Industrial Relations Commission of New South Wales CITATION : "M" v The Commission for Children and Young People [2002] NSWIRComm 29 PARTIES : Mr M. The Commission for Children and Young People FILE NUMBER: IRC 1945 of 2001 CORAM: Harrison DP CATCHWORDS : Application under s9 of the Child Protections (Prohibited Employment Act) 1998 for order - offences 30 years ago - evidence of Post Traumatic Stress Disorder at time of offences - psychological assessments, no risk - absence of further incidents - positive contribution to society in 30 years post offences - no evidence to support allegation of false disclosure - order issued LEGISLATION CITED : Child Protection (Prohibited Employment) Act 1998 HEARING DATES: 09/19/2001; 11/16/2001 DATE OF JUDGMENT: 03/06/2002 APPLICANT Mr S Austin of Counsel Instructed by Mr T Hetherington, Solicitor of Whitelaw McDonald Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr J Connors of Counsel Instructed by the Crown Solicitors Office, New South Wales JUDGMENT: - 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 6 March 2002 Matter No IRC 1945 of 2001 M AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application under section 9 of the Child Protection (Prohibited Employment) Act 1998 DECISION [2002] NSWIRComm 29 1 This is an application for an order pursuant to s9(1) of the Child Protection (Prohibited Employment) Act 1998 ('the CP Act') declaring that the Act is not to apply to the applicant in respect to the specified offences. 2 These proceedings arise under the CP Act which prohibits persons found guilty of committing serious sex offences from child-related employment. Child related employment is defined in s3 of the CP Act to include employment in wards of public or private hospitals in which children are patients. 3 The application seeks an Order in the following terms: "It is declared that the Child Protection (Prohibited Employment) Act 1998 does not apply to the applicant in respect of the offence specified below: 14/12/1971 East Maitland Q.S. Assault female under age of 16 years with act of indecency." 4 The Order is opposed by Commission for Children Young People (CCYP). 5 The application in this matter was filed on 14 March 2001 and first listed for hearing on 4 April 2001 in conjunction with a further application for relief from unfair dismissal, filed pursuant to s 84 of the Industrial Relations Act 1996 ('the IR Act') (matter IRC 1944 of 2001). 6 The proceedings on 4 April 2001 resulted in adjournment by consent of the parties to allow the CCYP to complete investigations said to be necessary to formulation of their attitude to the application. The matter was stood over to 21 May 2001. These proceedings were rescheduled firstly 10 July 2001 and again to 7 August 2001 by agreement of the parties. During this time the applicant was subject to psychological assessment. 7 A report was obtained at the initiation of the CCYP from Ms J Howell, Consulting Psychologist. A report was obtained at the initiation of the applicant from Dr A M Nicholas, Clinical and Forensic Psychologist. 8 On 7 August 2001 Mr J Connors of Counsel, appearing on behalf of the CCYP, again sought adjournment to allow a further psychological assessment, submitting (p6 TR): …those reports conflict. One says the applicant is a risk. The other says he is certainly not a risk. In the light of that conflict, my instructions as at last night from the Crown Solicitor were to seek some further time to obtain a further report that addresses the issues and the different methods of testing that were adopted by the two psychologists in an attempt to assist you in coming to your ultimate conclusion to break the nexus between these two completely conflicting assessments that are available at the moment. It appears to laymen that one has been done on a personality assessment basis and the other on a, perhaps, more specific sexual offender basis. But that is - I am expressing there a layman's interpretation of the two reports. The Commission would like time to have that addressed in a more professional way than merely a layman's assessment so that the best available information can be placed before you for your ultimate determination. 9 The application for adjournment was opposed by Mr T Hetherington, solicitor of Whitelaw McDonald Solicitors, then appearing on behalf of the applicant, as he did not regard the proposition advanced by Mr Connors to be practical, fruitful or to the applicant's advantage. 10 The matter was set down for hearing on 19 September 2001 on the estimate of one day required with a mention on 5 September 2001 to provide opportunity for resolution from a third report, or for issue of directions as required. 11 On 5 September 2001 Mr Connors put that all reports to be relied upon by the CCYP ad been filed and that the matter remained contested. 12 Mr S Austin of Counsel, acting on behalf of the applicant, submitted that the reports had only recently been obtained and associated documents received the previous evening. Mr Austin put that the applicant had initiated the process to obtain a report from a third psychologist in response which required a further consultation, arranged for 7 September 2001 with a report expected between 14 and 17 September 2001. 13 Neither Mr Austin nor Mr Connors sought adjournment. The hearing on 19 September 2001 was confirmed with leave to Mr Austin to file the report in response as soon as received. 14 Arbitration proceedings commenced on 19 September 2001. In the event, the estimate of one day for hearing proved ambitious and the author of the report in response, Dr M M Cotton, was professionally engaged interstate and unavailable for cross examination. The matter was then adjourned for conclusion on 16 November 2001. 15 On hearing Mr Austin continued his appearance instructed by Mr Hetherington. Mr Connors continued his appearance for CCYP. 16 Mr Austin brought evidence from the applicant; Dr A Nicholas, Clinical and Forensic Psychologist; and Dr M M Cotton, Clinical and Forensic Psychologist. 17 Mr Connors brought evidence from Ms J Howell, Consulting Psychologist. 18 At the outset of proceedings Mr Austin sought leave to amend the application to include a second offence, being a conviction recorded on 23 February 1972 for an offence of common assault for which the applicant was sentenced to a custodial term of one year with hard labour. Mr Austin supported this application with the submission that there was no prejudice to the respondent as all of the evidence that has transpired between them has been in the knowledge of two offences which comply with the definition of serious sex offence within the meaning of s 5 of the CP Act. 19 Mr Connors did not oppose amendment of the application confirming that the respondent learned of the second offence when making its enquiries and investigation since then has been carried out on the basis of two offences. 20 The applicant commenced employment in the position subject to these proceedings in January 1985. His employment was terminated with effect from 2 March 2001 on the grounds that his continued employment was prohibited by the CP Act. 21 This application is supported by a statement of grounds and reasons in the following terms: The Applicant submits that the orders sought should be made for the following reasons: 1. There is no evidence to support the assertion that the Applicant poses a risk to the safety of children. 2. The offence for which the Applicant comes within the definition of a Prohibited Person relates to an offence which occurred approximately 30 years ago when the Applicant assaulted a female by placing his hand on the breast of the victim. 3. The Applicant was aged approximately 22 years at the time this offence was committed. 4. The victim was aged 15 years at the time the offence was committed. 5. There was approximately seven (7) years age difference between the Applicant and the victim in this matter although the Applicant was of the belief that the victim was older than her actual age. 6. The Applicant's total criminal record includes one other conviction for common assault in 1972. 7. Even though the issue of the Applicant's Employment was under review for some months, the Applicant was never advised by his employers that his position was in jeopardy because of his status as a prohibited person. 8. During the period that this matter was under review the Applicant was allowed to continue working in his normal capacity as a wardsman at the public hospital even though as a public hospital the Applicant's work environment falls under the general definition of child related employment. 9. The Applicant requested, as an interim measure, that he be transferred to another area of the hospital complex where there are no children but this was denied. 10. The Applicant's employers dismissed the Applicant without providing him with an opportunity to apply for an urgent stay of the decision. 22 Further particulars of the offence are provided in Schedule B of the application in the following terms: In relation to the offence for which the Child Protection (Prohibited Employment) Act 1998 applies the Applicant recalls that on the night in question he had been drinking at a local hotel. He was aged about 22 years at the time. After drinking with friends he decided to drive to …….. and whilst driving between ….. and ….. in the lower Hunter Valley he picked up a female hitchhiker. He drove with that female to a secluded location and made advances towards her including touching her on the breast. At the time the Applicant believed that the girl was aged about 18 or 19 years and his belief was based on her appearance. The girl resisted her advances and he then dropped her off in the ….. area. The Applicant can not recall his movements after that but he returned home that night. He was a married man at the time and had one young daughter. The following day the Applicant was arrested by Police after finishing work and was taken to the …… Police Station where he was interviewed and charged with indecent assault. The Applicant admitted the offence to Police at the time and he later appeared at Court and pleaded guilty to the charge at the first available opportunity. He later appeared at the ……..Court where he received a deferred sentence based on a recognizance to be of good behaviour for a period of three years. There were no physical injuries to the victim arising out of this assault but even so the Applicant acknowledges the mental trauma that would have been experienced by the victim and he deeply regrets his conduct of that time. The Applicant's marriage eventually broke down after that conviction. The Second Offence 23 The circumstances of the second offence are set out in a pre-sentence report (ex 4) which states: In regard to the present offence M. claimed that the young woman ….. suggested that he take her for a drink; he agreed and he proceeded to drive to ….. instead of to her home. He stated that on the way he stopped the motor vehicle and endeavoured to have sexual intercourse with the complainant. He stated that he continued with his demands until she proved to him that she was menstruating. 24 It is also asserted by implication that the applicant is guilty of an offence under the CP Act, being a prohibited person denied such in order to remain in child related employment. The assertion of this offence arises from completion by the applicant of a Prohibited Employment Declaration required of him by his then employer mid-year 2000. A declaration completed by the applicant on 17 November 2000 (ex 2) declares that the applicant is not a prohibited person. 25 The evidence of the applicant is given by affidavit (ex 1) and by oral deposition. The applicant confirmed the detail of the relevant offence set out in the grounds and reasons in support of the application. 26 The applicant's evidence is that he has been employed in the health care industry for some 24 years, the past 18 years continuous employment with the one employer, and to his knowledge there has never been a complaint or adverse disciplinary finding against him; and that there are no matters which would support the proposition that he would pose a risk to children. His evidence is that the only criminal convictions against him are in 1971 and in 1972; in effect an absence of offence or conviction in the previous 29 years. 27 The applicant's evidence is that he has two adult children and four grandchildren and considers himself a devoted and responsible father and grandparent. 28 The applicant's evidence is that in early December 2000 he was called to a meeting by the Chief Executive Officer and his Department Manager wherein he was questioned concerning the circumstances of the conviction for indecent assault. His evidence (pt 7 ex 1) is: I could only recall very limited detail about the incident because of the length of time and my wish to forget my past. Initially I was only able to recall and relate to my employer that I was drunk at the time and had grabbed a girl on the breast. I was shown a document by my employer detailing my criminal record conviction and I initially believed that both entries related to the same matter. 29 The applicant's evidence is that when completing the form he did not regard himself in child related employment as he worked with adults all of his time in the ward, and that all children up to the age of adolescence had escorts. His evidence is that he only came into contact with children when working the midnight to early a.m. shift in Casualty (also known as E.R.). 30 The applicant deposed that he was called to a subsequent meeting on 26 February 2001 in which he was represented by a union official wherein he was again asked to explain the circumstances of the conviction for indecent assault, offering the same explanation. His employment was subsequently terminated. 31 The applicant denied that he had deliberately withheld information concerning his criminal record when interviewed by his employer, responding that at first recollection was difficult. His evidence is that the application filed was prepared by his solicitor upon whose advice he relied and denies knowingly omitting or attempting to conceal relevant information. 32 Mr Austin tendered the application for employment form completed by the applicant on 30 January 19991 (ex 3) drawing attention to the fact that the applicant had answered yes to a question asking whether he had any criminal convictions in the previous ten years. The applicant's evidence found at page 24 of transcript is that there had been no convictions against him in the previous ten year period however, he had misread the question in respect to time frame and answered on the understanding that he was obliged to disclose if he had a criminal record, which he did. 33 In cross examination the applicant conceded to Mr Connors that the employment history from 1965 to 1991 disclosed in the application for employment (ex 3) is not accurate in that it disguised the period spent in jail by extending the term of employment at other employers. The applicant further conceded that the application filed to commence these proceedings had been incomplete in that it did not disclose the second offence for which the applicant had served 12 months imprisonment. 34 The relevant employment history (as shown in ex 3) is: From To 24-1-85 - Wardsperson in aged care 1981 1984 Crane driver 1972 1981 Heavy industry 1970 1972 NSW Prison Warder 1965 1970 Aged carer 35 Documentary evidence filed (exhibits 5, 6 and 7) established that the applicant's adolescent years were disrupted by domestic violence, principally visited on his mother by his father. An incident is reported of the applicant being engaged in an altercation with his father going to his mother's defence. 36 On Easter Saturday 1971 the applicant was the driver of a motor vehicle which struck down and killed a pedestrian. A charge of culpable driving was "No billed" by the then Attorney General on the grounds that the pedestrian was intoxicated and a view that the applicant had not contributed to the fatality. 37 The applicant was a voluntary patient at Morisset Psychiatric Hospital and referred from there to Callan Park Hospital from which he was discharged on 14 February 1972 following a diagnosis of hysterical neurosis. 38 The applicant relies upon a report from Dr Nicholas (ex 8) which provides an overview of the issues and personal history of the applicant as disclosed to Dr Nicholas, putting that the applicant accepted responsibility for his past offence history, which Dr Nicholas reports was reviewed in some detail inclusive of both offences. 39 Dr Nicholas reports on two consultations. In respect to the first, held on 7 June 2001, he puts inter alia: At the time of his offences, M stated that he was 24 years of age. Now at 53 years of age, he felt that he had attended to those behaviours. In the intervening 30 year period he has worked diligently to be a productive member of society. He felt strongly that he wanted to clear his name. As evidenced, in his view, by his "clean history" for the past 30 years, which included the 18 years he has been working as a Wardsman. M. stated that he found the "whole process of me losing my job very humiliating". He was at a loss to understand how matters that happened 30 years ago, for which he has served punishment and has been since, an attentive member of society, could now be brought into call. 3. FINDINGS FROM THE SESSION OF 7 JUNE 2001. 3.1 M. fully cooperated throughout the assessment session. He answered questions put to him openly and directly. 3.2 There was congruence between the history as he related it and that detailed in the documents received and referenced earlier in this report (section 1.2). 40 In respect to the second consultation held on 12 July 2001 Dr Nicholas states: 4. FINDINGS FROM THE SESSION OF 12 JULY 2001 4.1 M. reattended on 12 July 2001, where the history of this matter, presenting signs and symptoms and psychological conditions were reexamined. 4.2. Throughout this session, each were found to be congruent one to the other and all were congruent to that history, signs and symptoms and psychological conditions found at the session of 7 June 2001. … … 4.4 At this latter session, the Psychological Screening Inventory (PSI) was administered. The PSI provides a profile of psychological adjustment. The PSI (Laynon, R.I., Research Psychologists Press, 1978), is a paper and pencil test involving 130 statements for each of which the respondent identifies a true or false option. Responses provide a data base from which 5 clinical scales can be evaluated. These scales are alienation (similarity of the respondent to hospitalised psychiatric patients), social non conformity (similarity of the respondent to incarcerated prisoners), discomfort (identifying susceptibility to anxiety, neurotic breakdown and distress), expression (susceptibility to extraversion or under control) and defensiveness (attitude of the respondent to undertaking the PSI). 4.5 M. scores on the PSI indicate that: 4.5.1 On the Alienation Scale he has no similarity to psychiatric patients. 4.5.2 Scores on the Social Conformity Scale suggest that M. is essentially a person with conventional, social/moral standards. 4.5.3 Scores on the Discomfort Scale reflect a personality which is adaptable, resourceful and able to meet new situations with flexibility. 4.5.4 Scores on the Expression Scale suggest a personality profile which is over controlled.. 4.5.3 Scores on the Defensive Scale suggest a personality profile where there is some degree of defensiveness. 4.6 PSI data are congruent with the signs and symptoms found on examination in both this session (12 July 2001) and that of the session of 7 June 2001. The data are congruent also with the psychological conditions found in the Mental Status Examination (paragraph 3.4) of this report. 41 Dr Nicholas arrives at the following opinion: 5.1 It is evident from the presenting signs and symptoms at the sessions of 7 June and 12 July 2001, as well as the clinical and psychometric assessments undertaken, that M. regards this matter as very serious and considers also that it has and continues to have a profound effect on his life. … … 5.4 M. has a strong work ethic and takes pride in the fact that he has been a Wardsman with the Hunter Area Health Service for the past 18 years and in his view, has discharged his responsibilities, caring for patients as is his due. The loss of his job for actions that occurred when he was young, have left him bereft of understanding. Note: The Discharge Summaries from the psychiatric hospitals to which M. was admitted with respect to the charges in 1971/72, identify a diagnosis of a Behaviour Disorder Associated with Depressive Illness (Morisset Hospital, 11 January 1972) and a diagnosis of Hysterical Neurosis (Callan Park Hospital, 14 February 1972). These diagnoses identified that at the time, M. sustained psychological dysfunction for which he received treatment while in hospital, but which more than likely, on current knowledge, would have possibly been a mediating factor in the offences which he committed. It is significant that in the three decades subsequent to the offences of 1971/1972, that M. has sustained, from a psychological perspective at least, an adequate and productive life with consistent employment as a Wardsman. leading to the following conclusion: 6.1 On the basis of the information provided (section 1.2 of this report), together with the presenting signs and symptoms and the clinical and psychometric analyses undertaken, it is considered, with respect to his current work profile as a Wardsman, M. is not a risk to children. 6.2 There is no recent psychological evidence which identifies M. as opportunistic, abusive or predatory with respect to children. 42 Dr Nicholas deposed that he is familiar with but has not used the Static 99 test which forms the basis of Ms Howell's report (ex 10) nor the SONAR (Hanson and Harris) 2000 test. The evidence of Dr Nicholas is that his approach in assessment was predicated on the clinical proposition that first the substantial personality be delineated and, in the event that variables were found within that personality of clinical concern, then more specific tests would be appropriate. 43 Dr Nicholas deposes that there were no substantive reasons to administer the specific tests as the information available to him and the results of the personality delineation and mental status examination were sufficient to form the opinions expressed and that further testing was unwarranted. 44 In cross examination Mr Connors tested the qualifications and experience of Dr Nicholas by reference to his curriculum vitae (att. to ex 8). This revealed that Dr Nicholas has been in continuous private practice since 1982, has a broad range of corporate and public consultancies which relevantly include the Department of Corrections on whose behalf he is required to undertake assessment for probation and parole purposes. 45 In response to a direct question from Mr Connors, Dr Nicholas disclosed that he had been required to assess two sex offenders in the previous twelve months. 46 Dr Nicholas was unshaken in his evidence of conclusion and appropriate methodology. 47 The CCYP relies upon a report by Ms Jennifer Howell (MA Psych MAPS) (ex 10) which is founded upon a clinical interview with the applicant on 8 June 2001, the results of Static 99 (Hansen and Thornton 1999) test (now called Static 2000), an examination of the applicant's criminal record, and a pre-sentence report dated 22 February 1972. 48 The clinical interview on 8 June 2001 occupies two sessions of two hours duration with a half hour interval. It was established that this interview took place the day after the applicant's interview with Dr Nicholas. 49 The report of Ms Howell states inter alia: M. understood I was a psychologist seeing him in order to prepare a risk assessment and that the interview would not be confidential. He also understood that the purpose of the assessment was to provide an opinion identifying any risk he poses to the safety of children. … … He was oriented, alert and made intermittent eye contact. M. was intense and seemed somewhat depressed, in keeping with current circumstances and concerns, though not pervasively so. … … M. presented as evasive, suspicious, and defensive. He sought to answer questions with questions, and seemed to be consistently checking for double meanings, and unwilling to accept assurances that the conversation should proceed on the basis that there was no hidden agenda, or intention to misrepresent him. 50 In examination of the first offence Ms Howell's report states: He stated that he could not recall why he was providing the victim with transport although says it was not at his instigation. M. had known the victim for some time as she had babysat his children on occasion. He stated that he believed her to be over sixteen years and saw her as "mature". M. said that he could not recall the conversation he had with the victim in the car, however, feels he "read the signals wrong". His behaviour he said was based on his belief that the victim was likely to have sex with him. He stated that he stopped his "advances" after the victim began to cry and asked him to stop. Following the offence M. said that he was "upset by what he had done" and pleaded guilty. He has had no further contact with the victim. 51 Ms Howell's report discloses that at the time of the second offence the applicant was having relationship problems with his wife and was engaged in an affair with a co-worker who was a friend of the second victim and had introduced him to the second victim. In relation to this offence Ms Howell records the following explanation by the applicant: He stated that he knew the victim was an "easy go", and explained that by this he understood she would be likely to have sex if asked. … … Both sexual offences were described by M. as unplanned, and opportunistic. He stated that the behaviour was out of character, and that there are no prior or subsequent incidents where he has behaved in this way. 52 The report of Ms Howell also details the sexual and relationship history of the applicant, which includes divorce from his first wife, whom he put he had married against family advice when she became pregnant "to do the right thing"; a de facto relationship with a woman which continued satisfactorily for some 10 years in which the applicant, his daughter, his de facto and her two sons resided together until the woman became involved with someone else. The applicant then married for the second time to a woman with three children. It is appropriate to note that Ms Howell's report states: … he said that he was always careful around her adolescent daughter because he felt he had a better understanding of social values and "did not want to be embarrassed". They divorced three years later, M. stated after he asked her to decide between the army reserve and their relationship. This was precipitated he commented by seeing a photograph in which his wife was naked to the waist during an army reserve weekend. 53 A further relationship ensued with a woman with one daughter. This relationship foundered on conflict between the applicant and the woman's daughter, who it was put resented her mother's relationship with the applicant, and ended in bankruptcy for both the applicant and his then partner at her initiative. 54 A further relationship was established which, while not lasting, Ms Howell reports that the pair remain good friends and often meet for coffee. 55 This history is confirmed by the applicant. Assessment Methodology 56 Ms Howell applied the Static 99 and the SONAR 1999 tests. She describes the Static 99 test as: The Static-99 (Hansen and Thornton, 1999) is an actuarial measure based on empirical factors found to be associated with sexual and violent recidivism. These factors include past sentencing dates (sexual and non-sexual convictions), history of violence, stability of relationships, the individual's age, and the nature of the sexual offence. The scores obtained on the Static-99 in consideration of sexual offences, which resulted in some form of criminal intervention or official sanction, are translated into risk categories determined by the authors of the instrument. The categories are low, medium-low, medium-high, and high. A classification of low cannot necessarily be interpreted, that the risk of reoffending is at the lowest possible level. Using the Static-99 it is not possible to designate someone with a prior conviction as no risk. M.'s score is in the Low Risk category, and in the sample used to construct the scale 10% of offenders fall within this category. 57 Ms Howell describes the SONAR test in the following terms: The sex offender need assessment rating SONAR (Hansen and Harris, 2000) gives an estimate of the dynamic factors known to be associated with sexual recidivism. The items are divided into five stable factors: intimacy deficits, negative social influences, attitudes tolerant of sexual offending, sexual self-regulation, general self-regulation, and four acute factors substance abuse, negative mood, anger and victim access. M. scored in the Moderate-High category. This was primarily for positive scores across the stable factors of intimacy deficits, attitudes tolerant of sexual assault, sexual and general self-regulation, and the acute factors of negative mood, and opportunity for victim access. The population used in the development of the SONAR included non-incestuous, hand-on sexual offenders who had received community supervision from the Canadian provincial or federal correctional systems. Of those offenders who were recidivists, 86% obtaining a score above 7 re-offended, while 43% who obtained a score of less than 7, re-offended . 58 Ms Howell's report concludes with the opinion: Taking into account the matters above it is my professional opinion that M. as an untreated offender poses a risk to the safety of children as defined under the Act. The risk is difficult to quantify with certainty, although it is nevertheless a risk for holding positions of trust over children. 59 The evidence of Dr Cotton MA Phd MPsych. (Clin) MAPS is provided in a report (ex 9) founded upon a clinical interview with the applicant of 2.5 hours. A Brief Symptom Inventory (BSI); Beck Depression Inventory (BDI-II); a State-Trait Anxiety Inventory (STAI); and a Minnesota Multiphasic Personality Inventory (MMPI-2), completed by the applicant. 60 Dr Cotton also had substantial documentary information listed in her report: 1. Results of Static-99 and SONAR used by Ms Jenny Howell in her Report of 3 July 2001, forwarded by Crown Solicitor's Office to Mr Hetherington, 4 September 2001 2. Report by Dr A.M. Nicholas dated 25 July 2001 3. Report by Jenny Howell dated 3 July 2001 4. Criminal Record of M. dated 28 March 2001 5. Deposition of Witnesses, Ms. S…. and Ms M…. dated 26 December 1971 6. Statement by Detective Sergeant Peter McLachlan dated 27 December 1971 7. Letter from Medical Officer, M.S. Armstrong, Morisset Hospital to Clerk of Petty Sessions, dated 31 December 1971 8. Pre-Sentence Report by W.D.Anido, Probation Officer dated 22 February 1972 9. Recognizance of Witnesses to give evidence dated 15 February 1972 10. Medical records of M. dated 11 January 1972 61 Dr Cotton's report traverses relevant background information, current psychological functioning and emotional adjustment arriving at the conclusion that during 1971 and 1972 the applicant exhibited the symptoms of Post Traumatic Stress Disorder (PTSD) arising from the motor vehicle accident. At the time PTSD diagnosis was not available. Dr Cotton deposes that it is also possible that the applicant was suffering from a Major Depressive Episode also arising from the motor vehicle accident. 62 Dr Cotton's evidence is that PTSD was first identified in 1980 and has subsequently been well researched and diagnostic criteria refined. Her evidence is that is now well researched and widely accepted that PTSD is accompanied by behavioural symptoms including aggression, violence, poor impulse control, depression and substance related disorders. 63 There is evidence that the applicant was a heavy user of alcohol at the time of the offences. There is no evidence of any other substance abuse. 64 The evidence of the applicant is unchallenged in that he identified that he had a problem with alcohol and adopted a policy of total abstinence for a number of years, only recently allowing himself to consume "light" beer in moderation. 65 Dr Cotton concludes: It is quite likely, in the writer's opinion, that M's apparent "out of character" behaviour during 1971 may have been attributable and/or exacerbated, at least in part, to an undiagnosed and untreated condition of PTSD and possibly depression . … … 4. Conclusions relating to M.'s current psychological functioning and adjustment On the basis of the clinical interview and the history given, and on the basis of the results of the Brief Symptom Inventory, the Beck Depression Inventory, the State-Trait Anxiety Inventory and the Minnesota Multiphasic Personality Inventory, it is concluded that M. is a psychologically healthy and well-adjusted man. There are no indications on any measures to suggest that he is currently suffering from any psychological disorder. There is an indication that he is experiencing anxiety over his current situation and that this is accompanied by some (minimal) symptoms of depression. However, M. is currently taking an antidepressant (Luvox) which may be alleviating depressive symptoms reported previously to his GP … … 5. CONCLUSION - M.'s current functioning and risk of re--offending As a result of a careful assessment by the writer of all of the information available for the preparation of this Report it is concluded that M. cannot be considered to be a person who poses a risk in the work place to any person of any age group. It is concluded that M. does not present with a personality profile that could be considered to suggest any type of characterological defect. There is no suggestion in any of the assessments that M. is suffering from any psychological disturbance or from impaired judgement. There is nothing identifiable in his style of personality functioning or in his behaviour over the last 30 years that could sustain the proposition that he would present a risk to adults or children in his care. 66 The methodology and conduct of the Static 99 test as applied to the applicant by Ms Howell was subject to extensive examination. Mr Connors brought evidence in chief from Ms Howell, and went to the conduct of the test and the response by the applicant in his cross examination of the applicant. Mr Austin brought evidence in chief from the applicant and was most detailed in his cross examination of Ms Howell. 67 The Static 99 test involves in part an assessment based on response to a range of propositions describing behavioural attitudes in respect to sexual conduct and opinion. 68 The applicant was uncertain whether some of these propositions had been advanced by Ms Howell. He was emphatic that he did not subscribe to these opinions and was unsure whether Ms Howell was putting the propositions he could recall on the basis that they were views held by some sections of the community, or his own, as the issues arose in a conversational context not as direct questions. The applicant conceded that these attitudes and opinions were held by sections of society, in particular inmates of the prison system with whom he had contact whilst working as a warder many years ago. His evidence is that he was uncertain as to whether Ms Howell was testing his views or that of some segments of society in respect to these matters on a contemporary basis, or as might have been in the early 1970's when the offences occurred. 69 The evidence of Ms Howell is that the specific questions put to the applicant form part of the Static 99 test regularly used to determine propensity to re-offend. Ms Howell deposed that she put to the applicant that the attitudes were held by some people in the community and that she sought his current belief and attitude in respect thereto. It is Ms Howell's evidence that the applicant responded positively and that his answers were not taken out of context or on the basis of her notes attributable to other than himself. She deposed that she had no recollection of mention of prison inmate attitudes. 70 It is Ms Howell's evidence that the Static 99 and SONAR are tests currently used by the Department of Corrections to assess sex offenders for recidivism. It was her view that the PSI test used by Drs Nicholas and Cotton is inappropriate for this purpose. 71 Ms Howell's evidence is that the range of tests applied by Dr Cotton are equally inappropriate to determine sexual recidivism. Her evidence is: A: There's no one identifiable personality type that we can look at and say that personality type characterises a sex offender and so we know from dealing with people who offend against children, they present in a different way perhaps to people who offend as adult rapists or people who offend in their family to people who offend outside their family. Their personality style and way of engaging with the victim is different, so there's again, using tests of personality we can't draw from that a clear assessment of whether or not someone poses a risk. (TR p89) A: Current research into risk assessment for recidivism has found that clinical interview is the least accurate when it comes to risks of recidivism. We all as psychologists have an aspect to our practice where we look at clinical interview, but in terms of the research around making assessment of risk, future risk, clinical interview is the least accurate and has the least predictive value. (TR p 90) 72 Ms Howell supported the applicability of the Static 99 and SONAR tests by reference to original research undertaken by co-authors Hanson and Thornton. 73 In cross examination from Mr Austin Ms Howell confirmed that the Static 99 test could be completed without direct involvement of the person to whom the test is applied. She put that she completed the Static 99 test in respect to the applicant in his presence on the basis of interview with him. 74 Ms Howell confirmed that the Static 99 test is only applied to persons with a prior sex offence and that the test does not distinguish between adult or child victims. 75 Ms Howell further confirmed that in application of the Static 99 test to the applicant he scored two points on the measurement scale, being one point for having a prior conviction and one point on the basis that the victims were unrelated; one point being the lowest possible score in the first category automatically putting the applicant in the low risk of repeat offending. It was established that a score of zero is available in the second category if the victim is related. The higher the score, the higher the risk of re-offending. Ms Howell conceded that the score for the applicant was the lowest allowable under the structure of the test. 76 In cross examination Mr Austin challenged the utility of the SONAR test, putting to Ms Howell that there are only four questions therein which go to the relevant issue of child molesting attitudes. Ms Howell deposed that a broader range of information obtained in the conversational interview is used, conceding that the four particular questions are the only segment of the SONAR test specifically labelled child related. 77 Persons being assessed are rated on a points system in each question, the higher points indicating a higher level of risk. 78 Mr Austin went to each question. 79 The first, dealing with relationships, carries a mandatory minimum score of two if the person in not in a current relationship. The applicant scored the minimum available given his personal circumstances at the time. 80 The second is the assessment by Ms Howell of the applicant's response to the above stated propositions, which she confirmed were elucidated in conversation not in the form of a direct proposition followed by a question in the form of "what do you say?" (TR p102). 81 Mr Austin drew Ms Howell's attention to the difference between the legal age of consent of 16 years of age and the definition of child in the CP Act of a person under the age of 18 years, putting to her that this raises an ambiguity and potential for misunderstanding in particular questions in the SONAR process. 82 Ms Howell conceded the possibility when considering the example of a 18 year old person and a 17 year person where one is classified as an adult and the other a child. 83 Ms Howell defended the applicability of the SONAR test on the basis that it is applied to the broader circumstances of the case under review, and that there is opportunity in the interview for any misunderstanding to be clarified at the request of the interviewee. 84 Mr Austin also took issue with the question, "Do you have a higher sex drive than most people?"; putting to Ms Howell that it is a question impossible to answer, and that an equivocal "maybe, maybe not" response is seen as adverse. Ms Howell agreed with this proposition, deposing that in her experience most offenders she has assessed have a fairly clear view on the issue. Ms Howell conceded that the applicant had been scored a total of three points in respect to the previous two categories. 85 Ms Howell's evidence is that the applicant had been scored adversely on the basis of an apparent unwillingness to seek treatment, which she interpreted from a "maybe" answer to a question directed to a willingness to make sacrifices to avoid high risk situations by giving up his employment or undergoing treatment; a conclusion that he had suffered a deterioration in mood; and on an attempt in her observation to be friendly with her, which she described as "trying to be buddy buddy", a specific proposition not put to the applicant in the interview but required by the SONAR test to be assessed by the psychologist administering the test. 86 Ms Howell conceded that experiencing depression from the end of relationships and loss of employment was not unusual and that seeking treatment as the applicant had was appropriate. Ms Howell confirmed that the applicant was anxious at the time of her interview with him. Ms Howell put that she found the applicant's presentation at the outset of the interview to be disturbingly aggressive and by the end of the interview, "buddy buddy". She conceded that this could be explained by the anxiety state arising from the purpose of the interview and subsequently an attempt by the applicant to give the impression of a relaxed personality once he became settled in the interview process, however, she regarded the extent of change to be interesting, ultimately scoring him zero on aggression. 87 The SONAR 2000 test requires an assessment under the heading "Grooming of victims". Ms Howell scored the applicant one point on this subject purely on the basis that his access to females had altered by termination of his employment, deposing that had he continued in employment there would be no change and the score would be zero (TR p119). 88 In cross examination at p 122 Ms Howell conceded that overall she would regard the applicant as low risk and that on the Static 99 and SONAR tests there is not a "no risk" result available. 89 At p 124 of transcript Ms Howell concedes that the absence of offence by the applicant in the previous 30 years is a fair indicator of the likelihood of him not re-offending. 90 Mr Austin took Ms Howell to the assessment by Dr Cotton that the applicant was most likely suffering from PTSD at the time of the offences, which she conceded was possible (TR p129), though expressed some reservations having regard to two offences separated in time. When put by Mr Austin that the offences were separated by a period of four months, she accepted the possibility of PTSD as a contributing factor. 91 Ms Howell conceded that there is little more that the applicant could have done to overcome his actions leading to convictions which Mr Austin identified as righting the wrongs of his past by pleading guilty to avoid the need for victims to give evidence; maintaining employment on release from prison and undertaking full time care of his then infant daughter until her early teens; and participating in employment and society for a further 30 years without conviction. 92 However, Ms Howell deposed that she regarded the applicant's presentation to be about blaming other people and feeling victimised by the present legislation, which she concluded was a failure to accept responsibility for his own behaviour. 93 The evidence of Dr Cotton is that she did not apply the Static 99 or SONAR tests as Ms Howell had already done so and she had the results when assessing the applicant. Dr Cotton described the tests as rigid, offering the view that if she had applied these test she would have arrived at the same resultant scores and that a broader assessment was appropriate. 94 Dr Cotton further rejected reliance on the Static 99 test which she put is to be found in the "Adult Sexual Offender Assessment Packet" with a cautionary note in the following terms (TR p 146): Several tests and inventories are suggested for clinician use as part of the evaluation process. It is critical to note, however, that most of these instruments have no validation research. While they may provide useful information for the clinician, great caution in interpretation must be exercised. Information obtained from such inventories should be viewed as only a part of the information gathering and a supplement to the interview and documentation review. Each clinician will make an individual determination about which tests and inventories best suit the evaluation needs in their setting and with their clients. 95 In cross examination by Mr Connors, Dr Cotton confirmed that she had examined studies that show the rates recidivism after an extensive period of time, which to her knowledge did not exceed 23 to 24 years, and that from those studies it is appropriate that some weight be given to the extent of time without re-offence. Dr Cotton was further of the view that the representative population upon which the Static 99 test is based does not include persons in the category and circumstances of the applicant, reinforcing her view that the Static 99 test may not be very applicable to him. SUBMISSIONS 96 Both Mr Austin and Mr Connors emphasised that the requirement of s 9 of the CP Act is that the Tribunal form a view that the applicant does not pose a risk to the safety of children as a prerequisite to Order. 97 Mr Austin submitted that the appropriate standard of proof is the civil test of "the balance of probabilities". He submitted that on consideration of the facts of this matter against criteria set out in s 9(5) of the CP Act such a view was inescapable. Mr Austin canvassed each of the criteria in brief submissions to emphasise this argument. 98 Mr Austin submitted that the broader approach adopted by Dr Cotton was the appropriate consideration in the present circumstances underpinned by the 30 year period without further offence. 99 Mr Connors accepted that the civil standard of proof is the appropriate test, submitting that the degree of proof rises with the gravity of the issue to a conformable satisfaction. 100 Mr Connors referred me to a decision of the Administrative Decisions Tribunal NSW ADT 163 where Judicial Member Britton adopts the remedies of Duncan J in Briginshaw v Briginshaw (1938) 60 CLR 336 to support his submission. 101 Mr Connor canvasses the facts of the matter submitting that from his analysis a conclusion of reasonable satisfaction is not available. Mr Connors invites me to take into account an adverse assessment of the applicant found in the pre-sentence report of 22 February 1972 (ex 4). 102 It is not appropriate to give weight to this assessment, which is overtaken by 30 years of conduct and contemporary professional assessment directed to the present purpose. CONSIDERATION 103 The Orders sought are available pursuant s 9 of the CP Act which relevantly provides: 9 . IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Act is not to apply to the person in respect of a specified offence. (2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3) The Industrial Relations Commission may not make an order under this section unless: (a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, (b) the person was such an employee who was dismissed from that employment under this Act. (4) A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children. (5) In deciding whether or not to make an order under this section in relation to a person, a relevant tribunal is to take into account the following: (a) the seriousness of the offences with respect to which the person is a prohibited person, (b) the age of the person at the time those offences were committed, (c) the age of each victim of the offences at the time they were committed, (d) the difference in age between the prohibited person and each such victim, (e) the seriousness of the prohibited person's total criminal record, (f) such other matters as the tribunal considers relevant. 104 It is common ground that the circumstances of the applicant satisfy the jurisdictional criteria of s 9(3). 105 In consideration of the facts of this matter as directed by s 9(5)(a) I am compelled to the conclusion that the offences were serious, though must be considered at the lower end of the scale. In neither case did genital contact occur, nor did the applicant disrobe himself or the victim. 106 In the first offence sentence was deferred on entering a recognisance to be of good behaviour for three years. The second offence initially charged as Indecent Assault Female was prosecuted as Common Assault. 107 As directed by s 9(5)(b)(c) and (d) I note that at the time of the first offence the applicant was a young adult of 22 years of age and the victim was 15 years old; and at the time of the second offence the applicant was 23 years of age and the victim 17 years old. 108 It is at first difficult to accept the applicant's evidence that the correct age of the first victim, who had been a baby sitter to his daughter, was unknown to him. However, in the apparently stressed circumstances of his then marriage this is possible, giving validity to the applicant's evidence that the victim presented as older at the time of the offence. 109 The second victim was a fellow employee and contemporary of the woman with whom the applicant was involved in a sexual relationship and accordingly may be appropriately considered of equivalent age as the applicant, being part of the same social and employment group. 110 The discretion afforded by s 9(5)(f) invites consideration of all of the circumstances of the particular offences which I find are properly categorised by D Nicholson in his report, which notes that neither offence is predatory in nature. 111 The conclusion of Dr Cotton that the applicant was at the time suffering from undiagnosed PTSD and depression is sustainable and not in contest with the reference to untreated illness referred to by Ms Howell. Whilst such post factum diagnosis does not diminish or excuse the offences which have been dealt with by law, such diagnosis is critical to the present circumstances which deal with the present and future. 112 S 9(5)e) of the CP Act directs a consideration of the applicant's total criminal record. Whilst serious, the totality of the criminal record of the applicant is confined to a brief period spanning 1971 to 1972 at the time, in Dr Cotton's conclusion, he was suffering from PTSD. The submission that the applicant's behaviour in that period was "out of character" is supported by the subsequent period of some 30 years without offence of any type despite a quite traumatic and disappointing series of relationships which after some happy times ended in difficult circumstances. Throughout this time the applicant maintained employment, was primary carer for his daughter for many years, and continued to make a positive contribution to society; all matters of credit to him. 113 A further allegation is that the applicant is guilty of an offence pursuant to s 7(6) of the CP Act which provides: (6) Offence of making false disclosure A person must not, in purported compliance with a requirement under this section, make any statement that the person knows is false. Maximum penalty (subsection (6)): 100 penalty units, or imprisonment for 12 months, or both. 114 I am invited by Mr Connors to make a finding adverse to the applicant on the basis of non-disclosure to his employer and in the application initiating these proceedings. In my opinion such conclusion is not appropriate. The actions of the applicant, forced to recall to the surface of memory in detail the events of 30 years past which he had consciously endeavoured to suppress and leave behind him, are not unusual. The process of interview detailed in this decision, aided by the growing documentary trail extracted from archives, brought all events forward improving recollection of detail. 115 The applicant's evidence that at first he did not regard himself in child related employment as contact with children was supervised must be balanced against the full co-operation of the applicant as comprehension of his obligations was clarified. 116 I find the applicant to have been co-operative and sincere in the proceedings before me. The uneasiness and suspicion repeated by Ms Howell as reticence is extremely consistent with a person bewildered by the need to account for events 30 years in the past for which he had been tried and served the prescribed sentence. The attitude and demeanour of the applicant reported by Ms Howell I find hardly surprising given the nature of the interview conducted by her, in particular the propositions as to sexual attitudes which would increase anxiety and suspicion. 117 The appropriate evidentiary test is that of reasonable satisfaction. Having considered all of the circumstances in this matter I prefer the opinions expressed by Drs Nicholson and Cotton that the applicant does not pose a risk to the safety of children, which are consistent with the applicant's conduct over the 30 year period since offence and his contemporaneous behaviour. 118 Appropriate orders pursuant to s9 of the Child Protection (Prohibited Employment) Act issue herewith. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 6 March 2002 Matter No IRC 1945 of 2001 M AND THE COMMISSION FOR CHILDREN AND YOUNG PEOPLE Application under section 9 of the Child Protection (Prohibited Employment) Act 1998 ORDERS 1. The Industrial Relations Commission of New South Wales declares that the Child Protection (Prohibited Employment) Act 1998 does not apply to Mr "M" in respect to the offences: (1) Assault female under age of 16 years with act of indecency; for which he was convicted on 14 December 2001, and (2) Common Assault; for which he was convicted on 23 February 1972 2. This order is not subject to any conditions. 3. Pursuant to s9(b) of the Act the Commission will notify the Commissioner of Police of the terms of these orders. The Hon. R W Harrison Deputy President 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.