Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CBM v Children's Guardian [2015] NSWCATAD 253 Hearing dates: 16 September 2015 Date of orders: 16 September 2015 Decision date: 11 December 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Hon G Mullane ADCJ – Principal Member P Foreman – General Member Decision: 1) The decision of the Children's Guardian to refuse the applicant's a Working With Children Check Clearance is set aside. 2) The Children's Guardian must give the applicant a Working With Children Check Clearance. 3) Broadcast or publication of the name or other identifying information of the applicant or the complainant in respect of the charges against the applicant relating to events on 30 October 2010 is prohibited. Catchwords: Working With Children Check Clearance – Review of the decision of the Children's Guardian Legislation Cited: Child Protection (Working With Children) Act 2012 Administrative Decisions Review Act 1997 Crimes Act 190 The Adoption Act 2000 Cases Cited: Commission for Children and Young People v V [2002] NSWSC 949 Category: Principal judgment Parties: CBM (Applicant) Children's Guardian (Respondent) Representation: Counsel: D Carroll (Applicant) V Hartstein (Respondent) Solicitors: Dignan and Hanrahan Solicitors (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1510359 Publication restriction: Yes, per order 3 above Judgment Introduction 1. On 30 October 2010, the applicant entered a party with other young people. Late in the night he drove to his home with a 17 years old girl (referred to in these reasons as "V"). V was 17 years of age and affected by alcohol. They arrived at the applicant's home and his parents had already gone to bed for the night. 2. Subsequently they went to the applicant's bedroom and V alleged that sexual activity occurred that she did not consent to. Subsequently V made a complaint to the police and later the applicant was arrested, interviewed and charged with three counts of having sexual intercourse with V without her consent. 3. The charges were tried by jury in the Campbelltown District Court. On 15 June 2012 the jury found the applicant not guilty on each of the charges. 4. On 30 November 2013, the applicant applied to the respondent for a Working With Children Check Clearance. On 10 February 2014 the applicant took up employment with the Department of Attorney General and Justice in Juvenile Justice Section as a youth officer in a detention centre. 5. On 15 June 2015 the respondent decided to refuse the applicant a Working With Children Check Clearance and notified the applicant of that decision the same day. 6. Three days later the applicant signed an application for a stay of that decision and for the decision to be reviewed by this Tribunal. The evidence 1. The evidence before the Tribunal comprised : 1. Application filed 25 June 2015 with letter of Respondent of 15 June 2015 and reasons attached; 2. Application filed 25 June 2015 with letter of Respondent of 15 June 2015 and reasons attached; 3. Triage initial assessments dated 26 March 2014 and 29 April 2014; 4. Section 16 "Applicant request for further information" letters sent to the applicant on 25 March 2014, 7 April 2014 and 14 October 2014; 5. File notes recorded by the Office of the Children's Guardian; 6. Section 19 Notice of Proposed Refusal of Application letter sent to applicant by the respondent on 4 May 2015; 7. Section 20 Notice of Decision Bar Report including Statutory Declaration and Annexure; 8. Section 20 Notice of Final Decision sent to the applicant on 15 June 2015; 9. Transcript of evidence of the District Court hearing of 5 June 2012 10. Transcript of District Court hearing on 6 June 2012; 11. Transcript of District Court Hearing on 7 June 2012; 12. Transcript District Court Hearing on 8 June 2012; 13. Transcript of District Court Hearing on 13 June 2012; 14. Transcript of District Court Hearing on 14 June 2012; 15. Section 31 response from Director of Public Prosecutions – including indictment, Notice of Prosecution Case, Statement of Facts, List of witnesses, statements of witnesses, extensive records of Facebook communications from October 2010 and November 2010, and Expert Certificate/statement of Dr Charles Lee of Royal Prince Alfred Hospital Sexual Assault Service; 16. Section 31 Response from Department of Family and Community Services; 17. Email from Detective Senior Constable Matthew Kelly – Macquarie Fields Detective; 18. Email from S M Gersbach - Superintendent, Commander, of Macquarie Fields Police; 19. Report dated 17 July 2015 by Ms. Caroline Hare, forensic psychologist; 20. Oral evidence of Caroline Hare of 16 September 2015; 21. Oral evidence of the applicant of 16 September 2015. Relevant Legislative Provisions 1. The Child Protection (Working with Children) Act 2012 Act (referred to subsequently in these reasons as "the Act" is the principal Act in relation to this matter. It has recently been amended but the relevant amendments do not apply retrospectively to these proceedings. The relevant provisions are as existed when the applicant filed his application for a clearance in November 2013. 2. Section 4 of the Act provides: "The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act." 1. Section 6 of the Act provides that a person who is an authorised carer of a child is engaged in "child-related work" for purposes of the Act. 2. Section 8 requires that a worker must not engage in child-related work unless the worker holds a "Working with Children Check Clearance" of a class applicable to the work or there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. There is also provision for an "interim bar". 3. Section 9 provides that an employer must not commence employing or continue to employ a worker in child-related work if the employer knows or has reasonable cause to believe that worker is subject to an interim bar or is not the holder of a Working with Children Check Clearance that authorises that work and there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. 4. Section 11 of the Act applies to any person who submits an application to adopt a child under the Adoption Act, 2000. It provides in ss.11(2) that the person assessing the application under that Act may request the application for adoption be screened by the Children's Guardian as if the person were an Applicant for a Working with Children Check Clearance of any class. Subsection 11(3) requires the Children's Guardian to treat such a request as if the person had applied for a clearance for child-related work. 5. Section 12 of the Act provides that there are two classes of Working with Children Check Clearances which are: a) Volunteer – authorising workers to engage in unpaid child- related work; and b) Non-volunteer – authorising workers to engage in paid and unpaid child-related work. 1. Section 13 provides for applications to be made to the Children's Guardian for a Working with Children Check Clearance and requirements for the application. It provides: 13 Applications for clearances (1) A person may apply to the Children's Guardian for a working with children check clearance. 2) An application must: (a) be in the form approved by the Children's Guardian, and (b) be accompanied by any other information required by the Children's Guardian, and (c) specify the class of clearance applied for. (3) The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force: (a) the conduct of a criminal record check in respect of the applicant, (b) the disclosure of the applicant's criminal history, (c) other inquiries about the applicant relevant to the application or clearance, (d) without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement. (4) The regulations may: (a) prescribe the fee payable for an application and the manner in which it is to be paid, and (b) require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children's Guardian. (5) An applicant may, at any time before the final determination of an application (including after receipt of notice of a proposed refusal), withdraw the application by notice in writing to the Children's Guardian. 1. Section 14 provides that a person is subject to an assessment requirement if any of the matters specified in schedule 1 apply to the person. Para1(1)(b) of Schedule 1 is "proceedings have been commenced against a person (a)…..or (b) for an offence specified in clause 1 of Schedule 2 if the offence was committed as an adult, and the person is not , because of those proceedings a disqualified person". The applicant was 20 years of age at the time of the alleged offences and therefore an adult. 2. Section 18 of the Act Provides: 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons ("disqualified persons" ): (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. (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 para 1 (e) of Schedule 2 an offence under section 61I of the Crimes Act 1900 is specified as a disqualifying offence. But because the Applicant was not convicted, he is therefore not disqualified and pursuant to Section 14 (1) (b) he is subject to an assessment requirement. 2. Accordingly, the Applicant on 30 November 2013 applied to the Children's Guardian for a Clearance. The Children's Guardian undertook an assessment and refused to give a clearance. 3. Under Section 16 the Children's Guardian may request further information from an applicant for a clearance related an offence or other matter related to the application or clearance and may terminate an application if the applicant without reasonable excuse fails to provide such further information within 6 months of the request. 4. On 25 March 2014, 7 April 2014, 14 October 2014 and 4 May the Children's guardian requested the applicant to provide further information in support of his application. 5. Section 27 is in Part 4 of the Act and provides that a person refused a Working With Children Check Clearance by the Children's Guardian may apply to this Tribunal for a review of the decision of the Children's Guardian. Subsection 27(4)of the Act provides : "An applicant must fully disclose to the Tribunal any matters relevant to the application." 6. Subsection 30(1) of the Act applies to reviews. It provides: 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 Commission considers necessary. 1. Section 63 of the Administrative Decisions Review Act 1997 applies to the review and it provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (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. Seriousness of the matters that caused the refusal of the clearance 1. According to the reasons provided by the Children's Guardian to the applicant with the refusal to grant a clearance, the charges of three alleged offences of sexual intercourse without consent of the 17 year old V were the matters that triggered the assessment. 2. There was considerable evidence before the Tribunal in relation to those matters. It is common ground that the events giving rise to the complaint occurred In the early hours of 31 October 2010. The applicant had turned 20 the previous month. V was born on 9 January 1993 and was almost 17 years and 10 months at the time. 3. V and the applicant first met at a party at the home of a common friend. At the time V was accompanied by her boyfriend, whom she had been seeing for 4 months. From March 2010 V and the boyfriend "started" a relationship and it appears that this involved a sexual relationship. 4. His evidence was that she and the boyfriend had "split up" at about the beginning of October 2010 but kept seeing each other. In that period she says that she met with the applicant on about 4 occasions by themselves and a few other occasions when they were with other people. The evidence was on the occasions when they were not with other friends, on two occasions he had collected her and had taken her to his university and on another occasion they'd gone on a "McDonald's run". On the 4th occasion they went to his house to watch a movie. She fell asleep and woke to find that he was "spooning her". "He was lying down behind me". 5. There was also an occasion when they went together to a shopping centre to obtain items for the fancy dress Halloween party to occur on the night of 30 October 2010. Other than his "spooning" they had not engaged in sexual activity together. The night of the party, the applicant collected her and a male friend from the home of a male friend and he drove the three of them in their fancy dress costumes to the party. They arrived there between 9:30pm and 10pm. 6. That evening in a conversation with V at the party, the boyfriend terminated their romantic relationship. It is common ground that V was very distressed by this. 7. There is considerable evidence as to the V's consumption of alcohol that night prior to the alleged sexual activity early on 31 October 2010. In a police statement V said that on the way to the party she opened a bottle of "Double Black Vodka premix". It is stated that she began to consume some of this. She'd finished that by the time they had arrived at the party. Her evidence was that at the party she consumed about 6 "Vodka jelly shots" "pretty much straight away one after another". There were some discussions with the boyfriend where he suggested they continue as friends. She wanted to still be with him. She then drank about 3 more vodka jelly shots. She said that she was "tipsy" "light and breezy". Someone offered her half a bottle of fizzy wine called "Passion Pop" and "I started sculling it because I was upset." The boyfriend took the bottle off her. By then "I felt like I was wobbling a bit. I remember being upset and drinking. I started crying….". She said she complained to a friend that she was feeling sick and was "feeling sick from the alcohol". 8. Subsequently the applicant gave her some bourbon in a party cup and poured cola into it. She said it tasted "pretty strong" and she didn't normally drink bourbon. She finished the bourbon and approached the boyfriend and spoke further with him. He told her that he would arrange for the applicant and another friend to take her home and take care of her. She started crying. She says the applicant then gave her more bourbon and coke. She drank it straight down. He poured her another one and she said "I recall sculling this drink straight down". 9. She then went to go to the bathroom upstairs. She said "I recall going up the stairs was difficult because I was drunk. I was swaying and had to use the wall for support". She said she later recalled stumbling down the stairs and she found the applicant. He told her that he would take her home and "you can go to sleep there" She agreed to that. But she recalls she had then had "someone's Passion Pop in my hand and I remember trying to scull that." She recalls someone taking it off her but she subsequently obtained more Passion Pop and drank it. "I almost finished it". She started to walk towards the applicant's car. Her friend followed her, reassured her and opened the door to the car. 10. She "almost fell out of the door of the car" when they arrived at the applicant's house and he opened the door. She said "I stumbled up his doorstep and he opened the front door". 11. The applicant, in his recorded interview by the police the following afternoon was asked about his observations of V's alcohol consumption the previous night before they left the party for his home. He had been playing cricket. He arrived home at 5.45 pm. Then V phoned and arranged for him to meet her and their mutual friend B at B's home, the 3 of them would get dressed there for the party and the Applicant was to then drive all 3 in his mother's car to the party. When all 3 were at B's home, they dressed for the party but they also took time to watch a movie. The arrived at the party at about 9.00 pm. 12. At the party V had at least 2 periods where she talked with the boyfriend away from the others and tried to revive the relationship. The Applicant said that at the party for much of the time, particularly the first 2 hours, V was generally not in his company. Overall he thought she was in his company for about a "30 per cent" of the time they were there. But he said "She was drinking a large variety of drinks, She was drinking Passion Pop. She had some Jim Beam um, Vodka, some, a lot of drinks". He said she "started drinking heavily and became intoxicated, became very drunk…": He said that they were saying she was very drunk and asking if he could take her home, so he agreed. He said that after about 2 or 3 hours he became aware that V was "very intoxicated, she I could see she was very confused, she was crying um, a couple of some um, all my friends suggested too that I should take her home, she agreed to that because she wanted to go home with me." He said he drank about "8 cups of just Bourbon and Coke" that he mixed by himself and he used 2 caps of bourbon into the cup and the cup held about 300mls. 13. He was asked whether he saw how many drinks V consumed and he said that he saw her consume three quarters of a bottle of Passion Pop, 2 cups of Jim Beam and Coke that he gave her, some Vodka Jelly shots and "she was always drinking there was no point during the night where I didn't see when she wasn't drinking except for the fact when she came out the front. Even then I think she was, yeah, she was drinking then. " Later he said that at the party "she got drunk very quickly, as soon as she got there, she started drinking virtually straight away, probably around 11:30 she started becoming very loud, crying again, confused and then about 12 o'clock was when she came outside and we talked a bit and she said 'can you take me home?'" 14. He said "loud, yeah, just screaming, just general being in an intoxicated state. Just becoming to that point when you become very rowdy and loud, she just talked, talking in a high volume". Then he described her as "very, very, very, drunk um. She couldn't stand straight, she was falling over, she was crying um, just didn't want to be there, just wanted to get out of there basically, yeah and she was still drinking at this point which is , this is the situation where I took the drinks off her. I said that, 'you just stop, you've had enough, why you've, let's go home, do you want me to drop you home?' She Said 'yes'" 15. On the way in the car he held her hand. When asked how she got to his car, he said that he thinks that a friend had helped her to do that. He said that at his place he helped her to get out of the car and helped her up the stairs to the house. He said that when she got out of the car she had left her shoes in the car and her bag in the back seat. Then she said that she needed to get outside for some air so they went to the backyard and sat at an outdoor area near the pool. He said that while they were outside, "she kept crying, she kept talking about [the boyfriend], she was not making a lot of sense at this point like I said, she was very still, very intoxicated, her, she was slurring her words a lot, it was very hard to make out what she was saying, she, she was just giving me a lot of gestures, just nodding, shaking her head, crying a lot, showing a lot of emotions". He said she threw away a bracelet the boyfriend had given her during the relationship. He alleged that they were outside for about 20 minutes before she ceased being distressed. Then he asked her if she wanted to go back to the party but she said, "No, I want to stay here." Then for about 10 minutes they were holding hands and she had her head on his shoulder. She alleged that while they were sitting there he commenced sexual advances by taking her hand and leading it up the outside of his clothes to touching his clothes over his penis and she pulled her hand away. Then, he alleged she said she wanted to go to bed. Her version was she told him: "I need to go to sleep". 16. He said he had held her hand when they walked up the stairs inside the house, "I was keeping her balance, keeping her upright'. 17. The boyfriend also gave the police a statement 2 weeks after the incidents. 18. His version was that he "broke off the relationship with V" at about the start of September "then he said that they had later decided to still see each other and 'not be in a proper relationship'". He said that this meant that "we still done everything we did in the relationship, but as friends, not as boyfriend and girlfriend". He said they then continued to see each other until 30 November 2010". The reference to 30 November 2010 is an error as the statement was made on 13 November. It is clear from other material in the statement that it is intended as a reference to 30 October 2010. 19. When she arrived at the party she and the boyfriend he took about 3 or 4 Jelly Shots each and went around the side of the house away from the others and drank them. They were there talking for about 20 Minutes. He then went with others. He saw her walking around drinking. He saw her on at least 2 occasions being provided with a cup of Bourbon and Coke by the applicant. He said that at times he was with V talking to people and sometimes they would kiss and "I could taste that she had been drinking bourbon ". He saw her once when he had taken a bottle of Passion Pop "she basically sculled half a bottle". After that she sat next to him and "I noticed that she was getting drunk. She was slurring her speech and at one time she sat on my lap and I had to stop her from falling off. " 20. In the boyfriend's police statement he says that later in the night he and V spoke privately away from the others at the party and discussed their relationship. He said in his statement that he had seen her drinking numerous drinks during the night, including "sculling half a bottle of Passion Pop" and she was drunk at that stage. He suggested they "break it off". She cried and begged him to continue the relationship. She was upset and "stumbling around and falling into the fence". After further discussion she said to him, He spoke to the Applicant and B told them "We have just broken up and I don't think it's a good idea for her to come home with me tonight. I trust you 2 the most, so I want to leave it to you to decide to take her home and sleep at one of your places." The Applicant said he would take her home. 21. He spoke to the Applicant and B told them "We have just broken up and I don't think it's a good idea for her to come home with me tonight. I trust you 2 the most, so I want to leave it to you to decide to take her home and sleep at one of your places." The Applicant said he would take her home. 22. The boyfriend said he last saw V at the party at 12.30am. It appears from his evidence that she was leaving when he saw her. 23. The Statutory Declaration which the applicant provided to the Children's Guardian dated 11 April 2014 appears to involve a retreat from his previous statements to the police on 31 October 2010 about V's alcohol consumption and state of intoxication on the night 30 October 2010 and the early morning of 31 October 2010. His recollection of the events is likely to have been much better within 24 hours of the events than more than 3 years later. The Tribunal considers the statement made in 2010 more reliable. 24. As regards to the alleged acts which were the subject of the three charges against the applicant, the finding of "not guilty" the jury at the hearing in the District Court cannot be taken to imply that the jury was satisfied that he did not commit the offences; only that the evidence did not establish proof beyond reasonable doubt. 25. In these proceedings there is no onus of proof except that the Tribunal must find a party's case proved if it is proved on the balance of probabilities. That is subject to subsection 140(2) of the Evidence Act 1995. Indeed, for purposes of these proceedings, is not necessary for the Tribunal to determine whether the applicant did or did not commit one or more of the alleged acts that are subject of the charges. It is about assessment of risk in relation to his future behaviour. 26. The versions of the applicant and V of the sexual activity that gave rise to the charges are substantially different in relation to what each alleges happened and also in relation to the issue of whether it was consensual. 27. As for the issue of what sexual activity occurred, the some of the relevant evidence is as follows: 1. The evidence of the parents of the applicant is that at about 2:35am on 31 October they were awoken by banging noise and the applicant's voice. They were sleeping in the room adjacent to the Applicant's bedroom. They heard the applicant say "Hell, what's wrong? Just tell me. What's going on?" The applicant's mother went to the applicant's bedroom followed by his father. She opened the door and asked the applicant "what's wrong?" He replied "I don't know, I was asleep and I woke up and she was going crazy. " V pushed passed the applicant's mother and the applicant followed her. Then V said "I have to go". 2. Both the applicant's parents followed them outside and the applicants kept asking V "What's wrong with you? What's wrong?" She said "just don't touch me, I want to go". Then V went up the street followed by the applicant. The applicant's father followed them in his car. He pulled over and told them to get off the road and to get into the car. The applicant said to V "My dad is here, get off the road and get into the car. Dad will drive you home". V said "I know who it is. I just want to go to [the boyfriend's]. Leave me alone". The applicant and V then entered the motor vehicle and the applicant's father said to V "What is wrong? What is going on?" And V replied "I am fine". She then responded again to the same question by the father by saying "I am fine. Everything is fine I just want to go". 3. Then V subsequently said "I want to go back to where the party is". The applicant then gave directions to his father how to get to the party location and then turned to V and said "The party will be finished now". His father saw the time was 2.55 am and said, "It's almost 3 o'clock in the morning. I think you should go home". She said "I want to go to [the boyfriend's]". The Applicant then redirected his father, who then started to drive in the direction of boyfriend's home. They arrived at the house at about 3:05am and there was a light on inside the house. V alighted from the vehicle and proceded to the front door. The time from when the applicant's parents were awoken to when V entered the home of the boyfriend, was about 20 minutes. In that period she made no complaint of any assault on her. 4. The parents of the boyfriend were asleep in their home at about 3am on 31 October 2010 when they heard the doorbell. The father of the boyfriend answered the door and then called his wife saying "it's [V]. She's been raped". V was standing inside the front door crying. They took her to the lounge room and she sat on the lounge. She smelt of alcohol. She had no shoes. She was slurring her words and said "I've been raped". She was asked if she knew who it was and she said "[the Applicant]". The boy friend's mother asked her "did you tell him no?" and V said "Yes, I told him no". 5. The boyfriend was roused. When the boyfriend's mother offered to ring the police, V rejected that advice and said she was scared. The boyfriend's mother phoned V's mother and she spoke to V. The boyfriend's mother asked V if she could call the police. She then agreed and the boyfriend's mother contacted the police. While they were waiting for the police to arrive the boyfriend received a text message from the applicant and he called about ten times and each time the boyfriend rejected the call. The calls were occurring after the police had arrived a short time later. At 4:34am the applicant posted a facebook message to the boyfriend "can you plz call me did nothing to [V] honest". 6. At 5:20 am in the morning of 31 October 2010 V went to Liverpool hospital Sexual Assault Centre and saw Dr Lee. She raised the following allegations of sexual activity: 1. In his bedroom the applicant grabbed her hand and placed it on his pants over his penis; 2. She pushed him away. He then tried to "finger her" but she grabbed his wrist and pushed him away again; 3. He told her to "suck him off" and put his penis in her mouth for some seconds; 4. He tried to penetrate her with his penis while lying on top of her and then pulled her on top of him and penetrated her vagina with his penis. This lasted about a minute; 5. At some stage he kissed her on one or both of her breasts; 6. She was not aware if he had or hadn't ejaculated but she noticed a wet patch on the bed; 1. At the time of the examination Dr Lee found that:- * There was tenderness on pressure on the deep tissue on the left side of her neck and over the upper left shoulder blade; * There was blue/ red discolorations of the skin on the front (palm's side) of the lower arms; * On the left arm approximately 10cm from the wrist there were two, more or less parallel linear discolorations approximately 2cm in length and running almost longitudinally along the long axis of the arm. * A similarly coloured discoloration in approximately the same positon on the right arm was seen. This was approximately 1cm in length with an oval shape. * There was mild tenderness on deep pressures to the wrist and up to and including the areas with discoloration. * There was a general discomfort on deep pressure on all areas of the abdomen, but she stated that this was largely due to the fact that the pressure was causing nausea. 1. No concerns arose on external or internal examination of the genital area. Forensics specimens were taken by swabs and also clothing was taken and bedclothes. 2. Dr Lee concluded that the blue/red discoloration of the skin on the front aspects of both forearms were consistent with the history given of the wrists being repeatedly gripped by an assailant's hands, the marks were faint and relatively indistinct and he could not be certain that they represented bruises. The tenderness to the left side of the neck and upper shoulder blade was a subjective finding and could not be independently verified, but could be explained by the trauma associated with a struggle but could equally be explained by muscle tension due to awkward positioning or stress. 3. On the same day commencing at 3.30pm the Applicant was interviewed by the police. There is a transcript of that interview in evidence. The initial response was that "it was very consensual, and that it, like, I said like it was both ways, it was good and then she said 'stop', and then I stopped, rolled over and went to sleep for about 5 minutes then I heard, like, all this shaking of my drawers, she was leaning up against my drawers, I woke up. I asked her, "What's wrong?" and she's like "Don't, don't come near me". I'm like, 'I'm not, I'm still in my bed, and I'm not touching you"'. He said, "she goes, 'I want to go home'. I'm like, 'alright. I'll take you home.' She's like, 'no, don't touch me, don't come near me'". 4. He told the police that when they arrived in his bedroom "then we started getting intimate, she started kissing, and hugging and then, we started having sex for about 30 seconds and then she said, 'stop'." He repeated that he then went to sleep. 5. When asked whether there was "any touching of body parts", he said "there was a lot of touching of breasts and then she was like rubbing my legs up, like, my thighs and all that and then she took her, the stockings off, the ones, that … were panty hose, the ones you found today in my bedroom, she took them off and then yeah, and then I got on top of her, that lasted for about 30 seconds and then she said 'No I don't want to do this any more'. I said 'OK fine', and rolled over". 6. Later in the interview he said that before he was on top of her there had been "dry sex"; they still had their clothes on but were "doing the motions of sex". She was on top of him and "grinding". He said, "at this point I had ejaculated and then I went, continued on". He said that he thought that his ejaculation would have gone onto his underwear and some onto the bed. He at one stage said she had taken her panty hose off and that she had lowered her underpants but not taken them off. Later he said that they both removed her stockings and she had taken her underpants off. He said that the kissing and grinding went for about 5 minutes and "then she rolled over and then I got on top". He said that he had inserted his penis inside her vagina when he was on top of her. He said that she was "just lying there, moaning". He said it lasted about 30 seconds before she told him to stop. 7. He said she said to him "No, I can't do this, it's wrong". Then he said "OK, stop, fine" and he "got off, rolled over and went to sleep." He denied that she told him earlier to stop 8. He said that when they were in the bedroom he had his penis in his clothes "but my parents were still up and she was just rubbing it". 9. He denied the following: * grabbing her hand putting it on his penis; * that she tried to get away; * that she tried to get off the bed; * That he had pulled her back onto the bed; * That she had pulled away from him when he tried to kiss her; * That he put his penis anywhere near her mouth; * That he forced her head down onto his penis; * That he asked her to "suck me off for 20 seconds"; * That he put his penis in her mouth for about 2 seconds; * that he put his fingers in her vagina; * That he held her down during sex; * That he grabbed her arms or her body anywhere; * That there was any inkling that she was not consenting; * That she resisted him. 1. On 31 October 2014 the applicant sent Facebook message to V "I don't remember much or barely anything from last night but from what I do, I cannot believe what I did trying to get with you as such. The most inexcusable thing I've ever done." Shortly after he sent the Facebook message to the boyfriend "can you plz call me. … I did nothing to [V]. 2. On 1 November 2015 V signed a statement for the Police, which is in evidence, and made the following allegations of the sexual activities that occurred when she and the applicant went to his home after leaving the party:- 1. When they were outside, sitting, the applicant was "leading my hand towards his penis, with my hand touching his penis outside his clothes." 2. She was lying on the bed on her side. She woke to find him "spooning" her. He had his hands behind her and moved his hand inside her skirt on top of her stockings rubbing her vagina. This lasted 1 or 2 seconds till she grabbed his wrist with her left hand and pulled his hand away. 3. She rolled onto her on her back and he took her left wrist and placed it on his outer clothing where his erect penis was. He said "rub me" and she said "no" and pulled away. She said she kept saying "no" out loud. 4. He took her left hand and moved it to her back and down inside his pants and put her opened hand on his penis. She pulled her hand out and brought it around to her front. 5. He sat up and brought his left hand around, put his hand inside her skirt, stockings and underpants. He placed his hand over her vagina and put his fingers in her vagina. She kept saying "No" and trying to pull away. 6. He took hold of both sides of her waist with his hands and rolled her over on top of him. He held her back with his arms. Her head was on his left shoulder and her legs were outside his legs. Their genitals were at the same level. 7. He started to "dry hump" by thrusting his penis into her. It was rubbing her vagina. This happened for about 20 seconds. She was trying to get up by pushing up with her arms and rolling over, but she couldn't because he was holding her down. 8. He took hold of both sides of her stockings and pulled them down to her thighs. She said "no". He put both hands under her strapless dress and under her bra. He fondled one of her breasts for about 10 seconds. He then took hold of her strapless dress and pulled it and her bra down to her stomach, exposing her breasts. He licked her nipples for about 10 to 15 seconds.. He then grabbed her by the waist and rolled her over on top of him. He said, "I bet [the boyfriend] doesn't feel as good as I do." And she replied "[the boyfriend] does it better". 9. He said to her, "Suck me off for 20 seconds, and then I'll let you go to sleep". He pulled her head by the hair and pulled it down onto him and put his penis in her mouth. He pulled her head up and down. 10. She separated from him and rolled off intending to leave the bed. He grabbed her around the waist, pulled her back down onto the bed and climbed on top of her. He told her "OK we're gonna fuck for a bit and then you can go to sleep." She replied, "No, I don't want to. I wanna go." 11. He got onto his knees and took off her stockings and her underpants. His pants were around his thighs. He unsuccessfully tried to prise her legs apart and penetrate her for about 30 seconds and then he rolled them both over so that she was on top of him. Her legs were apart and his were between her. He was holding her by his arms and thrusting his penis. He penetrated her vagina. She told him to stop. He continued thrusting for about 2 minutes. He said to her "you like that don't you?" and she replied, "no". Then she got free of him. "She asked him to let her go and she would say nothing. He said he hadn't done anything. She said, "I'll break your nose if you don't let me go". 1. The results of the testing of swabs of V and articles of clothing included that semen was found on the inside crotch of V's underpants, V's stockings and underpants and from V's vaginal and vulval smears. No semen was detected on V's internal mouth swab and smear. The DNA from V's high vaginal, and nipple swabs were found to be from at least 3 individuals, but because of the complexity of the mixtures, the profiles of the individuals could not be determined. The DNA from the low vaginal swab was a mixture that appeared to originate from 2 individuals. It did not exclude either V or the Applicant. DNA recovered from the "seminal stain" on the inside crotch of V's underpants was a mixture, mainly of the same profile as the Applicant and also partly of V and partly of a third individual, but at levels too low to determine individual profiles. 2. At the hearing in the District Court V gave oral evidence and was cross-examined. She conceded that although she told Dr Lee on 31 October 2010 that she had not had consenting sexual intercourse in the previous 7 days, in fact she had sexual intercourse with the boyfriend in that period. 3. At the trial there were issues about V's credit. There was conflict between what on the morning of 31 October 2010 she told the police and what she told Dr Lee. There was her failure to raise any allegation of assault to the Applicant's parents on the morning of 31 October, her request to go back to the party and then her statements to the family of the boyfriend that she was raped. There was her initial reluctance to call the police and to call her mother. There was the fact that the alleged assaults occurred in a room adjacent to the Applicant's parents' bedroom and neither of them heard any protest by her when the offences were alleged to have occurred. There were her repeated statements that she had been raped, even in response to being asked after that statement, "what happened?" 4. There were her statements that while she was in the Applicant's bed and he was imposing his sexual demands on her against her expressed refusal, she told him that "[The boyfriend] does it better", and later, "I'll break your nose if you don't let me go" and after (when he followed her down the street) "you have a small pre-ejaculatory penis". 1. The maximum penalty for each of the charges against the applicant was imprisonment for 14 years. 2. Given the nature and extent of the allegations and the maximum sentence, they were serious charges. Period of time since 31 October 2010 and the conduct of the applicant since then 1. Nearly 5 years had passed since 21 October 2010. It appeared that the applicant has not been charged with any other offences and there is no evidence of any prior offences. He has no criminal convictions and is 25 years of age. Since 2010 the applicant had completed 16 subjects towards the Bachelor of Policing Degree at the University of Western Sydney. In 2001 to 2014 with credits from 8 units in 2010 he qualified for the degree of Bachelor of Social Science. He has had part time work at a liquor store for 2 years up to 5 August 2014. The store manager has never observed, or heard any complaint of, any inappropriate behaviour by him toward any child. He has seen the Applicant interacting with the Manager's 12 year old stepson and has never treated the child "badly in any way" 2. There was also a character witness provided by a detective Senior Constable who was involved in investigation of the allegations made against the applicant by V. He did not have any contact with the applicant other than as part of the investigation. He formed the impression that the applicant was "honest and reliable" and "of good character". 3. On 10 February 2014 the applicant has been employed by the Department of Attorney General and Justice in Juvenile Justice as a Youth Officer at the Reibi Detention Centre at Campbelltown. As a part of the selection for this employment, he undertook a psychological assessment. …. Findings in that assessment are as follows: * CBM] responded more openly than most applicants. The self-description is likely to be accurate; * This applicant was much more careless in answering questions than most applicants. Often this is an indicator of disregard of following test instructions. This can also be an indication of poor reading skills, particularly if the "IQ" score is low. It can be associated with the attempting to make a positive impression, particularly if the "Fake Good" score is elevated; * [CBM] is an extremely conscientious person who is likely to readily accept the responsibility for errors; * [CBM] describes himself as being much less authoritarian than other applicants. This is considered a positive sign; * [CBM] describes himself as someone who usually trusts other people, unless given reason not to. He seems to be free of any unreasonable suspiciousness when working with others; * Rather candid self-description provided by [CBM] is likely to suggest a solid sense of self confidence and reflects a willingness to describe himself rather openly; * It is a reasonable chance that [CBM] is somewhat immature in comparing with two other applicants. It may well sense that his life is controlled by fate or luck rather than by his own decisions. "Maturity" score in this range suggests difficulty in accepting responsibility for one's own behaviour. Although [CBM] is below average in aggression when compared with two other applicants. This is generally a positive finding. His reported use of alcohol is significantly less than most applicants. While a positive finding, this alone cannot guarantee that alcohol is not a problem for [CBM]. * In terms of emotional awareness his scores differed significantly from the average applicant. * Appears to have less internal resources for recovering from stressful situations. * [CBM] seems to be rather low in persistence when compared to other applicants. While he may be able to start a job, there is a risk that he become distracted and have trouble meeting deadlines and in completing tasks to reasonable standard. * [CBM] is likely to approach tasks in a careless and haphazard fashion. This is generally a negative finding. It is particularly so if the "impulsivity" score is high. There seems to be greater than average need for approval, recognition and support from others, including bosses. * [CBM] describes himself as having generally positive attitude towards helping others. This should add to his job satisfaction. However, it must also be balanced by a willingness to occasionally accept criticism. * Working in routine and structured fashion should not be a problem for [CBM]. His self-description suggests comfort with such requirements, and relatively little need for variety and change. [CBM] is less oriented to work towards taking charge in situations and directing others than most of the applicants. In the absence of other negative factors, he may be a good team member and contributor who will look to others for direction. * This applicant's self-description suggests a significantly greater degree of hostility and arrogance than most applicants. [CBM] is at risk of challenging bosses if he doesn't agree with their instructions. Particularly if working for someone who is highly directive, [CBM] is able to be problematic. There are indications that he may be shy or a passive person. * There are several indications that he may not be a confident person in social relationships. Self-esteem seems somewhat low. While "impulsivity" score is within normal limits, certain aspects of the record raises concern about difficulty in following rules and procedures, regardless of other test findings. * [CBM] indicates having experimented with recreational drugs. 1. Also, in extensive interview of the applicant by a psychologist she concluded from that interview "[CBM] is a positive motivated person with a demonstrated desire to work in this field as evidenced through his studies. Through [CBM's] experience in coaching young people in sport and his work at Liquor Land with difficult/intoxicated customers, these fields have taught him conflict resolution, compassion and empathy to young people, as well as importance of communication and stress management. Although lacking in experience, he is eager to learn and has enthusiasm for the work. Therefore 'Recommend Advance.'" 2. He has been working as a Youth Officer on a casual basis an average of 4 days per week. In his work as a Youth Officer, his duties included: * Supervision of detainees; * Escorting detainees outside the centre; * Organising activity programs; * Case management of individual detainees; and * … assessment of the behaviour of the detainees. 1. As part of his duties he has had a regular performance reviews and they all have been positive, hence adoption by him of the proposition that he is able to work professionally and effectively with young offenders in often very difficult circumstances. 2. There is a 16 page report by a forensic psychologist, Ms Caroline Hare. She reported that he presented as affable, engaged co-operatively with the assessment process and maintained his attention. She said, "His responses to questions were logical, coherent and sufficiently detailed, and as such, he did not evidence any formal thought disorder." She did not conduct any formal intelligence testing but concluded he was within the average range. She reported, "His mood remained stable throughout the assessment process and I did not observe any evidence of overt psychopathology that impacted his ability to engage, including blunted affect, elevated anxiety, psychomotor slowing or symptoms of psychosis," The age of the applicant at the time the matters occurred 1. The applicant's age was 20 years and one month The age of the victim at the time of the matters and any matters relating to vulnerability of the victim. 1. The victim was 17 years and 9 months when the matters occurred. She was vulnerable by being under the influence of alcohol. She was also vulnerable because she was distressed that her boyfriend had terminated their relationship early in the night. On the evidence it appears she was more experienced sexually than the Applicant, who told Ms Hare his first sexual intercourse experience was at age 20 and was in a relationship. It appears he was referring to the events of 31 October 2010 or, more likely, a relationship with another female after that. Difference in age between V and the applicant and their relationship. 1. The difference in age was two years and four months. They had known each other since February 2010. They had been in the same peer group. It appears to have comprised of boys and girls age group of 17 and 18 in year 12 that year and also the applicant (and perhaps others) who were 19 or 20. The applicant and V had commenced a friendship and a romantic relationship. They had not engaged in sexual activity previously but they spent time together without others and also spent time together with other friends Whether the applicant knew the victim was a child. 1. The applicant knew the victim's age, and therefore was aware the victim was under 18 years of age and she was a child. ("Children" is defined in s5 of the Act as "persons under the age of 18 years".) The applicant's present age. 1. The applicant is now 25 years of age The seriousness of the applicant's total criminal record and the conduct of the applicant since the matters occurred. 1. The applicant has no convictions for any crime and has no criminal record. His conduct snice the matters occurred has been referred to earlier. The Tribunal has not been provided with any evidence of conduct of the applicant since 31 October 2010 that reflects adversely on him. 2. Caroline Hare conducted an independent assessment of the risk the Applicant poses to the safety of children on 6 July 2015. She reported that the applicant says that since the criminal proceedings, he is "more cautious with regard to his conduct" and he is careful "not to overdo it" and ensures that he "does not place himself in the situation where the allegation could be made". In oral evidence he made similar statements and expressed his remorse that he had placed himself in such a situation with an intoxicated person. He has also become much more careful about his own alcohol consumption and his conduct. 3. The applicant is currently in a romantic relationship with a lady that has lasted 3 years. She is 21 years of age. They have been sexually intimate. He plays hockey with the woman's father. They have plans for the longer term to buy a home together. Prior to this relationship he had a serious intimate relationship with a lady that lasted about 9 months. He thought that that relationship "was getting serious" but following a disagreement the lady terminated the relationship. 4. He has not co-habited with any partner or parented any child. He told Ms Hare he established friendships with ease and enjoyed participating in school sporting teams. He had successfully completed his year 12 High School Certificate in 2008. He said he enjoyed socialising with friends and has a close group of friends from high school and university. She reported that his "leisure interests included age appropriate activities, such as frequenting social venues, playing pool, socialising in friends' houses and playing sports." 5. Ms Hare interviewed the applicant on 6 July 2015 in her offices. She conducted multi-modal assessment which included a semi-structured interview, completion of psychometric testing, and review of supporting documentation. Assessment lasted 2 hours and 20 minutes. She also spent 10 minutes subsequently on a telephone to the applicant clarifying information. Ms Hare was cross examined for almost an hour. Her evidence in cross examination reinforced her opinions in her report. 6. Her findings also included: 1. At page 5 – "In sum CBM described positive development, during which he was not exposed to marked vulnerabilities". 2. At page 7, 8 - " [CBM] does not appear to endorse being hyper-sexual. In terms of sexual fantasies, he reported that this involved his partner or perhaps celebrities who are similar-age or older than himself. He stated that he would fantasise about 'foreplay' and generally the scenario would 'start slow and get more intense'. He denied harbouring deviant sexual interests or fantasies including use of force or coercion." 3. At page 8 – "Overall he appears to presently evidence a sound understanding of the concept of sexual consent." 4. At page 8 – "On the evening of the incident leading to the court case, [CBM] had apparently consumed up to 8 standard drinks and he admitted he was intoxicated. As such alcohol likely impacted on his judgement." 5. At page 10 [CBM] identified that he had been "hurt" by the complainant's allegations because he 'wouldn't ever do something like that to someone'. He outlined his respect for women and he denied believing that there were any circumstances in which it is acceptable for a man to force woman to have sex. The day after the incident he reported that he emailed the complainant and apologised for 'coming onto her like that' because he thought she felt 'guilty' for not having sex with him because she wanted to reconcile with her ex-partner'. 1. Ms Hare had the applicant complete the "Personality Assessment Inventory", which is an objective test of personality and psychopathology designed for improving information on critical client variables. Ms Hare cautioned that "although there was no evidence to suggest that he intentionally sought to distort the profile, but his response pattern may have underrepresented the extent and degree of any significant finding. In my experience, it is not uncommon in the individuals being assessed within a current context, and the results of the PAI must be considered within a broad clinical picture". The results did not indicate the presence of any clinical psychopathology. That, she said, was consistent with the opinion she formed through her interview and with his presentation "and recent pattern of functioning". She said: He endorsed some problems in relation to current sense of identity and happiness, and physical signs of depression. [CBM] appears to experience fluctuations in his level of self-esteem that are comparable to most adults. He endorsed open, genuine and conforming interpersonal style, with a tendency to avoid leadership role in social interactions. Others likely see him as a warm, quiet individual who is very eager to please. It was consistent with references provided to support his documentation." Likelihood of any Repetition by the Person of the Offences or Conduct 1. In Commission For Children and Young People - v- V [2002] NSWSC 949 Young CJ in Eq, in considering s9(8) of the Child Protection (Prohibited Employment) Act, 1998, which required the Tribunal in similar proceedings under that legislation "not to make an order under this section unless it considers, that the person the subject of the proposed order does not pose a risk to the safety of children". Young CJ in Eq held regarding the construction of the section: "One must not approach the matter on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence". [At par 41] and [at par 42] One does not define risk as meaning minimal risk. One would in any case as Mr Singleton has submitted, exclude fanciful or theoretical risk but 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 `risk' with the words that follow, namely, 'to the safety of children' ." 1. Ms Hare did not apply the Static – 99R assessment test which assesses the risk of sexual offenders reoffending, because there had been no conviction and there were other grounds to believe "that the crime was not committed". 2. Ms Hare carried out a structured psychological risk assessment (the Risk for Sexual Violence Protocol) to identify the applicant's risk of engaging in sexually abusive behaviours and then identified dynamic risk factors. She was of the opinion that at the time of the alleged offences the Applicant engaged in possible breach of trust towards V. "Others have entrusted him to ensure her safety. He was aware that she was intoxicated". Ms Hare formed the opinion that having been through the criminal process and the hearing, he had made changes to his behaviour and improved his understanding and practices in the relation to issue of sexual consent. She found "I'm of the opinion that presently the risk factors are being actively managed." She listed a series of protective factors associated with reduced risks of engaging in sexually abusive behaviours, all of which have been evidenced by the applicant. There are 9 of those factors: 1. Healthy sexual interests, including a preference for sex with age-appropriate partners and absence of hyper sexual behaviour; 2. Stable intimate relationship; 3. Prosocial support network; 4. Functioning coping skills; 5. Sobriety; 6. Engagement in employment and constructive leisure activities; 7. Engagement in effortful positive and goal-directed behaviours; 8. Absence of criminal attitudes or behaviours; 9. Stable upbringing within which he successfully developed a secure attachment style. 1. Ms Hare concluded that at present the applicant "poses an overall low risk of engaging in sexually abusive behaviour towards children. Low risk is the lowest category of risk available in this type of assessment, and this indicates that there is no tangible risk posed, in addition to which interventional management is not required." 2. She added in her recommendation that "I consider the risk to children's safety that [CBM ] presents is currently commensurate with the risk of any adult member of the community (i.e. non offender) harming a child. I respectfully recommend that there is no justifiable reason from a risk assessment perspective that CBM should not be granted a Working With Children Check Clearance. Any information given by the applicant in, or in relation to, the application. 1. The applicant in his counsel's submission relied on several matters rising from the evidence of Dr Lee. Dr Lee said that if V had reported to him that there were repeated occasions where the applicant had gripped her wrists, he would have recorded that allegation was made. He said that V had referred to only one occasion of being grabbed by the wrists by the applicant. He said that this was alleged to have occurred when she was leaving his home after the alleged assault. Also V confirmed in cross-examination in the district court on 6 June 2012 that the complaint about her wrists was in relation to where the applicant had "grabbed" her by the arm when she was running down the street. And she confirmed she was not alleging to anyone that her arms were grabbed and held when she was in the bedroom. 2. The applicant also relies on fact that there was no objective evidence of any such injury that could be attributed to an assault by the applicant. 3. He relies also upon the fact that at the time V alleged the matters occurred, the applicant's parents were sleeping in a nearby room of the house, about 5 metres away with their bedroom door open and their evidence was that they were not woken until V decided to leave. Other matters that the Children's Guardian considers necessary 1. The submission of the Children's Guardian argues that it is too soon after the alleged events to say it is unlikely that such matters will not occur again. But the opinion of Ms Hare is professional and well justified by her. Conclusions 1. On the evidence the applicant poses only a low risk to the safety of children. The correct and preferable decision is that he be granted a Check Clearance. 2. There should be an order prohibiting publication or broadcasting of the names or other identifying information of the Applicant or V. Orders 1. Accordingly the orders are: 1. The decision of the Children's Guardian to refuse the applicant's a Working With Children Check Clearance is set aside; 2. The Children's Guardian must give the applicant a Working With Children Check Clearance; and 3. Broadcast or publication of the name or other identifying information of the applicant or the complainant in respect of the charges against the applicant relating to events on 31 October 2010 is prohibited. ********** 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 Amendments 11 December 2015 - Paragraph 71 and 77 anonymisation 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: 11 December 2015