continue to complete further training on a yearly basis in the future; 3. there have been no subsequent offences or complaints against the applicant with respect to conduct or offences of a sexual nature; 4. the applicant has not been charged with any offences involving children; 5. the applicant has raised three daughters of his own without incident; 6. the applicant's first marriage of around 26 years produced two daughters and he has maintained favourable relations with his former wife and daughters as reflected in their affidavits in support of his application for clearance; 7. the applicant has been in a long-term supportive relationship with his current wife since 2005, and they have a daughter with whom they have a loving and strong relationship; 8. the applicant has demonstrated himself to be a person who engages in positive community initiatives and is respected for his professionalism, integrity and ethical conduct.
With respect to the public interest test, noting that the paramount consideration of the Act must take priority over the private interests of the applicant, the Tribunal is satisfied that the making of an order which has the effect of enabling the applicant to work with children is in the public interest and does not compromise the Act's objectives, on the following grounds: 1. the applicant's passion about his work as a magician provides entertainment for the general public including children and adults, and contributes to community engagement, which is arguably in the public interest; 2. the applicant's right to work in his chosen field is of at least equal importance to the public interest, relying upon the decision of the Tribunal in DCY v Children's Guardian [2019] NSWCATAD 274; 3. the applicant has been unable to work in his chosen field since his clearance was refused and has suffered economic loss which has had an adverse impact upon the applicant and his family who rely upon him for financial support; 4. the applicant has insight into the effect of sexual abuse upon children and is repulsed and disgusted by any such behaviour, and has demonstrated a commitment to his own ongoing education in child protection.

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Judgment (47 paragraphs)

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Cases Cited (27)