1. It was submitted by the Secretary that there were two reasons why the stay should be revoked.

(a) it was submitted that there has been a change to the law and

(b) PUW has been charged with further offences, which would, if he were found guilty of those offences be category 1 offences.

Amendments to the Working With Children Act 2005

1. The amendments invoke a "reasonable person test" requiring consideration by the decision-maker of whether a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised; together with a further test of whether the applicant's engagement in any type of child-related work would pose an unjustifiable risk to children.
2. It was submitted by the Secretary that the amendments apply to all cases currently before the tribunal regardless of when they commenced and that the amendment to the legislation was a reason for revoking the stay.
3. If the applicant is found guilty, the amendments to the Act may well mean that PUW will have an extremely difficult hurdle to overcome if he is to be successful before this tribunal.
4. But there is nothing new in this. The same "ifs" [about the PUW's prospects of success] are to my way of seeing the case involved as they were in the case before Deputy President Dwyer in which the stay was granted. All of the "ifs" were clearly considered by him when he made his original decision to grant a stay. Deputy President Dwyer emphasised time and again, throughout the decision, the serious nature of the charges and stressed that nothing in his determination at that point in time should leave the applicant to conclude that his prospects of success at a final hearing would be good.
5. It seems to me that if the amendments to the law were the only factor in the Secretary coming back to argue that the stay should be revoked, that it would be inappropriate for that application to have been successful.
6. It does not seem to me that it can have been the intention of Parliament to allow this to occur - such that stays previously granted should suddenly be revoked.
7. Certainly in the final determination of these kinds of matters it is clearly the intention of Parliament that there be an additional hurdle to be overcome.
8. But it does not seem to me that the difficult hurdles to be overcome already previously identified by Deputy President Dwyer are any different.

1. The other new fact and circumstance is the charging by the prosecution in this matter of additional charges involving child pornography matters.
2. These charges do show that the prosecution, on careful reflection and reading and examination of the material, have considered that what is depicted in the video could amount to child pornography.
3. What was described to me by Senior Constable Jones in terms of the conduct depicted on the video is very similar to the material that was previously before Deputy President Dwyer. What was said to me by Senior Constable Jones was that:

"kids walk in, undress, leave to go to the bathroom, get undressed, and that this continues through the video - no other footage".

1. I've looked carefully through the transcript of the previous proceedings to see whether that material is new material compared with what was put before Deputy President Dwyer.
2. I am simply not satisfied that it was. It was clear from the transcript that Deputy President Dwyer was well aware of the fact that the video showed different children in different stages of undress. He made reference to the fact (on page 8 of the transcript) that the cameras were used for the purposes, wittingly or unwittingly, of filming a range of persons dressing or undressing. And further, on page 24, that some of that footage involved the applicant's children.
3. The charging by the prosecution of the applicant with the additional charges, whilst making the consequences no doubt more serious for him if he is found guilty of those offences, don't change the nature of the material that was considered at first instance when the stay was granted.
4. Exactly the same material is before me in terms of what is depicted on the video as was before Deputy President Dwyer.
5. This is not a situation where additional charges relating to new conduct have been placed before the tribunal.
6. This is a situation where, on an analysis of the material already put, the prosecution has determined that additional charges should be laid.
7. It seems to my way of thinking that that is a quite different consideration from a situation where knew offences have been committed. It seems to me that there is nothing before the Tribunal other than the fact of a more serious charge that would put the offending into a potentially different category but that substantive facts that were before the tribunal when the stay was granted are the same.

1. An explanation was given to Deputy President Dwyer by the applicant during the course of the earlier proceedings about the reasons for the installation of the cameras and the filming of the children. I don't need to repeat any of those - they are quite clear in the transcript at pages 6 and 12.
2. The other evidence that was given remains almost constant.
3. And that is that the applicant has been driving for some years, it was known then as it is now that that his work could conceivably include driving of school buses and thereby engaging with children.
4. The applicant at the earlier hearing made it abundantly clear that he needed to work - it was as simple as that - he was currently living on his savings and had felt to find other work would jeopardise his work with [his employer] and (at page 35) that he was paying a mortgage.
5. He stated at that time and it was confirmed in front of me today that his employer knows about these matters. He says they know now, more than they did then.

1. It was clearly before the tribunal then [at the time the stay was granted] that the police had entered the applicant's home on the presumption of charges of "manufacture of child pornography" and that the applicant very much disputes this offence.
2. He has now been charged with those offences - the charges are not based on more offending. There have been no further offences committed or behaviour leading to a presentation of further offences
3. The additional charges apply to exactly the same facts and circumstances.
4. There is no doubt Deputy President Dwyer was aware of those factors and viewed these offences as extremely serious offences.
5. The factual basis upon which the matter is put before the tribunal remains the same.
6. I have to weigh up the risk to children posed by the applicant, taking into account the evidence previously given and maintained today and also look to the consequences for the applicant if the stay is not granted and he finds himself unemployed. At the earlier hearing Deputy President Dwyer touched on the important considerations that need to be taken into account when granting a stay, which I adopt.
7. The presumption of innocence of course is a factor but not the determining factor.
8. At the previous hearing the elements of the power to grant a stay which were canvassed were whether there was a serious issue to be tried. It was of course identified that the charges were very serious. Deputy President Dwyer was aware that they involved stepchildren, biological children and others; P. 50 of the ruling reflects that Deputy President Dwyer was well aware of this.
9. Whilst at the earlier hearing the Secretary did not have the footage, the same submissions were made about the breach of trust. This was related back to the proposed work to be done by the applicant in his being unsupervised when working with children. They're the same considerations.
10. The ages of the children were identified - 9, 10 and 11 - and the same argument put by the Secretary in relation to saying that the applicant [indecipherable].
11. The seriousness of what was alleged was taken into account.
12. There was comment made at the last hearing about PUW receiving counselling for what appeared to be voyeuristic behaviour and I'm told by the applicant that he's taken on board some of those comments and undertaken counselling.
13. The anticipated time before the matter will be resolved was important - it remains as important, if not more so now. The period of time which may elapse is potentially significant in light of the new charges based on the same material. We simply don't know how long it will be before this matter comes to be finally resolved. Potentially a brief period of time but if, as suggested by the Secretary, the matter runs through a criminal trial process, it may be some considerable time indeed.
14. I need, in exactly the same way as Deputy President Dwyer did, to consider the balancing of the community's interest in the granting of a stay and the protection of children and the private interests of the applicant charged but not yet found guilty of any offence.
15. Deputy President Dwyer did make a conditional stay and it seems to me that there are no new factors on the material before me that warrant my not continuing with that conditional stay.
16. It seems to me that the changes in the law should not be a determining feature and the charging here of new charges based on the same facts mean that I have essentially before me exactly the same material as Deputy President Dwyer had before him. The balance has not changed.
17. In those circumstances I propose to allow the stay to continue on precisely the same terms and conditions to the stay granted by Deputy President Dwyer on 5 March 2012.
18. I propose to list the matter for an administrative mention on 22 February and at that time I will expect the parties to write to the tribunal as to the further conduct of the matter.