DAR v Children’s Guardian

The plaintiff, DAR (a pseudonym), was charged with an offence of aggravated sexual intercourse with a person greater than 10 years and less than 14 years old in December 2009 contrary to s 66C(2) of the Crimes Act 1900 (NSW). The alleged victim was one of his daughters who was, in December 2009 when the offence was said to have occurred, 11 years old (the complainant). The jury by which the plaintiff was tried returned a verdict of not guilty on 1 June 2016, following a trial which had run from 24 to 31 May 2016.

The legislation principally relevant to these proceedings is the Child Protection (Working With Children) Act 2012 (NSW). All references to legislation in these reasons are, unless otherwise indicated, references to this legislation.

Having been charged with such an offence, the plaintiff was obliged to undertake a risk assessment conducted by the Children’s Guardian (the defendant or the Guardian). On 17 August 2016 the plaintiff applied to the Guardian for a working with children check clearance (a clearance). On 14 March 2017 the Guardian notified the plaintiff of its decision to refuse him a working with children clearance. The plaintiff applied, pursuant to s 27, to the Civil and Administrative Tribunal (the Tribunal) for administrative review of the refusal. On 4 January 2018, the Tribunal also refused the clearance, following a 2-day hearing on 27 October 2017 and 29 November 2017. By amended summons filed on 17 April 2018 the plaintiff challenged the Tribunal’s decision. There was no issue that the original summons, which was dated 1 February 2018, had been filed within time.

Section 8 prohibits a worker from engaging in child-related work without a clearance. Section 10 requires those working in certain home-based education and care services to hold a clearance. Section 14, when read with Sch 1, provides that a person who has ever been charged, as an adult, with an offence such as an offence against s 66C(2) of the Crimes Act is subject to an “assessment requirement”. By reason of having been charged with this offence, the plaintiff became subject to an assessment requirement. When the plaintiff applied for a clearance under s 13(1), the Guardian was obliged to conduct a risk assessment of the plaintiff under s 15, which relevantly provides:

Section 18 relevantly provides

Section 27(1) provides that, if such an application is refused then the applicant may apply to the Tribunal for an administrative review of the decision.

Section 30 relevantly provides:

Section 63(1) of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) required the Tribunal to “decide what the correct and preferable decision is having regard to the material then before it”. Section 62(3) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Tribunal’s written statement of reasons must set out the following:

Pursuant to cl 17 of Sch 3 to the Civil and Administrative Tribunal Act the plaintiff is entitled to appeal to this Court on a question of law.

For present purposes, the relevant facts can be shortly summarised. The plaintiff had previously worked as a youth worker in the community services sector. He applied for a clearance on 17 August 2016. The Guardian carried out a risk assessment. On 14 March 2017, the Guardian notified the plaintiff of its decision to refuse him a clearance “because [the Guardian] is satisfied that you pose a risk to the safety of children.” On 12 April 2017, the plaintiff applied to the Tribunal for a review of this decision as he wanted to resume employment in a child-related area.

The evidence before the Tribunal included the evidence at the plaintiff’s criminal trial and the transcript of the criminal proceedings. Of present relevance the transcript included the plaintiff’s evidence at the trial in which he said that there was no heater in his room or the complainant’s room; and that he had two knee reconstructions in 2007 which made it difficult for him to kneel. These matters were significant because the complainant’s evidence at trial was that there was a heater on in the room where the assault occurred in December 2009 and that the plaintiff kneeled on the bed before he sexually assaulted her. The complainant did not give evidence before the Tribunal although the transcripts of her evidence at the trial were tendered.

The Guardian also tendered a document created by “Senior Constable B”, who was the police officer attached to the Child Abuse Squad and the officer in charge of the criminal investigation into the complainant’s allegations. In the document Senior Constable B expressed a view about the strength of the prosecution case and his concerns about the applicant being granted a clearance to work with children. His conclusion included a statement to the effect that Family and Community Service (FACS) had substantiated that the plaintiff sexually assaulted a child and, as a result, the plaintiff should not be permitted to work with children in the future. Counsel for the plaintiff objected to the admission of this opinion on the basis that it expressed a view on the ultimate question. The Tribunal overruled the objection and admitted the document, including the opinion, for the reasons which are extracted below.

The evidence before the Tribunal also included the plaintiff’s statement dated 1 August 2017. He deposed to the commencement of his relationship with the complainant’s mother who, when they met, had five children already from two separate fathers. The plaintiff and the complainant’s mother subsequently had three daughters: the first, the complainant, was born in 1998; the second was born in 1999; and a third was born in 2001. According to the plaintiff, he and the complainant’s mother separated in December 2004. The plaintiff deposed in his statement that in January 2011, some time after he had separated from the complainant’s mother, the complainant stopped coming to visit him. Subsequently, in 2013, according to the plaintiff, the complainant was cutting her arms. Later she accused him of raping her in a telephone recording which was lawfully intercepted for the purpose of obtaining admissions against him. The plaintiff was cross-examined in the Tribunal.

The plaintiff also read the affidavit of Jennifer Campbell, who gave character evidence in favour of the plaintiff and deposed that she had observed the plaintiff with his own children and was happy to leave her children in his care. Ms Campbell was cross-examined in the Tribunal proceedings. The plaintiff also relied on affidavit evidence from Rose Gow, with whom he had previously worked. Ms Gow was not cross-examined. The plaintiff relied on an expert report of Dr Christopher Lennings, psychologist. He assessed the plaintiff’s risk as “quite low compared to other offenders.”

In its decision, the Tribunal set out the relevant statutory provisions, its role and the applicable test, in a way which was not the subject of complaint. At [15] it adopted the description of the risk referred to in s 18(2) taken from the reasons of Young J in Commissioner for Children and Young People v V [2002] NSWSC 949 at [42]: namely, “a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child.”

In addressing its procedure, the Tribunal referred to the need to have regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34 before making a positive finding that the plaintiff had abused a child when he had not been found guilty of the offence with which he had been charged: [20]. The Tribunal cited the decision of Beech-Jones J in BKE v Office of the NSW Children’s Guardian [2015] NSWSC 523 (BKE) at [29]-[33] in which his Honour said that considerable guidance could be derived from the High Court’s decision in M v M (1988) 166 CLR 69; [1988] HCA 68. The Tribunal set out the following passage from [33] of BKE:

The Tribunal narrated the evidence before it under a heading to that effect. Of present relevance the Tribunal referred to the document created by “Senior Constable B which contained the opinion to which objection had been taken (referred to above). The Tribunal admitted the document, including the opinion, and noted that it was not bound by the laws of evidence. The Tribunal confirmed that, although a different approach had been taken earlier, the plaintiff’s representative confirmed that Senior Constable B was not required for cross-examination. In its reasons the Tribunal said, at [30]:

The Tribunal noted that the plaintiff’s representative did not press for the complainant to be made available for cross-examination. The Tribunal rejected much of the summonsed material sought to be relied on by the plaintiff on the basis that it lack sufficient probative value: [37]-[38]. The Tribunal noted, at [38]:

The Tribunal, at [39] turned to address the “Section 30 factors” and began its consideration of the seriousness of the matters that caused a refusal of a clearance: s 30(a). The Tribunal set out, in a chronological sequence: the complainant’s evidence of what occurred in December 2009; the complainant’s attempt to discuss the event with the plaintiff; the cessation of the complainant’s access visits to the plaintiff in 2011; the commencement of self-inflicted cuts on the complainant’s arms in 2012 and the complainant telling three of her friends that she had been raped by her father; the complainant being admitted to hospital in June 2013 following an overdose of anti-depressant medication; and the complainant telling her older sister and her mother that the plaintiff had raped her, which led to a “risk of serious harm” report (ROSH) which led to an investigation. The Tribunal also set out the terms of the intercepted telephone conversation between the complainant and the plaintiff in October 2013, following which he was charged. The Tribunal said in its reasons:

The Tribunal addressed the matters in s 30(b)-(h). It is not necessary to detail its consideration of these matters which was not the subject of challenge. As to the factor in s 30(i) the Tribunal said as follows:

When the Tribunal came to consider s 30(j), “any information given by the applicant in, or in relation to, the application”, it noted the plaintiff’s denial of the allegation: [66]. The Tribunal referred to his evidence at the criminal trial ([67]) about the dynamic between himself and the complainant’s mother and the access arrangements at the time of the alleged offence. It recounted the evidence the plaintiff gave in the criminal trial, including that:

The Tribunal referred to the evidence of psychologists at the trial that the complainant’s self-harming could have been caused by a variety of factors: [70]. At [71] the Tribunal referred to the reasons the plaintiff had given Dr Lennings for the allegation: first, that someone else had molested the complainant and she was “scapegoating” him; and, secondly, that sexual abuse ran in the complainant’s mother’s family and that she had planted the seeds in the complainant’s head for the purposes of alienating the complainant from him. The Tribunal noted a third reason given by the plaintiff: namely, that the complainant had a “false memory”: [73]. The Tribunal said that the plaintiff had accepted that all of these potential reasons were speculative. At [74], the Tribunal noted that at the time of the alleged offence, there was no significant family law dispute between the plaintiff and the complainant’s mother; access arrangements had been agreed; and the complainant’s mother, who had been diagnosed with cancer, had expressed a wish that, if anything happened to her, she would like the plaintiff to care for the children: [74]. The Tribunal referred to the plaintiff’s affidavit in this context and said:

At [76] the Tribunal referred to the evidence of Ms Gower and Ms Campbell referred to above. The Tribunal summarised their evidence as follows:

At [77] the Tribunal referred to the plaintiff’s qualifications, certificates and character references, including from a psychologist who treated him from 2013 to 2016. The Tribunal recorded the plaintiff’s reason for wanting the clearance at [78] as follows:

At [79], the Tribunal summarised the plaintiff’s case before it as follows:

At [81]-[82] the Tribunal summarised the submissions made by the Guardian as follows:

Following [82], the heading “Conclusion” appears in the Tribunal’s reasons. In the ensuing paragraphs, the Tribunal analysed the evidence and set out its conclusions. At [83], it distinguished between the finding of not guilty in the criminal trial and the task it was to perform, namely “to decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and applicable law”: [84].

At [90] the Tribunal found that the plaintiff had sexual intercourse with the complainant as alleged. Its reasons for this finding appear from the preceding paragraphs, which are set out below:

The Tribunal went on to say that, even had it not reached that state of satisfaction, it would be satisfied that “there is nonetheless an unacceptable risk of harm”: [91]. It referred to BKE at [31]-[33].

At [93] the Tribunal referred to Dr Lennings evidence that, if the allegation was not true, there was no risk of harm and if it was true, there was only a low risk of re-offending. It continued: “However, a psychological risk assessment is only part of the material that the Tribunal may take into account in determining whether the applicant poses a risk to the safety of children.” At [94] the Tribunal noted the absence of any further similar conduct and the lack of criminal record (with minor exceptions). At [95] the Tribunal noted its concern about the plaintiff’s apparent lack of “pro-social supports”. The Tribunal referred to the plaintiff’s sense of grievance as a consequence of the allegation and considered that he displayed limited insight into the seriousness of allegations of sexual abuse made by children.

At [97]-[98] the Tribunal concluded:

The Tribunal turned to s 30(1A)(a) and concluded:

At [101], the Tribunal made orders, which included the following:

The amended summons (which was further amended in the course of the hearing) contained six grounds of appeal as follows:

Although there are six grounds of appeal, there is considerable overlap between the grounds. As Ms Andelman accepted, the first and third grounds were, in effect, two sides of the same coin. I propose to consider the grounds in sequence, except where there is overlap.

The plaintiff submitted that the Tribunal’s reasons were deficient in that it did not expressly reject his evidence; did not make findings about his credibility, veracity and reliability; and did not explain why it rejected his evidence and accepted the evidence the complainant had given at trial. Ms Alderman, who appeared on behalf of the plaintiff, submitted that the deficiency in the reasons was such as to require the decision to be set aside and remitted to the Tribunal for redetermination in accordance with law. Ms Alderman confirmed that she did not submit that it was not open to the Tribunal to find that the sexual intercourse had occurred as alleged but, rather, that the process of reasoning, and the lack of reasons were legally erroneous.

Before considering the merits of these grounds, it is important to note the nature of the allegation and the fact-finding process in which the Tribunal was required to engage before being satisfied to the requisite standard that the sexual intercourse had occurred as alleged. First, there were only two persons capable of giving direct evidence on the question: the plaintiff and the complainant. Although it was open to the Tribunal to accept the version of one and not the other or to reject the evidence of both, it was not open to the Tribunal to accept the versions of both since they were fundamentally inconsistent. Findings made in accordance with the version of the complainant, necessarily entailed a rejection, or non-acceptance, of the plaintiff’s version. Thus, as a matter of substance, the Tribunal’s finding that it accepted the complainant’s version was tantamount to a finding that it rejected the plaintiff’s version. In the circumstances of the present case, the reasons were tolerably clear: the Tribunal did not accept the plaintiff’s version or his evidence, in so far as it was contradicted by the complainant’s version.

The Tribunal gave detailed reasons for accepting the complainant’s version, including the consistency of her complaints, their timing, the surrounding circumstances and acts that were consistent with (although not determinative of) the assault having occurred, such as the self-cutting and her refusal to see her father after about a year following the incident. The Tribunal also considered, as it was entitled to do, the various hypotheses advanced by the plaintiff as to why the complainant would make a false accusation against him. The Tribunal rejected each of these as being inconsistent with, or not supported by, the evidence. In these circumstances, all that the Tribunal failed to say expressly was that it rejected the plaintiff’s version.

I am not persuaded that this omission affects either the sufficiency of the reasons or the legality of the Tribunal’s reasoning process. First, the sequential expression of reasons does not precisely reflect reasoning process. It is plain that the Tribunal considered the evidence as a whole and expressly confirmed that this was what it was doing: see Re Minister for Immigration & Multicultural Affairs: ex parte Applicant S20/2002; S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 (S20) at [14] (Gleeson CJ). The evidence included the plaintiff’s evidence. There were several references in the Tribunal’s reasons to his evidence and its assessment of particular aspects of it. It was not necessary for the Tribunal to refer to each aspect of the plaintiff’s evidence. All that was required was that it comply with the obligation in s 62(3) of the Civil and Administrative Tribunal Act which included an obligation to set out the actual path of its reasoning: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).

The present case has some similarities with S20 in which the High Court considered a challenged to a decision of the Refugee Review Tribunal which had given no weight to evidence said to be corroborative of the appellant because it did not believe the appellant. In that case, the Tribunal’s reasons had been expressed as follows at [47]:

At [49], McHugh and Gummow JJ said, of present relevance:

This case is similar in the sense that a finding of credibility of one witness can lead inexorably to a finding of credibility, or lack of credit, of another. In the present case, the Tribunal can be taken to have disbelieved the plaintiff because it believed the complainant. Its reasons set out why it accepted the complainant’s version. These were the self-same reasons for its rejection of the plaintiff’s version. The present is not a case such as the one referred to in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 where a “superior court, considering the decision of an inferior tribunal [is] left to speculate from collateral observation as to the basis of a particular finding.”

To the extent to which the Tribunal was required to address the plaintiff’s version directly, it referred to it sufficiently in its narrative of the evidence and specifically addressed the plaintiff’s hypotheses as to why the complainant would have made a false allegation. While it may have been preferable for the Tribunal to find expressly that it rejected the plaintiff’s version, its reasons are not deficient because this finding was necessarily implied rather than express.

The further matters raised in the particulars to grounds 1 and 3 can be dealt with briefly. The Tribunal correctly stated that the principles in Briginshaw v Briginshaw applied by reason of the seriousness of the allegation to the question whether the sexual assault had occurred as alleged. It also referred to the authorities which had applied these principles in cases such as the present. There is no reason to suppose that the Tribunal did not apply those principles as set out in its reasons. I reject the plaintiff’s submission that there was nothing in the reasons to demonstrate that the Tribunal applied this analysis to the disputed facts. The matters raised by the plaintiff in ground 3, the presence or absence of a heater in the room in question and his alleged incapacity to kneel were purely matters of fact. The Tribunal referred to the plaintiff’s evidence as to each of these two matters at [69] of its reasons. The Tribunal was not required to say why it did not consider these matters to be sufficient to undermine proof of the complainant’s version to the requisite standard. Such minute attention to factual questions is not required by the statutory obligation to give reasons imposed by s 62(3) of the Civil and Administrative Tribunal Act: see also, in a judicial context, Soulemezis v Dudley (Holdings) Pty Ltd at 259.

Nor was the Tribunal required to explain why it found the allegation proved notwithstanding the evidence of Ms Campbell and Ms Gow, to which it specifically referred in the reasons. The evidence of these witnesses was not inconsistent with the complainant’s evidence in any event. It is a matter of common experience for offenders to adduce evidence of good character which does not undermine the reasonableness of a finding of guilt.

Grounds 1 and 3 have not been made out.

It was accepted by the plaintiff that it was open to the Tribunal to find that the plaintiff posed a risk to the safety of children within the meaning of s 18(2). The plaintiff submitted that in [97] of its reasons the Tribunal had posed a different test to the statutory test in s 18(2) of the Act. As can be seen from the wording of s 18(2), the legislature used the word “risk” without any qualifying words. As referred to above the word “risk” in the statutory predecessor to the Act was found to mean “real and appreciable risk”. The plaintiff further submitted that the Tribunal’s reasons did not expose any analysis or evaluation of the risk posed by the plaintiff to children.

In [97] the Tribunal referred to its concern that it could not be satisfied that the plaintiff would be able to act appropriately in situations where there were signs or indications of child abuse. These findings are additional to the principal finding regarding risk which follows the Tribunal’s acceptance of the complainant’s version. The Tribunal said in [91] that, even if the allegation had not been made out there would “nonetheless” be an unacceptable risk of harm. In my view, on a fair reading, this reflects the Tribunal’s finding that there was plainly a risk of harm within the meaning of s 18(2) once it had found the complainant’s version proved to the requisite standard, as was set out in [90].

A different Tribunal might have expressed the connection between the risk posed by the plaintiff and the fact of his having had his sexual intercourse with his 11-year old daughter more comprehensively. However, the Tribunal was entitled, once it had made that principal finding, to be relatively succinct in the subsequent finding because of the gravity of the conduct which it had found proved. Ms Andelman also submitted that the references in the Tribunal’s reasons to “unacceptable risk” and “relevant risk” indicated that it failed to apply the statutory test which referred solely to “risk”. She accepted that the word “risk” in this context meant, as Young J found, “real and appreciable risk”. I do not consider there to be any error in the expression by the Tribunal of the risk. The word “relevant” does not qualify the nature of the risk; it merely confirms that the risk is to be considered in the circumstances of the case. That the Tribunal used the phrase “unacceptable risk” does not, in my view, mean that the Tribunal did not apply the Act in terms.

Ground 2 has not been made out.

I note that the parties devoted considerable time in their submissions to the alleged inconsistency between the decisions of Harrison J in Office of the Children’s Guardian v CFW [2016] NSWSC 1406 and Davies J in Children’s Guardian v CKF [2017] NSWSC 893. The question considered by their Honours concerned a situation where the allegation of misconduct had not been either proved to the requisite standard, or could be dismissed as groundless. No such question arises in the present case since the Tribunal was satisfied that the allegation had been proved to the requisite standard and no error has been shown in that conclusion. Although the Tribunal did express a view about what the outcome would have been had it not been satisfied that the unlawful sexual intercourse had occurred, this was an alternative finding, which did not reflect its actual path of reasoning. Its actual path of reasoning included the finding that the intercourse had occurred. I note for completeness that any apparent inconsistency between trial judges can only be resolved by a higher court.

Ground 4 is based on the assumption that the Tribunal did not accept the evidence of Dr Lennings. I do not discern any basis in the reasons of the Tribunal for that assumption. The Tribunal appeared to accept that Dr Lennings considered the plaintiff’s risk of re-offending to be low if the allegation were made out because he belonged to a cohort of persons with a relatively low risk of re-offending compared with other offenders. This was largely because the victim was the plaintiff’s own daughter, rather than a child who was a stranger. As to the extent of the plaintiff’s depression and his mood generally, the Tribunal was entitled to take into account its own assessment of the plaintiff who gave evidence before it, as well as any other evidence, such as the opinion of Dr Lennings.

The terms of s 18(2) required the Tribunal, as part of its obligation to make the correct and preferable decision, to decide whether it was satisfied that the plaintiff posed a risk to the safety of children. It could not delegate the requirement for its satisfaction to an expert, or to anyone else. Once the plaintiff had applied to the Tribunal for review of the decision of the Guardian to refuse the clearance, it was for the Tribunal to determine its satisfaction of the matters under the Act. Section 18(2) put the ultimate issue in terms of the satisfaction of the Guardian, and, on review, the Tribunal, that the person (in this case, the plaintiff) posed a risk to the safety of children. The Tribunal was obliged, when addressing this issue, to consider all the evidence, including the opinion of Dr Lennings. It was not obliged to accept that Dr Lennings’ assessment of risk, which was based on statistical data and expressed to be a “risk of re-offending” was equivalent to “no real or appreciable risk” within the meaning of s 18.

The plaintiff submitted that the Tribunal was not entitled to admit as evidence the opinion of Senior Constable B that the plaintiff sexually assaulted the complainant and ought not be permitted to work with children in the future, which was based in part on the FACS report which concluded that the complainant was sexually abused by the plaintiff.

While wrongful admission of evidence can amount to an error of law, it is difficult to see how it could amount to an error of law in proceedings to which the rules of evidence do not apply and where it was not suggested that there was any relevant statutory prohibition. It was not submitted (nor could it have been) that the Tribunal, in substance, accepted Senior Constable B’s opinion without any independent analysis of the whole of the evidence or that the Tribunal simply accepted the FACS report. It was a matter for the Tribunal to determine what material it would accept from the parties. I am not persuaded that there was any error of law in the course which the Tribunal took.

In [99] of its decision, the Tribunal recorded its finding that it was not satisfied that a reasonable person would allow his or her child to have contact with the applicant. Accordingly, it found, in accordance with s 30(1A)(a), that it was precluded from making an order enabling the plaintiff to work with children. Its reasons were that a reasonable person “knowing the matters to which the Tribunal has referred would consider that the applicant [plaintiff] poses a degree of risk which is unacceptable to that person in terms of sexual risk”. Ms Andelman submitted that the effect of the reasons was that anyone against whom an allegation of sexual abuse had been made would fail the tests in s 30(1A) and would, accordingly, be precluded from obtaining a clearance. I am not persuaded that the Tribunal’s reasons can fairly be read in that way. What was to be attributed to the reasonable person was knowledge of the matters to which the Tribunal referred: in other words, the reasonable person would be privy to all the evidence that was before the Tribunal.

In my view, the Tribunal was saying no more than that a reasonable person, knowing all that the Tribunal knew, would be satisfied that the plaintiff had had sexual intercourse with his 11-year old daughter and that the reasonable person would not, as a consequence, allow his or her child to have unsupervised direct contact with the plaintiff. I do not discern anything surprising about that conclusion. Because of the gravity of the plaintiff’s conduct, the reasonable person test did not pose a difficult question for the Tribunal to answer. Having found that the plaintiff posed a risk to the safety of children, the Tribunal was exempted from the obligation to grant a clearance to him pursuant to s 18(2). There was no error in the Tribunal considering s 30(1A), which, if it applied, as the Tribunal found it did, would have prohibited the Tribunal from granting a clearance to the plaintiff in any event. This ground has not been made out.

As none of the grounds has been made out, the further amended summons ought be dismissed. The parties agreed that it was appropriate that costs follow the event.

For the reasons set out above, I make the following orders: