The respondent submitted that the Tribunal should affirm each decision under review and place significant weight on both decisions as they do not reflect any error of procedure, fact or law, nor do they indicate any failure to take into account relevant considerations. The respondent submitted that it would be open to the Tribunal to conclude that the applicant would likely have been aware that the complainant was not 17 years of age or older.

• The Tribunal is not satisfied on the balance of probabilities that the applicant was aware that the complainant was 14 years old (or under the age of consent) when he engaged in the communications with her. However, the Tribunal is not satisfied that the applicant was not aware of these matters;
• The evidence taken holistically raises a reasonable concern, and it is a serious concern, that the applicant was aware of the complainant's age at the time of their communications;
• The Tribunal is satisfied that, when this concern is properly weighed with other relevant matters, the evidence establishes that the applicant poses an unacceptable risk to children and a real and appreciable risk to people with disability.

Administrative Review - Child Safety (Prohibited Persons) Act 2016 - Review of a decision by the Central Assessment Unit to issue a prohibition notice - Unacceptable risk to children - Consideration of discontinued charges

Administrative Review - Disability Inclusion Act 2018 - Review of a decision by the Central Assessment Unit to issue a NDIS worker check exclusion - Real and appreciable risk of harm - Consideration of discontinued charges

Child Safety (Prohibited Persons) Act 2016 ss 3, 32, 43

Criminal Law Consolidation Act 1935 ss 62, 63, 63A, 63B, 171, 172

Disability Inclusion Act 2018 ss 18J, 18M, 18O, 18ZI

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 35, 39, 60

Briginshaw v Briginshaw [1938] HCA 34

BZY v Department of Human Services [2021] SACAT 1

CXZ v Children's Guardian [2020] NSWCA 338

Fleming v Department of Human Services [2021] SACAT 48

GJC v Department of Human Services [2020] SACAT 38

GM v Department of Human Services [2024] SASC 23

Griggs v Department of Human Services [2023] SACAT 60

HJO v Medical Board of Australia [2022] VCAT 758

Jones v Dunkel [1959] HCA 8

M v M [1988] HCA 68

Marshall v Department of Human Services [2023] SACAT 83

PSN v Department of Human Services [2023] SACAT 28

Schinckel v Registrar of Firearms [2020] SASC 236

VKS v Department of Human Services [2021] SACAT 89

XDU v Secretary to the Department of Justice and Community Safety [2021] VCAT 256

Ms H Rogers, Tindall Gask Bentley, for the applicant

Mr J Nguyen, Crown Solicitor's Office, for the respondent

This is an edited version of the Tribunal's decision. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This is a review of a decision of the respondent (the CAU) on 31 July 2023 to issue to Mr Penn a prohibition notice under s 32 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act) and a decision on 4 August 2023 to issue Mr Penn an NDIS worker check exclusion notice under s 18J of the Disability Inclusion Act 2018 (DI Act).
2. The effect of the prohibition notice and of the exclusion notice is that Mr Penn cannot undertake any one of the broad range of activities that the CSPP Act regards as working with children and cannot undertake any one of the range of activities that requires an NDIS worker check clearance.
3. I explain in these reasons why I am satisfied that the correct or preferable decision in each case is to affirm the respondent's decision.
4. In undertaking this review, I have had regard to the material that was before the respondent, including the documents in the respondent's Book of Documents[1] provided under s 35 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act), and to the additional evidence and submissions put before the Tribunal at the full hearing and submissions received after the conclusion of the hearing. The Tribunal was significantly assisted by the oral and written submissions of the parties' counsel.
5. Mr Penn did not give evidence at the full hearing. I also note that he declined to answer questions during police interviews. Ms Rogers submitted that I should not draw an adverse inference from Mr Penn's election not to give evidence at the hearing. I was not asked by the respondent to do so and did not hear any submissions on the matter from Mr Nguyen. Accordingly, I have not drawn an adverse inference in the Jones v Dunkel[2] sense from Mr Penn's election not to give evidence.
6. The two applications for review were heard together and turn on the same set of facts and involved the same submissions from the parties. It is convenient that they be dealt with in the same statement of reasons.

1. In 2019, Mr Penn was charged with five counts of "communicate to make child amenable to sexual activity (basic)" and one count of possessing child exploitation material. These charges were finalised (respectively) in the District Court on 28 July 2021 (nolle prosequi) and in the Magistrates Court on 17 November 2021 (withdrawn). Accordingly, Mr Penn was not found guilty of these offences.
2. The facts alleged against Mr Penn were that in May 2019, when he was 28 years old, he messaged a 14-year-old female complainant in an online application called MeetMe and that, in the four days between 23 May 2019 and 26 May 2019, he communicated with her by text, WhatsApp, SnapChat and voice calls. Among the matters alleged against Mr Penn was that, during these communications with the complainant, he told her that he liked young girls and that he had requested a number of times that the complainant meet him for sex and send him nude photos of herself posed in the positions displayed in photos he had sent her of other naked girls. This would appear to have included requests for photos of her naked breasts and naked bottom. It was alleged that Mr Penn had sent the complainant a video of him having sex with another girl and at least one picture of his penis. It was alleged that the complainant told Mr Penn that she was 14, her full name, the school she attended and the suburb in which she lived.
3. The complainant did not meet Mr Penn in person and, after repeated requests for sex and nude photographs, she blocked him on the various apps. Her mother subsequently found photographs of penises on the complainant's phone and the matter was reported to police on 5 June 2019.

1. The early background of this matter is a little unclear, but not in a way that is relevant to this decision.
2. It would appear that Mr Penn was issued a Prohibition Notice under the CSPP Act on 30 December 2019 in respect of the above charges and that, on or about 23 December 2021, Mr Penn applied for the revocation of the Prohibition Notice and at the same time applied for an NDIS worker check clearance under the DI Act.
3. The result of these applications was that, on 22 June 2022, Mr Penn was prohibited from working with children under the CSPP Act and excluded from working with people with disability under the DI Act. Initially a Senior Assessment Officer in the CAU was satisfied that Mr Penn did not pose an unacceptable risk to children or a real and appreciable risk to people with disability, but this recommendation was not accepted by the Assessment Reviewer and the Assessment Manager.
4. Applications for review were then made to the Tribunal in respect of these decisions but they were later withdrawn on the basis that the CAU would reconsider its decisions.[3] The decisions presently under review are the reconsidered decisions of 31 July 2023 and 4 August 2023.
5. Four written submissions in total were provided to the CAU from Mr Penn's solicitor on 1 May 2022, 27 April 2023 and 5 May 2023 on whether he should be prohibited from working with children and excluded from working with people with disability. Essentially, Mr Penn conceded that he communicated with the complainant in the terms alleged but denied that he knew that she was 14 years old.[4] He also relied on a number of positive character references.

1. In the decisions under review, the CAU acknowledged that Mr Penn had not been found guilty of the six charges. However, the CAU found, on the evidence of the communications with the complainant, that Mr Penn would or should have been aware that she was a school-aged child below the age of consent and that, rather than stop all communications, he persisted in attempts to obtain inappropriate images of her and engage her in sexual activity.
2. The CAU rejected submissions that Mr Penn believed the complainant was 18 years of age. Also, it found that the risk of harm was not mitigated by the brief period over which the conduct occurred; or that it occurred (then) some four years previously; or that there was no pattern of ongoing grooming or predatory behaviour. The CAU did give positive weight to Mr Penn's various character and employment references but gave less weight to Mr Penn's engagement with a psychologist given that it did not address the conduct of concern.
3. The CAU found that the risk of Mr Penn's conduct occurring in the future was unacceptable and that his conduct revealed a possibility of future harm to children and that the potential consequences to children would be serious if that risk eventuated. It found that these risks were directly relevant and transferrable to an assessment as to whether Mr Penn posed a risk of harm to people with disability, noting that he would be in a position of responsibility for their care and safety. The CAU noted also that there is an identified overlap between the vulnerabilities of children and those of people with disability and that many women with disability face multiple disadvantages and are potentially more vulnerable to risk of abuse or exploitation. It found that there was a real and appreciable risk to people with disability should Mr Penn be permitted to work with them.

1. The Tribunal conducts its review of the respondent's decisions as an independent body. The Tribunal will, in exercising its review jurisdiction, examine the decisions of the decision-maker by way of rehearing. On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
2. The procedure on a rehearing will include an examination of the evidence or material before the decision-maker and consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.
3. After making its decision, the Tribunal can affirm or vary the decision under review or can set the decision aside and either substitute its own decision or send the matter back to the decision-maker for reconsideration.
4. An application for review to the Tribunal must be made within 14 days after the applicant receives notice of the reviewable decision or such longer period that the Tribunal may allow. However, s 43(3) of the CSPP Act and s 18ZI(4) of the DI Act state that the Tribunal may only allow an extension of time where:

1. another party will not be unreasonably disadvantaged because of the delay in commencing the proceedings.

1. Mr Penn's application to the Tribunal to review the prohibition notice under the CSPP Act was made one day late. Mr Nguyen did not oppose the Tribunal extending time for the application and, given the minimal delay, I do so.

1. The statutory schemes for worker checks established under the CSPP Act and the DI Act are complex. In respect of the CSPP Act, the statutory provisions were addressed in substantial detail by the Tribunal in GJC v Department of Human Services (GJC)[5] and, in respect of the DI Act, in the decision of Griggs v Department of Human Services (Griggs).[6] I adopt what was said in GJC and Griggs about the relevant statutory provisions.
2. There are considerable similarities between the two schemes. In brief, the CSPP Act and DI Act establish a regime for the screening by the CAU of (respectively) people who want to work with children or with people with disability and for the prohibition of those persons who would (respectively) pose an unacceptable risk of harm to children or a risk of harm to people with disability. The screening process occurs by the CAU considering assessable information[7] of past behaviour and undertaking an assessment of potential future risk (with reference to Ministerial Guidelines[8]). As discussed further below, this involves a weighting process that takes into account, amongst other things, the reliability and context of the assessable information, the likelihood of recurrence of concerning conduct and the potential consequences of such conduct were it to recur.[9]
3. "Unacceptable risk" is not defined in the CSPP Act. However, in GJC, the Tribunal found that unacceptable risk means that there is a risk that, if a person is allowed to work with children, this would not ensure the adequate protection of children.[10]
4. Section 18M of the DI Act provides that a "risk of harm" to people with disability means a real and appreciable risk of harm, which does not need to be likely or significant or arise from recent events, and that "harm" includes any detrimental effect on a person's physical, psychological, emotional or financial wellbeing and non-consensual or inappropriate conduct of a sexual nature.
5. Both Acts set out certain objects or principles to be observed. Under the DI Act, this includes that people with disability have the right to live free from neglect, abuse and exploitation and a recognition that women and children are more vulnerable to risk of abuse or exploitation.
6. The Intergovernmental Agreement that is referred to in more detail in Griggs (and which is an interpretive aid in the construction of the DI Act) provides in clause 15 that, to realise the objective of protecting people with disability, NDIS worker screening is to be guided by a number of principles. This includes that "the paramount consideration is the right of people with disability to live lives free from abuse, violence, neglect and exploitation".
7. Section 3 of the CSPP Act sets out its objects and principles. In brief, they relevantly state that the primary object of the Act is to minimise the risk to children posed by persons who work with them and that the paramount consideration must always be the best interests of children, having regard to their safety and protection. Further, persons who pose an unacceptable risk to children are to be prevented from working with children.
8. In each case, there is no punitive or deterrent aspect to a risk assessment. However, the effect on an individual of not receiving a clearance is not relevant to the ultimate issue of whether they pose an unacceptable risk to children or a risk of harm to people with disability. The objects of the legislation are entirely protective of children and people with disability.
9. As observed by the Tribunal in a different case, the CSPP Act evinces the intention that working with children is a privilege not a right.[11] I adopt also the observation made in the New South Wales Court of Appeal that the policy of the legislature was to prefer the risk of injustice to an applicant over a risk to the safety of children.[12] I consider that these principles apply also to persons who would seek an NDIS worker check clearance under the DI Act to work with people with disability.

Dealing with assessable information that discloses conduct of concern

1. A determination on the ultimate issue of risk involves first a finding as to the likelihood of the conduct of concern having occurred.
2. The Tribunal is not bound by the rules of evidence and may inform itself as it sees fit.[13] However, the Tribunal observed in GJC that, as assessable information will often include information that has not been scrutinised or tested in a court or tribunal (and may include hearsay or mere allegations of misconduct obtained from diverse sources), a comprehensive and meticulous approach to the scrutiny and evaluation of the information is essential.[14]
3. The conduct of concern may in some cases be proven to a high standard, for example, by admissions or by findings in criminal proceedings that are established on the usual criminal standard of beyond reasonable doubt.
4. In other cases, the CAU or the Tribunal may be satisfied on the evidence that the allegations made against the applicant are groundless. Those allegations are to be ignored in the risk assessment.
5. The CAU or the Tribunal may be satisfied on the civil standard of the balance of probabilities (with, where relevant, additional consideration of the Briginshaw[15] factors) that the conduct of concern occurred. Or the CAU or the Tribunal may not be so satisfied but, nevertheless, cannot be satisfied that the conduct did not occur.
6. Where conduct of concern is admitted or proven to the criminal standard, it would ordinarily be given significant weighting in a risk assessment under the CSPP Act and DI Act. Where conduct of concern is not admitted or proven to this standard, the weighting given to it in the risk assessment must reflect the possibility that the conduct of concern did not occur, although findings made on the balance of probabilities would generally have a decisive impact on the risk assessment. This is consistent with the Guidelines.
7. Once having determined the likelihood of the conduct of concern having occurred and the weighting to give it in the risk assessment, the decision-maker must conduct the risk assessment by taking account all other relevant matters to determine the risk posed by the individual, with reference to Table 2 of the relevant Guidelines and s 18O of the DI Act (see below).
8. This requires an evaluation of the nature and degree of the risk posed by the individual and whether it is acceptable to allow it, i.e. a consideration of the likelihood of offending or conduct recurring in the future and the seriousness of the consequences if the conduct were to recur. Where the possible future harm is serious a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome as unacceptable. Conversely, an acceptable risk might be one which is fanciful, farfetched or theoretical and where the potential consequences are mild or insignificant. It is not required that there be no risk of harm.
9. The standard of satisfaction in the assessment of the ultimate issue of risk is a statutory standard of reasonable satisfaction, which cannot be measured against, or equated to, an evidential standard of proof. This means the decision-maker does not necessarily need to be satisfied that it is likely, to any standard or level of satisfaction (such as the balance of probabilities), that the person will cause harm, merely that there is a possibility of future harm, and that the potential consequences would be serious if the perceived risk eventuated.
10. The authorities for the propositions set out in this section were concerned with matters where the consideration was the risk to children.[16] However, I consider that these propositions apply equally to considerations under the DI Act of the risk posed to people with disability. The schemes under the CSPP Act and DI Act both consider the risk of harm to vulnerable persons - children in one case and people with disability in the other case - from those who would volunteer or work with them and they apply similar risk assessment processes. The "paramount consideration" under the CSPP Act is the protection of children and the "paramount consideration" under the DI Act is the protection of people with disability. In both cases, the relevant clearance is portable and is not confined to the immediate purposes of the person seeking the clearance. In both cases, the statutory schemes are highly pre-emptive and protective, where the intent of the legislation is not to wait for a risk to be realised before prohibiting a person from working with children or people with disability. And, as I observed in Griggs, it cannot be overlooked that the DI Act expressly recognises that people with disability will include children with disability as a cohort that is more vulnerable to abuse and exploitation.

1. The respective Guidelines under the CSPP Act and DI Act are broadly similar. They each contain indicia relating to whether information should be given greater or lesser weight depending on matters such as its quality, relevance and seriousness.
2. The Guidelines also contain indicia relating to whether the information points to an increased risk or decreased risk of harm to children or people with disability. In this regard, s 18O of the DI Act sets out the following matters that must be considered in a risk assessment:

(a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in, or contributed to, the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work;

(b) the length of time that has passed since a relevant event occurred;

(c) the vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event;

(d) the person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour;

(e) the person's conduct since a relevant event;

(f) all other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work;

(g) such other matters as the central assessment unit considers appropriate.

1. In nearly identical terms, the Ministerial Guidelines for the CSPP Act state that:

While the weight given to information relates to the quality of the evidence, or the degree of reliance the central assessment unit decision maker may place on the information before them, the risk assessment criteria is concerned with the content of the information or evidence. The central assessment unit decision maker must consider the substance of the information and have regard to:

• the nature, gravity and circumstances of the information including criminal offences, child protection information or disciplinary or misconduct information and how this is relevant to children or child related work;

• the length of time that has passed since the event occurred;

• the vulnerability of the victim at the time of the event including the age of the victim, the age of the person at the time of the event, the age difference between the person and the victim and the person's relationship to the victim or position of authority over the victim at the time of the event;
• the person's criminal, child protection, disciplinary or misconduct and/or other relevant history, including whether there is a pattern of concerning conduct;
• the person's conduct since the event;
• all other relevant circumstances in respect of the information including offending, child protection, disciplinary or misconduct and/or other information or other relevant history, and the impact on their eligibility to be engaged in child related work.[17]

1. At the hearing of these applications, Ms Rogers told the Tribunal that Mr Penn continues to rely on all of the submissions made to the CAU (namely, the four submissions of 1 May 2022, 27 April 2023 and 5 May 2023) as well as the submissions made separately to the Tribunal in these proceedings, and their respective attachments. All of them were lengthy. I have consolidated these submissions in summary form below.
2. Mr Penn denies that he poses an unacceptable risk to children. He denies that he was aware of the complainant's true age. Ms Rogers submitted that, contrary to the allegation that Mr Penn was aware of the complainant's age and school, the complainant was at all times conducting herself as one would assume a consenting adult might in the context of an adults-only space, including engaging in graphic sexual commentary and communicating with multiple adult men.
3. In respect of material found on the complainant's phone (see below under "Photos of screens on complainant's phone" and the table in these reasons), Ms Rogers submitted that reference to the complainant's status as a teenager, the reference to "school" and the reference to his "older cock" are entirely consistent with Mr Penn's impression that the complainant was 18 years of age in the late stages of secondary schooling or early days of university study. She submitted also that any young adult might be expected to be less than forthcoming with parental or authority figures about plans to engage in sexual activity.
4. Ms Rogers submitted that the allegations do not point to a matter of concern to any educational facility or any other institution involving children, or to any disability support service or people with disability in general. She submitted that there was no power imbalance in the online relationship and that the assessable information in Mr Penn's case does not nearly rise to the same level as that in the GJC decision and also that in BZY v Department of Human Services (BZY)[18] and VKS v Department of Human Services (VKS),[19] which are all previous Tribunal decisions where individuals were found to pose an unacceptable risk to children due to serious conduct of concern. She submitted that unlike BZY Mr Penn had not cultivated opportunities over many years to be alone with very young children, that unlike VKS his conduct did not occur in a professional setting and that unlike GJC it did not involve abuse of a position of authority, persistent harassing and abusive conduct or grooming.
5. She said that the allegations against Mr Penn occurred over a short period of time, namely four days in 2019, and that the lapse of time since then is a matter relevant to the risk assessment.
6. Mr Penn also denies that he poses a risk of harm to people with disability. Ms Rogers submitted that, in any event, a clear nexus did not exist between the nature of the allegations against Mr Penn and his NDIS-related work.
7. Ms Rogers made broad submissions about Mr Penn's working history and commitment to working with vulnerable members of the community. Attached to Ms Rogers' various submissions are five character and employment references from persons in management roles within his employer, all of which speak in positive terms about Mr Penn's work and character, and several vocational training certificates.
8. Ms Rogers submitted that Mr Penn has no adverse child protection history or disciplinary or misconduct history and that, prior to the allegations against him, he had never been accused of conduct of that or any nature.
9. Ms Rogers submitted that Mr Penn suffered considerable stress during the course of the criminal proceedings and received treatment from a clinical psychologist, Ms Rae Starkey. A brief letter from Ms Starkey dated 4 April 2022 was provided with the submissions to the CAU. Ms Starkey confirms Mr Penn's attendance at 16 appointments between December 2019 and May 2021 for treatment for a condition arising from the charges brought against him. Ms Starkey stated:

Treatment of Tyrone's [condition] focused on addressing his experience of having charges brought against him, and supporting him through the criminal justice system process. > > My understanding is that information has been requested to help determine whether or not Tyrone poses an unacceptable risk of harm to people with a disability or children. In Tyrone's particular circumstances because he was pleading not guilty, and was going through to trial to defend himself against the charges, it was not clinically indicated that he should engage in treatment for sex offending. > > As the court has since recorded an outcome of nolle prosequi, and the matter is now effectively closed, psychological treatment to address risk of recidivism is not clinically indicated and has not therefore being conducted. In terms of assessing risk of recidivism, this has also not been conducted as Tyrone has no recorded convictions which is a prerequisite for an assessment of risk of recidivism.

10. Ms Rogers submitted that Mr Penn, having been the subject of proceedings for an extended period of time, has the motivation and the incentive to refrain from inappropriate actions now and in the future. She invited the Tribunal to adopt the approach in HJO v Medical Board of Australia (HJO),[20] where the Victorian Civil and Administrative Tribunal (VCAT) decided for similar reasons that suspension of a medical practitioner's registration was no longer necessary if appropriate conditions were put in place.
11. Ms Rogers submitted that a holistic approach to the totality of the information, particularly the surrounding circumstances of the allegations and his otherwise good character, strong working history and otherwise positive contributions to the community, inevitably leads to the conclusion that Mr Penn does not pose an unacceptable risk to children or a real and appreciable risk of harm to people with disability. In the alternative, it was submitted, that in light of the highly relevant surrounding circumstances, the respondent should find that any identified risk is fanciful, far-fetched and/or theoretical, where the potential consequences are insignificant.
12. Ms Rogers submitted that the Tribunal should follow the decision of the Senior Assessment Officer rather than the decisions under review.

1. Mr Nguyen submitted that the Tribunal should affirm each decision under review.
2. He submitted that the Tribunal ought to place significant weight on both decisions as they do not reflect any error of procedure, fact or law, nor do they indicate any failure to take into account relevant considerations. He submitted that information that relates to offences with which a person has been charged, regardless of the outcome of the charges, are mandatory considerations in determining the person's risk to children and vulnerable people.
3. He stated that is not the respondent's or the Tribunal's role to make any definitive ruling as to whether the alleged conduct did or did not occur. Rather, their role is to determine the level of risk which would be associated with the grant of a clearance.
4. With reference to several exchanges with Mr Penn found on the complainant's mobile phone, Mr Nguyen submitted that it was open to the respondent and the Tribunal to conclude that Mr Penn would likely have been aware that the complainant was not 17 years of age or older, or at the very least alarm bells should have rung that the complainant may have been under the age of consent. Mr Nguyen submitted that, rather than stopping all communications with the complainant, Mr Penn persisted in attempts to obtain inappropriate images of her and engage her in communications of a highly sexual nature.
5. Mr Nguyen referred the Tribunal to the decision in XDU v Secretary to the Department of Justice and Community Safety (XDU).[21] The VCAT there decided that charges of sexual penetration of a child under the age of 16 years, where XDU denied knowing the child's age, were nevertheless relevant for the purposes of a working with children check despite XDU being acquitted of the charges. The VCAT said this was because, whether XDU knew at the time or not, the end result was that XDU did have sex with a child when she was herself a mature adult. It was submitted by Mr Nguyen that regardless of whether or not Mr Penn knew the complainant was a child, the objective fact is that the complainant was at the relevant time a child and Mr Penn an adult, and there is irrefutable evidence of communications of a highly sexual nature between them. These are matters, he submitted, that cannot be ignored.
6. Mr Nguyen submitted that the disclosures made by the complainant during her police interview (see below under "Transcript of police interview with complainant") are consistent with the evidence obtained from the phones of the complainant and Mr Penn and are assessable and relevant information that is required to be taken into account. He also submitted that the internet search results located on Mr Penn's phone (see below under "Screenshots and photos found saved on Mr Penn's phone") are unusual and highly concerning and cause considerable unease in the context of the other material obtained as part of the criminal investigation.
7. He submitted that insufficient time has elapsed since the impugned conduct to demonstrate significant mitigation of the risk of harm that Mr Penn poses to children and people with disability and that a mere passage of time is not of itself indicative that Mr Penn has undergone a reformation of character.
8. He also submitted that little weight can be afforded to Mr Penn's engagement with a psychologist given that this appears to have been sought out through a need to address his mental health issues arising from the circumstances of facing criminal charges rather than anything arising out of the conduct of concern relevant to the risk assessments.

1. The assessable (or relevant) information considered by the CAU included photos taken by police of various screens on the complainant's phone; screenshots and photos saved as files on Mr Penn's mobile phone; and transcripts of a police interview with the complainant on 3 August 2019. It included the submissions made on Mr Penn's behalf by Ms Rogers.
2. The questions for the Tribunal are essentially the same as those dealt with by the CAU, namely whether the assessable information indicates that Mr Penn was aware that the complainant was 14 years of age (or, at least, a school-aged child under the age of consent) and then the weight to be given to this and other relevant matters to determine the fundamental issue of risk.
3. For the reasons I explain below, I am not satisfied on the balance of probabilities that Mr Penn was aware that the complainant was 14 years old (or under the age of consent) when he engaged in the communications with her. However, I am not satisfied that Mr Penn was not aware of these matters. The evidence taken holistically has raised in my mind a reasonable concern, and it is a serious concern, that Mr Penn was aware of her age at the time of these communications. I am satisfied that, when this concern is properly weighed with other relevant matters, the evidence establishes that Mr Penn poses an unacceptable risk to children and a real and appreciable risk to people with disability. In essence, I find myself in broad agreement with the reasons for the respondent's decisions.

1. The photos of screens on the complainant's phone are contained in Annexure A to the affidavit of Constable Hunt.[22]
2. The photos in Annexure A of the complainant's phone contact list and her WhatsApp list included a person named "Ty" with phone number [redacted for privacy]. The police conducted a subscriber check for that number. The results of that check indicated that Mr Penn had been the subscriber of that phone number since 5 March 2019.[23] As a consequence of the subscriber check, I am satisfied that I can place high evidential weight on these photos as a reliable source of assessable information.
3. The photos include a number of messages between the complainant and Mr Penn on WhatsApp between 23 May 2019 and 26 May 2019. As I discuss below, it seems that there had also been messaging on SnapChat between the complainant and a person named "Ty" (perhaps going back to 1 May 2019), but the photos are predominantly of WhatsApp messages and there are no photos of SnapChat messages.
4. It is clear from the WhatsApp messages that Mr Penn was seeking sexual contact with the complainant and also photos of her naked. The tenor and content of the messages between the complainant and Mr Penn are highly sexual in nature.
5. I have reproduced in the following extract some of the relevant messaging, attempting to retain the context of the messages as far as possible:

If I tell my mum I'm taking the bus then I'm I just go where ever your taking me till like 7.30

Btw I'm curious do you have anything more cheeky on your phone

Then I can finally see that booty and even that tight teen pussy x

For seeing me to start sucking on this big cock babe

Yep knew it, removed me off of snap, you were never going to meet up

Do u actually want to meet and take this older cock

Just want to make sure you are legit about doing it

We are ok? As in still on to put you to work for daddy

That what you mean? Cause I still want to pump my load straight down your throat

1. I accept Ms Rogers' submissions to the extent that some of Mr Penn's language may well be used by an adult talking to another adult. However, Mr Penn's references to "tight teen pussy", the complainant getting "sleep for school", "this older cock", and his referring to himself as "daddy", and the complainant indicating she would deceive her mother to meet him, are suggestive of Mr Penn being aware during these communications of the complainant's age or that she was below the age of consent. This cannot be ruled out.
2. The reference to the complainant needing "to get sleep for school" is particularly adverse to Mr Penn. It suggests that, from at least 23 May 2019, Mr Penn was aware of the complainant's age. I do not know of any alternative, idiomatic or slang meaning of "school" that might indicate that Mr Penn was not referring to a person who was still attending high school.
3. While it is of course correct, as Ms Rogers indicated, that some 17 and 18 year olds attend high school, I am not satisfied that Mr Penn understood himself to be communicating with a teenager above the age of consent rather than a significantly younger child. In other words, I am not satisfied that, taking this exchange as a whole, Mr Penn was not aware of the complainant's age.
4. There is a reasonably strong indication that Mr Penn's communications with the complainant commenced earlier than 23 May 2019. The first and last things Mr Penn said to the complainant on WhatsApp were "Hey ... It's Tyrone from that app" and "Re add my snap". A screenshot found on the complainant's phone suggests that she had been engaged in SnapChat communications with a person named "Ty" at least as early as 1 May.[24] I note also that the complainant told police (see below) that she had commenced communicating with Mr Penn on MeetMe, then moved to SnapChat before blocking him on that app, and then he called her on WhatsApp before she blocked him on that app also. I must have some regard to the possibility that Mr Penn engaged in communications in the same sexual vein with the complainant for potentially some weeks before 23 May 2019. This cannot be given significant weight however as there is no evidence of any SnapChat communications between them.[25]

Screenshots and photos found saved on Mr Penn's phone

1. Annexure E to Constable Hunt's affidavit contains the screenshots and photos found on Mr Penn's phone, which had been seized by police on about 7 October 2019 when Mr Penn was arrested. Therefore, I place high evidential weight on the screenshots and photos as a reliable source of assessable information.
2. Constable Hunt deposed that he found nearly 300,000 files, media and messages on Mr Penn's phone. As a result of the volume of data and limited resources to review it, he took a risk management approach and reviewed files around the time of the alleged offending and some months either side, locating 1,023 files that he saved to disk. Seventeen of those files are found as photos or screenshots in Annexure E.
3. Among the photos found saved on Mr Penn's phone were numerous photos of the complainant's upper body while she is wearing a lace bra and "pouting".
4. There are two screenshots of Mr Penn's dating profiles, although the app or apps that they relate to are unknown. One profile includes a photo showing him wearing glasses and describes him as a 25 year old Area Coordinator at TAFE SA, Regency Park. The other profile describes him as a 26 year old Personal Trainer at TAFE SA, Regency Park and has a photo showing him apparently unshaven or with a light beard.
5. Other screenshots on Mr Penn's phone displayed:
   1. the results of an apparent internet search for the age of consent (given that the words "age" and "consent" are in bold font in the search results). The results are generalised and random in nature and returned information about the age of consent in New Jersey, South Africa, New South Wales and Oceania;
   2. pages displaying s 62, s 63 (Production or dissemination of child exploitation material), s 63A (Possession of child exploitation material), s 63B (Procuring child to commit indecent act etc) and ss 171 and 172 (Blackmail) of the Criminal Law Consolidation Act 1935 (SA); and
   3. pages of an apparent internet article or blog post, where the focus of the screenshot is a brief explanation of s 66E (Violation of privacy), s 67 (Transmitting obscene electronic material) and s 67A (Electronic material containing sexually explicit act) of the Information Technology Act 2000 (India), regarding various offences under that Act.
6. The existence of these screenshots on Mr Penn's phone is relevant to the risk assessment that must be made. On one view, they would support a conclusion that Mr Penn well knew the age of the complainant and was attempting to determine his potential criminal liability by undertaking the sort of random internet searches that people untrained in the law might make. However, I would only be prepared to place a significantly small degree of weight on this evidence.
7. I generally agree with Ms Rogers that it would be unfair to place substantial weight on the screenshots in the risk assessment given the significant unknowns attached to them. The screenshots were selected by police and the context of them is probably lost. The purpose for which the screenshots were taken (or of the apparent research conducted) is not clear and is a matter of speculation. The dates on which the screenshots were taken is unstated. It is not clear if they were taken at around the same time as each other or whether they have any other connection. It is not clear whether they were taken before, at the same time as, or after Mr Penn's communications with the complainant in May 2019. The most that can be said is that they all must have been taken before Mr Penn's phone was seized by police on 7 October 2019.
8. At the hearing, Ms Rogers tendered a blog post entitled "What to Do When Your Boyfriend/Girlfriend Or Ex-Boyfriend/Ex-Girlfriend Blackmails You Using Your Nude Pictures" dated 12 February 2017.[26] Her suggestion was that this was the source of the screenshots of the Information Technology Act 2000 (India) referred to above. Although the formatting is different, it seems likely that Ms Rogers is correct. However, given what I have already said about the screenshots found on Mr Penn's phone, it is not necessary to deal with this any further.

Transcript of police interview with complainant

1. The transcript of the complainant's interview with police on 3 August 2019 is annexed to an affidavit deposed by the interviewer, Senior Constable Prior.[27] The complainant acknowledges in the interview that she has come to talk to police "about this person that's been asking me to send them pics, like pictures of my body".
2. The complainant describes meeting a person through the MeetMe app and then progressing to communicating with him on SnapChat and WhatsApp, and also in phone calls. She said that they were texting and talking for two or three days "somewhere in May ... like maybe May the 15 or like May 20 ... this year".
3. She said that she was talking to this person on SnapChat and that he had asked her to send him pictures of her body after sending her pictures of other girls in poses he would like her to adopt. He said he liked girls younger than him. He said that she could come to his house and have sex with him.
4. She said that she sent him a picture of her in a "bralette" and that he told her to send him a picture of her "butt" without her shorts. She said he sent her a picture of his "private part" and said that it was her turn to send him something without her bralette. He told her to remove her bralette. She said that he got mad that she was not sending him back photos and she blocked him on Snapchat but he kept calling her on WhatsApp until she blocked him on that app.
5. She said that she told this person her full name, that she was 14 and the school that she goes to. She said that on her MeetMe profile, it states that she is 18 because "you have to be 18 to get on the app ... then down like on my introduce yourself, I said that I am 14, and if you are over the age of 18, and if you know that you are like an elder person ... like yeah, like don't talk to me."
6. The complainant stated that the person she was messaging was "like 36 years old", has blue or grey eyes, long or messy brown hair, has freckles or pimples on his face, wears glasses and has a beard, lives in Salisbury, has a wife and a kid, that "he works as like a nurse or doctor or something" and goes to university. She said the name on his profile was "either Tim ... I think it's Thomas, I don't know ... Like it just starts with a T".
7. I agree with Ms Rogers' submissions to the CAU that, at least in some parts of the interview, the complainant may have been talking to the police officer about another person and not Mr Penn, given some of the discrepancies in personal details the complainant gave to police such as his age, appearance, marital status, employment and university studies. Ms Rogers submitted that Mr Penn was not 36 in 2019, did not then have long or messy hair, freckles or pimples, has never studied at university, has no children and never been married, has never worked as a nurse or doctor, or held himself out to be any of these things. However, in some other respects, the personal details are a close match to Mr Penn at one time or another, including that he lives in the Salisbury area,[28] has dark hair, wears glasses and has or had facial hair, works in disability services and has a first name that starts with "T".
8. I do not agree with Ms Rogers' submissions to the CAU that the complainant's interview is inherently unreliable and should not be afforded any weight. The transcript is assessable information and should be taken into account after appropriate weighting is given to it. In its decisions, the CAU said that it would not afford any weight to the transcript where it was not supported by "corroborating screenshot evidence". I consider that the respondent was correct to treat the transcript in this cautious fashion. Aside from the unsworn nature of the complainant's statements and that she was not present for questioning at the hearing (and potential errors inherent in any transcription), there is some possibility that the complainant may not be referring to Mr Penn in parts of her interview but that she may be referring to one or more other males. As discussed above, some of the identifying details she gives do not match Mr Penn.
9. However, the complainant's interview is consistent in many respects with the information obtained from the complainant's phone and Mr Penn's phone. This includes the date range of the messages they exchanged, the content of the messages and the photos of the complainant found on Mr Penn's phone. This phone evidence constitutes strong corroboration of the complainant's police interview. I am satisfied that, in these parts of the interview, the complainant was talking to the police officer about the person "Ty" with whom she had exchanged the messages found on her phone and that "Ty" is Mr Penn.
10. It might be unfair because of these discrepancies in personal details to conclude from the transcript that the complainant told Mr Penn (and not someone else) her full name, that she was 14 and the school that she goes to, or that he told her that he likes younger girls. I find however that there is no reason to immediately reject the complainant's statement to police that she had revealed her true age on her MeetMe profile "introduce yourself" section. This part of her interview was independent of any discussion about who she was speaking to or messaging.
11. Ms Rogers submitted that the prosecution in the criminal proceedings acknowledged that the complainant "did not specify her true age in connection with her account details in some of the [applications] she used, which included instances where she falsely stated she was aged 18 or older" (my emphasis). While I agree that this acknowledgement by the prosecution indicates that the Tribunal should be careful about the weight it places on the complainant's statement about her MeetMe profile, the acknowledgement is not necessarily inconsistent with her statement about the contents of that profile being truthful.
12. In other words, the complainant might be misremembering to whom she disclosed her age and other personal details, and who told her that he liked younger girls, and reduced evidential weight ought to be given to that part of the transcript for that reason, but her assertions as to the contents of her MeetMe profile are not tainted in the same way. Some reduced weighting ought to be given to the possibility that the complainant was not truthful in these assertions, for one reason or another. However, I bear in mind also that she could have been truthful, particularly as she could reasonably be assumed to have had in mind that any falsehood may have been revealed by examination of her MeetMe profile.

1. I place positive weight on the references produced on Mr Penn's behalf. However, I cannot give the references a high or substantial degree of weight as it is not clear whether each of the referees was aware of the details of the allegations made against Mr Penn or to what extent, if any, they were aware at all of any of the matters alleged against him. For these reasons, I do not accept the logic of Ms Rogers' submission that the references constitute powerful circumstantial evidence which weighs heavily against any suggestion of the impugned conduct having occurred. I do not agree that the views of five persons about Mr Penn's work ethic and character are evidence that Mr Penn did not know the complainant's age.
2. Similarly, I cannot give a significant amount of weight to Ms Starkey's letter or the fact that Mr Penn sought psychological treatment. I agree with Mr Nguyen in this regard. Ms Starkey's letter does not specifically address Mr Penn's risk of offending, or speak generally to Mr Penn's risk to children and people with disability, and therefore it does not assist the Tribunal in the decision it must make. Ms Rogers submitted that Mr Penn sought psychological counselling "because of the general abhorrence with which he himself regards those who cause harm to children and other vulnerable members of the community". Neither Mr Penn nor Ms Starkey gave evidence to the Tribunal. There is no evidential basis from which I can draw the conclusion submitted by counsel and I decline to do so.
3. I accept that the consequences of the events of May 2019, and the protracted length of related proceedings including the effect on his employment, have been hard on Mr Penn, as indicated by his seeking out psychological therapy. However, the Tribunal cannot place any weight on the effect on Mr Penn of not obtaining clearances under the CSPP Act and the DI Act.

1. In terms of weighting information sources under the Guidelines, in making my decision, I place primary reliance on the contents of the complainant's mobile phone. I agree with Mr Nguyen's submission that the weight of this information is significant and that its quality is high. I agree also that its relevance and seriousness are high because it pertains to the exploitation of a child and because of the gravity of such conduct and its potential impact on children. For the reasons given earlier, I give lesser weight to some of the contents of Mr Penn's mobile phone and of the complainant's police interview.
2. I do not agree with Ms Rogers' submissions that I should find that the allegations against Mr Penn are groundless and that the respondent's case falls at the first hurdle. As noted earlier, after considering the assessable information, particularly the WhatsApp messaging, I find that I am not satisfied that Mr Penn was not aware of the age of the complainant when he engaged in the communications with her in May 2019.
3. However, I agree with Ms Rogers' submissions that I should reduce the weighting of my finding in the overall risk assessments to reflect the possibility that Mr Penn was not aware of the complainant's age. Nevertheless, the weighting I give to my finding is not minimal. The assessable information is of such a nature that it has given rise to a reasonable and serious degree of concern in my mind that Mr Penn was aware of the complainant's age at the time of these communications. I therefore give my finding a moderate but significant weight in the risk assessment.
4. If I am wrong on this point, I consider that the assessable information leads reasonably to the view that Mr Penn's messaging with the complainant ought, at the very least, to have indicated to him that he could be communicating with a child below the age of consent. I agree with Mr Nguyen's submissions in this regard. Ms Rogers submitted that the coarse sexual language used by the complainant in the messaging is something that Mr Penn could reasonably have relied on to conclude he was dealing with an adult. I cannot accept that submission when the complainant's language is weighed against the other indications that she was a child. I agree with Mr Nguyen that it is of serious concern that, rather than ceasing communications with the complainant at the point when he ought to have realised she could have been child, Mr Penn persisted in attempts to obtain inappropriate images of her and engage her in communications of a highly sexual nature. This included persisting in attempts to engage her in sexual activity and retaining the sexualised images of the complainant (i.e. pouting and wearing a "bralette" top) that she had sent him.[29] These matters should be held adverse to him.
5. I respectfully decline to follow the apparent position drawn from XDU that it is simply enough that the complainant was 14 years of age and Mr Penn an adult at the time of their communications. It is not entirely clear that this is what the VCAT meant as elsewhere in the decision the VCAT observed that XDU did not recognise that the victim was a child or turn her mind at all to the question of whether he may have been.[30] In any event, I consider that the assessment of risk in these types of situations requires the Tribunal to consider the adult person's knowledge of the age of the child at the time. I consider that, even if it were objectively proven that inappropriate communications occurred between a child and an adult, less adverse weight ought to be given to circumstances where the adult credibly did not or could not know that they were communicating with a child. I agree with Ms Rogers in this regard.
6. The positive weight to be given to Mr Penn's character and employment references, and lack of any other history of concern, do not outweigh the significant adverse weight that should properly be given to the other assessable information.

1. The above findings on the assessable information are relevant in the risk assessment to be undertaken under the CSPP Act as they are suggestive of Mr Penn having a sexual interest in children or that he is indifferent to whether a person in whom he has a sexual interest may be below the age of consent.
2. I agree with the view of the respondent that these concerns are transferable to the risks posed by Mr Penn if he were to work with people with disability, which includes children and other vulnerable people, and therefore they are relevant to the assessment of risk under the DI Act. I disagree with Ms Rogers' submissions as to a lack of nexus.
3. I turn now to evaluating under Table 2 of the Guidelines the nature and degree of the risk posed by Mr Penn and whether it is acceptable to allow it.
4. There are factors in this case that the Guidelines consider demonstrate an increased risk of harm. This includes that Mr Penn's conduct was sexual in nature against a child significantly younger than him, that it was wilful, that he has not accepted responsibility for his conduct and that the conduct did not stop until the complainant blocked him from her apps.
5. Factors demonstrating a decreased risk, and which are weighted in Mr Penn's favour, include the lack of any adverse findings of misconduct against Mr Penn in any setting and the lack of allegations of misconduct other than those arising from the events of May 2019. However, I do not consider that these factors outweigh factors demonstrating that Mr Penn poses an increased risk of harm.
6. Also, in the context of potential sexual exploitation of a child, I consider that neither the passage of time since the conduct of concern nor that the conduct occurred over a short timespan has sufficiently diminished the severity of the risk posed by Mr Penn if he were to work with children and people with disability.
7. I have considered the likelihood of the conduct of concern (sexual exploitation of children) recurring in the future, and the seriousness of the consequences if the conduct were to recur and, if it did, that it happened in the context of Mr Penn's employment with children or people with disability (which includes children). In this regard, I take note that the Guidelines under the CSPP Act indicate that sexual offending has recognised high recidivism rates. However, I am not able on the evidence to positively find that Mr Penn would repeat the conduct of concern. The risk of recurrence may therefore be small. However, if the conduct did recur in the context of Mr Penn's employment, the consequences to children and people with disability would clearly be serious.
8. As I noted above, where the possible future harm is serious a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome as unacceptable. I find that is the case in this instance. This is not a case of a risk that is acceptable because it is fanciful, farfetched or theoretical or where the potential consequences are mild or insignificant. I do not accept Ms Rogers' submissions in this regard.
9. I do not accept the premise of Ms Rogers' submissions that Mr Penn should be found not to pose an unacceptable risk to children because his case is distinguishable on the facts from the Tribunal's decisions in GJC, BZY and VKS. I do not accept that any of these prior decisions purports to set a benchmark for conduct of concern above or below which a person would be found either to pose or not to pose an unacceptable risk to children, as the case may be. While it would be strongly desirable that there be consistency in decision-making under both the CSPP Act and DI Act, fundamentally, each case needs to be decided on its individual merits. Each of those prior decisions was a decision on the merits of the particular cases.
10. In any event, I consider that the risk of harm from sexual exploitation is so serious that there is little countervailing weight that can be placed on the fact that Mr Penn's conduct of concern did not display some of the features Ms Rogers identified in BZY, VKS and GJC.
11. Also, I do not agree with Ms Rogers' submission that the Tribunal should be guided in a significant way by the VCAT decision in HJO. The HJO case needs to be considered in context. In explaining its decision not to suspend the practitioner's registration, the VCAT stated (my emphasis):

This is in part because of the obvious impact on him of these proceedings and the suspension of his registration for almost 12 months, which we consider will have had any needed deterrent effect and thereby aid the protective purposes of immediate action, until formal allegations can be brought before the tribunal. HJO has the motivation and the incentive to refrain from inappropriate interactions in the interim. > > It is also in part because of what HJO has demonstrably learned in the interim about the components and impact of sexual harassment. Even if he does not agree that he engaged in it to the extent alleged, and whatever may have been his thinking about the appropriateness of his conduct at the time, he is now well educated about what not to do. > > Primarily, however, it is because we consider that the combination of limitations on where he can practise and under what conditions, together with supervision by a physically present supervisor, will ameliorate the identified risk in this case - to junior female health practitioners alone with him in a hospital department at night.[31]

12. There are a number of important points of distinction between the HJO case and this matter. This includes that the allegations against HJO concerned adult to adult interactions, whereas the allegations against Mr Penn concern conduct towards a child. Unlike the medical practitioner, Mr Penn has been able to continue his employment albeit, it seems, not in the same way as if he had clearances under the CSPP Act and DI Act. The practitioner gave evidence before VCAT. He admitted much of the allegations against him and had participated in programs related to the alleged conduct. Mr Penn did not give evidence before this Tribunal. As a result, I consider that the Tribunal does not have before it adequate information to determine the "impact" on Mr Penn of the proceedings and the consequent "deterrent effect". Also, the proceedings in HJO were interim, pending the bringing of formal allegations against the practitioner, not final as they are in the present case. In that context, it is understandable that the VCAT would have felt able to conclude that the pending further proceedings would have been the motivation and incentive for the practitioner to refrain from inappropriate interactions in the interim, and that the limitations on his practice and the need for supervision mitigated the risk he posed.
13. For all the above reasons, I am reasonably satisfied that Mr Penn poses an unacceptable risk to children and a real and appreciable risk of harm to people with disability.

1. I therefore conclude that the correct or preferable decision is to affirm the two decisions under review.

[1] A non-publication order is made in respect of the Book of Documents under s 60(2)(g) of the SACAT Act.

[2] [1959] HCA 8.

[3] Tribunal cases 2022/SA001982 and 2022/SA001985.

[4] The submissions are a little equivocal on this point as they, in parts, describe the communications as "alleged communications" but elsewhere appeared to accept that the communications occurred between the complainant and Mr Penn. I explain elsewhere in these reasons that I am satisfied that the communications occurred.

[5] [2020] SACAT 38.

[6] [2023] SACAT 60.

[7] Referred to as "relevant information" for the purposes of the Disability Inclusion Act 2018.

[8] Working with Children Check Guidelines, July 2019; NDIS Worker Check Guidelines, May 2021.

[9] See Schinckel v Registrar of Firearms [2020] SASC 236 at [30].

[10] [2020] SACAT 38 at [104].

[11] Fleming v Department of Human Services [2021] SACAT 48.

[12] CXZ v Children's Guardian [2020] NSWCA 338 at [58] per Simpson AJA. Also, PSN v Department of Human Services [2023] SACAT 28 at [72] - [74].

[14] [2020] SACAT 38 at [83]- [84].

[15] Briginshaw v Briginshaw [1938] HCA 34.

[16] M v M [1988] HCA 68; GJC v Department of Human Services [2020] SACAT 38; Marshall v Department of Human Services [2023] SACAT 83; GM v Department of Human Services [2024] SASC 23.

[17] Working with Children Check Guidelines, July 2019, chapter 10.

[18] [2021] SACAT 1.

[19] [2021] SACAT 89.

[20] [2022] VCAT 758.

[21] [2021] VCAT 256.

[22] Documents 7.2 and 7.3, Book of Documents.

[23] Affidavit of Constable Hunt, [10], Book of Documents, pp 47-48.

[25] I take note that one of the well-known features of Snapchat is that pictures and messages are usually only available for a short time before they become inaccessible to their recipients - they "delete by default" unless this setting is changed by the user. See https://help.snapchat.com/hc/en-us/articles/7012330339860-How-do-I-change-when-Snapchat-deletes-Snaps-and-Chats accessed 30 March 2024. This may explain why there are no photos of SnapChat messages. However, I say nothing further about this as there is simply no evidence at all of which the delete setting of SnapChat was used by the complainant and Mr Penn when they conducted their SnapChat messaging.

[26] https://blog.ipleaders.in/when-someone-using-your-nude-pictures-to-blackmail-you/.

[28] Correspondence in the Book of Documents indicates that Mr Penn lives in Salisbury Heights.

[29] The Tribunal has not seen the photographs of the complainant. But I have no reason to doubt the descriptions of them given in the police affidavits. Also, the existence of these photographs is consistent with the evidence found on the WhatsApp messages and the complainant's police interview.

[30] [2021] VCAT 256 at [34] - [37], cf [30] and [45].

[31] [2022] VCAT 758 at [12]- [14] footnote omitted.