"M" v Commission for Children and Young People - [2004] NSWIRComm 127 - NSWIRComm 2004 case summary — Zoe

NSWNSWIRComm

"M" v Commission for Children and Young People

[2004] NSWIRComm 127

Industrial Relations Commission (NSW)|2004-05-24|Before: Boland J, Ms P, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2004-05-24

Before

Boland J, Ms P, Mr P

Source

Original judgment source is linked above.

Judgment (92 paragraphs)

[1]

CITATION : "M" v Commission for Children and Young People (No. 2) [2004] NSWIRComm 127 APPLICANT "M" PARTIES : RESPONDENT Commission for Children and Young People FILE NUMBER: IRC 250 of 2003 CORAM: Boland J CATCHWORDS : Prohibited employment - "M" a prohibited person under s 5 of the Child Protection (Prohibited Employment) Act - Application under s 9 of Act by "M" that he is not a "prohibited person" - Interlocutory proceedings - Whether certain matters relevant to Commission's consideration as to whether the applicant is a risk to children - Section 138 of the Evidence Act considered - Certain matters found to be not relevant. Child Protection (Prohibited Employment) Act 1998 Child Protection Legislation Amendment Act 2003 LEGISLATION CITED : Commission for Children and Young People Act 1998 Criminal Records Act 1991 Evidence Act 1995 "M" v Commission for Children and Young People (2003) 124 IR 237 A v Commission for Children & Young People (No 2) (2000) 104 IR 119 CASES CITED : Commission for Children and Young Persons v V [2002] NSWSC 949 Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282 R v Helmhout [2001] NSWCCA 372 HEARING DATES: 03/31/2004 DATE OF JUDGMENT: 05/24/2004

[2]

APPLICANT Ms P F Lowson of counsel Solicitor: Mr P MacMahon MacMahon Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Higgins of counsel Solicitor: Ms M Ford Crown Solicitor

[8]

4 The relevant legislation is s 9 of the Child Protection (Prohibited Employment) Act. It provides as follows: 9 IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, or (b) the person was such an employee who was dismissed from that employment under this Act. (4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following: (a) the seriousness of the offences with respect to which the person is a prohibited person, (a1) the period of time since those offences were committed, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (d1) the prohibited person's present age, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. (6) On an application under this section, the relevant tribunal may, by order, stay the operation of a prohibition under this Act pending the determination of the matter. (7) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. (8) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 8A in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal. (9) Orders under this section may be made subject to conditions. (10) A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order. (11) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs. (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.

[12]

7 In this respect, counsel for the applicant referred to A v Commission for Children and Young People (2000) 104 IR 119 at [29] where Wright J, President observed that: Although past conduct may be relevant it is only relevant to the extent that it may assist that determination. Regard must also be had to possible future conduct. 8 Reference was also made to the judgment of Young CJ in Equity in Commission for Children and Young Persons v V [2002] NSWSC 949 where his Honour observed: 41. It follows that when approaching the construction of s.9 one must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of serious sex offence. 42. It almost follows, from what I have just said, that one does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risks, but what one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". The approach of the plaintiff is to say that children must be read as children generally, and if there is a risk to a section of children which is constituted by a large number of children, then there is a risk to children generally. So that, if in the present case it be said that Mr V is a risk to female teenage children, then he is a risk to children generally. 43. I very much wonder whether that is a proper construction of the Act. If it is to be read so as to preserve a balancing exercise, I would have thought a more balanced view of the section is a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is only going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant.

[25]

21 The respondent, on the other hand, submitted the 1965 incident was probative to the assessment of risk and should be considered by the Commission as being relevant. Further, the respondent submitted, the onus was upon the applicant to establish that the information about the incident was improperly or illegally obtained and that the applicant had failed to discharge that onus. The respondent submitted that even if the Commission were satisfied the applicant had discharged the onus upon it in this regard the Commission should exercise its discretion to admit the evidence improperly obtained. The respondent referred to the provisions of s 138 of the Evidence Act 1995. The applicant submitted that as the rules of evidence do not apply in proceedings before the Commission, s 138 of the Evidence Act did not apply. This is true, but given the detailed arguments relating to the provisions of s 138 and how they might be applied, I consider it is appropriate in this case to apply the principles of that section in determining whether or not I should admit the information regarding the 1965 incident. Section 138 provides an appropriate benchmark by which to determine the admissibility of improperly obtained evidence. Section 138 is in the following terms: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning: (a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or (b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

[42]

39 The respondent submitted that (references deleted): The definition [of relevant criminal record] does not restrict it to matters for which a conviction was recorded nor does it limit itself to police records where a criminal prosecution is proceeded upon. It is defined by two concepts: viz, the existence of an offence, and the existence of sexual activity. In relation to the latter, it is submitted the 1965 incident involved sexual activity. As to the former the respondent relies upon the admissions by the applicant to Dawson of conduct which constitute an offence. It understates the 1965 Police record to submit that it merely represents a recorded allegation. It ignores its adoption by the applicant in so far as his own recollections as recorded by Dawson Applying these, it is submitted that it is clear the intention of the CCYP Act is to include not only persons who were charged with an offence in the formal sense, but also persons in respect of whom other procedures for the commencement of prosecutions exist. This approach to the definition has both a logical persuasiveness, and promotes the protective objects/mandate of the CCYP Act. Support for this submission is to be found in the fact that the Police can disseminate information as to court orders which are not the subject of criminal charges. Section 33 defines relevant apprehended violence order as: relevant apprehended violence order means (subject to subsection (2)): (a) an apprehended violence order (other than an interim order) made by a court under Part 15A of the Crimes Act 1900 , or (b) an interstate restraint order (within the meaning of Part 15A of the Crimes Act 1900 ), whether or not it is registered under that Part, being an order made on the application of a police officer or other public official for the protection of a child (or a child and others). Orders of this nature are not criminal charges; they are orders within a legislative structure designed to deter people from carrying out certain inappropriate conduct or harming persons. Those orders may be imposed without any admission as to the facts in support of them.

[56]

53 For its part, the respondent submitted that the 1965 incident was probative to the assessment of risk because: (a) it is behaviour of a sexual nature towards a child; (b) it is behaviour which is criminal; (c) it is behaviour which is admitted; (d) it is behaviour which precedes the index offence, and as such, is relevant for any psychological assessment of risk both statistically, to identify the risk group into which the applicant falls; and clinically, as to whether, in that group, he is part of the small percentage of offenders likely to reoffend, or not; (e) it counterbalances the submission by the applicant that it is relevant to s9(4) to have regard to the penalty imposed for the index offences as indicative of them being at the serious end of "serious sex offences" within the Act. It counterbalances the submission in that it allows the Commission to put that submission into a context. That context recognizes that the Prahran Magistrates' Court did not, and was not permitted, to have before it evidence of the 1965 incident. Had the applicant's conduct for the 1965 incident been before that sentencing court (E.g. as part of a history of sexual conduct by the applicant to a psychiatrist viz Dr Richards), the deferred sentence would not have been imposed. This is particularly so given the applicant's account of the index offences as being isolated offences attributable solely to the stressors existing in his life at the time, and not a continuing course of sexual conduct. The absence of prior criminal antecedents was relevant to show that the index offences were out of character. Conversely, an offender with antecedents may demonstrate that the commission of the index offences was not uncharacteristic aberrations, thereby disentitling the offender to leniency: Postiglione v R (1991) 24 NSWLR 584; Ryan v R (2001) 206 CLR 267; (f) If the offender does not have a lack of criminal conduct, although never convicted of that conduct, the good character of the offender is not a mitigating circumstance to be taken into account on sentence: Weininger v R (2003) 196 ALR 451, in which the applicant appealed against sentence arguing that his character went to - absence of previous convictions and whether he'd previously engaged in other criminal conduct. The High Court has said in Weininger v R : [26] The appellant's out of court assertions that this was a "one off thing" were tendered to persuade the judge that he had not previously engaged in drug importation or money laundering… [27]…the question for the primary judge was, what was known about the appellant's character and antecedents. g) it is evidence to the contrary of that which is deposed to by the applicant in his affidavit. If the applicant is to continue to assert, as a fact that he has no other adverse notifications or allegations of a sexual nature, for children, it is probative to consider the 1965 admitted sexual conduct to rationally affect the assessment of the probability as to whether he is a risk to children.