Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BJR v Children's Guardian [2015] NSWCATAD 84 Hearing dates: 29 August 201420 February 2015 Decision date: 24 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: S Higgins, Principal Member Decision: The decision of the respondent is affirmed. Catchwords: ADMINISTRATIVE LAW – administrative review – respondent determined to refuse the applicant's application for a working with children check clearance – applicant subject to an assessment requirement by the respondent due to having been indicted at trial on a charge of murder but on establishing diminished responsibility the Court convicted him in the alternative with the offence of manslaughter – whether the respondent's decision that the applicant poses a risk to the safety of children by reason of his conviction is the correct and preferred decision Legislation Cited: Administrative Decisions Review Act 1997 Child Protection (Working with Children) Act 2012 Civil and Administrative Tribunal Act 2013 Child Protection (Prohibited Employment) Act 1998 Crimes Act 1900 Criminal Procedure Act 1986 Cases Cited: BFX v Children's Guardian [2014] NSWCATAD 115 at [29] Commission for Children and Young People v V [2002] NSWSC 949 Commissioner for Children and Young People v FZ [2011] NSWCA 11 YG and GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: BJR (Applicant) Children's Guardian (Respondent) Representation: Counsel: V Hartstein (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 1410317 Publication restriction: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcasted without the leave of the Tribunal. reasons for decision 1. The applicant seeks review of a decision of the respondent to refuse his application for a working with children check clearance under the Child Protection (Working with Children Check) 2012 (the Act). The applicant made the application for clearance at the request if his employer, as he is an educator and works for an on-line educator service provider. His students are mainly adults, however he does teach a number of students who are under the age of 18 years. 2. The applicant made his application for a clearance in July 2013. 3. The respondent was required to conduct a risk assessment of the applicant as he had been charged, in May 1991, of the murder of his fiancé (see section 14 of the Act and clause 1(b) of Schedule 1 of the Act). At trial, in 1992, the applicant successfully pleaded a defence of diminished responsibility and then pleaded guilty to the charge of manslaughter. The applicant was sentenced to a minimum term of ten years imprisonment, with an additional three years and four months. 4. On 13 June 2014, having completed a risk assessment under section 15 of the Act, the respondent, was satisfied the applicant poses a risk to children and refused his application for a clearance (see subsection 18(2) of the Act). 5. On 23 June 2014, the applicant made this application for external review of the respondent's decision to refuse him a working with children check clearance: see section 27 of the Act. 6. On 7 July 2014, the Tribunal granted the applicant a stay of the decision of the respondent pending the determination of this application (see subsection 30(2) of the Act). The stay was granted on the condition the applicant did not seek any child related work other than what he had been contracted to do immediately prior to being notified of the respondent's decision. 7. The applicant's application was heard on 29 August 2014. The applicant is legally qualified, but has not worked as a lawyer since his incarceration in 1992. He has at all times represented himself in these proceedings. 8. At the conclusion of the hearing I reserved my decision. 9. On 11 December 2014, at my direction, the Registrar wrote to the parties giving the applicant an opportunity to file and serve a psychological risk assessment should he choose to do so. This was an issue raised by counsel for the respondent in her closing submissions. There was some debate as to whether the applicant had, or had not been informed that reports of this nature often assist the respondent in her section 15 risk assessments and hence the Tribunal on review. In any event, having considered the matter, I formed the view the applicant should be given the opportunity to obtain such a report if he chose to do so. In the event he did so choose, I made orders for the filing and serving of that report and I listed the matter for further hearing on 20 February 2015. 10. The applicant did file and serve a psychological risk assessment report by Dr Christopher Lennings, dated 23 January 2015. The applicant's application came before me for a short hearing, on 20 February 2015, where Dr Lennings gave oral evidence and was cross-examined by counsel for the respondent. 11. At the conclusion of this hearing I again reserved my decision and at the request of counsel for the respondent, I made orders for the filing and serving of further short written submissions by the parties. The Role of the Tribunal 1. There is no dispute the Tribunal has jurisdiction to hear and determine the applicant's application: see section 27 of the Act, section 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decision Review Act 1997. 2. That is, the Tribunal sits in the shoes of the decision maker and decides the matter afresh, as at the date of hearing: see YG and GG v Minister for Community Services [2002] NSWCA 247, at [25]. 3. In determining this application, the Tribunal has power to make the following orders: 63 Determination of administrative review by Tribunal (1) … (2) … (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. I have now considered all the material before the Tribunal and for the reasons set out below I have found that the decision of the respondent is the correct and preferred decision and should be affirmed. Child Protection (Working with Children) Act 1. The Child Protection (Working with Children) Act 2012 (the Act) came into force, on 15 June 2013. 2. The objects of the Act are set out in section 3 as follows: 3 Object of Act The object of this Act is to protect children: (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. 1. Section 4 of the Act provides that the' safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration' in the operation of the Act. 2. The word 'children' is defined in subsection 5(1) to mean persons under the age of 18 years. Consequently the word 'child' has the same meaning. 3. Subsection 8(1) of the Act prohibits a person from engaging in 'child-related work', unless (a) the person holds the relevant working with children check clearance, or (b) there is a current application, by the person, to the respondent for the relevant working with children check clearance. This prohibition is an offence, carrying a maximum penalty of 100 penalty units, or imprisonment for two years, or both. 4. Subsection 9(1) contains a similar prohibition on an employer, employing or continuing to employ a person in child related work where the employer knows or has reasonable cause to believe that the person is not the holder of a relevant working with children check clearance, or there is no current application by the person for such a clearance. 5. Section 6 of the Act defines when a person is engaged in 'child-related work' for the purpose of the Act. That section relevantly provides: 6 Child-related work (1) A worker is engaged in child-related work for the purposes of this Act if: (a) the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with children, or (b) the worker is engaged in work in a child-related role referred to in subsection (3). (2) The work referred to is work for, or in connection with, any of the following that is declared by the regulations to be child-related work: (a) … (b) … … (g) education schools or other educational institutions (other than universities) and private coaching or tuition of children, (h) … … (3) … (4) In this section: direct contact with children means: (a) physical contact, or (b) face to face contact. 1. Section 7 makes provision for an employer or proposed employer to issue a notice to a worker requiring the worker to obtain a working with children check clearance. That section is in the following terms: 7 Additional child-related work (1) A worker is taken to be engaged in child-related work if the worker is engaged, or proposes to engage, in work (other than as a volunteer) that is the subject of a requirement under this section. (2) The employer or proposed employer of a worker engaged in work for which a working with children check clearance is not required that involves access to confidential records or information about children may, by notice in writing to the worker, require the worker to obtain a clearance for the purpose of engaging in the work concerned. (3) The employer, or proposed employer, may at any time, by notice in writing given to the worker, revoke a requirement made under this section. (4) An employer may make or revoke a requirement under this section only with the approval of the Children's Guardian. 1. I understand the applicant, who does not have any direct contact with children, was required to obtain a working with children check clearance by his employer. Whether the applicant is working in 'child-related' work is not a matter for determination by the Tribunal. However, where a clearance is granted to an applicant, that clearance enables the applicant to engage in any child related-work. 2. Section 18 sets out how the respondent is to determine an application for a clearance made under section 13. 3. Where the person seeking a clearance has a prior conviction (defined to include a finding of guilt without a conviction being entered) for an offence listed in Schedule 2 of the Act, or that person has been charged with such an offence and the proceedings in regard thereto are pending, subsection 18(1) provides that this person is a 'disqualified person' and the respondent must refuse that persons' application for a clearance. Such persons have a right to make an application to the Tribunal for an enabling order: see section 28 of the Act. Where an application of this kind is made, subsection 28(7) of the Act places an onus on the applicant to rebut the statutory presumption that he/she poses a risk to the safety of children by reason of his/her Schedule 2 conviction. 4. The offence of which the applicant was convicted does not fall within Schedule 2. Hence he is not a 'disqualified person'. 5. Where a person seeking a clearance is not a 'disqualified person', the 'risk assessment' provisions in Division 3 of Part 2 of the Act (i.e. sections 14 to 17) may nevertheless apply. 6. Section 14 of the Act provides that a person is subject to 'an assessment requirement' under the Act if any of the matters specified in Schedule 1 apply to the person. These matters are referred to as 'assessment requirement triggers' and include proceedings for offences listed in Schedule 2 that were commenced regardless of their outcome, findings of misconduct involving children and notifications by the Ombudsman. As I have already noted, the applicant was charged and then indicted with the offence of murder, which is a specified offence in clause 1(a) of Schedule 2 of the Act. Proceedings were commenced against the applicant in regard to that offence. However, he successfully established the defence of diminished responsibility. Accordingly, as proceedings had been commenced against the applicant for the offence of murder, it is an offence falling under clause 1(b) of Schedule 1 of the Act. 7. Subsection 15(4) sets out the matters the respondent may take into account when undertaking a risk assessment. 8. Where the respondent is required, or decides to undertake a risk assessment, section 17 enables the respondent to impose an interim bar on the person being able to work with children. That interim bar operates to prevent the person from working in child related employment pending the determination of his/her application for a clearance. The respondent did not place an interim bar on the applicant pending the determination of his application for a clearance. 9. As I have noted, section 18 of the Act sets out how an application for clearance is to be determined. Subsection 18(1) applies to disqualified persons (see paragraph 18 above). 10. Subsections 18(2) and (3) apply to all other applications. These subsections provide: 18 Determination of applications for clearances (1) … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. 1. In this case the respondent, having conducted a risk assessment under sections 14 and 15, was satisfied that the applicant poses a risk to the safety of children. 2. Section 27 of the Act makes provision for administrative review, by the Tribunal, of decisions of the Children's Guardian to (a) refuse a working with children check clearance, (b) to cancel a person's clearance and (c) impose an interim bar on a person's clearance. That section relevantly provides: 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) … (3) … (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section. 1. Subsection 30(1) sets out the factors the Tribunal is to have regard to when reviewing a decision of the respondent pursuant to an applicant made under subsection 27(1) of the Act. Subsection 30(1) is in similar terms to subsection 15(1) of the Act and relevantly provides: 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under this Part: (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary. Evidence before the Tribunal 1. In support of his application the applicant relied on the following material: a statutory declaration made by the applicant on or about 4 July 2014, a statement of the applicant's wife, dated 2 August 2014, a reference from the applicant's sister-in-law who has known the applicant since the 1980's, dated 31 July 2014, a reference from a friend of the applicant who has known him for 40 years, dated 31 July 2014, a reference from a brother-in-law of the applicant, dated 19 February 2014, a reference from the other brother-in-law of the applicant, dated 27 July 2014, and a small bundle of documents that included reports and evidence of psychologists and psychiatrists who had assessed the applicant and a reference from his employer. 1. The respondent tendered into evidence two small bundles of documents that contained copies of documents that had been provided or produced in the course of enquires made by the office of the respondent in regard to the applicant's 1991 trigger offence and his period of incarceration following his 1992 conviction. Included in these documents were the Police Information Report, a statement of the arresting Police Officer, the judgement and sentencing remarks of the Trial Judge, psychological and psychiatric reports of Dr Barclay and Dr Davies and a number of pre-release reports. Consideration 1. The jurisdiction of the Tribunal is protective and not punitive in nature; see Commissioner for Children and Young People v FZ [2011] NSWCA 11 per Young JA at [61]. That is, the object of the Act is not to impose additional punishment on a person. The object is to protect children from child abuse by preventing those persons who are either presumed or found to pose a risk to the safety of children from engaging in child-related work. 2. The meaning of the word 'risk' was considered, by his Honour Young CJ in Eq, in Commission for Children and Young People v V [2002] NSWSC 949. At [42], His Honour made the following remarks in regard to the word 'risk' as it appeared in the former Child Protection (Prohibited Employment) Act 1998: What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children". 1. It is accepted that a similar approach should be used to the meaning of the word 'risk' as it appears in the current Act. 2. However, as pointed out by Senior Member M Anderson, in BFX v Children's Guardian [2014] NSWCATAD 115 at [29], by reason of section 4 of the Act it is the safety, welfare and well-being of children and, in particular, protecting children from child abuse, which is the paramount consideration when making any decisions under the Act. And 'child abuse', while not defined in the Act would include matters such as 'physical, emotional or sexual abuse, neglect, or any combination of these, and includes exposure to harm caused by or being subjected to family violence.' 3. In these proceedings, the main issue is whether, on the material before the Tribunal and the applicable law, the Tribunal can be satisfied that the applicant poses a risk to the safety of children. There is no statutory presumption that he does pose such a risk, the question is whether having regard to the subsection 30(1) factors as they apply to the applicant's circumstances, such a finding can be made. Set out below is the evidence and my findings in this regard. Seriousness of the offence that caused the refusal of the applicant's application for a clearance 1. The applicant was arrested and charged with the murder of his then fiancé, in late May 1991. He was subsequently indicted, on 28 September 1992, on a charge of murder. The applicant pleaded not guilty to the charge of murder but pleaded guilty to manslaughter on the grounds of diminished responsibility. That plea was not accepted by the Crown in full satisfaction of the indictment. As a consequence, pursuant to section 32 of the Criminal Procedure Act 1986, the applicant, on the advice of his barrister, elected to be tried by a Judge alone. The prosecutor consented to that election. On 28 September 1992, the Trial Judge of the Supreme Court of NSW proceeded to try the applicant for murder. However, the only issue at trial was whether the Court could be satisfied that the applicant had established diminished responsibility pursuant to section 23A of the Crimes Act 1900. If that defence was made out, section 23A operated so that the applicant could not be convicted of murder, but would, in the alternative, be convicted of manslaughter. 2. On 29 September 1992, the Trial Judge found that the applicant had established, on the balance of probabilities, the defence of diminished responsibility. At pages 10 and 11 of the reasons for decision, His Honour made the following remarks after having considered the evidence and the requirements of section 23A, as it applied at that time: 'The facts which have led me to conclude that in the absence of the defence of diminished responsibility that the accused is guilty of murder are consistent with a homicide motivated by jealousy or rage. The manner of his coming to [place where the victim was residing], lying in wait until his victim was alone, his forced entry to the premises and the savagery of his attack upon the victim are indicia which point to such a finding. …. My unease as to the accused's account, whether given in the statement from the doc or to psychiatrists or to the police is such that if the onus upon the accused to establish his defence was the criminal onus I would certainly have a very strong doubt and would dismiss the defence accordingly. However, the test is not whether I accept the material beyond reasonable doubt but, having reviewed all of the evidence as to whether or not the accused has established his defence, on a mere balance of probabilities. Despite the doubts which I hold, I am persuaded, particularly because of the quality of the evidence given by three eminent psychiatrists who have been called, which was subject to a rigorous testing in cross-examination by the Crown that the accused has, in fact, established the defence of diminished responsibility to the requisite degree. In particular, I find that the accused through the evidence of the psychiatrist has made out a case that he was suffering from a condition of abnormality of mind of inherit cause, namely depressive illness, and that so impaired his mental responsibility to the reckless degree at the time when these dreadful events took place. This being so I find that the accused is guilty not of murder but of manslaughter.' 1. That is, His Honour was satisfied, that the applicant had established, on the balance of probabilities, that at the time the offence was committed; (a) the applicant's state of mind was 'abnormal', (b) the abnormality arose from a condition of 'inherent causes' (i.e. depressive mental illness) and (c) his abnormality of mind substantially impaired his mental responsibility for his acts and omissions (see pages 6 and 7 of the reasons for decision which sets out the elements of the section 23A defence that needed to be established by the applicant). 2. The causes of the applicant's depressive illness were identified by the psychiatrists as being: (a) the stormy relationship which existed between the applicant and the victim, (b) the applicant's mother being diagnosed with cancer in late 1990 and her subsequent passing in April 1991 and (c) the applicant's inability to find suitable employment from the end of 1990. 3. At pages 2 to 4 of the reasons for decision, His Honour set out his findings in regard to the events of May 1991, when the applicant killed his fiancé. He said: 'On the morning of [day] May 1991 the deceased was residing in the home of her brother and sister-in-law at [name]. In the recent past she had resided at [name 2]. From early 1990 until April 1991 the accused had resided with the deceased at the [name 2] address, with a number of breaks in that domestic setting which reflected the state of the relationship between the pair. Indeed, the relationship had been a stormy one. By letter bearing date [day] February 1990, the accused wrote to the deceased setting out in voluminous detail his powerful objections to her flirting with other men. The stormy nature of their continued relationship is further reflected in a letter which the deceased caused her solicitors to send to the accused in November of 1990. In that letter, allegations were made that the accused had assaulted the deceased and had threatened to rape her. The letter requested the accused to leave the [name 2] premises under threat of legal action. Despite this action taken by the deceased, it appears that the relationship was re-established and the pair continued to live together until April of 1991. At that time the accused had found a diary belonging to the deceased in which he found material which led him to the conclusion that the deceased was having an affair with another man. This in turn led to an argument which resulted in the deceased being temporarily imprisoned by the accused. The deceased then decided to terminate the relationship. Her brother took steps to have the accused leave the [name 2] premises. The deceased then went to England, apparently on business for about a month. There, in response to a telephone call made to her by the accused, she wrote a letter in which she made clear her desire to terminate the relationship once and for all. On her return to Australia the deceased, as I have already noted, took up residence in her brother's home. … On the evening of [day] May 1991 the accused travelled to [address of the victim's brother] by car. On the morning of 22 May the deceased's brother and sister-in-law left home to go to work, leaving the deceased alone in the house. It was her intention to go to work herself later in the morning. Exactly what then happened is, in my view, a matter of conjecture. The accused has given an account on a number of occasions including his statement from the dock today that he saw the deceased outside the house. She then retreated inside locking the front door and an iron security grill door, the grill door being in evidence. The accused says that what he wished to do was to read her a letter explaining why it was that he had intended to commit suicide and expressing his fond feelings for her. In any event, the accused then gained entry to the premises by smashing a window. Prior to that he shattered the iron grill door in an effort to gain entry. It is the accused's claim that the deceased attempted to repel his entry by using a kitchen knife and a heavy decanter. I should add that a subsequent medical examination of the accused demonstrated injuries which are consistent with him gaining entry by breaking the window and wounds received in his subsequent unsuccessful attempt to commit suicide. On the other hand, the deceased was found on post mortem examination to have extensive head injuries – which proved lethal – consistent with her head having been battered by the decanter. The decanter, which was tendered in evidence before me, is a very heavy object indeed. Not only that, the deceased had a knife wound to her throat which, while not of itself a fatal matter, was certainly evidence of the vehemence of the attack made upon her. The letter which the accused claims to have taken to the house has not been produced in evidence. It is because of the nature of the injuries to the deceased and to the accused, and the absence of the letter, that I make the observation that what exactly happened in the house is a matter of conjecture. However, what is certain is that the accused did repeatedly batter the head of the deceased with great force. . Photographs taken by the deceased at the house by police starkly depict the extent of that battering. Those photographs make a nonsense of a statement made by the accused to Dr Barclay that he felt the greatest danger, he considered, was that the deceased would get up and attack him again, stabbing him or impeding him again. … The nature of the dreadful injuries inflicted upon the deceased negates any suggestion of self defence …" 1. On 9 October 1992, His Honour sentenced the applicant to a minimum term of imprisonment for 10 years and an additional term of three years and four months. In his remarks on sentence, His Honour noted that he had before him 'a body of evidence from very reputable people' who had known the applicant for a long time and who spoke highly of him. He noted that there were many subjective factors in favour of the applicant including an expression of remorse. However, His Honour found that the objective features of the offence were serious and demanded a 'substantial sentence'. 2. The applicant was released on parole in July 2002 and completed his sentence in November 2005. 3. There is no question that the offence of which the applicant was convicted was of a very serious nature. 4. In his oral submissions the applicant acknowledged the very serious nature of his offending conduct. He submitted he accepted 'full responsibility as a human being' for what had occurred. He went on to say that it was very apparent at the time that he was suffering from a 'severe depressive illness which obviously had a close nexus to the offence, and this was accepted by the judges, both at trial and appeal.' 5. In regard to the latter, I note the applicant made an application to the High Court for special leave to appeal his sentence. The argument being that in sentencing the applicant, His Honour failed to include one of the essential elements of the crime, namely that at the time he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts. The High Court found that His Honour had not erred and refused special leave. (b) the period of time since that offence occurred and the conduct of the applicant since that time 1. It is almost 25 years since the applicant committed the offence of which he has been convicted. As I have noted, he was released from prison, on parole, in 2002 and he has not committed any further offences during his period of parole or thereafter (i.e. in the last 12 years). Nor has he come to the attention of the authorities due to violent or inappropriate conduct. (c) the age of the applicant at the time the offence occurred 1. At the time of the offence of which the applicant was convicted, he was 31 years of age. (d) the age of the victim at the time the offence was committed and any matters relating to vulnerability of the victim 1. The applicant's fiancé was 30 years of age at the time. As pointed out in the respondent's written submissions, the applicant's fiancé was vulnerable in that the applicant waited until she was home alone. The evidence is that the victim had tried to break up their relationship a number of times. During cross-examination the applicant acknowledged that the victim was vulnerable. (e) the difference in age between the victim and the applicant 1. There was a 1 year age difference between the applicant and his fiancé at the time. (f) whether the applicant knew, or could reasonably have known, that the victim was a child 1. In this case the victim was not a child and this was known to the applicant. (g) the applicant's present age 1. The applicant is now 54 years of age. He is married and has been married for the last 10 years. He met his wife shortly before the trigger offence and they became reacquainted not long after the offence. She supported the applicant during his trial and during his imprisonment. During his time in prison the applicant re-trained and since his release he has been employed. He has not sought employment as a solicitor due to his conviction. He also advised that he had not made his current employer aware of his criminal conviction. (h) the seriousness of the applicant's total criminal record 1. The applicant's criminal record is limited to the 1992 conviction. That is, there is no evidence of any prior convictions or further convictions after 1992. (i) the likelihood of any repetition by the applicant of the offence of which he was convicted and the impact on children of any such repetition 1. In regard to the likelihood of re-offending, the applicant relies on the evidence given by the psychiatrists at his trial, the psychological reports that were prepared prior to his release on parole, a certificate from his doctor and the report of Dr Lennings. He also relies on the evidence of his wife, her family and his referees. 2. The applicant also provided a copy of page 17 of the transcript of his trial in 1992. That page relates to the evidence, in part, of Dr Strum, psychiatrist during cross-examination by the applicant's counsel. In that evidence Dr Strum said the applicant did not constitute a danger to the community because of the remoteness of the re-occurrence of the three things that happened to him at the time of the offence. The three things were identified by Dr Strum as, the applicant's severe depressive illness, the illness of his mother and the frantic attempts to get help for her and her dying and his 'quite intoxicating and yet maddening relationship' with his fiancé. 3. Dr Strum's evidence in regard to the applicant's sever depressive illness at the time he committed his offence was consistent with the evidence given by the applicant's psychiatrists. However, in the absence of the entire transcript it is difficult to ascertain the context in which Dr Strum's evidence was given. A copy of the reports of the applicant's psychiatrists and psychologist were contained in the respondent's bundle of documents. These reports are comprehensive and provide a detailed account of events as recorded to them by the applicant. The reports do not express any opinion about the applicant's likelihood of re-offending. In his report, dated 29 June 1992, Dr Davies concluded by saying the applicant would need to undergo psychiatric treatment for some time. 4. In a single page report, dated 28 August 1997, Dr Barr said the applicant had made a good recovery from his depressive illness and that since 1993 the applicant had not needed any further medication or treatment. Again this report was provided by the applicant. 5. A pre-release psychological report, dated 4 December 2000, noted the applicant had demonstrated appropriate and realistic contrition for his offence and there appeared to be no overt psychological reason to deny him progression to the C3 programs for day/weekend leave and works release. 6. In the certificate, dated 1 August 2014, the applicant's doctor said she had treated the applicant between June 2003 and April 2011. She noted she had been made aware of the applicant's conviction and that he had a past medical history of depressive illness for which he received psychological and pharmacological therapies between 1991 and the mid 1990's. She said that in the time she had seen the applicant he had not presented with any symptoms or signs of a psychological or psychiatric illness. 7. In his report Dr Lennings noted he interviewed the applicant for about 90 minutes. He said he requested the applicant to complete some self-report personality assessments and that he had read all the material he had been provided with by the applicant (i.e. the psychiatric and psychological reports and the Trial Judge's comments on sentencing and relevant reports from the applicant's Corrections file). 8. Dr Lennings set out the applicant's background, his medical history, drug and alcohol history and relationship history. He noted the applicant did not report any current medical issues. He said the applicant was placed on anti-depressants shortly after the offence and came off them in 'around 1993 or 1994'. He also noted that other than the episode following the offence the applicant reported no self-harm or suicidal ideation. He said the applicant reported no periods of drug use and only drank moderately and at the time of the offence he was not drinking at all. 9. In regard to his relationship history, Dr Lennings said the applicant met his fiancé in late 1989 and they began living together in early 1990 and were engaged shortly thereafter. At the time the applicant was also intensely involved in his mother's illness. Dr Lennings stated the applicant's relationship with his fiancé appeared to be 'very volatile with several separations, at least three or four that he can recall.' The first occurred in late 1990 'but a pattern of separations and reconciliations appear to have existed up until about February/March 1991.' He states that the final separation 'appears to have been extremely' for the applicant to manage. Dr Lennings noted that the volatility of the relationship was well accepted by the Trial Judge. 10. In his psychological assessment, Dr Lennings said the applicant reported one episode of major depression lasting approximately two to three years, with a sever depressive episode lasting about one year. He said the applicant did not report any serious anxiety, but recalled being highly anxious during the time he was quite depressed. Dr Lennings noted that there is a significant overlap between anxiety and depression. He also noted the applicant did not think he was impulsive, although he did say 'when he was depressed he was highly impulsive.' 11. Dr Lennings undertook a personality assessment of the applicant through the self-administered Personality Assessment Inventory (PAI). He noted the applicant's response to the test suggested some mild defensiveness, which was not unusual in an assessment of that kind. He concluded the applicant 'presents as a substantially resilient person without significant psychopathology and no clinical diagnosis is suggested by either his presentation on interview in history or by his self report on the PAI other than a life time diagnosis of Major Depression (not current).' 12. Dr Lennings assessed the applicant's risk against the criteria used on the HCR-20 (2nd Edition). He noted the HCR-20 is referred to as the Historical Clinical Risk Management – 20 test. He said HCR-20 is made up of ten items that measure clinical factors associated with the prediction of violent behaviour, five items measure clinical factors associated with response to interventions and factors that might impact upon risk and the risk management items (five) refer to factors that are associated with the person's rehabilitation. 13. In his report, Dr Lennings said that on the HCR-20, the applicant scored on only one item, namely his young age as at the date of the 1991 incident (31 years). He said the applicant 'scored only 1 of a possible 2 point answer: to get a 2 point answer a person needs to have a first violent act before the age of 20.' Dr Lennings found that the applicant would fall into the low risk group on the basis of the HCR-20 risk assessment. He went on to say, on the basis of the applicant's history and the risk assessment, the applicant appeared to 'have no appreciable risk of violence in the community at this time.' 14. In his oral evidence at the hearing, Dr Lennings said that his report in regard to the HCR-20 should have also noted that the applicant also scored 2 points for the historical item (i.e. factor) in relation to his depression. He went on to say that his conclusions nevertheless remained the same. 15. After noting the contents of the documents that had been provided to him by the applicant, Dr Lennings concluded his report by stating: 59. …[There] are no indicators in [BJR's] presentation of any risk of harm to children whatsoever. The likelihood of risk of harm to an adult is also extremely low. To that end there is no appreciable risk of harm in [BJR's] presentation. Given the passage of time that has elapsed since 1991 it seems unrealistic to assume that the conditions that were in existence in 1991 are likely to be repeated now if for no other reason his age, life experience and maturation have created a greater deal of understanding and capacity to manage threats to his psychological well being. 1. The respondent's supplementary submission argued that Dr Lennings was not an impartial expert as he had too readily accepted the applicant's account of events, which the respondent argued to have been incorrect, incomplete, or untruths. 2. These matters were put to Dr Lennings in cross-examination. He said he had no reason to believe the applicant had lied and when errors and inconsistencies of the applicant's account were pointed out to him, Dr Lennings said they were not such to alter his opinion as to the applicant's risk of re-offending. He did, however, add that if the applicant were found to pose a risk of violent recidivism one could not exclude harm to children. 3. In my view, there is no evidence to indicate that the applicant was untruthful in the evidence he gave or the submissions he made. My observations of him were that he was at times defensive about the circumstances surrounding his trigger offence and his trial. He also presented as a person who was driven and ambitious and otherwise enthusiastic and positive about his life today and at times frustrated by these proceedings. Dr Lennings said it was not unusual for a person such as the applicant to be defensive and it was not an indicator of risk. 4. I also find that there is no evidence to suggest that Dr Lennings was other than impartial. This does not mean that I must accept his opinion and find that the decision of the respondent is not the correct and preferred decision. His opinion is only one of the many factors that need to be taken into account. 5. In her evidence, the applicant's wife explained how she had met the applicant and when their romance started. She explained that she had been at his trial and had heard all the evidence and read all the documents. She said the sentence was a 'major shock' to her, the applicant and his lawyers. They expected a '2-4 year' sentence. She said she nevertheless decided to wait for him and support him during his appeals and prison term. She described the applicant as being 'intelligent, resolute, loyal and kind' with 'a great sense of humour' and that they have had a good life together since his release from prison. She said the applicant has shown no violent tendency towards her or her family, including the children of her brothers and sisters. Had he done so, she said she would not have remained with him. 6. She also said the applicant knew more about depression than most people and she has not seen him suffer from depression since he was treated for depression. Instead, since his release, he has assisted friends whom he recognised to be depressed to seek treatment. Nor had the applicant displayed any signs of depression when her mother had died recently. She said the applicant was very close to her mother – he saw her as his own mother. 7. The applicant's sister-in-law and brother-in-laws gave similar evidence. 8. The respondent contended that no weight should be given to this evidence and that of the other referees as their statutory declarations, being in similar terms, were not the independent views of the respective deponents, but were views the applicant had of himself as he had prepared a pro–forma statement for them to sign. 9. The applicant acknowledged that he had prepared a draft form as his referees had asked him to do so, but what they put in their statutory declarations he explained was a matter for them. 10. Having heard oral evidence from the applicant's sister-in-law and one of the brother-in-law, in my view, nothing turns on this as they clearly held the views expressed in their respective declarations, namely they regard the applicant as a valued member of the family and have no concerns about leaving their children in his care. 11. I accept the evidence is that, as at the date hearing, the likelihood of the applicant reoffending in the same manner he had in 1991 is low at this time. It is low because he is in a stable relationship and has been for more than 10 years, he has a very supportive family, he has a job and there is no evidence of a depressive illness. This, I think is consistent with Dr Lennings findings. While he said there appeared to be no 'appreciable risk of violence in the community', in the context of the Historical Clinical Risk Management – 20 test, I am not altogether persuaded by this conclusion as Dr Lennings, in my view has not provided a sufficient explanation as to how he came to this view given the very serious nature of the applicant's violent offence and the 'life time diagnosis of Major Depression'. As noted above, the Trial Judge did not accept that the offending conduct was an isolated incident. He also made reference to allegations that had been made some 6 months prior to the offending conduct by his fiancé in regard to being assaulted and threatened with rape. There is also a reference to the applicant having temporarily imprisoned his fiancé and her brother having taken steps to have the applicant leave the premises where he and his fiancé were residing. This was conduct the applicant pleaded to at the time of his trial and relevant to the issue of risk of violence. 12. At the same time I accept that there is no further evidence of conduct of this kind. (j) any information given by the applicant 1. The applicant submitted he does not pose a risk to children. The offence he said occurred 23 years ago and it was an isolated event during a time he was depressed due to very unique circumstances. He also pointed out that he has not been the subject of an interim bar under the Act and he has continued to work with his current employer and there have been no adverse findings made against him. 2. In his sworn evidence at the commencement of the hearing on 29 August 2014, the applicant said: …[What] I went through in nineteen – late 1990 and 91 before, during and after the offence was probably – well, not probably, certainly the most difficult thing I've ever had to go through. Depression is never to be taken lightly. Severe depression, and it is severe depression with suicidal ideation, is absolutely the worst thing a person can go through. I did listen very carefully and take on board the treatment I received from all the psychiatrists and psychologists that I saw, and I understand fully now the nature and the mechanism of a depressive illness. I-I realise the signs to watch out for. I would be the last person or one of the last people to not take action if any of those symptoms or signs or triggers for a depressive illness were ever to arise. … 1. As I have noted, the applicant said he 'took full responsibility for the offence'. That offence being the offence of manslaughter, to which he said he pleaded guilty at the earliest opportunity and of which he was convicted. 2. What occurred between the time the applicant was charged and the date on which he was indicted on a charge of murder is not before the Tribunal. But as pointed out by the respondent, what is clear is that the applicant's trial proceeded on a charge of murder, to which the applicant pleaded the defence of diminished responsibility. His defence, once established resulted in a conviction of voluntary manslaughter. 3. While I can understand the applicant's assertion that he pleaded guilty to an offence of manslaughter. This is not how his trial proceeded or a reflection of the very significant findings of the Trial Judge. 4. As I have noted above, the Trial Judge was satisfied, on the evidence before him that in the absence of 'diminished responsibility' the applicant was guilty of murder, a homicide motivated by jealousy or rage. The Trial Judge went on to find that the applicant had established his defence of 'diminished responsibility' due to his depressive illness at the time he committed the offence. He did not find that his depressive illness was what gave rise to the offending conduct. He found that his depressive illness impaired his 'mental responsibility to the reckless degree'. In other words, the Trial Judge found that at the relevant time, there was present in the applicant a state of mind that would support a conviction for murder, but the culpability of his conduct was reduced because of his substantial impairment by abnormality of mind (depression). Hence his culpability was reduced from murder to voluntary manslaughter. (k) any other matters the respondent considers necessary 1. The respondent contended that the collection of factors that occurred in 1990 and 1991 could occur at any time in the future and hence cause depression in the applicant. It was argued that the evidence is that the applicant reacts to depression by extreme violence. It was pointed out that many people suffer depression and do not react to stress by use of such violence and this alone places the applicant in a risk category which is outside that occupied by the general population. Conclusions 1. As I have noted, the jurisdiction of the Tribunal is protective and not punitive in nature. However, I recognise that if a clearance is refused it will have a significant effect on the applicant in that he will no longer be able to do the work he has been doing. As Dr Lennings said, employment is an important aspect of rehabilitation. 2. In this case, the applicant does not have any physical or face to face contact with children. His contact with children (16 and 17 year olds), if any, is through an on line education facility. Nor does he wish to work with children more generally. However, the Act does not permit the grant of a clearance for a limited scope of child-related work. As I have noted, the Act only makes provision for the grant of a paid and/or voluntary child-related work clearance and once granted authorises the holder of the clearance to undertake any form of child-related work. 3. The question is whether, on the material before the Tribunal, I can be satisfied, having regard to the factors set out in subsection 30(1) of the Act and the safety, welfare and well-being of children, the applicant poses a risk to the safety of children. 4. For the reasons I have stated above, in my view the trigger offence of which the applicant was convicted was very serious. This is reflected in the remarks of the Trial Judge and the sentence imposed. The circumstances surrounding the offence and the offence itself was extremely violent, resulting in a death. The applicant was an adult at the time and accepts he was responsible for the acts and omissions that caused the death. He also accepts that his fiancé was vulnerable when he attacked her. He asserts the circumstances surrounding the offence were unique – in particular his depression and the circumstances giving rise to it. The offence did not involve a child and there is no evidence that the applicant has acted violently towards a child. Yet, as noted by Dr Lennings an offence of violence against a child cannot be excluded where there is a risk of violent reoffending. 5. It is now 24 years since the trigger offence was committed and the applicant has been out of prison for almost 13 years. He has many factors in his favour which minimise any risk of him reoffending as he had previously. He is in a stable relationship, he has a very supportive family, he has a job and there is no evidence that he is depressed or that he has behaved violently towards others since the trigger offence, or prior to the circumstances leading up to that offence. 6. However, as pointed out by Dr Lennings, the applicant has a life time diagnosis of 'Major Depression', which he noted was not current. As Dr Lennings was not tasked to assess the applicant as to his depressive illness, I assume his notation was based on what he had been told by the applicant and what he had read in the reports that had been provided to him. 7. While the exact circumstances which led to the applicant's depression in 1990 and 1991 are unlikely to be repeated, in my view this is not an answer to the question as to whether the applicant's depressive illness will return. There are many circumstances which can lead to depression, the question is whether the applicant would be able to recognise those circumstances and seek help. He did not do so in 1990. Yet, he asserts, with confidence, he would do so now. Having observed him during these proceedings, I am not persuaded by his level of confidence. As I have noted, the applicant presented as being ambitious and driven and whether his confidence arises therefrom or is otherwise reflective of his insight into his depressive illness is unclear. 8. The applicant did however acknowledge that when he was depressed he was anxious and impulsive. 9. I have accepted that the likelihood of the applicant reoffending as he did in 1991 is low. The likelihood of the applicant offending in a violent, controlling or aggressive manner towards an adult, in my view, is also low. If he did exhibit behaviour of this kind, there is considerable support for him within his family and wider adult network to ensure that it is addressed. 10. However, the question for the Tribunal, as it was for the respondent, is whether the applicant poses a risk to the safety of children given his offending conduct. In my view, notwithstanding the considerable factors in favour of the applicant, his trigger offence and the circumstances leading to that offence are of such seriousness that I am satisfied the applicant poses a risk to the safety of children. I make this finding on the basis of a clearance enabling the holder to work in any child-related work, including direct face-to-face contact with children from a very young age. The risk, I accept is low, but given that the safety, welfare and well-being of children, in particular, protecting them from child abuse, is a paramount consideration in the operation of the Act, I am satisfied that this low risk is sufficient to make a finding that he poses a risk to the safety of children. 11. On the basis of this finding, I find that the decision of the respondent is the correct and preferred decision and should be affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 24 April 2015