Administrative Decisions Tribunal New South Wales Medium Neutral Citation: VR v Commission for Children and Young People [2012] NSWADT 83 Hearing dates: 2 May 2011, 30 May 2011, 30 June 2011 and 28 October 2011. Decision date: 04 May 2012 Jurisdiction: Community Services Division Before: L Goodchild, Judicial Member Decision: (a)It is declared that Division 2 of Part 7 of the Commission for Children and Young People Act 1998, does not apply to VR in respect to the offence of indecent assault (s 61L Crimes Act 1900) and two counts of indecent assault person under 16 under authority (s 61E(1A) Crimes Act) subject to the following conditions: (i)the applicant shall not undertake employment involving children under the age of 18 years; and (ii)the applicant shall give a copy of this order to the Chief Executive Office or Clinical Director of any hospital, nursing home or medical practice in which he works. (iii)(iii) the applicant shall, should he make application to the Australian Medical Council for registration as a medical practitioner, provide a copy of these reasons to the Australia Medical Council. (iv)The Registrar is requested to provide a copy of these orders to the Commissioner of Police, New South Wales Police. Catchwords: Declaration - prohibited person - whether the applicant has discharged the onus that he poses no risk to the safety of children. Legislation Cited: Child Protection (Prohibited Employment) Act 1998, s 9(4) Commission for Children and Young People Act 1998, ss 3, 32, 33B(3), 33C, 33I, 33J(1), 33J(2) Commission for Children and Young People Amendment Act 2005 Crimes Act 1900, ss 61E(1A), 61L Nurses Act 1991, s 61 Cases Cited: Commissioner for Children and Young People v FZ [2011] NSWCA 111 Category: Principal judgment Parties: VR (Applicant) Commission for Children and Young People (Respondent) Representation: Counsel M Barco (Applicant) D Ward (Respondent) Crown Solicitors Office (Respondent) File Number(s): 104020 Publication restriction: S126 of the Administrative Decisions Tribunal applies REasons for decision 1COMMUNITY SERVICES DIVISION (L. Goodchild Judicial Member): The applicant, who in these reasons will be referred to by the pseudonym 'VR', applies to the Administrative Decisions Tribunal for an order under s33I of the Commission for Children and Young People Act 1998 ("the Commission Act"). VR is a "prohibited person having committed a serious sex offence", namely the offence of indecent assault (s 61L Crimes Act 1900) and two counts of indecent assault person under 16 under authority (s 61E(1A) Crimes Act). Each of the offences is a serious sex offence for the purposes of the Commission Act (s 33B (3)). Unless the order VR seeks is granted, it will be an offence for him to apply for, undertake or remain in child related employment (s 33C of the Commission Act). The respondent, NSW Commission for Children and Young People, opposes the application. Applicable legislation 2The definition of 'children' is provided in s3 of the Commission Act as persons under the age of 18 years. 3Section 33J(1) of the Commission Act provides that an order should not be made unless the Tribunal ''is satisfied that the person the subject of the application does not pose a risk to the safety of children". This test is in similar, but not identical, terms to the corresponding provision in the repealed Child Protection (Prohibited Employment) Act 1998 ("the CPPE Act"). 4The test under the CPPE Act has been considered by the Supreme Court in a number of decisions: Commission for Children and Young People v V [2002] NSWSC 949; (2002) 56 NSWLR 476; Commission for Children and Young People v IK & Anor [2005] NSWSC 136; Commission for Children and Young People v UR [2007] NSWSC 1099; (2007) 173 A Crim R 300). 5Some assistance on the application of s 33J(1) of the Commission Act can be gained from these previous decisions applying the test under the CPPE Act. However, care should be taken in applying the principles developed to deal with different, albeit similar, legislative provisions. There was no equivalent in the CPPE Act to s 32 of the Commission Act. The CPPE Act did not provide that the "safety and welfare of children ...is the paramount consideration". 6Young CJ (in Eq) in Commission for Children and Young People v V considered the meaning of the word "risk" in s 9(4) of the CPPE Act. His Honour adopted Haylen J's analysis in R v Commission for Children and Young People [2002] NSW IR Comm 101. Haylen J said (at [22]) that s 9(4) was focused on: "Not 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." 7With respect to the content and scope of "risk", his Honour held (at [42]) that 'risk' in the context of s 9(4) meant a real and appreciable risk, greater than the risk of any adult preying on a child:"... one must link the word 'risk' with the words that follow, namely, 'to the safety of children'". 8The relevant provisions of the Commission Act came into effect on 2 January 2007 by operation of the Commission for Children and Young People Amendment Act 2005. This legislation inserted a new s 32 requiring the Tribunal, in determining applications such as these, to give paramount consideration to the safety and welfare of children, and in particular, the need to protect them from abuse. The safety and welfare of children is therefore of paramount importance in the implementation of the Commission Act, however, it is not the sole matter to be considered: Commissioner for Children and Young People v FZ per Young JA at [68]. 9Section 33J(2) provides that in any proceedings for a review application, it is to be presumed that the applicant poses a risk to the safety of children, unless the applicant proves to the contrary. The applicant is seeking relief by declaratory order and, as the party seeking the declaration, he has the burden of proof. As such, the applicant assumes the legal and evidentiary burden of proving a negative to the civil standard. 10The "vital question" in proceedings such as these is "whether the applicant had (sic) proved on the balance of probabilities that he was of no real risk to children": Commissioner for Children and Young People v FZ per Young JA at [61]. The evidence for the purposes of such proof must be of sufficient cogency to persuade this Tribunal of the non-existence of the presumed fact of the applicant posing a risk to the safety of children. 11The exercise of the Tribunal's jurisdiction is protective and not punitive in nature: Commissioner for Children and Young People v FZ per Young JA at [61]. 12In deciding whether or not to make an order, the Tribunal must take into account the matters outlined in s 33J(3) as follows: "33JMatters to be considered in determining review applications ... (3)In deciding whether or not to make an order in relation to a person, the Commission or 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 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 persons present age, (h)the seriousness of the prohibited persons total criminal record, and (i)such other matters as the Commission or tribunal considers relevant." Circumstances of the index offences 13Following a trial before Urquhart DCJ in October 1991, the applicant was found guilty of one count of indecent assault and 2 counts of indecent assault of a person under 16 under authority. The applicant had pleaded not guilty to those offences. Upon his conviction, the applicant filed an appeal, which was dismissed by the Court of Criminal Appeal in August 1993 for failure to prosecute. The applicant continues to maintain his innocence with respect to the convictions. 14The documentation tendered by the respondent with respect to the three charges identifies the victim in these matters as the daughter of the applicant's then partner. The child was aged 9 and 10 years at the time of the incidents. 15The court transcript shows that with respect to the first offence, the applicant forced the victim onto the bed, touching her breast and vagina. There was also evidence that he had threatened the victim with death if she informed her mother of what had occurred. On the occasion of the second offence, the applicant touched the victim similarly whilst the girl's mother was asleep. With regard to the third allegation, the applicant reportedly forced the victim to lie on the bed whilst her mother was out, when he touched her on the breast and genital area as he was rubbing his penis. The applicant also reportedly then made the child put her hand on his penis and he was moving her hand around on his penis. 16The applicant was sentenced to a minimum term of 18 months imprisonment. Other criminal matters 17The respondent's documentation shows that in 1989 the applicant was convicted of malicious wounding and received a 12-month good behaviour bond. The fact sheet in relation to that incident describes an argument between the applicant and his then partner Miss P (who is also the mother of the victim in the index offences) in the presence of their baby son. The fact sheet describes the argument ending with the baby crying and the defendant grabbing a wooden handled serrated edged knife and stabbing the victim in the back of the upper left arm. 18There are 2 further convictions - assault and drive with menace - both occurring in 1990, for which the applicant received a three-year good behaviour bond and 200 hours of community service. It appears that the convictions relate to incidents that occurred in the context of a dispute with the applicant's then partner, Miss P. 19The applicant, both in reporting to the various experts in these proceedings and also in cross-examination, disputes his guilt with respect to any of these offences. 20In addition to the criminal offences, the applicant was subject to a number of complaints made by several aged care facility patients, when he was an agency nurse in 1995. Those complaints later became the subject of a hearing in the Nursing Tribunal in 1998. 21With regard to those incidents, it was alleged that the applicant, "demonstrated a lack of adequate knowledge, skill, judgment and/or care in the practice of nursing and/or engaged in conduct that is improper or ethical". It was reported that he, "touched a patient's right breast while making an inappropriate comment in addition to showering another woman's genitalia inappropriately. In addition to alleging to have spoken to another resident in an appropriate and sexy manner, offering her a massage as well as coming up behind another female resident and pressing himself tightly against her back. She felt his penis". 22The victims of these assaults made statements about VR's conduct to the Nurses Tribunal, however they were not present at the tribunal hearing in 1998 to offer evidence. Consequently, the complaints were dismissed. 23The documentation with respect to the nursing complaints was tendered without objection. Evidence before the tribunal Evidence of the applicant 24The applicant filed the application for declaratory relief in this Tribunal on 1 September 2010. The application was accompanied by the applicant's curriculum vitae, various documents certifying the applicant's Specialised Training of Medicine at Belarusian State Medical University, a document from the Ministry of Internal Affairs of the Republic of Belarus identifying no data on conviction or criminal prosecution of the applicant in the territory of the Republic of Belarus, various academic records and certifications and various references and testimonials with regard to the applicant dated from the 1980's, 1990's and 2000's. 25In addition to this material, the applicant tendered in the proceedings a folder of material, which contained much of the material referred to above, photographs of the applicant playing the violin and photographs of the applicant carrying out his work in the medical profession. 26I have had regard to that material. 27The applicant gave oral evidence and was cross-examined. The applicant was a poor historian. The applicant failed to recall matters of significance in his personal history - matters that, given the nature of the proceedings and the fact that the burden of proof falls on him, one would expect that he would recall. The applicant was unsure about his dates of travel to Australia, his evidence lacked precision with respect to his attendance at institutes of study for medicine and nursing and he could not recall matters of significance with regard to the trial for the index offences. 28The applicant did not give his evidence in a forthright and straightforward manner, instead providing evasive and non-responsive answers to some of the questions put to him. It could not be suggested that the applicant failed to understand what was being asked of him based on the fact that English is his second language. He did not request an interpreter. He has resided in Australia on and off for many years and on his own evidence he has studied and worked in Australia during that time. 29On occasion the evidence of the applicant in cross-examination was inconsistent with the tendered documentary evidence. It became apparent that the evidence that the applicant had given to the District Court during the proceedings in 1999 with regard to his purported need to live in hiding for a time in the Philippines due to a person wanting to kill him was incorrect. I had cause to remind the applicant on a number of occasions to take care with his evidence to be as accurate as possible. 30It is not the case that I place no weight on the evidence given by the applicant in the proceedings. It is the case however that his credibility is diminished in light of his performance in the witness box under cross-examination. Expert evidence 31Expert reports were relied upon by both the applicant and the respondent. The applicant tendered a report from Dr Bruce Westmore, Forensic Psychiatrist dated 9 December 2010 and a supplementary report of Dr Westmore dated 16 March 2011. 32The applicant further relied upon a report from Dr Jonathan Phillips, Psychiatrist dated 27 June 2011 and a supplementary report from Dr Jonathan Phillips dated 25 October 2011. 33The respondent relied upon a Psychological Risk Assessment report undertaken by Dr Katie Siedler dated 17 February 2011. 34As indicated above, the applicant gave evidence in May of 2011. Late service by the applicant of an expert's report resulted in the hearing listed for 30th June 2011 to be vacated. The proceedings were further adjourned to 28 October 2011 due to the unavailability of both Dr Westmore and Dr Phillips to give evidence before the Tribunal. As it turned out, Dr Westmore was ultimately unavailable for cross-examination on 28 October 2011. Ms Ward, counsel appearing for the respondent, objected to any reliance on Dr Westmore's report on the basis of his unavailability for cross-examination, submitting that it would be unsafe to permit the report of Dr Westmore to be tendered into evidence in the circumstances. Ms. Ward reminded the tribunal that the issue went beyond the matter of weight, submitting that a report of an expert opinion simply cannot be tested under cross-examination and that if it were admitted, no weight should be given to it for that very reason. 35Mr Barco, appearing for the applicant, pressed the admission of Dr Westmore's report, partly on the basis that Dr Westmore had agreed with Dr Phillips' opinion that although the applicant exhibits narcissistic traits, he does not have a narcissistic personality disorder. Further, Mr Barco referred to examples in which an expert doctor is not called for cross-examination and the party seeking to rely on the report accepts that the opinion expressed may not bear the same weight as an available expert doctor who has been provided with all material necessary to express an opinion. Mr Barco referred to Dr Westmore's seniority as an expert and relied upon the fact that Dr Westmore's reports had been reviewed and referenced by Dr Seidler in her expert report. Mr Barco therefore submitted that any questions of unfair disadvantage to the respondent had been somewhat vitiated and that "the lines have been drawn in the sand as to the respective expert's view". 36Mr. Barco agreed that if the report was admitted into evidence, then the weight to be placed on it was a question to be determined by this Tribunal, since the respondent did not have an opportunity to cross-examine the expert. 37In the circumstances, I admitted Dr Westmore's report. The respondent has had access to the report; the respondent's expert has had an opportunity to consider that report and Dr Phillips, who was available to give evidence, had also had an opportunity to consider the report. However, where Dr Westmore's report conflicts with the opinions expressed by Dr Phillips and Dr Seidler, I have determined that no weight be placed on the opinion of Dr Westmore. Dr Westmore's report can therefore be seen as corroborative of Dr Phillip's views in uncontroversial matters. 38Dr Phillip's first report of 27 June 2011 was based on his consultation with the applicant, the consideration of a letter written by the applicant's counsel, consideration of a lever-arch folder of documents and a number of documents provided by the applicant. Dr Phillip's report was based an assumption that the history given by the applicant was true and correct and that the mental state examination of the applicant included in the materials provided was a true and correct reflection of his mental status at the time of the interview. 39Dr Phillips opined that the applicant does not fit a profile of a sexual predator or of a paedophile and he determined the central issue was to predict whether the applicant might offend sexually in the future. 40Dr Phillips opined that on the basis of his examination, the applicant did not fit the clinical profile for a person likely to commit a sexual offence and was an unlikely person to commit a crime against a minor. 41Dr. Phillips considered that: "...that the effluxion of time and the applicant's impeccable records since then makes it hardly likely that he would again commit a crime against a minor, even if he had committed such a crime in the past". He considered that the applicant's risk of committing a crime against a minor would virtually be non-existent. Dr Phillips formed this opinion on the basis of his examination of the applicant together with the applicant's own representations regarding his familial history, his psycho sexual history, his statement that he does not abuse alcohol and/or drugs or suffer from any cognitive disorder, his statement that he does not move in deviant circles and his denial that he has a criminal record (with the exception of the alleged crimes against his ex-partner's daughter). 42Dr Phillips, after taking note of Dr Seidler's report and her conclusion that the applicant exhibited a narcissistic personally disorder, expressed his opinion that there was not adequate clinical evidence to confirm a personality disorder of any type. Dr Phillips indicated that he had always taken a cautious approach in matters where there is evidence that a young person has been abused. He considered that the applicant's case was significantly different to many others that he had considered in the past and he confirmed again that the applicant presented as a person who lacks the clinical profile of a sexually deviant person. Dr Phillips expressed a very low concern about the applicant being a sexually deviant person and being a risk to any identified minor in the future or to children in general. 43In conclusion, Dr Phillips stated that he "cautiously supports VR's application for review". 44Dr Phillips' second report was obtained after it became apparent that he had not been provided with a number of documents, specifically the applicant's further criminal history regarding the charges between 1989 and 1990. After being provided with this additional material, Dr Phillips referred to a paragraph of his first report where the applicant had made representations that he had no other criminal record. Dr Phillips acknowledged that the additional material negated that initial view. Dr Phillips went on to express his opinion that the incidents reflected in the additional material might be best understood as having occurred during a period of heightened emotions within a highly charged domestic situation and he considered it unlikely that the applicant would commit any antisocial act in the future. 45The respondent tendered a report from Dr Katie Seidler, Clinical & Forensic Psychologist, dated 17 February 2011. Dr Seidler interviewed the applicant on 14 February 2011 for a total of three hours, employing a semi-structured interview which included psychometric testing. Dr. Seidler recorded the applicant's familial and developmental history, as well as an educational and occupational history. As a part of this educational and occupational history, Dr Seidler notes that the applicant acknowledged that his work in his capacity as a nurse was interrupted when allegations of misconduct were made against him by several nursing home residents. Dr Seidler noted that the applicant denied the allegations and described, "how one is faced with a lot of dangers when working in such an environment". As such, VR stated to Dr Seidler that the residents had fabricated the allegations against him, attributing to the female complainants a "phobia of men" by way of explanation. 46Dr Phillips, when referring to the materials available to him in the preparation of his expert report, also refers to the order made by the Nurses Tribunal under s 61 of the Nurses Act 1991(now repealed), specifying that the complaints were dismissed. I note that Dr Phillips does not in his report refer to making any enquiry of the applicant as to the circumstances of these allegations. 47Dr Seidler notes that the applicant left his work in Russia as a surgeon and returned to Australia where he has not worked for the last few years. In circumstances where the applicant has pursued a career in medicine his whole life, allowing a two-year break in a highly technical career requiring constant advancement in knowledge and skill was noted by Dr Seidler as being an "odd" course for the applicant to have taken, especially in circumstances where a lengthy break in his career may make it somewhat difficult to return to his alleged position of professional eminence in Russia. 48In cross-examination, Dr Seidler confirmed that she does not have any specific knowledge of the regime of practice of medicine in Russia and when pressed as to her view that the position taken by the applicant was "odd", she clarified her view, stating that the circumstances of the applicant abandoning his profession as a cardiac surgeon for several years would compromise his skill in that profession and provide somewhat of an uncertain outcome. It was in this context that Dr. Seidler considered that the applicant's decision was psychologically "odd". 49The applicant reported to Dr Seidler that"he had never been terminated from his employment; that everyone he has worked for loves him and would want him to come back and work for them again". 50With respect to the medical history provided by the applicant to Dr Seidler, the applicant stated that he "had excellent health all his life and that he was the healthiest person on the planet". He denied any neurological trauma or minor head injury and he claimed that he had "the best brain on this planet". 51Dr. Seidler recorded the psycho-sexual history provided by the applicant in which he described himself as "someone who has many friends all over the world through the various activities that he has engaged in". The applicant claimed that he had an active social life with intelligent, talented and educated people and that he was comfortable socially and had some long-term friendships. He reported to Dr Seidler that he had been involved in a total of five relationships throughout his lifetime and until his present relationship, none were serious. The applicant also reported that he has never lived with a female partner for any period of time. With regard to his relationship with the mother of the victim of the sexual offences in Australia, the applicant reported that she was a "druggist" who could not cope with stress. He stated to Dr Seidler that he wanted to fix her and pay her money so that she could live, commenting that his noble intentions in the relationship ended after the allegations of sexual abuse were made against him in relation to the woman's daughter. 52The applicant stated to Dr Seidler that he was the "desire of many women in Australia after the breakdown of the relationship with this woman". However, he chose to remain single for a period of time. He reported to Dr Seidler that he is currently involved in a relationship with a 32-year-old Russian woman and that they were engaged to be married. She resides in Russia and, whilst the applicant has not seen his fiancée in the two years that he has been back in Australia, he speaks to her every night via Skype. 53The applicant reported to Dr Seidler that his only child, a son born in the relationship with the 'druggist' is 23 years of age and that he has little contact with him. According to the applicant, this man is a drug and alcohol abuser, who has a long history of contact with the criminal justice system. The applicant stated to Dr Seidler that this situation is heartbreaking for him. He described being very disappointed in his son referring to this young man's tattoos, piercings and problem behaviours. 54The applicant denied ever engaging in the use of any illicit drugs on an experimental basis or otherwise. He did not report a history of problem gambling and says that he has never consumed alcohol. The applicant further reported to Dr Seidler that he has never been concerned about his own mental health. The applicant denied any history of anger management and said that whilst he had been diagnosed with depression around the time of his incarceration, that diagnosis was wrong. He stated to Dr Seidler that depression is for "idle" people and he has too much to do with his work and playing nine musical instruments, to be depressed. He denied that he had any symptoms of depression at any time in his life, instead identifying himself as being very upset at being incarcerated because he is a well-respected person, such that "everyone knows him" and "everyone loves him" and that he has "worked everywhere". 55Dr Seidler did not undertake an assessment of the applicant's intellectual functioning. However, she noted that the applicant was clearly a man of above average intelligence and that she observed that the applicant's intellectual functioning is not considered to have been a contributing factor to his offending behaviour and is therefore not relevant to an understanding of any risk he may pose to children and young people. 56The applicant completed a Personality Assessment Inventory ("PAI"). Dr Seidler identifies the PAI as a self-administered and objective measure of both personality and psycho pathological variables. Dr Seidler identified evidence that the applicant responded to the PAI in a manner that sought to present himself in an overly positive light and as a person free of the shortcomings or vulnerabilities that most people would readily acknowledge. She also notes that the scores may suggest that the applicant is reluctant to admit limitations, and is denying emotional stress or psychological flaws. She opined that such denial could possibly result in minimising or denying areas of dysfunctional concern, including criminal behaviour. 57In short, Dr Seidler opined that the applicant's profile on the PAI was indicative of someone who has an inflated and grandiose self-image. 58In the discussion with the applicant of his offending behaviour, Dr Seidler observes the applicant's account of the offences as somewhat sarcastic and dismissive and he denied any involvement in the offences, claiming that the victim fabricated the allegations against him because she hated him; was motivated by financial gain through compensation and wanted the attention of her mother because she was jealous that her mother had become pregnant to the applicant. Dr Seidler reported as follows: "In fact, VR asked me how can I do it (sexually offend) with all these references? Stating that he is someone who can achieve whatever he wants and therefore would have no need to offend. VR then went on to describe how the victim and his then partner's entire family were against him, which he attributed to being a man and somewhat different by virtue of the fact that he was not as 'messed' up as these people. VR also referred to Australian society as having been racist at that time and he claimed that the court was corrupt and that is why he was convicted and sentenced to a period of imprisonment". 59Dr Seidler made enquiries with the applicant as to his criminal history and Dr Seidler reported that the applicant denied being charged with any offences other than the sexual assaults that gave rise to his status as a prohibited person. Dr. Seidler then raised with him his criminal history and Dr Seidler reports that he denied all of the offences for which he has been convicted and made reference to his ex-partner being an alcoholic and a drug addict who complained to police on many occasions during their relationship of alleging fabricated wrongdoing on the applicant's behalf. The applicant claimed to Dr Seidler that he had never offended against this woman and that all he was attempting to do in the relationship was to support her. 60Dr Seidler undertook a risk assessment by the use of actuarial measures to assess the risk of an offender and secondly the identification and assessment of dynamic or changeable factors that are involved in the individual's sexual offending behaviour. After taking into account both the static and dynamic risk factors identified in her report, Dr Seidler considered the applicant to pose a low to moderate risk of re-offending across both the violent and sexual domains. She stated that he does not impress as a sexually deviant individual per se but suggests that the most salient risk in this case pertains to his personality structure and his interpersonal functioning. Dr Seidler stated that the applicant is likely to be someone who sees others as an extension of himself, their purpose being to satisfy his needs. As such, he is likely to have difficulties appreciating empathy for others and he would consequently have difficulties coping with situations of interpersonal conflict, especially when the needs or wants of others are inconsistent with his own. 61Dr Seidler noted that it is in these situations that the risk posed by the applicant would most likely be acute and that other people, especially females who are in a position of vulnerability to the applicant in terms of their age, position and power, would be most at risk. Dr Seidler indicated that such persons would also include children and young people and she anticipated that the applicant's risk to these categories would not be contained to sexually inappropriate behaviours, but would also conduct involving violence, aggression or general manipulation and coercion. Dr Seidler reviewed the accompanying documentation and thereafter provided an opinion addressing the matters raised in her terms of reference before going on to make her recommendations. 62Dr Seidler opined that the applicant would meet the criteria for narcissistic personality disorder and she believed that this is the most salient risk in terms of future inappropriate or abusive behaviours. She assessed the applicant as posing a low to moderate risk, across the spectrum of age and inappropriate/illegal behaviours, including aggressive or sexually abusive conduct. She further stated that: "... relating this specifically to the applicant's history of criminal and inappropriate conduct is somewhat difficult given his denial of all allegations levelled against him. However, it is my opinion that these acts probably occurred when VR felt belittled, disrespected or unappreciated within situations of interpersonal conflict or distress, when he perceived that the needs or rights of others conflicted with his own and he wanted to meet his needs as a priority". 63In terms of recommendations, Dr Seidler stated that she "would be uncomfortable recommending that the applicant's status as a prohibited person be lifted at this time". Dr Seidler's recommendation continues: "Although he denies any misconduct on his part in any domain, VR has been convicted of child sex offences and violent offensives against his previous partner, in addition to which allegations were made against him with the professional body in relation to his practice as a nurse. That is, in spite of his protestation of innocence and his reported success, talent and stability, there is evidence of VR engaging in a number of inappropriate behaviours across several domains and this is understood to have its foundation in his disordered personality. In the absence of VR being responsible and accountable for these aforementioned inappropriate behaviours and having addressed the antecedentsof such behaviours through specialist treatment, I do not consider that he has the awareness or skills to manage himself appropriately in the future". 64Dr Seidler opined that the applicant presents a risk which, based on his current presentation and assessment, cannot be managed safely without strict supervision and structure in his place of work. She identified that whilst intensive psychological treatment would assist the applicant in ameliorating these risks, his presentation and personality structure make it apparent that the applicant does not have the insight to recognise his own weaknesses and therefore be open to treatment, in order to make the necessary changes. 65When this matter proceeded to hearing on 28 October 2011, it was proposed that all of the experts give concurrent evidence. Due to Dr Westmore's unavailablility, as noted above, Dr Phillips and Dr Seidler gave concurrent evidence, allowing both counsel for the applicant and the respondent the opportunity to examine and cross-examine the respective experts. 66One area of departure between Dr Phillips and Dr Seidler was the diagnosis of the applicant as suffering a 'narcissistic personality disorder'. Dr Phillips noted that he was not able to come to that diagnosis himself. 67Under cross-examination in relation to her diagnosis, Dr Seidler identified the DSM IV diagnostic criteria for narcissistic personality disorder, noting numerous examples of the applicant having inflated his personal history. She referred to the applicant's "grandiose, self-entitled and glib" presentation of himself, an observation noted in her report, that he was "...the best person in the world. I can do anything. My brain is amazing". Dr Seidler noted that this kind of human interaction is abnormal. 68Dr Seidler further noted that other criteria for the narcissistic personality disorder include a lack of empathy for others and a history of superficial relationships, factors which are readily identified in the applicant. She therefore arrives at her clinical assessment of the applicant on her consideration of his overall presentation, together with his historical antecedents, criminal antecedents, self-description and personality testing. 69Dr Phillips indicated that his methodology in assessing the application differed from that used by Dr Seidler. He stated that although they both made use of the applicant's clinical history, their respective fields of expertise in psychiatry and psychology meant that he was not skilled and trained to use the particular sexual offence assessment instruments employed by Dr Seidler. 70Dr Phillips confirmed that from a psychiatric point of view, "the longer a person remains offence free, the lower the risk and so the person does not offend." He continued: "Let's pick up the figures, after five years - well that's a good start, after ten years its looking better, after twenty years its looking much better and after twenty five years, which is a substantial proportion of life and particularly for a man in his sixties, I think the clinical risk of reoffending is actually very low". Dr Phillips identified the discrepancy in view between himself and Dr Seidler on this issue because of the different methodologies used. 71Both Dr Phillips and Dr Seidler agreed that age was another factor to be taken into account, such that a person's hormonal drive reduces over time. Dr Seidler noted that the applicant reported to her that he maintained a very high sex drive for man of his age and that he has a desire to have sex daily. Dr Seidler noted this as being unusual for a man of the applicant's age who would ordinarily be experiencing a reduction in hormonal drive. 72In cross-examination, Dr Phillips confirmed that the applicant appeared to be focused on his professional career and that this factor, of itself, would reduce the risk of the applicant re-offending. Dr Phillips gave evidence based on his experience working with offenders over a period of many years and the literature he has studied on the subject, that if one is focused, involved and busy, the risk of reoffending is probably less than if one is unfocused and in a situation in which the mind can 'sit' on a particular deviance. 73In giving her evidence, Dr Seidler appeared to adopt that position somewhat, noting that it did not appear that a failure to retain goals or maintain a structured lifestyle, accompanied by the frustration and dissatisfaction that would have caused, appeared to have been present or necessarily operating on the applicant at the time of the offences. 74Dr Seidler confirmed again a considerable issue with regard to the applicant is the problem of future risk management, based on the applicant's history. She stated as follows: "So if we are saying, Ok we are making some assumptions about VR's response to a very difficult relationship situation that occurred around the time of his offending, in order for me to feel comfortable making recommendations before the tribunal or allowing an exemption, I have to be clear that VR understands why he did what he did and he has safety strategies in place, that should he experience a future relationship breakdown, that he would respond differently. And I think the difficulty with denial of the offending is that we can't get that information which makes the future prediction of that risk quite difficulty, which is different from risk assessment". 75Dr Seidler identified the importance of taking a history and self-report from the applicant. First to establish the context for the onset of particular disorders or disturbances in behaviour that might be relevant to the particular question, secondly to provide a context to interpret the additional information that might be given and thirdly to provide a context for the interpretation of any test results which would include psychometric personality measures, risk assessments and so on. 76As regards the import of taking a history and self report, Dr Phillips agreed with Dr Seidler, with the exception of his observations as to the different methodologies used in their different fields of expertise, as noted above. Dr Phillips confirmed that there were matters of significance unavailable to him when he prepared his first report, thereby prompting his second report. Although Dr Phillips stated that he did not have a sense of the applicant having been "artful or deceitful", he also said that it would have been advantageous to have been given a history of the offences of violence committed by the applicant against his then-partner at the time of the applicant's consultation. Dr Phillips stated that he would have been interested in exploring these antecedents and that having that information would have assisted him in forming the opinions he ultimately expressed in his report. 77Dr Phillips agreed that had he had been given the material specifically relating to the offences of violence, he would then have had an opportunity to explore with the applicant issues of impulsivity, anger management and compulsive conduct. Dr Phillips was interested in the fact that there existed discrepancies between the fact sheet relating to the driving incident, as well as the further discrepancy between applicant's evidence denying any suicidal ideation and the applicant's past diagnosis of depression. 78Both Dr Phillips and Dr Seidler agreed that the applicant does not fit the profile of sexual predator or of a paedophile. Dr Seidler, however, stated that such an assessment by no means leads to a determination that the applicant does not pose a risk to children or young people sexually. 79When it was put to Dr Seidler that her ultimate opinion depended upon an acceptance of a diagnosis of narcissistic personality disorder, she did not agree, stating: "The diagnosis of narcissistic personality disorder does not form a part of the applicant's risk assessment; the narcissistic personality disorder provides a context or an umbrella within which to understand his presentation and reported history". 80Dr Seidler continued: "That the crucial issue in this particular case [inaudible] to risk but the primary reason for my opinion is a risk assessment because of the prospective nature of this particular decision that the tribunal needs to make... If we provide somebody with an exception under the Act it means that they have enough skill to manage themselves safely within the community and in capacity with children and young people... The difficulty in this situation is that because of VR's position, we cannot be confident that he has the skills or insight to manage those risks in the future and the narcissistic personalities which is part of that, but its certainly not the most significant issue on which my concerns rest". 81Dr Phillips conceded that an experienced clinical forensic psychologist and an experienced forensic psychiatrist carry out their clinical assessments in a very similar manner. He opined that there were many factors, which made the doctor believe that on the assumptions that the offences did occur, that they would not happen again. He opined that the applicant did not have a psychopathic or any social personality disorder or narcissistic personality disorder and he was of the view that he would not offend again and imposes no risk to young people. 82Having expressed that opinion, Dr Phillips referred to his association with the medical board, stating that: "One has to concern oneself for the safety of the public and normally the medical board, in registering a person who has a history of this type, would register the person with conditions and the person would be placed in a medical board or a medical council programme where he would be overviewed on a regular basis by a psychiatrist appointed by the council, for that purpose. He would, if he were to be registered, I believe need to be on conditions and the conditions would be for a review of that type and that is only because the medical boards prime function is for protection of the public". 83Dr Phillips continued: "The conditions would be that he should enter the appropriate programme as directed by the medical council because there are several councils and will need to be reviewed by a council appointed psychiatrist every six months until such time as that psychiatrist felt comfortable to instruct the council that no further reviews were necessary. It's a normal process. The council mandates that the council thinks it proper and it would not be unreasonable in the first instance to state that VR, if he were to be registered, would have the condition whereby he was not to access persons under 18 years of age. The two principal conditions would be a review by a council appointed psychiatrist and not to attend persons under 18 years of age." 84In response to a question by the tribunal whether in the circumstances of the applicant and having regard to the material before him, would such conditions be appropriate, Dr Phillips stated: "I think calling on the many doctors that I have seen over the years and the problems they've had and noting the protection of the public is paramount, I would have thought they are completely appropriate conditions". 85Dr Seidler considered that the only safe way to manage risk in this situation, given the lack of insight and the lack of risk management awareness, is for VR to be supervised constantly within the workplace, a condition, which she considered, was unachievable. 86Dr Seidler went on to consider another more feasible option being a condition that the applicant not work with children and young people, assuming that such an option was an achievable one. Dr Westmore's report 87In Dr Westmore's first report of 9 December 2010, he identified that in assessing risk, the individual's own account of the offence is important and that the admission of guilt and expressions of remorse need to be taken into account. The individual's level of insight into the wrongness of the offending conduct and the impact that the conduct may have had on the victim, is also relevant. 88Dr Westmore indicated that the positive prognostic indicator with respect to the applicant's risk assessment was the length of time since the offending behaviour and the applicant's general clinical presentation. 89Dr Westmore considered that the risk of reoffending in a sexual way or indeed in any other forensic way, was probably low to non-existent. In his supplementary report prepared on the 16 March 2011, following the provision of a large bundle of documents, including Dr Seidler's report and various documents relating to the applicant's earlier assault convictions, Dr Westmore altered his opinion with respect to the risk posed by the applicant, elevating the risk status to low rather than non-existent and adding that the applicant does not meet any diagnostic criteria for paedophilia. Dr Westmore urged caution with regard to expressing definitive opinions about an individual's personality traits after having only a limited consultation period with the individual. This was in reference to the assessment of narcissistic personality disorder made by Dr Seidler. Risk indicia - s 33J(3) factors 90I now turn to a consideration of the s 33J(3) factors. Sections 33J(3)(a) and (b) deal with the seriousness of the offence with respect to which the applicant is a prohibited person and the period of time since that offence was committed. 91There can be no doubt that the index offences which form the basis of the applicant's status as a prohibited person are serious offences. Involving as they do a minor who, at the time of the offences, was in the care of the applicant, together with evidence of threats of violence made to the victim to procure her silence, it cannot be said that the offences were by their nature trivial. The passage of time since the commission of the offences should be taken into account by this Tribunal when making its assessment. I note that it has been some 21 years since the offences for which the applicant was ultimately convicted occurred. The applicant has resided in other jurisdictions since being released from imprisonment in Australia, residing overseas until around 2 years ago. 92Section 33J(3)(c) deals with the age of the person at the time that offence was committed. I note that the applicant was in his forties at the time of the commission of the index offences. 93Section 33J(3)(d) deals with the age of each victim of the offences at the time they were committed. As already noted, the victim was 9 and 10 years old when the offences were committed. 94Section 33J(3)(e) deals with the difference in age between the prohibited person and each such victim. There was a considerable difference in age between the applicant and the victim of the index offences, being at least 30 years between them. 95Section 33J(3)(f) deals with whether the person knew or could reasonably have known that the victim was a child. There is no issue that the applicant knew the victim was a child at the time of the offences. 96Section 33J(3)(g) deals with the prohibited person's present age. As already noted, the applicant is presently in his early sixties. I note the expert evidence of Dr Seidler as to the expected diminishment of sexual drive in male persons of the applicant's age. However, I contrast this with the applicant's own evidence as to the strength of his sexual drive, which he says he has maintained throughout his lifetime. 97Section 33J(3)(h) deals with the seriousness of the prohibited person's total criminal record. Evidence was before this Tribunal that, in addition to the index offences for which the applicant was convicted, he was also convicted of violence offences against the mother of the child victim. Rather than indicate an acceptance of wrongdoing with regard to these convictions, it was the consistent evidence of the applicant to deny that these offences had, in fact, been committed by him. I also note the denials of the applicant with regard to the index offences themselves. 98Section 33J(3)(i) deals with such other matters as the Commission or Tribunal considers. I note in relation to this section that I do not propose to have regard to the facts and circumstances of the proceedings involving the applicant in the Nurses Tribunal. This is because the complaints were made by persons who ultimately did not give evidence before the Tribunal and as such, no findings of fact had been made with regard to the purported conduct of the applicant. Further, those complaints, such as they are, are not, in my view, relevant to the present proceedings. 99I do, however, have regard to the applicant's own account of himself, his demeanour when giving oral evidence before this tribunal, and his persistent denials of any wrongdoing whatsoever. Those factors have a significant bearing on the applicant's ability to discharge the legislative onus placed upon him with regard to the s 33J(2) presumption. Findings and Conclusions 100As mentioned at the commencement of these reasons, it falls to VR to rebut the statutory presumption that the applicant "poses a risk to the safety of children": ss 33H(7), 33J(1) and 33J(2) of the Commission Act. 101The index offence is gravely serious, involving as it does a breach of trust, with features of coercion and a physical threat made to the child victim who was in the applicant's care at the time of the offence. 102Although I consider the passage of time to be a matter of some persuasion, it being some 21 years since the commission of the sexual assault offences, other factors must also be taken into account when assessing the applicant's prospects of future risk to children. 103Whilst a criminal history check from Belarus offered by the applicant showed no criminal record in that jurisdiction, he has nevertheless spent a considerable period outside Australia. No evidence has been supplied as to those matters and I make no finding on those issues. However I note, as I have noted earlier, the inconsistencies in the applicant's evidence, the fact that he has shown himself to be a poor historian, has denied some of his criminal antecedents and exonerated himself of any wrongdoing with regard to the index offences. 104The index offences are not the only criminal antecedents on the applicant's record - the Tribunal notes that, contrary to the history supplied by the applicant, other matters involving serious offences were committed by the applicant in the context of his difficult relationship with the mother of the victim. It is not the fact of the applicant's denial of the index offences that gives rise to this Tribunal's concern as to the applicant's future likely conduct, but the fact that the applicant has consistently denied his guilt in relation to any of the offences, and the overwhelming minimisation his own role in what was clearly a highly charged domestic situation that has the most bearing on the risk he may pose in the future. The other offences indicated a recklessness and impulsivity when it comes to conduct involving violence on occasions of personal stress experienced by the applicant. 105The most powerful evidence before the Tribunal consists of the observations of the applicant recorded in detail by Dr Seidler and which ultimately underpins her opinion as to the risk posed by the applicant in terms of his personality structure and interpersonal functioning: "... in spite of his protestations of innocence and his reported success, talent and stability, there is evidence of VR engaging in a number of inappropriate behaviours across several domains and this is understood to have its foundation in his disordered personality. In the absence of VR being responsible and accountable for these....I do not consider that he was the awareness or skills to manage himself appropriately." 106These factors, coupled with the applicant's poor presentation in the witness box (to which I have referred above) tend to lend support to the opinion expressed by Dr Seidler. I therefore place greater weight on Dr Seidler's assessment of the applicant, having considered the whole of the evidence before this Tribunal. 107I pause here to note the opinion of the applicant's own expert, Dr Phillips, stated in the following terms: "I do not think VR is likely to pose a risk to any minor in the future" and "I cautiously support VR's application for review". I also note Dr Phillips' oral evidence in which he recommends that conditions be placed on the applicant in future. In the absence of any persuasive evidence from the applicant himself, the applicant's expert does not provide this Tribunal with a sufficient degree of persuasion such as to discharge the serious legislative onus provided in s 33J(2) of the Commission Act. 108In the circumstances, I am not satisfied that VR has successfully rebutted the presumption of risk to the safety of children under s 33J(2). Furthermore, having regard to the paramount consideration for the safety and welfare of children provided in s 32 of the Commission Act, I do not consider that the applicant has rebutted the presumption of risk so as to satisfy me that the paramount consideration under the Act could or would be given its true effect if the applicant were to be granted. 109Having failed to satisfy the Tribunal that that he does not pose a risk to the safety of children, it is necessary for me to consider whether conditions can and should be imposed on the applicant under s 33I(6) in order to reduce any future risk he might present to children in the future. 110In light of the evidence, I have formed the view that conditions could be imposed to reduce the risk that the applicant might present to children. I am aware that the imposition of conditions of supervision may mean he is restricted in the range of areas of employment in his chosen profession. The applicant should be aware of the operation of s 33I(5) of the Commission Act regarding the availability of a further order after a period of 5 years. 111Accordingly, I make the following orders:- (a)It is declared that Division 2 of Part 7 of the Commission for Children and Young People Act 1998, does not apply to VR in respect to the offence of indecent assault (s 61L Crimes Act 1900) and two counts of indecent assault person under 16 under authority (s 61E(1A) Crimes Act) subject to the following conditions: (i)the applicant shall not undertake employment involving children under the age of 18 years; and (ii)the applicant shall give a copy of this order to the Chief Executive Office or Clinical Director of any hospital, nursing home or medical practice in which e works. (iii)the applicant shall, should he make application to the Australian Medical Council for registration as a medical practitioner, provide a copy of these reasons to the Australia Medical Council. (iv)the Registrar is requested to provide a copy of these orders to the Commissioner of Police, New South Wales Police. ********** 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. Decision last updated: 04 May 2012