Industrial Relations Commission of New South Wales CITATION : G and the Commission for Children and Young People [2001] NSWIRComm 258 APPLICANT G PARTIES : RESPONDENT The Commision for Children and Young People FILE NUMBER: IRC 473 of 2001 CORAM: Marks J CATCHWORDS : Offence of carnal knowledge committed 30 years previously - Circumstances explained - No other relevant evidence - Application granted LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 s 9 CASES CITED : G and J and H v The Commission for Children and Young People (2001) NSWIRComm 69 L v Commission for Children and Young People (2001) NSWIRComm 134 HEARING DATES: 10/17/2001 DATE OF JUDGMENT: 10/26/2001 APPLICANT SOLICITOR McDonnell Schroder Mr J Nasr LEGAL REPRESENTATIVES: RESPONDENT SOLICITOR Crown Solicitor's Office Ms A Johnson JUDGMENT: THE INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MARKS J Friday 26 October 2001 Matter No IRC 473 of 2001 G and the Commission for Children and Young People Application under s 9 of the Child Protection (Prohibited Employment) Act 1998 DECISION 1 The applicant in these proceedings seeks an order from the Commission under s 9 of the Child Protection (Prohibited Employment) Act 1998. The order sought is that the provisions of the Act not apply to him with respect to his conviction for the offence of carnal knowledge at Parramatta Court of Quarter Sessions on 29 June 1970. The applicant was sentenced to imprisonment with hard labour for twelve months which sentence was suspended on him entering into a recognizance to be of good behaviour for a period of three years. The applicant was charged with carnally knowing a girl of the age of twelve years. 2 I was assisted during the course of the proceedings by evidence tendered and submissions made by Ms A Johnson of the Crown Solicitor's Office who appeared for the respondent Commission. That Commission did not oppose the making of an order in favour of the applicant in these proceedings, although this of course is not sufficient of itself to enable an order to be made. 3 The applicant said in relation to the charge that at the time he was aged 19, having been born on 2 December 1950. He had left the Taree area some time previously where he had lived with his parents and eleven brothers and sisters to obtain employment in Sydney, where he came to live with his married sister. He left the Taree area to relieve the financial burden on his parents. 4 The applicant described the circumstances in which he was arrested by the police in connection with the charge of carnal knowledge and taken to the Parramatta Police Station and interrogated for some time. He said that he was not guilty of the offence and told the police accordingly. The police officers concerned informed him that if he was charged and found guilty that he would go to gaol for ten years. However if he pleaded guilty he would not be sent to prison. Accordingly, he was persuaded to sign a statement which purported to be a confession to the charge. 5 The circumstances of the charge as alleged by the police are fully set out in documentation tendered in the proceedings. There is no question of the girl having been forcibly sexually assaulted. A statement which she gave to the police indicated that she fully consented to a sexual encounter first with another person who was alleged to be present with the applicant and then with the applicant. 6 Having observed the applicant's demeanour in the witness box and having observed him answering questions posed both by his solicitor and under cross examination by Ms Johnson who appeared for the respondent, I am prepared to accept the applicant's evidence that he did not carnally know the young girl concerned. Even if I had not accepted his version of the events and had relied on that given to the police by the young girl in question, I would not have regarded this isolated event which occurred more than 30 years ago as constituting any evidence that the applicant now poses a risk to the safety of children. 7 The applicant will shortly turn 50. He is married and has four children ranging in age from 27 to 12, all of whom resided with him and his wife. 8 The applicant works with his wife. He drives a bus which transports children with intellectual disabilities to and from special schools. His wife always accompanies him on the bus. It is she that tends to the children. His duties are confined to the driving of the bus. The applicant produced as evidence a folder of testimonials and references from the families of children whom he and his wife transported on the bus. The testimonials express gratitude for the work which the applicant and his wife have carried out and for the assistance given to the children. 9 The applicant has another minor offence which occurred in June 1978 when he was charged with stealing a wheel arising out of a dispute with owners of premises. 10 The in principle approach to be adopted by the Commission in connection with applications of this kind has been fully considered by other members of this Commission and it is not necessary or, indeed, appropriate that I repeat them. For completeness, I refer to the judgments of Kavanagh J in G and J and H (2001) NSWIRComm 69 and Peterson J in L v Commission for Children & Young People (2001) NSWIRComm 134. 11 I am satisfied that the applicant is a person who is an employee liable to be dismissed from child-related employment as defined in s 3 of the Act, as comprehended within s 9(3)(a). Nothing which has been raised during the course of the proceedings suggests in any way that the applicant poses a risk to the safety of children as contemplated by s 9(4) of the Act. Indeed, having regard to the nature of the offence, the age of the applicant in 1970, the disposition of the person with whom he is alleged to have had carnal knowledge and the background evidence relating to the applicant I consider that he does not pose a risk to the safety of children. Accordingly I declare that the Child Protection (Prohibited Employment) Act does not apply to the applicant with respect to the offence of carnal knowledge, previously referred to. ______________________ 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.