CITATION: FZ v Commission for Children and Young People [2009] NSWADT 267 DIVISION: Community Services Division APPLICANT FZ PARTIES: RESPONDENT Commission for Children and Young People FILE NUMBER: 084009 HEARING DATES: 19, 20 May 2009 SUBMISSIONS CLOSED: 22 July 2009 DATE OF DECISION: 14 October 2009 BEFORE: Britton A - Deputy President CATCHWORDS: Procedural fairness, declaration that applicant not a prohibited person Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Commission for Children and Young People Act 1998 Evidence Act 1995 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Commission for Children & Young People v UR [2007] NSWSC 1099 CASES CITED: Commission for Children and Young People v V [2002] NSWSC 949 Johns v Australian Securities Commission (1993) 178 CLR 408 R v Commission for Children and Young People [2002] NSWIRComm 101 The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136 APPLICANT S Beckett, barrister REPRESENTATION: RESPONDENT M Higgins, barrister ORDERS: 1.FZ's application for a declaration that the Commission for Children and Young People Act 1998 not apply to him in respect of the offences of 'sexual intercourse without consent' for which he was convicted on 29 September 1982 is dismissed. REASONS FOR DECISION 1 The applicant, who in these reasons will be referred to by the pseudonym, FZ is a 'prohibited person' having committed a 'serious sex offence', namely the offence of 'sexual intercourse without consent'. He has applied to the Administrative Decisions Tribunal for an order declaring that the prohibition under the Commission for Children and Young People Act 1998 (Commission Act) — which makes it an offence for him to apply for, undertake or remain in 'child-related employment' does not apply to him: s 33I of the Commission Act. 2 FZ makes this application so that he can return to work as a bus driver. He has indicated that he has prepared to submit to a condition that he only be permitted to work in the bus industry — not because he concedes that he does pose a relevant risk but because he has no intention of seeking any 'child related employment' outside this sector. 3 The Commission opposes FZ's application. What FZ must prove 4 Section 33I(1) of the Commission Act provides that the Administrative Decisions Tribunal may make an order declaring that that Act is not to apply to an applicant in respect of a specified offence. That order may be made subject to conditions (s 33I(6)). 5 Section 33J(1) provides that the Tribunal is not to make an order on a review application (an application made under s 33I(1)) unless it is satisfied that the person the subject of the application 'does not pose a risk to the safety of children'. Section 33J(2) provides that it is to be presumed that the applicant poses a risk to the safety of children, unless they prove the contrary. In deciding whether or not to make an order under s 33I the Tribunal must take into account the following (s 33J(3)): (a) the seriousness of the offences with respect to which the person is a prohibited person, (b) the period of time since those offences were committed, (c) the age of the person at the time those offences were committed, (d) the age of each victim of the offences at the time they were committed, (e) the difference in age between the prohibited person and each such victim, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the prohibited person's present age, (h) the seriousness of the prohibited person's total criminal record, (i) such other matters as the Commission or tribunal considers relevant. 6 In determining FZ's application, the Tribunal must give paramount consideration to the safety and welfare of children and, in particular, the need to protect them from child abuse (s 32 of the Commission Act). 7 The test set out in s 33J(1) of the Commission Act is in similar, but not identical terms to the corresponding provision in the now repealed Child Protection (Prohibited Employment) Act 1998 (the CPPE Act). The relevant provisions of the Commission Act came into effect on 2 January 2007 (Commission for Children and Young People Amendment Act 2005). The test under the CPPE Act has been considered by the Supreme Court (see for example, Commission for Children and Young People v V [2002] NSWSC 949; The Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136; Commission for Children & Young People v UR [2007] NSWSC 1099). 8 While great care should be taken in applying principles developed to deal with different, albeit similar, legislative provisions, those decisions provide useful assistance in relation to the application of section 33J(1) of the Commission Act. Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949 considered the meaning of the word 'risk' in 9(4) of the CPPE Act. His Honour adopted Haylen J's analysis in R v Commission for Children and Young People [2002] NSWIRComm 101. Haylen J said that s 9(4) was focussed on: '[N]ot a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.' ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].) 9 Young CJ held [at 27] that 'risk' in the context of section 9(4) meant 'a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child'. FZ, therefore, must prove, on the balance of probabilities, that he does not constitute a 'real', 'appreciable' or 'unacceptable' risk to children if his application is to be accepted. 10 I have taken into account all the evidence tendered or adduced orally but will expressly refer only to those parts of the evidence that I consider to be of critical importance. Risk factors – section 33J(3) 11 FZ is currently 44 years of age. He was 17 years old when the index offence was committed. The victim was an 11-year-old boy. It is not in issue that FZ knew that the victim was a child. Almost 27 years have elapsed since the index offence was committed. Index offence In September 1982 the applicant, after entering a guilty plea, was convicted of one count of unlawful sexual intercourse contrary to s 61D of the Crimes Act 1900 which has been repealed. 12 There were some differences between the respective accounts given to the police by the victim and the applicant. In a statement to police given over two weeks after the incident the applicant said that the boy agreed to help him with some odd jobs. When alone with the boy he told him to strip and demanded fellatio. He denied hitting the boy. 13 In a statement to police given the day after the incident the boy said that the applicant had offered him $50 to help with some odd jobs. When alone the applicant said 'Do what I tell you or your head'll go through the wall', forced him to strip, demanded that he perform fellatio, and when he did not move, threw him against the wall causing the boy to hit his head. The boy stated that the applicant forced to perform fellatio three times and on his estimate this took about 30 minutes in total. The boy also stated that in the course of the ordeal the applicant hit him in the face and punched him hard in the stomach and the jaw. 14 In these proceedings the applicant was cross-examined about the index offence. On his account he has limited recollection of the offence and recalls little of what happened after ordering the boy to strip. He denies offering the boy money, claiming that he did not have that sort of money at the time and claims that he is not the sort of person who would offer money if he didn't have it. He denied hitting the boy though conceded that he had no positive memory of not doing so. He denied threatening to put the boy's head through the wall. 15 It is argued for the applicant that while serious, the index offence was not in the worst category pointing out that it was a single offence, it occurred over a short period of time and there was no repetition. Furthermore, as he pointed out there was no evidence of any 'grooming' behaviour prior to the assault. 16 I accept as argued for the applicant that the entering of a guilty plea does not mean that a defendant accepts every detail of the victim's account. A plea of guilty is an admission of the elements of the offence, not necessarily all the particulars alleged by the prosecution. If there is a dispute about the fact, the onus lies, as it always does, on the prosecution to prove those disputed facts beyond a reasonable doubt. The Tribunal is in no position to resolve any such disputes so long after the events, even if it were open to it to make an attempt. 17 For the purposes of these proceedings, the plea of guilty and the general description of the facts is the material evidence. The fact that a guilty plea was entered is, of itself, significant. Sexual offences where there is a case of word against word, and where the victim is young, are notoriously difficult to prove. An offender who pleads guilty, rather than putting the prosecution to proof, is taken for the purposes of the law, to be remorseful. In a case of this type, where an offender has pleaded guilty, the offender's remorse is not a mere presumption of law or a theoretical implication. It very often reflects the actual fact. 18 A plea of guilty in such circumstances is also of considerable value not only to the justice system, which is relieved of the cost of a trial, but also to the victim who is relieved of the traumatic experience of giving evidence. Because of this, it is reasonable in this case to infer that FZ was, at time of his plea, genuinely remorseful for his conduct. That is a matter of some considerable importance when taken together with the rest of the evidence in this matter. 19 The offence is, of course, a serious offence. But for the fact that the victim was a young child, I would assess this offence as being in the mid-range. Taking that aggravating feature into account I think that objectively speaking the proven facts show this to be an offence in the upper end of the broad mid-range. 20 Seriousness of applicant's total criminal record In addition to the index offence, the applicant has been convicted of a number of offences. None involved violence or sexual violence. 21 In 1998 the applicant was convicted of 'drive in a manner dangerous' and was placed on a bond to be of good behaviour, fined $1000 and disqualified for two years. Two years later he was convicted of impersonating a police officer and offensive language and fined $100 in each case. He was also convicted of a social security offence and placed on a Community Service Order which he did not complete. 22 It is common ground that none of the offences were particularly serious. The respondent contends however that they raise issues of credit. I see little relevance in these matters. Although there may have been dishonesty involved in two of them, they are certainly not, of themselves, indicative of any propensity to endanger children. 23 Treatment The applicant received no treatment or therapy in respect of the index offence. 24 Character evidence A number of character references were tendered on behalf of FZ. One was provided by a former employer in the bus industry who attested that FZ was a reliable and responsible employee and while in his employ had responsibility for, among other things, driving children to sporting events. This is consistent with FZ's claims that throughout the long period of his employment as a bus driver no complaints have been made about him. Family members also attested to FZ's caring and responsible nature and the fact that he is the much loved uncle of his nieces and nephews. A woman who described herself as a 'close family friend for over 20 years', stated that throughout that time she had no qualms leaving her sons, now aged nine and 15 in his care. Assessment of evidence given by VB 25 A critical issue raised in these proceedings was whether the Tribunal should have regard to material relating to allegations made by the daughter of the applicant's former partner, KB. The applicant has opposed this course. The Tribunal received the evidence during the hearing and told the parties that it would consider what weight if any would be attached to it. The parties have had the opportunity to make submissions on this issue. 26 It is trite that the Tribunal must afford procedural fairness to any person whose 'interests, rights or legitimate expectations' are affected. (Kioa v West (1985) 159 CLR 550 at 584 per Mason J; see, also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596.) The content of the hearing rule must be 'appropriate and adapted to the circumstances of the particular case.' (Kioa v West, per Mason J at 585.) In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is 'credible, relevant and significant to the decision to be made'. (Kioa v West, per Brennan J at 629.) 27 The evidence directly concerns the question whether FZ is a risk to children. True it is that FZ's counsel has not had the opportunity to test the evidence by cross-examining the young girl who made the allegations. She was not available or not made available for cross-examination. This does not raise an issue of admissibility, but affects the weight to be given to the evidence. Its relevance is obvious. The evidence ought be admitted and assessed in the light of the remaining evidence. 28 FZ, in his evidence, denies any misconduct of a sexually or psychologically abusive nature towards KB. As the allegations have been raised in response to FZ's application, the Commissioner bears the evidentiary onus in relation to this issue. 29 VB was the partner of FZ from some time in 1995 on and off until about 2000. She alleges that in March 1996 she found FZ in her daughter's bedroom touching her 10 year-old daughter's private parts. She alleges that when she remonstrated with him, he punched her and broke two ribs. The relationship was broken off at that time. 30 VB says that she recommenced the relationship with FZ about a year later and that it continued until 2000 'on and off'. During that period, VB alleges, FZ was frequently violent towards both her and her daughter. She alleges that FZ hit her daughter with a walking stick on one occasion, on another hit her with a ruler and that she herself was subjected to frequent beatings by FZ. 31 VB alleges that in 2000 she took her daughter to a police station because she was concerned about complaints made by her daughter that FZ was saying 'sexually inappropriate things' to her. She also alleged that her daughter became extremely fearful and frightened of FZ. On police advice, she says that she had an Apprehended Violence Order taken out for the protection of her daughter. After the AVO was issued, the relationship between FZ and VB terminated. The AVO included orders that FZ not contact KB for a period of two years. 32 She also alleged that in 2006 FZ had sent text messages to her daughter. Copies of the text messages were downloaded from her mobile telephone and attached to her statement. Although the text messages do not appear to contain any sexual messages or innuendoes, VB regards them as threatening. 33 The Tribunal was also provided with copies of a record of interview between police and VB's daughter in March 2000. At that time, her daughter KB was in Year 8 and was 14 years old. Her account was that during the previous year, when her mother was absent, FZ had touched her 'in places I didn't want him to'. She complained that this had happened frequently. 34 During the course of the interview, she made allegations that she had frequently been touched by FZ on her genitalia and breasts over a period of time that involved moving between houses at Bankstown, Minto and Claymore. She also described an occasion on which she alleges he exposed himself to her. She also described being so fearful of him and his intrusions upon her that she would frequently attempt to hide from him in cupboards or elsewhere. Among other allegations she made, she described FZ forcing his way into the house or into her bedroom despite her resistance and forcing her to pull her pants down so that he could touch her. 35 At the conclusion of the interview, she signed a document to the effect that the interview was truthful but that she did not wish to go to court. She said that she only wanted him to stop coming near her, that she was scared of him and did not wish to see him anymore. 36 There is some evidence to corroborate the allegations but other evidence casts doubt on the credibility of VB. In the tender bundle filed by the respondent is a record of a notification to the Department of Community Services in February 2000. Although the names of persons notifying DoCS are not disclosed on the document, it appears that one of the notifications came from staff of Bankstown Hospital who had observed FZ threatening KB and distressing her by verbally abusing her. The verbal abuse was described in the notification as 'extreme'. This evidence is consistent with KB being fearful of FZ but does not go directly to the issue of sexual abuse. 37 VB and KB alleged that FZ on occasion struck KB with a ruler. In his statement filed with the Tribunal FZ denied this. Staff of Bankstown Hospital, however, according to the notification to DoCS, claimed to have seen him threatening KB with a ruler. In his cross-examination, FZ repeated his denials of producing a ruler to threaten KB in hospital. He was unable to produce any satisfactory explanation for the report. 38 In the same notification to DoCS from the Bankstown Hospital is evidence that VB had told hospital staff that KB had been previously hospitalised for cardiac problems, had suffered 15 cardiac arrests and had had cardiac surgery. The hospital investigated these claims and found them to be untrue. VB also apparently claimed, untruthfully, to the hospital that she was a schoolteacher. This evidence undermines VB's overall credibility but is not decisive. 39 Other evidence supportive of the allegations that FZ sexually abused KB is to be found in the report of Ms Peta Dean, a clinical psychologist. The history given to Ms Dean was that KB had been sexually abused by 'a family friend'. Ms Dean found that KB's behaviour and psychological condition was consistent with the nature of the alleged abuse: see report of 10 February 2003. 40 A police COPS report, part of which was tendered in evidence, records that on 2 August 2000 KB attended Campbelltown Police Station and showed police a sexually explicit text message received by her from FZ's telephone number. The text message was graphically sexual in detail: see Exhibit R2. The message revealed that the sender appeared to be 'in love' with the intended recipient and wished to have sexual relations with her. 41 The question here is whether the sender was FZ and the intended recipient was KB. FZ denied that he had sent the message. It is submitted on his behalf that there is no evidence that it was intended for KB. The message was received on VB's mobile phone. KB had been lent her mother's telephone because, according to VB, she was concerned about FZ preying on her and she saw the phone as a means of protection. It is submitted for FZ that there is no evidence that FZ knew that VB's telephone had been lent to KB. It is true that there is no direct evidence of that. The evidence is circumstantial only. 42 It would appear that both KB and VB interpreted the message as being meant for KB, hence the complaint to the police. There is no evidence of any other person being sexually interested in KB at that time. An AVO had been taken out against him for that reason. According to VB, she was no longer in a sexual relationship with FZ at that time. While it probably could not be proven beyond a reasonable doubt that FZ was the sender of the message, and while it is possible that the message was in fact intended for VB, the fact that it came from his telephone and that there was prior evidence of complaint by KB that she had been sexually abused by FZ is powerfully suggestive that the message was intended for her rather than VB. In my view, it is more likely than not that FZ intended to send the message to KB. 43 Text messages were also sent by FZ to KB in February 2006. These messages were downloaded and reproduced in evidence. In cross-examination, FZ initially denied sending any text messages between 2000 and 2006. Confronted with the messages, he altered his position. One of the messages appears to contradict his claims that he had maintained his relationship with VB in a periodical way until 2006. That message read in part, '… I want to talk to u 1 on 1 after all it has been 7 years and we need to know each other better… i would like to see you and mum again'. The message is more consistent with him not having been in contact for a lengthy period as is asserted by VB. 44 The allegations by KB and her mother are not a seamless web. There are various discrepancies between their accounts that are difficult to account for. It is possible that VB has exaggerated or embellished her evidence or even deliberately falsified portions of it. KB's account to police in 2000 is not a full detailed account either. Juries are routinely warned against speculating why a person would make up a serious allegation against another unless it were true. In this case, there is a history of bitterness between FZ and VB and perhaps also between FZ and KB. VB's demeanour as a witness was unpersuasive of itself and sometimes gave rise to the impression that she was exaggerating her evidence for effect. If the determination of her reliability was dependent on demeanour alone I would be loath to accept her evidence unreservedly. Nevertheless, as outlined above, there is some substantial evidence supportive of the gist of the allegations that FZ sexually abused KB and, in addition, was psychologically abusive of her. The impression that there was substance in the allegations was also bolstered by the fact that I had the opportunity to compare VB's evidence with that of FZ which in some respects was also unimpressive. 45 In cross-examination during these proceedings, FZ initially claimed to have been unaware of the existence of the AVO. Indeed, he claimed that had he known of the application he would have defended himself against the allegations. Court papers from Campbelltown Court show that on 16 May 2000 FZ did not appear at the court but was represented by a lawyer called Sutton who consented to an AVO on FZ's behalf. Confronted in cross-examination with this evidence, FZ appeared to prevaricate and amended his position to one of confusion about the meaning of the AVO rather than ignorance of its existence. 46 The consent to the AVO order was made without admission. Respondents to applications for AVOs frequently consent to orders being made without admission and nothing can be construed against them as a result. FZ's claims of ignorance, which were later changed to claims of confusion, while they do not of themselves add weight to the allegations made against him, tended to undermine his credibility as a witness quite significantly overall, including the credibility of the histories he had given the expert witnesses. 47 It has been argued for FZ that it would be procedurally unfair for the Tribunal to attach any weight at all to the evidence of sexual abuse by FZ on KB because he has submitted to cross-examination but has been denied the opportunity to cross-examine KB. With respect, that argument is misconceived. FZ's entitlement is to know the evidence against him and to be heard in relation to it. The evidence of unavailable witnesses is frequently admitted by courts under the Evidence Act 1995. This Tribunal is not bound by the rules of evidence or procedure. It is not held to a higher standard of admissibility or fairness than courts are. FZ has been afforded procedural fairness in that he has been able to give evidence on his own behalf in response to the allegations of KB. It might even be argued that he has had the advantage of giving evidence because no one can argue that his evidence ought be given lesser weight due its not having been tested. He has also had his counsel make submissions concerning the weight to be attached to that evidence and the evidence of KB. 48 While I have reservations about the weight to be given to VB's unsupported evidence, I found FZ, when cross-examined, an unsatisfactory witness. It appeared to me, and there are several examples above, that his lapses of memory were sometimes self-serving, that he made few concessions before being forced to make them by being presented with incontrovertible evidence and that he was frequently defensive and sometimes evasive during the course of his evidence. While the demeanour of a witness should rarely be the decisive factor in assessing his or her credibility, an unsatisfactory demeanour, taken together with other cogent evidence, tends to undermine the credibility of that witness. That was the case in this instance. 49 In my view, while the weight to be given to the allegations of VB and KB ought be limited due to the fact that KB was not available to be cross-examined by counsel for the applicant, even that limited weight would appear to be quite considerable in all the circumstances for the reasons stated above. Expert evidence 50 Evidence was given in these proceedings by Dr Stephen Allnutt. The history given by FZ included some unreliable details. These included his claim to have been unaware of the AVO taken out by KB in 2001. He claimed to Dr Allnutt that his lawyer had investigated court records and found no evidence of an AVO in existence. While it is possible that he was genuinely forgetful at the time he gave this history, it seems more likely that he made this claim to bolster his assertions to Dr Allnutt that there had been no sexual abuse of KB by him. FZ, of course, knew well that his application for an order under s 33I would depend significantly on Dr Allnutt's report. It is a concern that FZ appears to have distorted a material aspect of the history he reported to Dr Allnutt. 51 This is important because the reliability of expert evidence in this case in favour of FZ depends heavily on the reliability of the history given by FZ. Dr Allnutt carefully qualified his evidence to the effect that actuarial and clinical studies are not absolute predictors of risk. Insofar as any unreliable data creep into the analysis, that already qualified assessment is further compromised. 52 In his report of 24 December 2008, Dr Allnutt found no evidence of psychiatric illness on FZ's part. In terms of risk, Dr Allnutt used actuarial tools, especially the test known as Static 99 which is an instrument designed to measure the risk of recidivism in sex offenders. His conclusion, combining clinical and actuarial assessments, was that FZ would fall into a low risk group 'if less weight is placed on the complaints of 2000/2001'. 53 Taking the 2000 and 2001 complaints into account, however, Dr Allnutt concluded that FZ would be placed into a 'low-moderate risk group'. 54 In a supplementary report dated 13 January 2009, Dr Allnutt was asked to consider further the complaints made by KB. He stated, 'If the Adjudicator accepted these allegations then I believe there are grounds to conclude [FZ] suffers from a paraphilia namely paedophilia given that there is evidence for recurrent intense sexually arousing behaviours, involving sexual activity with a pre-pubescent child over a period of greater than 6 months.' He noted that if this conduct was proven FZ would fall into the moderate-high risk group for recidivism. 55 In his oral evidence, when asked to assume that the complaints were made out, Dr Allnutt said that he 'would be concerned about a person like that working with children because it suggests an interest, a sexual interest in vulnerable people and in a position of potential control over them and that would be unwise': Transcript 20 May 2009 p.68. His evidence was that if the complaint evidence was not accepted, his opinion that FZ was in the low range remained the same. If the allegations were made out, he considered that the risk would be in the 'low to moderate range'. He qualified this opinion by saying the actuarial risk was difficult to assess and is 'a little bit of hocus-pocus'. It remained, nevertheless, above the low range: see transcript 20/05/09 pp 68-70. 56 Dr Alan Westmore also gave evidence to the effect that unless VB's and KB's allegations against FZ were accepted by the Tribunal as fact, FZ would fall into the low-moderate risk group, and probably at the lower end of that spectrum. On the other hand, he agreed that if the allegations were accepted by the Tribunal the risk rose to the moderate-high range: see Transcript 20/05/09 p.57. 57 In my view, the expert evidence does not assist FZ. Conclusions 58 Any sexual offence is serious. Nevertheless, in the scale of things the index offence is not towards the highest end of the scale. But for the fact that the victim was a young child, the offence was probably in the mid-range. It is now a considerable period of time since the index offence was committed. The applicant was young and immature at the time. His plea of guilty, as noted above, is indicative of genuine remorse. Apart from the conduct alleged by KB, there has been no further complaint of sexual misconduct brought against him. Drs Allnutt and Westmore were asked to assess FZ in the light of both the index offence taken by itself and the 2000 and 2001 allegations. Even taking the later complaints into account, Dr Allnutt concluded on the basis of his actuarial and clinical assessments, that FZ constituted a low-medium risk to children. 59 The risk, although assessed in this range, is, nevertheless, 'real', 'appreciable' and not merely theoretically possible. I am not satisfied that the risk can be reduced to one that in not real and appreciable by the imposition of the conditions which the applicant has indicated he is prepared to consent. 60 In my view, there appears to be substance in the 2000 and 2001 allegations. But for those allegations the risk would seem to be sufficiently low to enable the Tribunal to make the order sought, especially as FZ seeks an exemption only to work as a bus driver and does not seek to work with children in a direct sense. The Tribunal's first duty is the protection of children. Unless the applicant can discharge his onus of proof on the Briginshaw standard, the application must be rejected. He has not done so. Order: The application is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.