CFK v Office of the Children’s Guardian

1. [1]

   On 23 September 2015 the Office of the Children’s Guardian’s refused CFK’s application for a “Working with Children Check” clearance under s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW), having concluded that he posed a risk to the safety of children. That conclusion was reached despite the Court of Criminal Appeal having upheld an appeal against his conviction of two sexual assault offences under s 61P and 61I of the Crimes Act 1900 (NSW), of which he had been convicted by a jury, following events in 1995, when it was alleged that he and four other adult males together had non-consensual sex with a 17 year old girl.

2. [2]

   Proceedings having been brought for those offences constituted “assessment requirement triggers” under cl 1(1)(b) of schedule 1 of the Child Protection (Working with Children) Act, despite the appeal having been upheld.

3. [3]

   On 6 July 2016 the NSW Civil and Administrative Tribunal affirmed the Guardian’s decision in CFK v Office of the Children’s Guardian [2016] NSWCATAD 140. Under clause 17 of schedule 3 to the Civil and Administrative Tribunal Act 2013 (NSW), CFK has the right to appeal the Tribunal’s decision to this Court, on a question of law.

Issues

1. [4]

   The summons advanced seven grounds of appeal. Ground one was not pressed.

2. [5]

   At the hearing the parties agreed that the issues raised by those grounds, which overlapped, were whether the Tribunal:

   1. (1)

      Was bound to accept the expert opinions of Ms Johnson, a forensic psychologist who had examined CFK and concluded that his risk of sexual abuse was low?

   2. (2)

      Denied CFK procedural fairness because it did not warn him and give him an opportunity to address it:

   3. (3)

      Failed to give reasons for the rejection of Ms Johnson’s opinion?

   4. (4)

      Was entitled to:

   5. (5)

      Came to a decision that CFK posed a risk to the safety of children which was irrational and illogical, given the probative and relevant evidence which established that he posed no risk to the safety of children.

3. [6]

   Whether what was finally pressed impermissibly raised the merits of the Tribunal’s decision, was also in issue.

The Tribunal’s consideration of the sentencing remarks

1. [7]

   There was no error in the Tribunal considering the sentencing remarks which were in evidence. The rules of evidence did not apply to the proceedings, but it had to act “according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms”: Civil and Administrative Tribunal Act 2013 (NSW), s 38(4).

2. [8]

   The sentencing remarks were plainly relevant to what the Tribunal had to decide, namely what it identified at [25] of its reasons as the “correct and preferable decision”, in relation to the granting of a working with children check clearance to CFK: Administrative Decisions Review Act 1997 (NSW) s 63 and YG & GG v Minister for Community Services [2002] NSWCA 247 at [25].

3. [9]

   Because CFK had been acquitted, there was no presumption under s 27 of the Child Protection (Working with Children) Act, that he posed a risk to children. The matters which the Tribunal had to have regard to were specified by s 30(1) of that Act to be:

4. [10]

   Similar considerations arose under s 15, the Tribunal exercising all of the functions that are conferred or imposed on the Guardian: Administrative Decisions Review Act, s 63(2).

5. [11]

   That the sentencing remarks were relevant was put beyond doubt by the evidence which CFK gave, to which I will return. Those remarks shed considerable light on the seriousness of the offences with respect to which he became a disqualified person.

6. [12]

   At trial, both the jury and the sentencing judge, who had seen CFK and the complainant give evidence, preferred the evidence of the complainant over the evidence of CFK and his co-accused, on the question of consent. The Court of Criminal Appeal, however, concluded that the absence of consent had not been proven beyond reasonable doubt. Therefore, before the Tribunal CFK was cross-examined about the question of consent, his attitude to what he had done in 1995 and his life subsequently.

7. [13]

   In the result, there was no error of law in the Tribunal taking the sentencing remarks into account, in arriving at the “correct and preferable decision” in relation to the granting of a clearance to CFK.

Ms Johnson’s opinion that CFK posed a low risk of sexual abuse

1. [14]

   Nor did the Tribunal deny CFK procedural fairness by its approach to the report of a forensic psychologist, Ms Johnson of 22 March 2016, or the oral evidence which she gave.

2. [15]

   Ms Johnson’s report noted at paragraph 32, that CFK had “reported that on recalling the circumstances of the charges that were laid, he is certain he had formed the opinion that the female involved was 18 years of age and that she had provided consent by her actions on the day” and that he had “only found out she was upset when he read her statement”.

3. [16]

   CFK gave evidence to quite different effect before the Tribunal. That evidence had to be considered in light of the other relevant evidence which it had before it.

4. [17]

   The sentencing remarks revealed that the assaults in which CFK was involved in 1995 occurred at a barbecue for members of a soccer team, at one of the member’s homes. While walking past, the complainant had been invited in, by O, a man with whom she had previously had a sexual relationship. After consuming a considerable amount of alcohol, she had consensual sex with DA and claimed that she had non-consensual sex with O and three others, CFK, DE and DA.

5. [18]

   In issue at the trial was the question of consent, the complainant being aged 17 not being a child under the Crimes Act 1900, as she was pursuant to s 5 of the Child Protection (Working with Children) Act.

6. [19]

   The offenders were not convicted of all of the offences with which they were charged, but CFK was convicted of both of the charges which he faced.

7. [20]

   What CFK had told police in his record of interview as to consent was:

8. [21]

   So far as CFK was concerned, his Honour observed as to the first act of group sexual activity in which he was involved, that the jury had rejected the versions given by CFK, O and DE and had “clearly accepted the version given by the complainant, as do I”.

9. [22]

   His Honour said that those acts took place while the complainant was still in a bedroom, after having consensual sex with O. She became aware that DE was naked and kneeling on the bed next to her head, on the right. O was on her other side. They began trying to put their penises into her mouth. She turned her head, in an attempt to get away from them. She noticed flashes from a camera and started to freak out and panic. Another person put his fingers into her vagina and she tried to wiggle up the bed to get away, but her head was pushed and squashed up against the bedhead. She pretended to pass out by closing her eyes, letting her body go limp and closing her mouth. Someone attempted to open her mouth and she heard O saying he wanted a “head job”. She sensed that he was getting angry. Then she felt someone on top of her body, while her eyes were closed. His Honour was satisfied that was CFK. She thought he had penetrated her vagina.

10. [23]

    While CFK attempted to penetrate her, O and DE were on either side of her head, encouraging him and attempting to insert their penises into her mouth.

11. [24]

    His Honour considered it open to the jury to find that even though she had previously consented to sex with both O and DE, she had not consented to this degrading and humiliating experience, which occurred at a point when she was powerless, in the hands of three men and being used as an object for their sexual gratification. While she may have been imprudent and provocative, that did not lessen the impact of this offence.

12. [25]

    CFK continued his attempts to penetrate her vagina, while O forced his penis into her mouth and thrust it into the back of her throat, almost causing her to throw up. When O withdrew his penis, DE put his penis into her mouth. Photographs were still being taken, but his Honour was unable to say by who. CFK then desisted and O climbed on top of the complainant.

13. [26]

    The second act of group sex then took place. His Honour found that CFK, DA and DE were all present and assisting and encouraging O by their presence. O was on top of her and inserted his penis into her vagina, at a point when the complainant began crying, sobbing and having difficulty breathing. His Honour found this to be the clearest indication that she was not consenting.

14. [27]

    The complainant’s legs were then being held, so that they were open as far as they would go. She resisted that and was trying to close them, but was unable to do so. She became aware of another camera flash and said that it was so degrading that she asked them to stop and asked why they were doing it, but received no response. O continued grunting and engaging in penile vaginal intercourse. She pushed forward and upwards with her palms and asked again why they were doing it and asked them to stop, but there was no reply.

15. [28]

    When O finished she went into the bathroom, where she was “bawling and crying loudly” and was in a mess. She was subjected to further assaults in the bathroom and a bedroom by O and DE, before leaving the house and making immediate complaint to a friend of having been the victim of a gang rape. She was then taken to the police and later to hospital for examination.

16. [29]

    The issue on the appeal pursued by CFK and DA turned on the question of consent.

17. [30]

    After discussing the complainant’s evidence and her agreement that she could have consumed 8 or 9 stubbies of beer and that she may have been drunker than she thought she was, reference was made to corroborating evidence of the friend to whom she had made complaint, who described her to have been pretty drunk and uncoordinated, looking upset, concerned that she would get into trouble from her father for drinking and about the photographs which had been taken.

18. [31]

    As to CFK, it was observed that in his record of interview, he admitted taking photographs of the complainant having sex with O; that after the film ran out he removed his pants and underpants and lay on top of her while O and DE tried to have oral sex with her, with her trying to pull her head away and that DA came in and watched. CFK was unable to obtain an erection and when he was already up and dressed, she began crying and he tried to calm her down. Then DE said he would look after her and so CFK left her. His admissions on interview and his evidence at trial were then quoted, as was his evidence that he thought that the complainant was consenting.

19. [32]

    Amongst other things it was concluded by the Court of Criminal Appeal that a photograph of the complainant’s face was consistent with her enjoying herself and also consistent with her being distressed; that the jury’s verdicts were inconsistent; that there were gaps and inconsistencies in the complainant’s evidence; that while she was entitled to withdraw consent at any time, there was a real issue as to whether or not she was consenting and if she was not, whether CFK knew that to be the case, or was reckless as to consent.

20. [33]

    CFK’s evidence was that he saw her licking and sucking O and DE’s penises and fondling DA’s penis while he was on her; that he thought she was consenting to group sex; and that she did not cry until after he was off her. While the complainant said that CFK was still present during the second group sex activity, she could not say what, if anything he was doing.

21. [34]

    In the result, the Court of Criminal Appeal concluded that the verdicts were unsafe and unsatisfactory. Overall, it was concluded that the complainant was quite happy to indulge in a variety of successive sexual activities with all of these men, all of whom, apart from O were strangers and that she probably had no objection to group sexual activities, but became concerned when she realised that photographs were being taken and of the possible consequences of these photos.

22. [35]

    There were also concerns about the Crown’s failure to call another man present at the party, who had taken other of the photographs in evidence. That added to the general unease felt by the Court in relation to the safety of the jury verdicts to which the appeal related.

23. [36]

    The answers CFK gave in cross-examination on the question of consent departed from the account he gave to Ms Johnson and from aspects of his evidence at trial. Had that then been his evidence, his appeal from conviction might not have succeeded.

24. [37]

    While in reply before the Tribunal CFK said that he thought the victim was consenting, his earlier evidence in cross-examination included that:

25. [38]

    Ms Johnson’s report was not addressed in the Guardian’s written submissions before the Tribunal, it having been served only the day before they were completed, but Ms Johnson was cross-examined and her opinions and the weight they would be given by the Tribunal, were addressed orally. Thereby Ms Johnson’s opinion was put in issue.

26. [39]

    The Guardian contended that her opinions would be given little weight, despite CFK’s history of leading a pro social life since his acquittal of the offences in 1995. He had only committed a limited number of driving offences. He had married and raised two children and had worked with children, both as a volunteer and in his employment as a security guard at schools and hospitals, before pursuing employment as a youth worker, working with 13 to 17 year old disadvantaged youths.

27. [40]

    The Guardian’s submissions addressed matters such as Ms Johnson not having been briefed with the sentencing Judge’s remarks and that her opinion had rested on CFK’s self report to her. Both written and oral submissions were advanced for CFK in response, but there was no reply to the Guardian’s submissions as to the little weight which, in the result, should be given to her report.

28. [41]

    The position undoubtedly was that the Tribunal had to take into account that Ms Johnson had not had the benefit which it had, of the oral evidence that CFK gave at the hearing, particularly in cross-examination about his evidence in relation to consent. Ms Johnson had not been taken to this evidence and she was not asked to indicate whether it had altered the favourable opinions which she had earlier reached, as to the risk which CFK posed. That was no doubt the result of forensic decisions made at the hearing.

29. [42]

    Accordingly, the Tribunal had to decide whether it found Ms Johnson’s opinions persuasive, given all of the evidence which it had to consider, particularly CFK’s evidence and the sentencing remarks, which had not been available to Ms Johnson.

30. [43]

    The Tribunal did not find Ms Johnson’s opinions persuasive. That conclusion was well open, given the evidence which CFK had given.

31. [44]

    In its decision, the Tribunal addressed the various requirements of s 30. It concluded at [109] that CFK “has minimised his role and the role of his co-accused in the offences which were quashed by the Court of Criminal Appeal”.

32. [45]

    It explained that conclusion by reference both to CFK’s evidence and Ms Johnson’s report, discussing at [110] and [114] - [115] what CFK had told her. The Tribunal observed amongst other things that: CFK had initially blamed the complainant for lying and causing the situation, while later coming to see the situation from her point of view; the explanation he had given at trial for admissions which he had made in his police interview as to the absence of consent; the other evidence at trial and his conviction by a jury which had preferred the complainant’s evidence; the outcome of the appeal on the ground that CFK’s conviction had been unsafe and unsatisfactory; the criminal onus in those proceedings, as opposed to the onus which applied in the Tribunal proceedings; the caution with which risk assessments had to be approached and their limitations for predictions of recidivism; the dynamic risk factors which Ms Johnson had used in her risk assessment, many of which relied on CFK’s report; and the protective factors discussed in her report. The Tribunal concluded at [123] – [125]:

33. [46]

    There was no error of law in the Tribunal’s approach to Ms Johnson’s opinions. Nor was CFK denied procedural fairness. Whether her opinions should be given any weight was squarely put in issue. Nor were the reasons given for the Tribunal not accepting those opinions inadequate.

34. [47]

    The Tribunal was not bound to accept Ms Johnson’s opinions. What lay in issue had to be resolved in light of the evidence CFK had given before the Tribunal, particularly given its conflict with the account CFK had given Ms Johnson.

35. [48]

    That conflict was a proper basis on which it was open to the Tribunal to conclude that it could not give her opinion the weight it was urged on this appeal it should have been given, despite her undoubted expertise.

The conclusions reached by the Court of Criminal Appeal

1. [49]

   I have already discussed the evidence which CFK gave before the Tribunal about consent. The Tribunal did not reject that evidence. It was rather quite different to that which the Court of Criminal Appeal referred to in its judgment.

2. [50]

   The case advanced by the Guardian in oral submissions was that CFK’s evidence was a candid response to questions he had been asked, which revealed that deep down, he knew that there had been no consent and that he was certainly recklessly indifferent to it.

3. [51]

   The response to those submissions relied on the conclusions reached by the Court of Criminal Appeal, that it had been unsafe for the jury to find that the sexual activity had occurred without consent.

4. [52]

   The Court of Criminal Appeal did not, however, have before it the evidence which CFK gave before the Tribunal, which it was obliged to take into account, in arriving at the “correct and preferable decision” in relation to the granting of a clearance to CFK.

5. [53]

   In the face of that evidence, the conclusions which the Tribunal reached were open, notwithstanding that they were different to those reached by the Court of Criminal Appeal, whose task was a different one to that of the Tribunal, namely whether the offences with which CFK had been charged had been proven beyond reasonable doubt.

6. [54]

   CFK was not denied procedural fairness in relation to the evidence he had himself given and over which the parties joined issue as they did. He availed himself of the opportunity to advance submissions about that evidence and the Court of Criminal Appeal’s judgment.

7. [55]

   Given the nature of his evidence, the Tribunal was not bound to reach the same conclusion which the Court of Criminal Appeal reached, particularly given the differing standards of proof which applied in the two sets of proceedings, as the Tribunal discussed.

8. [56]

   CFK’s evidence provided a proper basis for the Tribunal coming to a different conclusion to that reached by the Court of Criminal Appeal. There was no legal error in either its approach, or conclusions.

The Tribunal’s views about CFK not having pursued counselling and not having disclosed his record to employers who employed him to work with children

1. [57]

   The Tribunal’s concerns about these matters arose in the face of its conclusion, on the balance of probabilities, that CFK had committed the offences of which he had been acquitted. The context was that before amendment of the legislative scheme which resulted in CFK making an application for a clearance, he had obtained employment with disturbed female children in a residential setting, which required him to work alone, at night, while responsible for their care, without disclosure of his history to that employer.

2. [58]

   The evidence was that CFK had undertaken two courses, before his release from custody called “Learning to live without violence” and “Drug awareness”. On 7 November 1997, CFK was sentenced to a term of imprisonment of two years commencing on 5 September 1997 and expiring on 4 September 1999. While he was eligible to also undertake a sex offenders’ course in custody, he did not register for that course in sufficient time to complete it, before his acquittal in 1998.

3. [59]

   After his acquittal, CFK did not consider that further counselling or education about sexual offending was necessary. His evidence was that he had not considered himself to be a sex offender and that he had also relied on his acquittal as a proper basis for not having disclosed to his employers, the offences with which he had been charged, convicted and acquitted.

4. [60]

   In light of this evidence, the Guardian submitted before the Tribunal that CFK’s failure to undertake sex offenders’ courses or counselling, showed that he “lacked insight into his conduct”; lacked insight into the “affect it had on the complainant”; and that he “continues in his own mind to blame the complainant”. Further, that CFK’s interest in registering in a sex offenders’ course after his imprisonment was only to improve his prospects on appeal and his failure to disclose his record to employers who employed him to work with children, showed that he “preferred his own interests to the interests of vulnerable young persons” and that this was “inconsistent with what is to be expected of someone” who seeks a clearance.

5. [61]

   In response, CFK submitted that the Guardian’s submissions were “inaccurate, wrongful and without foundation and did not reflect the positive information available to the respondent in addressing this issue”. It was not explained by CFK precisely why this was so.

6. [62]

   The Tribunal concluded at [132]:

7. [63]

   The Tribunal discussed various other matters which weighed for and against granting the clearance CFK sought. It concluded at [139] that CFK had not “developed insight into the effects of his conduct”, even though he had shown remorse. It also concluded at [141] - [144]:

8. [64]

   While the Tribunal did not refer to the two courses which CFK undertook in custody, there was no legal error in its approach to, or conclusion about his failure to pursue counselling in relation to his involvement in the 1995 events and not having disclosed his record to employers, given what it was obliged to consider under the statutory scheme governing these proceedings.

9. [65]

   They were both relevant matters arising under ss 30(1)(h) and (i), which required consideration to be given to CFK’s conduct since the events of 1995; the likelihood of any repetition of such conduct; and the impact on children of any such repetition.

Was the decision irrational and illogical?

1. [66]

   It is pertinent to note that grounds 6 and 7 as pleaded were:

2. [67]

   In submissions CFK relied on what Young CJ in Eq discussed in Commission for Children and Young People v [2002] NSWSC 949 at [42], in relation to the former Child Protection (Prohibited Employment) Act 1998 (NSW), namely:

3. [68]

   The Tribunal was obliged to act on material which was rationally probative: Commission for Children and Young People v FZ [2011] NSWCA 111 at [63]. Under the current legislative scheme, s 30(1A) also provided that:

4. [69]

   As discussed by Beech-Jones J in BKE v Office of Children’s Guardian & Anor [2015] NSWSC 523 at [29] the Tribunal must have “due regard” to the factors mentioned in Briginshaw v Briginshaw (1988) 60 CLR 336 at 362; [1938] HCA 34, when considering making a positive finding that an applicant sexually abused a child, in circumstances where they were not convicted of doing so: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256; [1933] HCA 30; M v M (1988) 166 CLR 69 at 77; [1988] HCA 68.

5. [70]

   In M v M, which the Tribunal referred in its decision at [44], the view taken was that where a positive finding that an allegation is well founded, “in all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access”.

6. [71]

   In BKE, Beech-Jones J considered that reasoning to be applicable to the Tribunal’s fact finding and its process of risk assessment under this statutory regime. At [33], his Honour considered that in circumstances where the Tribunal was not satisfied that an allegation of abuse had been made out, it could, nevertheless, conclude that the circumstances surrounding a particular incident, or course of conduct meant “that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven” because of the “context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children”.

7. [72]

   In this case, the Tribunal concluded on the balance of probabilities both that the offences of which CFK had been acquitted by the Court of Criminal Appeal had been committed and that despite the evidence of what has transpired in CFK’s life since then, the existence of the risk he posed to children had not been disproven. Despite the favourable evidence it discussed, it thus refused his application.

8. [73]

   In these proceedings CFK’s case was explained to be that the Tribunal had fallen into error of the kind discussed in BKE at [113], namely, in respect of a “jurisdictional fact”, with a resulting determination which was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [38]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [34] and [37].

9. [74]

   It was also argued that there was “no probative and relevant evidence capable of supporting the Tribunal's conclusion that the applicant poses an unacceptable risk of harm, or a real and appreciable risk of harm, to children”. Further, it was argued, making a finding, on the balance of probabilities, that the offences of which CFK had been acquitted, had occurred, went beyond the Tribunal’s jurisdiction under s 27.

10. [75]

    The case so advanced cannot be accepted.

11. [76]

    Section 27 of the Child Protection (Working with Children) Act provides for administrative review of the Guardian’s decision under the Administrative Decisions Review Act 1997. Section 63(1) of that Act empowers the Tribunal on such a review to decide what is the “correct and preferable decision” by having regard to the material before it, including:

12. [77]

    On the evidence before it, including as it did the evidence which CFK himself gave, the Tribunal was thus empowered to conclude on the balance of probabilities, as it did, that the offences of which CFK had been acquitted, had been committed. To conclude otherwise would require in the case of acquittal of an offence, the Tribunal to ignore even a confession that an offence of which an applicant had been acquitted, had in fact been committed.

13. [78]

    That would ignore the statutory injunction imposed on the Tribunal by s 27, to decide the “correct and preferable decision” in the circumstances confronting it, on the relevant evidence.

14. [79]

    Nor is it open to conclude that the decision which the Tribunal reached on the evidence, that the “correct and preferable decision” was to refuse CFK the clearance which he sought, was unreasonable.

15. [80]

    On the evidence earlier discussed, it is apparent that his is not a case where there was an error of law because there was no evidence to support the Tribunal’s conclusion that CFK did pose a risk to the safety of children.

16. [81]

    In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 the concept of unreasonableness, which also arose in the case pressed in submissions, was explained at [68] - [76]:

17. [82]

    Approaching the Tribunal’s decision in this way, it is not apparent that the decision arrived at was unreasonable, despite the time that had passed since the events of 1995 and the evidence favourable to CFK, which was before the Tribunal.

18. [83]

    CFK was cross-examined not only about his understanding, in 1995, of the victim’s lack of consent, but also as to his subsequent life and his views at the time he gave his evidence, about relevant matters.

19. [84]

    That evidence did not convince the Tribunal, that the “correct and preferable decision”, was to grant CFK the clearance which he sought, for the reasons which it gave. In particular, it took into account at [105] that CFK had:

20. [85]

    Amongst the conclusions reached at [125] – [126] were that:

21. [86]

    No doubt reasonable minds could differ over these questions, but it is pertinent that the Tribunal’s conclusions were influenced by:

22. [87]

    These conclusions were open. There was no legal error in the Tribunal arriving at these conclusions, on the material before it.

23. [88]

    In the result the appeal must be dismissed. The usual order as to costs is that they follow the event. That would in this case be an order in favour of the Guardian. Unless the parties approach to be heard within 7 days, that will be the Court’s order.

24. [89]

    Accordingly, I order that:

    1. (1)

       The appeal is dismissed.

    2. (2)

       Unless the parties approach to be heard within 7 days, CFK is to bear the Guardian’s costs, as agreed or assessed.

25. [90]

    ……………