Children’s Guardian v CF1

1. [1]

   The defendant applied under the Child Protection (Working with Children) Act 2012 No. 51 (NSW) (“the Act”) for a working with children check clearance (“clearance”) from the plaintiff, the Children’s Guardian. That application was refused by the Children’s Guardian on 12 April 2019.

2. [2]

   The defendant applied to the New South Wales Civil and Administrative Tribunal for an administrative review of the decision of the Children’s Guardian. On 15 June 2020 the Administrative and Equal Opportunity Division of NCAT set aside the decision of the Children’s Guardian and granted to the defendant a clearance: DVY v Children's Guardian [2020] NSWCATAD 151.

3. [3]

   By summons filed 10 July 2020 the Children’s Guardian seeks to set aside the orders made by NCAT and seeks that the proceedings be remitted to it, differently constituted, to be determined according to law. On 24 July 2020 Garling J ordered that the defendant, formerly referred to as DVY, be known as CF1.

Background

1. [4]

   In 2016 the defendant was charged with the following seven offences:

2. [5]

   The complainant in respect of each offence was his wife’s niece. At the time the defendant was charged the complainant was aged 16 years.

3. [6]

   The charges did not proceed to Court. They were withdrawn by the Director of Public Prosecutions on the first day of the trial because the complainant did not want to give evidence in Court, and she said that she did not want the matters to continue.

4. [7]

   The offences with which the defendant was charged fell within clause 1(2)(b) of Schedule 1 of the Act with the result that the defendant was subject to an assessment requirement in s 14 of the Act. Sub-clause 1(2) of Schedule 1 stipulated that such a requirement existed because proceedings had been commenced against a person whatever the outcome of those proceedings.

5. [8]

   Section 15 of the Act sets out matters relating to the assessment requirement. Section 15(4) identified the matters that may be considered by the Children’s Guardian. Paragraph (h) was “the seriousness of the person’s criminal history and the conduct of the person since the matters occurred”. Section 5C of the Act defined criminal history to include criminal charges “whether or not heard, proven, dismissed, withdrawn or discharged”.

6. [9]

   The defendant was charged on the basis of the complainant’s evidence in a statement made to the police and signed by her on 18 November 2016. In addition, the DPP had statements from the complainant’s mother, father and her father’s brother. There was also a police interview with a school friend of the complainant, “A”, who gave evidence of the complainant making a complaint to her when they were in year 3.

The judgment of the Tribunal

1. [10]

   The Tribunal first set out the task that it was required to undertake as follows:

2. [11]

   The Tribunal then set out extracts from the decision of Harrison J in Office of the Children’s Guardian v CFW [2016] NSWSC 1406 where the statutory test for assessing risk under s 18(2) of the Act was explained, and a portion of the judgment of Fagan J in Children’s Guardian v BRL [2016] NSWSC 1206, where Fagan J considered what approach should be taken to untested statements in cases where an applicant was seeking to be granted a clearance. The need for the reference to that authority arose because a number of statements were tendered with no cross-examination of the makers of the statements taking place.

3. [12]

   The Tribunal then set out in some detail its summary and analysis of the evidence which was before it.

4. [13]

   Having done so, the judgment continued:

5. [14]

   The Tribunal next considered the matters which it was required to consider in s 30 of the Act. The Tribunal said:

6. [15]

   Finally, under the heading “Decision” the Tribunal said:

Grounds of Appeal

1. [16]

   The grounds of appeal set out in the summons are these:

2. [17]

   In the written submissions for the Children’s Guardian, counsel abandoned ground 2, and made clear that ground 3 was a ground consequential upon ground 1.

Submissions

1. [18]

   The plaintiff submitted that reading paragraphs [90] and [103] of the Tribunal’s judgment together, the Tribunal appears to say that the allegations are groundless, or that there is no real and appreciable risk, because the Tribunal is not satisfied that the conduct occurred. The plaintiff submitted that if the Tribunal reasoned that way it would be an error, because it conflates the question "Is the Tribunal satisfied the conduct occurred?" with the question "If the Tribunal cannot be so satisfied, is there nevertheless a real and appreciable risk?" The plaintiff drew attention to the judgment of Harrison J in Office of the Children’s Guardian v CFW at [15] and submitted that even if the Tribunal cannot be satisfied that the alleged conduct occurred, that does not equate to the allegations being groundless.

2. [19]

   The plaintiff submitted that the Tribunal failed to turn its mind to the question actually posed by s 15(1) which is to consider the question of risk that is indicated by all of the facts. The plaintiff submitted that the Tribunal’s singular focus on the question of whether or not the conduct as alleged occurred caused it to fall into error. That is because the failure to arrive at a state of satisfaction that the alleged conduct occurred does not equate to the allegations being groundless.

3. [20]

   The plaintiff submitted that to be satisfied that the defendant did not engage in the conduct alleged, the Tribunal needed to reject the complainant's statement as untrue. The plaintiff submitted that it was not open to the Tribunal to reach this conclusion where the complainant was not required for cross-examination.

4. [21]

   The plaintiff submitted that for the claims to be dismissed as groundless there would need to be some externally demonstrated fact which would lead to a conclusion of groundlessness. The plaintiff submitted that in the present case the only objective fact which could lead to a conclusion that the complaint was groundless would be if it could be demonstrated that the complainant never slept at the defendant’s home. The plaintiff submitted that although there was extensive debate on the issue the Tribunal made no express finding about the matter. The plaintiff submitted that in the absence of an affirmative finding of satisfaction that the complainant never slept at the defendant’s home, it is difficult to see any other matter that supported a conclusion that the complainant's allegations were groundless or insupportable. The plaintiff submitted that that further supported the conclusion that the Tribunal misunderstood what was involved in finding that the allegations were groundless.

5. [22]

   The plaintiff submitted that by the Tribunal having equated its non-satisfaction as to the occurrence of the allegations with those allegations being groundless, it failed to consider whether the defendant posed a risk to the safety of the children based on an evaluation of all of the evidence and that the Tribunal thereby failed to proceed as required by s 15(1) of the Act.

6. [23]

   The plaintiff submitted that the Tribunal erred in giving negligible weight to the statements of the witnesses who were not subject to cross-examination, particularly because it appears that none of those witnesses was required for cross-examination.

7. [24]

   The plaintiff submitted that although the Tribunal purported to rely on what Fagan J said in BRL as to the use to which untested evidence could be made and the weight that could be given to it, the Tribunal’s reasoning failed to give due recognition to the weight that could be given to the non-hearsay use of the prior disclosure evidence. The plaintiff submitted that the Tribunal erred by giving negligible weight to the statements when there was no rational basis to do so. That was said to be particularly so in relation to the evidence of contemporaneous or near contemporaneous disclosure to "K" and "A" which predated the defendant’s allegation that the complainant had a motive to lie because he removed the complainant from her boyfriend's house.

8. [25]

   The plaintiff submitted that, following what was said by Walton J in Children's Guardian v CXZ [2019] NSWSC 1083 at [215]-[218], it was not open to the Tribunal to make a finding rejecting the complainant’s statement in circumstances where the complainant had not been required for cross-examination. In those circumstances, the plaintiff submitted, it was not open to the Tribunal to be affirmatively satisfied that the complainant's evidence was untrue or that her allegations were groundless.

9. [26]

   The defendant submitted that the relevant decision of the Tribunal is to be found at [120] which was that the Tribunal was satisfied that the applicant did not pose a real and appreciable risk to children. The defendant submitted that the decision was not based on whether the allegations were “groundless” but on whether the defendant posed a real or appreciable risk to children.

10. [27]

    The defendant submitted further that because it had found that the allegations were groundless it did not need to turn its mind to making a finding in relation to the elements of real or appreciable risk. Nevertheless it did so and that, it was submitted, fortified its decision.

11. [28]

    The defendant submitted that the Tribunal assessed the evidence in its entirety and gave reasons for determining that it could not make a positive finding that the allegations against the defendant had been established. The defendant submitted that the Tribunal had regard to the oral evidence including extensive cross examination of both him and his wife, he noted that the complainant was not available to be tested on her unsigned police statement, and he said that no evidence was provided as to why the complainant did not want to give evidence.

12. [29]

    The defendant submitted in those circumstances, it was open to the Tribunal to find that the allegations were groundless.

13. [30]

    The defendant submitted that the Tribunal did not base its conclusion only on the allegations being groundless but on a consideration of the matters set out in s 30(1) of the Act.

14. [31]

    The defendant submitted that it was open to the Tribunal to determine that the evidence of complaints by the complainant to third parties should be given negligible weight and was not in any event evidence of the truth of the allegations having taken place. When that was considered with the absence of the complainant to give evidence or be cross-examined, he submitted that the Tribunal was correct in exercising its discretion to give negligible weight to such evidence.

15. [32]

    In relation to the issue of whether the victim ever stayed overnight in the defendant’s house, the defendant submitted that the Tribunal considered his evidence and that of his wife as well as the statement of his eldest son. The defendant submitted that the Tribunal properly analysed and considered the evidence, and took into account that the complainant did not give evidence in the proceedings.

16. [33]

    The defendant submitted that even if the conclusion by the Tribunal that the allegations were groundless cannot be upheld, the Court should consider the further conclusions of the Tribunal based on a consideration of the s 30(1) matters and its conclusion that there was no real or appreciable risk in granting the clearance.

17. [34]

    The defendant submitted that the approach the Children’s Guardian took to the case was an adversarial one. It chose not to call the complainant and other witnesses but to rely on the cross-examination of the defendant and his wife in order to prove that they were liars. The defendant submitted that in circumstances where he and his wife were believed by the Tribunal the plaintiff must accept the outcome of not calling the complainant and the other witnesses.

18. [35]

    The defendant, while accepting that a finding that the allegation was groundless was unusual, submitted that the finding did not infect the remainder of the judgment. In that regard, the defendant submitted that when considering the s 30(1) matters, the Tribunal had regard to all of the evidence to conclude that the defendant did not pose a real and appreciable risk to children.

Determination

1. [36]

   An appeal to this Court from the Administrative and Equal Opportunity Division of NCAT is provided by cl 17 of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) which provides,

2. [37]

   In my opinion, the Tribunal erred in law in three ways as follows:

3. [38]

   Although the errors made by the Tribunal are discrete errors, each of them is closely related to the other.

4. [39]

   In M v M (1988) 166 CLR 69 the High Court was considering allegations of sexual abuse in relation to custody proceedings in the Family Court. The decision has been relied upon in a number of cases involving working with children clearances.

5. [40]

   The High Court said:

6. [41]

   The concept of groundless allegations is one of three determinations capable of being made on the evidence before the Court. There will first be cases where the Court is able to make a positive finding that the allegation is well founded. Secondly, there will be cases where the Court has no hesitation in rejecting the allegation as groundless. Thirdly, there will be cases where the Court cannot confidently make a finding that sexual abuse has taken place. The third group are the difficult cases. Ultimately, the Children’s Guardian, in the first instance, and the Tribunal if there is a review, must determine whether, despite the inability to reach a firm view one way or the other about the sexual abuse, the applicant poses a risk to the safety of children.

7. [42]

   Applying M v M, Harrison J in CFW set out the statutory test as follows:

8. [43]

   What is clear from M v M and CFW is that not being able to be satisfied that sexual abuse has taken place is not the same as a finding that allegations made are groundless. It is apparent, however, that the Tribunal has conflated the two matters.

9. [44]

   The Tribunal first said that it could not make a positive finding that the allegations were established at [75]. One of the reasons was that the complainant was not available to be tested on what was described as her unsigned police statement. I will return to that matter later in the judgment.

10. [45]

    The Tribunal then said that it could not be satisfied that there was a real risk that the conduct the subject of the allegations occurred (at [76]), and went on to consider a number of matters in what they described as “complainant’s unsigned statement”. The Tribunal made reference to the complaints made to the complainant’s father, mother, uncle and school friends “K” and “A”, and said that that evidence did not change their view that they could not be satisfied that the conduct had ever occurred.

11. [46]

    The Tribunal then said at [90]:

12. [47]

    At [92], [101] and [103], the Tribunal reiterated that they were not satisfied that the applicant engaged in the conduct described and then went on to say at [109]:

13. [48]

    The conflating of the concepts of not being satisfied and finding either that the allegations were groundless or did not happen is particularly highlighted at [90] and then by the conclusion at [109] which relied on the same reasons as the conclusion, expressed a number of times, that the Tribunal could not be satisfied that the allegations had occurred.

14. [49]

    The particular significance of [90] is that everything the Tribunal had considered including the internal and external inconsistencies in the complainant’s statement led only to the conclusion that the Tribunal could not be satisfied that the allegations occurred. Without anything further the Tribunal then said that for the same reasons the allegations were groundless. The two matters are not the same. The Law of the Excluded Middle does not apply. Not being satisfied that the allegations occurred is not the same as saying that the allegations did not occur (as [109] says) or that the allegations were groundless (as [90] says).

15. [50]

    It is clear that this finding of the Tribunal infected its ultimate determination, because [109] reads:

16. [51]

    The “reasons set out above” only caused the Tribunal not to be satisfied that the conduct in the allegations occurred: see at [86], [90], [92] and [101]. The tribunal did not identify any further evidence that brought them to the positive conclusion in [90] and [109].

17. [52]

    In Children’s Guardian v BRL, the Children’s Guardian sought to tender four police statements that had been prepared in relation to allegations that had been made against the defendant. The Tribunal received the statements, not for proving the truth of what was in them, but for the fact that they were made. In that case the Children’s Guardian contended that the Tribunal erred in law by limiting the use that it could make of the statements. Justice Fagan said:

18. [53]

    I note that the Tribunal itself made reference to paragraphs [30]-[32] of that judgment although, for reasons that are not clear, it identified those paragraphs at paragraph [13] of the Tribunal’s judgment as being paragraphs [22]-[24].

19. [54]

    Having done so, the Tribunal noted at [14] that:

20. [55]

    In relation to the weight given to evidence, the Tribunal said:

21. [56]

    It is clear from the judgment in BRL that Fagan J’s reasons for considering that the Tribunal in that case was correct in accepting the statements for a limited purpose and reducing the truth of allegations in them to negligible weight were based on the fact that the makers of the statements were not to be called for cross-examination because they were not made available by the Children’s Guardian, and no explanation for their absence was put forward (see at [23]-[25] and [31]).

22. [57]

    The position in the present case was different. After receipt of the documentary evidence, the following exchange occurred:

23. [58]

    In addition, during final submissions, the following exchange occurred:

24. [59]

    It is clear, therefore, that the defendant did not require any of the makers of the statements, including the complainant, to be made available for cross-examination. Mr McGirr for the defendant said in submissions that the Children’s Guardian took a particular approach to the case which was to conduct a searching cross-examination of the defendant and his wife with a view to proving that they were liars. However, it is also apparent that the approach of the defendant to the Tribunal proceedings was to put forward the defendant and his wife to prove that the allegations were false and to argue that since the only matter against their evidence was what was contained in unsigned statements, the defendant’s evidence should be preferred. Indeed, Mr McGirr submitted that as far as the rule in Brown v Dunn was concerned, there could no question of procedural fairness to the complainant by not requiring her for cross-examination.

25. [60]

    That, however, does not deal with the fact that the Children’s Guardian, as the opposing party, was entitled to procedural fairness in relation to evidence which it called. For a party not to require the makers of statements that were to be tendered to be present for cross-examination, and then to contend that little or no weight should be given to them because those statements were untested, denies procedural fairness to the Children’s Guardian. In BRL, the shoe was really on the other foot, and Fagan J made clear that in that case procedural fairness to the defendant had to be considered when the makers of the statements were not produced and no explanation was given for that.

26. [61]

    In CXZ, Walton J said:

27. [62]

    Similarly, it was not open to the Tribunal in the present case to reject, as having more than negligible weight, the complainant’s statement, or those of her mother, father and uncle for that matter, when they had not been required for cross-examination. That was a denial of procedural fairness to the Children’s Guardian.

28. [63]

    It is also troubling that the Tribunal made frequent reference to a number of the statements being unsigned. Whilst it is true that initially unsigned statements were tendered, there was an affidavit from Detective Senior Constable Matthew Davis who deposed to having witnessed the statements of the complainant, her mother and her uncle. Detective Davis said, however, that it had not subsequently been possible to find signed copies of the statement.

29. [64]

    The Tribunal said about this:

30. [65]

    In circumstances where the solicitor for the defendant had not required Detective Davis to be present for cross-examination to challenge his evidence of seeing the statements signed, it is difficult to understand why the Tribunal repeatedly referred to statements being unsigned when according little or negligible weight to them.

31. [66]

    Further, despite acknowledging at [18] that a signed copy of the father’s statement had been provided to it, the Tribunal erroneously referred at [78(5)] to the father’s statement being unsigned.

32. [67]

    There was evidence from a school friend of the complainant, “A”, who in a police interview said that the complainant disclosed to her the abuse by the defendant. The Tribunal said of this evidence:

33. [68]

    The Tribunal seems to have given this negligible weight for three reasons. First, the Tribunal said that she could not have been Year 3 when the disclosure was made. Secondly, the police interview was held in 2016 and was not contemporaneous with the events. Thirdly, her evidence was never tested.

34. [69]

    The evidence was never tested because the defendant did not require her for cross-examination. As to its contemporaneity, in the absence of their being some suggestion of collusion between “A” and the complainant, it is difficult to understand the import of this reason. Nor is it clear why the complaint could not have been made when the complainant and “A” were in Year 3. The complainant said it was the following year after the first two assaults (at which time she was then aged six) when she told “A”, and she said she remembered it was the beginning of Year 3. In her police interview “A” said that she thought the disclosure was made when they were in Year 3 although she did say (at A110):

35. [70]

    The strength of “A”’s evidence was not when the complaint was made exactly, but the fact that it was made at all, and that the content of it did not significantly differ from the complainant’s evidence.

36. [71]

    It was not open in the circumstances for the Tribunal to give “A”’s evidence negligible weight.

37. [72]

    As to the involvement of “K”, the complainant’s mother recounted in her statement a telephone call she received when the complainant was 11 or 12 years old from the mother of “K”, who was a friend of the complainant. “K”’s mother said, “someone is molesting [the complainant], its (sic) [CF1]”.

38. [73]

    It may be accepted that if that statement was received as the truth of the assertion, it would be second-hand hearsay. However, the significance of the evidence was that the call was made. As with the evidence from “A”, it showed that a complaint had been made contemporaneously with two of the offences charged, and prior to any issue of the defendant being involved with preventing the complainant staying at her boyfriend’s house in 2016.

39. [74]

    The Tribunal’s approach to this evidence was to say at [61] that they would not accept it as evidence of the truth of the allegation. That decision is not challenged. The Tribunal also said:

40. [75]

    For reasons already given, it was not open to the Tribunal in the circumstances to give negligible weight to the statements on the basis that they were “unsigned and untested”. The solicitor for the defendant said that he did not want to cross-examine any of the makers of the statements, leading the Senior Member to ask, “Including [the complainant’s mother]”, to which he replied, “Correct”. Further, as noted, the discussion by the Tribunal at [89] was misconceived when the non-hearsay evidence was that the call was made when the complainant “was about 11 or 12 years old”, long before the issue of the complainant’s boyfriend arose.

41. [76]

    The Tribunal’s reasons for finding that the allegations are groundless appear to be based on the following matters:

42. [77]

    I have already held that it was not open to the Tribunal to give negligible weight to the evidence of the complainant, her mother, father and uncle, including the evidence of the complaints to “A” and “K”.

43. [78]

    By contrast, the Tribunal had an untested statement of the defendant’s son. The Tribunal noted two aspects of his evidence. The first was his evidence about whether the complainant ever slept over at his unit. The evidence rose no higher than saying,

44. [79]

    It is clear that the defendant and his wife made a favourable impression on the Tribunal members, and their evidence was accepted. However, an acceptance of their evidence does not of itself mean that the allegations are groundless. That is only a finding on the balance of probabilities and that leaves considerable scope for the possibility that the allegations were true. It should be recalled that the High Court in M v M spoke of cases where “the court has no hesitation in rejecting the allegation as groundless”. Walton J made a similar point in CXZ where he said:

45. [80]

    Cases where the allegation can be dismissed as groundless are not cases where there is competing evidence which has to be weighed up.

46. [81]

    The Tribunal had evidence that the DPP only withdrew the charges on the first day of the trial because the complainant indicated she did not wish to go ahead with the matter. It ought to have given some weight to the fact that the DPP considered the matter serious enough to charge the defendant. The Tribunal had evidence of a complaint made to “A” and an allegation that “K”’s mother had rung the complainant’s mother to assert that the complainant had been “molested”. The fact that these persons asserted that complaints had been made by the complainant at a time relatively contemporaneously, and well before any possible revenge motive was put forward by the defendant was significant. There was no challenge to any of these witnesses by cross-examination because of the way the defendant and his lawyers were conducting the proceedings.

47. [82]

    It was not open to the tribunal in those circumstances to reach a conclusion that the allegations were groundless.

48. [83]

    None of this is to say that if the Tribunal had determined the review according to law it could not have reached the same conclusion that it ultimately reached. However, the path it took to that conclusion was a wrong one. It is not possible to say what conclusion would have been reached if the Tribunal had followed the correct path as outlined in these reasons. The Act and the authorities, in particular M v M and CFW, allow for the fact that a Tribunal can be left in a state of agnosticism about whether the alleged sexual misconduct took place. Provided, however, the matters in s 30(1) are taken into account, and provided the Tribunal has regard to what is contained in s 30(1A), a clearance may be granted notwithstanding the uncertainty about the misconduct.

Conclusion

1. [84]

   The result is that the decision of the Tribunal must be set aside and the matter remitted to the Tribunal, differently constituted, to be determined according to law consistently with these reasons.

2. [85]

   Accordingly, I make the following orders:

   1. (1)

      The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a working with children check clearance is set aside.

   2. (2)

      Remit the proceedings to the Tribunal, differently constituted, to be determined according to law.