Supreme Court New South Wales Medium Neutral Citation: CFK v Office of the Children's Guardian [2017] NSWSC 460 Hearing dates: 12 April 2017 Date of orders: 24 April 2017 Decision date: 24 April 2017 Jurisdiction: Common Law Before: Schmidt J Decision: (1) The appeal is dismissed. (2) Unless the parties approach to be heard within 7 days, CFK is to bear the Guardian's costs, as agreed or assessed. Catchwords: ADMINISTRATIVE LAW – appeal against NSW Civil and Administrative Tribunal decision re working with children check clearance – whether the Tribunal was bound to accept expert opinion that the applicant posed a low risk of sexual abuse – whether there was a denial of procedural fairness – whether there was failure to give reasons for rejection of expert opinion – whether Tribunal was entitled to reach different conclusions to that reached by the Court of Criminal Appeal – applicant had not pursued counselling and had not disclosed acquittal to employers – whether Tribunal's decision was irrational and illogical – no legal errors established – appeal dismissed Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Cases Cited: BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 Briginshaw v Briginshaw (1988) 60 CLR 336 at 362; [1938] HCA 34 CFK v Office of the Children's Guardian [2016] NSWCATAD 140 M v M (1988) 166 CLR 69 at 77; [1988] HCA 68 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 YG & GG v Minister for Community Services [2002] NSWCA 247 Category: Principal judgment Parties: CFK (Applicant) Office of the Children's Guardian (Defendant) Representation: Counsel: Ms J Webb (Applicant) Ms A Douglas-Baker (Defendant) Solicitors: Baldock Stacy & Niven Solicitors (Applicant) Crown Solicitor's Office (Defendant) File Number(s): 2016/231438 Publication restriction: Orders made pursuant to ss 7 and 8(1)(d) and (e) of the Court Suppression and Non-Publication Act 2010 (NSW) Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Civil Citation: [2016] NSWCATAD 140 Date of Decision: 06 July 2016 Before: Anderson SM and Kelleghan GM Judgment 1. On 23 September 2015 the Office of the Children's Guardian's refused CFK's application for a "Working with Children Check" clearance under s 18(2) of the Child Protection (Working with Children) Act 2012 (NSW), having concluded that he posed a risk to the safety of children. That conclusion was reached despite the Court of Criminal Appeal having upheld an appeal against his conviction of two sexual assault offences under s 61P and 61I of the Crimes Act 1900 (NSW), of which he had been convicted by a jury, following events in 1995, when it was alleged that he and four other adult males together had non-consensual sex with a 17 year old girl. 2. Proceedings having been brought for those offences constituted "assessment requirement triggers" under cl 1(1)(b) of schedule 1 of the Child Protection (Working with Children) Act, despite the appeal having been upheld. 3. On 6 July 2016 the NSW Civil and Administrative Tribunal affirmed the Guardian's decision in CFK v Office of the Children's Guardian [2016] NSWCATAD 140. Under clause 17 of schedule 3 to the Civil and Administrative Tribunal Act 2013 (NSW), CFK has the right to appeal the Tribunal's decision to this Court, on a question of law. Issues 1. The summons advanced seven grounds of appeal. Ground one was not pressed. 2. At the hearing the parties agreed that the issues raised by those grounds, which overlapped, were whether the Tribunal: 1. Was bound to accept the expert opinions of Ms Johnson, a forensic psychologist who had examined CFK and concluded that his risk of sexual abuse was low? 2. Denied CFK procedural fairness because it did not warn him and give him an opportunity to address it: 1. on the rejection of Ms Johnson's opinion 2. the rejection of his evidence as to consent 1. Failed to give reasons for the rejection of Ms Johnson's opinion? 2. Was entitled to: 1. reject CFK's evidence, given the conclusions reached by the Court of Criminal Appeal? 2. take into account: 1. views expressed by the sentencing judge, given the Court of Criminal Appeal's conclusions? 2. that CFK had not: - pursued counselling after his acquittal? - disclosed his record to employers who employed him to work with children? 1. Came to a decision that CFK posed a risk to the safety of children which was irrational and illogical, given the probative and relevant evidence which established that he posed no risk to the safety of children. 1. Whether what was finally pressed impermissibly raised the merits of the Tribunal's decision, was also in issue. The Tribunal's consideration of the sentencing remarks 1. There was no error in the Tribunal considering the sentencing remarks which were in evidence. The rules of evidence did not apply to the proceedings, but it had to act "according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms": Civil and Administrative Tribunal Act 2013 (NSW), s 38(4). 2. The sentencing remarks were plainly relevant to what the Tribunal had to decide, namely what it identified at [25] of its reasons as the "correct and preferable decision", in relation to the granting of a working with children check clearance to CFK: Administrative Decisions Review Act 1997 (NSW) s 63 and YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]. 3. Because CFK had been acquitted, there was no presumption under s 27 of the Child Protection (Working with Children) Act, that he posed a risk to children. The matters which the Tribunal had to have regard to were specified by s 30(1) of that Act to be: "(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, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary." 1. Similar considerations arose under s 15, the Tribunal exercising all of the functions that are conferred or imposed on the Guardian: Administrative Decisions Review Act, s 63(2). 2. That the sentencing remarks were relevant was put beyond doubt by the evidence which CFK gave, to which I will return. Those remarks shed considerable light on the seriousness of the offences with respect to which he became a disqualified person. 3. At trial, both the jury and the sentencing judge, who had seen CFK and the complainant give evidence, preferred the evidence of the complainant over the evidence of CFK and his co-accused, on the question of consent. The Court of Criminal Appeal, however, concluded that the absence of consent had not been proven beyond reasonable doubt. Therefore, before the Tribunal CFK was cross-examined about the question of consent, his attitude to what he had done in 1995 and his life subsequently. 4. In the result, there was no error of law in the Tribunal taking the sentencing remarks into account, in arriving at the "correct and preferable decision" in relation to the granting of a clearance to CFK. Ms Johnson's opinion that CFK posed a low risk of sexual abuse 1. Nor did the Tribunal deny CFK procedural fairness by its approach to the report of a forensic psychologist, Ms Johnson of 22 March 2016, or the oral evidence which she gave. The report 1. Ms Johnson's report noted at paragraph 32, that CFK had "reported that on recalling the circumstances of the charges that were laid, he is certain he had formed the opinion that the female involved was 18 years of age and that she had provided consent by her actions on the day" and that he had "only found out she was upset when he read her statement". 2. CFK gave evidence to quite different effect before the Tribunal. That evidence had to be considered in light of the other relevant evidence which it had before it. 3. The sentencing remarks revealed that the assaults in which CFK was involved in 1995 occurred at a barbecue for members of a soccer team, at one of the member's homes. While walking past, the complainant had been invited in, by O, a man with whom she had previously had a sexual relationship. After consuming a considerable amount of alcohol, she had consensual sex with DA and claimed that she had non-consensual sex with O and three others, CFK, DE and DA. 4. In issue at the trial was the question of consent, the complainant being aged 17 not being a child under the Crimes Act 1900, as she was pursuant to s 5 of the Child Protection (Working with Children) Act. 5. The offenders were not convicted of all of the offences with which they were charged, but CFK was convicted of both of the charges which he faced. The police interview 1. What CFK had told police in his record of interview as to consent was: "Q141 And do you admit that you had no consent to attempt to have sexual intercourse with her? A That's right. Q214 Now, you've agreed that you've attempted to have intercourse with [the complainant] without consent. A Yeah Q215 Why did you decide to try that? A I don't really know." The sentencing remarks in the District Court proceedings 1. So far as CFK was concerned, his Honour observed as to the first act of group sexual activity in which he was involved, that the jury had rejected the versions given by CFK, O and DE and had "clearly accepted the version given by the complainant, as do I". 2. His Honour said that those acts took place while the complainant was still in a bedroom, after having consensual sex with O. She became aware that DE was naked and kneeling on the bed next to her head, on the right. O was on her other side. They began trying to put their penises into her mouth. She turned her head, in an attempt to get away from them. She noticed flashes from a camera and started to freak out and panic. Another person put his fingers into her vagina and she tried to wiggle up the bed to get away, but her head was pushed and squashed up against the bedhead. She pretended to pass out by closing her eyes, letting her body go limp and closing her mouth. Someone attempted to open her mouth and she heard O saying he wanted a "head job". She sensed that he was getting angry. Then she felt someone on top of her body, while her eyes were closed. His Honour was satisfied that was CFK. She thought he had penetrated her vagina. 3. While CFK attempted to penetrate her, O and DE were on either side of her head, encouraging him and attempting to insert their penises into her mouth. 4. His Honour considered it open to the jury to find that even though she had previously consented to sex with both O and DE, she had not consented to this degrading and humiliating experience, which occurred at a point when she was powerless, in the hands of three men and being used as an object for their sexual gratification. While she may have been imprudent and provocative, that did not lessen the impact of this offence. 5. CFK continued his attempts to penetrate her vagina, while O forced his penis into her mouth and thrust it into the back of her throat, almost causing her to throw up. When O withdrew his penis, DE put his penis into her mouth. Photographs were still being taken, but his Honour was unable to say by who. CFK then desisted and O climbed on top of the complainant. 6. The second act of group sex then took place. His Honour found that CFK, DA and DE were all present and assisting and encouraging O by their presence. O was on top of her and inserted his penis into her vagina, at a point when the complainant began crying, sobbing and having difficulty breathing. His Honour found this to be the clearest indication that she was not consenting. 7. The complainant's legs were then being held, so that they were open as far as they would go. She resisted that and was trying to close them, but was unable to do so. She became aware of another camera flash and said that it was so degrading that she asked them to stop and asked why they were doing it, but received no response. O continued grunting and engaging in penile vaginal intercourse. She pushed forward and upwards with her palms and asked again why they were doing it and asked them to stop, but there was no reply. 8. When O finished she went into the bathroom, where she was "bawling and crying loudly" and was in a mess. She was subjected to further assaults in the bathroom and a bedroom by O and DE, before leaving the house and making immediate complaint to a friend of having been the victim of a gang rape. She was then taken to the police and later to hospital for examination. The Court of Criminal Appeal judgment 1. The issue on the appeal pursued by CFK and DA turned on the question of consent. 2. After discussing the complainant's evidence and her agreement that she could have consumed 8 or 9 stubbies of beer and that she may have been drunker than she thought she was, reference was made to corroborating evidence of the friend to whom she had made complaint, who described her to have been pretty drunk and uncoordinated, looking upset, concerned that she would get into trouble from her father for drinking and about the photographs which had been taken. 3. As to CFK, it was observed that in his record of interview, he admitted taking photographs of the complainant having sex with O; that after the film ran out he removed his pants and underpants and lay on top of her while O and DE tried to have oral sex with her, with her trying to pull her head away and that DA came in and watched. CFK was unable to obtain an erection and when he was already up and dressed, she began crying and he tried to calm her down. Then DE said he would look after her and so CFK left her. His admissions on interview and his evidence at trial were then quoted, as was his evidence that he thought that the complainant was consenting. 4. Amongst other things it was concluded by the Court of Criminal Appeal that a photograph of the complainant's face was consistent with her enjoying herself and also consistent with her being distressed; that the jury's verdicts were inconsistent; that there were gaps and inconsistencies in the complainant's evidence; that while she was entitled to withdraw consent at any time, there was a real issue as to whether or not she was consenting and if she was not, whether CFK knew that to be the case, or was reckless as to consent. 5. CFK's evidence was that he saw her licking and sucking O and DE's penises and fondling DA's penis while he was on her; that he thought she was consenting to group sex; and that she did not cry until after he was off her. While the complainant said that CFK was still present during the second group sex activity, she could not say what, if anything he was doing. 6. In the result, the Court of Criminal Appeal concluded that the verdicts were unsafe and unsatisfactory. Overall, it was concluded that the complainant was quite happy to indulge in a variety of successive sexual activities with all of these men, all of whom, apart from O were strangers and that she probably had no objection to group sexual activities, but became concerned when she realised that photographs were being taken and of the possible consequences of these photos. 7. There were also concerns about the Crown's failure to call another man present at the party, who had taken other of the photographs in evidence. That added to the general unease felt by the Court in relation to the safety of the jury verdicts to which the appeal related. CFK's evidence before the Tribunal 1. The answers CFK gave in cross-examination on the question of consent departed from the account he gave to Ms Johnson and from aspects of his evidence at trial. Had that then been his evidence, his appeal from conviction might not have succeeded. 2. While in reply before the Tribunal CFK said that he thought the victim was consenting, his earlier evidence in cross-examination included that: * When asked whether he thought the complainant was the kind of person who would have sex with someone she had just met, that "I don't think I can make a call like that"'; * When he saw her having sex with O, he picked up a camera and took photos, but could not explain why; * When the film ran out he did not decide that he would try and have sex with her, but when O said to him to come in, he entered and attempted to have sex, without speaking to the victim; * He did not recall whether anyone else was then present; * When asked whether he gave any consideration to whether or not she consented, he said that "was probably something I didn't think about at the time" and that with some of his other sexual partners, he had never asked permission; * When asked whether he thought, given that he had just met the complainant and that there was another person present, that he should have thought to ask her about consent, he repeatedly stated that it was not a question in his mind at the time; * He recognised, in hindsight, that he should have asked the victim whether she consented; * He agreed that he did not think at all about whether she consented to engaging in sexual activity with him or the group in which he was involved; * He denied having heard her cry after he put his clothes back on immediately after his attempt at intercourse. He said that she never cried, but was upset because she couldn't find a $2 coin that had sentimental value; * When asked whether he had made an assumption that she was consenting to the group sexual activity, he said that he thought she was consenting, then that he had made an assumption about that and finally, that he did not know if she was consenting or not; * He accepted that she might have been fearful, but said that if anybody had wanted to get out of that situation they could have, by "fight or flight"; * When asked about his answers in police interview, earlier quoted, his evidence was that he meant that he had no verbal conversation with the complainant, but he said that he didn't turn his mind to the question "do you consent" until after the fact, by which he meant "after that day". The parties' cases 1. Ms Johnson's report was not addressed in the Guardian's written submissions before the Tribunal, it having been served only the day before they were completed, but Ms Johnson was cross-examined and her opinions and the weight they would be given by the Tribunal, were addressed orally. Thereby Ms Johnson's opinion was put in issue. 2. The Guardian contended that her opinions would be given little weight, despite CFK's history of leading a pro social life since his acquittal of the offences in 1995. He had only committed a limited number of driving offences. He had married and raised two children and had worked with children, both as a volunteer and in his employment as a security guard at schools and hospitals, before pursuing employment as a youth worker, working with 13 to 17 year old disadvantaged youths. 3. The Guardian's submissions addressed matters such as Ms Johnson not having been briefed with the sentencing Judge's remarks and that her opinion had rested on CFK's self report to her. Both written and oral submissions were advanced for CFK in response, but there was no reply to the Guardian's submissions as to the little weight which, in the result, should be given to her report. 4. The position undoubtedly was that the Tribunal had to take into account that Ms Johnson had not had the benefit which it had, of the oral evidence that CFK gave at the hearing, particularly in cross-examination about his evidence in relation to consent. Ms Johnson had not been taken to this evidence and she was not asked to indicate whether it had altered the favourable opinions which she had earlier reached, as to the risk which CFK posed. That was no doubt the result of forensic decisions made at the hearing. 5. Accordingly, the Tribunal had to decide whether it found Ms Johnson's opinions persuasive, given all of the evidence which it had to consider, particularly CFK's evidence and the sentencing remarks, which had not been available to Ms Johnson. The Tribunal's decision 1. The Tribunal did not find Ms Johnson's opinions persuasive. That conclusion was well open, given the evidence which CFK had given. 2. In its decision, the Tribunal addressed the various requirements of s 30. It concluded at [109] that CFK "has minimised his role and the role of his co-accused in the offences which were quashed by the Court of Criminal Appeal". 3. It explained that conclusion by reference both to CFK's evidence and Ms Johnson's report, discussing at [110] and [114] - [115] what CFK had told her. The Tribunal observed amongst other things that: CFK had initially blamed the complainant for lying and causing the situation, while later coming to see the situation from her point of view; the explanation he had given at trial for admissions which he had made in his police interview as to the absence of consent; the other evidence at trial and his conviction by a jury which had preferred the complainant's evidence; the outcome of the appeal on the ground that CFK's conviction had been unsafe and unsatisfactory; the criminal onus in those proceedings, as opposed to the onus which applied in the Tribunal proceedings; the caution with which risk assessments had to be approached and their limitations for predictions of recidivism; the dynamic risk factors which Ms Johnson had used in her risk assessment, many of which relied on CFK's report; and the protective factors discussed in her report. The Tribunal concluded at [123] – [125]: "[123] The factors which are identified as protective against the applicant's future risk of sexual offending are set out in Exhibit A8 at [43]. It is obvious that other than the charges, which were later quashed, there are no reported concerns about the applicant. The applicant shows no psychopathic characteristics according to the test administered by the psychologist. The aspects of risk management identified by the psychologist in discussion with the applicant are that in the workplace the applicant considers he should work in conjunction with another worker when tending to an individual teenager's needs and if he was concerned with a specific person he would discuss this with his supervisor to seek guidance. The applicant's self-imposed social isolation in order to reduce risk of being perceived by others as inappropriate was not considered helpful to the applicant. The applicant proposes to be more open in his social awareness and less fearful and would seek professional help if this was not achievable: Exhibit A8 [46]. [124] Having regard to all the circumstances, the Tribunal finds on the balance of probabilities that the events described by the complainant to the police and the subject of the evidence during the criminal trial more likely than not occurred. The applicant has agreed with many of the factual matters referred to in the evidence. The respondent submits that the applicant knew that the complainant did not consent or was recklessly indifferent to whether the complainant consented or not to the sexual abuse to which she was subjected. [125] The Tribunal finds that there is an unacceptable risk of harm posed by the applicant to children having regard to all the circumstances referred to in the preceding paragraphs. The Tribunal cannot accurately predict whether the conduct of the applicant will be repeated. The evidence from the applicant is not persuasive that there is no risk of repetition. If it is repeated behaviour the impact on children is likely to be significant and adverse to their healthy development." CFK was not denied procedural fairness and the reasons given were adequate 1. There was no error of law in the Tribunal's approach to Ms Johnson's opinions. Nor was CFK denied procedural fairness. Whether her opinions should be given any weight was squarely put in issue. Nor were the reasons given for the Tribunal not accepting those opinions inadequate. 2. The Tribunal was not bound to accept Ms Johnson's opinions. What lay in issue had to be resolved in light of the evidence CFK had given before the Tribunal, particularly given its conflict with the account CFK had given Ms Johnson. 3. That conflict was a proper basis on which it was open to the Tribunal to conclude that it could not give her opinion the weight it was urged on this appeal it should have been given, despite her undoubted expertise. The conclusions reached by the Court of Criminal Appeal 1. I have already discussed the evidence which CFK gave before the Tribunal about consent. The Tribunal did not reject that evidence. It was rather quite different to that which the Court of Criminal Appeal referred to in its judgment. 2. The case advanced by the Guardian in oral submissions was that CFK's evidence was a candid response to questions he had been asked, which revealed that deep down, he knew that there had been no consent and that he was certainly recklessly indifferent to it. 3. The response to those submissions relied on the conclusions reached by the Court of Criminal Appeal, that it had been unsafe for the jury to find that the sexual activity had occurred without consent. 4. The Court of Criminal Appeal did not, however, have before it the evidence which CFK gave before the Tribunal, which it was obliged to take into account, in arriving at the "correct and preferable decision" in relation to the granting of a clearance to CFK. 5. In the face of that evidence, the conclusions which the Tribunal reached were open, notwithstanding that they were different to those reached by the Court of Criminal Appeal, whose task was a different one to that of the Tribunal, namely whether the offences with which CFK had been charged had been proven beyond reasonable doubt. 6. CFK was not denied procedural fairness in relation to the evidence he had himself given and over which the parties joined issue as they did. He availed himself of the opportunity to advance submissions about that evidence and the Court of Criminal Appeal's judgment. 7. Given the nature of his evidence, the Tribunal was not bound to reach the same conclusion which the Court of Criminal Appeal reached, particularly given the differing standards of proof which applied in the two sets of proceedings, as the Tribunal discussed. 8. CFK's evidence provided a proper basis for the Tribunal coming to a different conclusion to that reached by the Court of Criminal Appeal. There was no legal error in either its approach, or conclusions. The Tribunal's views about CFK not having pursued counselling and not having disclosed his record to employers who employed him to work with children 1. The Tribunal's concerns about these matters arose in the face of its conclusion, on the balance of probabilities, that CFK had committed the offences of which he had been acquitted. The context was that before amendment of the legislative scheme which resulted in CFK making an application for a clearance, he had obtained employment with disturbed female children in a residential setting, which required him to work alone, at night, while responsible for their care, without disclosure of his history to that employer. 2. The evidence was that CFK had undertaken two courses, before his release from custody called "Learning to live without violence" and "Drug awareness". On 7 November 1997, CFK was sentenced to a term of imprisonment of two years commencing on 5 September 1997 and expiring on 4 September 1999. While he was eligible to also undertake a sex offenders' course in custody, he did not register for that course in sufficient time to complete it, before his acquittal in 1998. 3. After his acquittal, CFK did not consider that further counselling or education about sexual offending was necessary. His evidence was that he had not considered himself to be a sex offender and that he had also relied on his acquittal as a proper basis for not having disclosed to his employers, the offences with which he had been charged, convicted and acquitted. 4. In light of this evidence, the Guardian submitted before the Tribunal that CFK's failure to undertake sex offenders' courses or counselling, showed that he "lacked insight into his conduct"; lacked insight into the "affect it had on the complainant"; and that he "continues in his own mind to blame the complainant". Further, that CFK's interest in registering in a sex offenders' course after his imprisonment was only to improve his prospects on appeal and his failure to disclose his record to employers who employed him to work with children, showed that he "preferred his own interests to the interests of vulnerable young persons" and that this was "inconsistent with what is to be expected of someone" who seeks a clearance. 5. In response, CFK submitted that the Guardian's submissions were "inaccurate, wrongful and without foundation and did not reflect the positive information available to the respondent in addressing this issue". It was not explained by CFK precisely why this was so. 6. The Tribunal concluded at [132]: "The behaviour and conduct which triggered this assessment is a serious matter. The Tribunal is satisfied that the behaviour and conduct of the applicant was deviant and this extreme event was inconsistent with his professed prosocial attitudes. The applicant's subsequent employment in residential care work with 13 to 17-year-old disadvantaged youths without disclosing his previous history demonstrated a lack of insight which he otherwise is now able to express verbally to the psychologist, Ms Johnson. The Tribunal is disconcerted that the applicant could consider he could work in this area without fully disclosing his prior history." 1. The Tribunal discussed various other matters which weighed for and against granting the clearance CFK sought. It concluded at [139] that CFK had not "developed insight into the effects of his conduct", even though he had shown remorse. It also concluded at [141] - [144]: "[141] There is no presumption in proceedings under section 27 of the Act that the applicant poses a risk to children as there would be if the applicant were a disqualified person seeking an enabling order: cf. section 28(7) of the Act. [142] Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [39]-[40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of and under the mandated considerations contained in sections 15 and 30 of the Act: BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126. [143] If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant. [142] The evidence received by the Tribunal also establishes that the Tribunal cannot be satisfied that the applicant does not pose a risk to children. The safety, welfare and well-being of children and in particular protecting them from child abuse is the paramount consideration pursuant to section 4 of the Act. [143] If the Tribunal is in error in concluding that there is a real and appreciable risk of harm to children, it is concluded on the balance of probabilities that having regard to the circumstances surrounding the conduct by the applicant and the subsequent history means that the existence of a real and appreciable risk to children has not been disproven. [144] In all the circumstances, on the balance of probabilities and taking into account all the considerations required under section 30 (1) of the Act the correct and preferable decision having regard to the material before the Tribunal is that the applicant poses a risk to the safety of children and should not receive a Working with Children check clearance. The decision of the Children's Guardian should therefore be affirmed." 1. While the Tribunal did not refer to the two courses which CFK undertook in custody, there was no legal error in its approach to, or conclusion about his failure to pursue counselling in relation to his involvement in the 1995 events and not having disclosed his record to employers, given what it was obliged to consider under the statutory scheme governing these proceedings. 2. They were both relevant matters arising under ss 30(1)(h) and (i), which required consideration to be given to CFK's conduct since the events of 1995; the likelihood of any repetition of such conduct; and the impact on children of any such repetition. Was the decision irrational and illogical? 1. It is pertinent to note that grounds 6 and 7 as pleaded were: "Ground 6 3.22 Was there probative and relevant evidence capable of supporting the Tribunal's conclusion that the applicant poses an unacceptable risk of harm, or a real and appreciable risk of harm, to children? 3.23 The Tribunal made a finding that on the balance of probabilities the events described by the complainant victim to the police and the subject of evidence during the criminal trial in the District Court more likely than not occurred. 3.24 The Tribunal did not give adequate consideration and weight to the decision of the Court of Criminal Appeal which made orders that the conviction and sentence against the applicant be quashed and a judgment and verdict of acquittal be entered. 3.25 Was it open to the Tribunal to make a finding on the balance of probabilities that the alleged offences for which the applicant was charged and later acquitted in the Criminal Court of Appeal more likely than not occurred in circumstances where: a. Pursuant to s.27 of the NSW Child Protection (Working with Children) Act 2012, the Tribunal is to conduct an administrative review of the Children's Guardian decision to refuse a Working with Children Check Clearance? b. In circumstances where a verdict of acquittal in the Criminal Court of Appeal should be treated as final and not subject to further investigation? Ground 7 3.26 Do the Tribunal's reasons disclose a rational reasoning process taking into account only relevant and probative evidence." 1. In submissions CFK relied on what Young CJ in Eq discussed in Commission for Children and Young People v [2002] NSWSC 949 at [42], in relation to the former Child Protection (Prohibited Employment) Act 1998 (NSW), namely: "What one is looking for is whether, in all of 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 children. One, however, must link the word 'risk' with the words that follow, namely, 'to the safety of the children'." 1. The Tribunal was obliged to act on material which was rationally probative: Commission for Children and Young People v FZ [2011] NSWCA 111 at [63]. Under the current legislative scheme, s 30(1A) also provided that: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that: (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order. 1. As discussed by Beech-Jones J in BKE v Office of Children's Guardian & Anor [2015] NSWSC 523 at [29] the Tribunal must have "due regard" to the factors mentioned in Briginshaw v Briginshaw (1988) 60 CLR 336 at 362; [1938] HCA 34, when considering making a positive finding that an applicant sexually abused a child, in circumstances where they were not convicted of doing so: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256; [1933] HCA 30; M v M (1988) 166 CLR 69 at 77; [1988] HCA 68. 2. In M v M, which the Tribunal referred in its decision at [44], the view taken was that where a positive finding that an allegation is well founded, "in all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access". 3. In BKE, Beech-Jones J considered that reasoning to be applicable to the Tribunal's fact finding and its process of risk assessment under this statutory regime. At [33], his Honour considered that in circumstances where the Tribunal was not satisfied that an allegation of abuse had been made out, it could, nevertheless, conclude that the circumstances surrounding a particular incident, or course of conduct meant "that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven" because of the "context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children". 4. In this case, the Tribunal concluded on the balance of probabilities both that the offences of which CFK had been acquitted by the Court of Criminal Appeal had been committed and that despite the evidence of what has transpired in CFK's life since then, the existence of the risk he posed to children had not been disproven. Despite the favourable evidence it discussed, it thus refused his application. 5. In these proceedings CFK's case was explained to be that the Tribunal had fallen into error of the kind discussed in BKE at [113], namely, in respect of a "jurisdictional fact", with a resulting determination which was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [38]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [34] and [37]. 6. It was also argued that there was "no probative and relevant evidence capable of supporting the Tribunal's conclusion that the applicant poses an unacceptable risk of harm, or a real and appreciable risk of harm, to children". Further, it was argued, making a finding, on the balance of probabilities, that the offences of which CFK had been acquitted, had occurred, went beyond the Tribunal's jurisdiction under s 27. 7. The case so advanced cannot be accepted. 8. Section 27 of the Child Protection (Working with Children) Act provides for administrative review of the Guardian's decision under the Administrative Decisions Review Act 1997. Section 63(1) of that Act empowers the Tribunal on such a review to decide what is the "correct and preferable decision" by having regard to the material before it, including: "(a) any relevant factual material, (b) any applicable written or unwritten law." 1. On the evidence before it, including as it did the evidence which CFK himself gave, the Tribunal was thus empowered to conclude on the balance of probabilities, as it did, that the offences of which CFK had been acquitted, had been committed. To conclude otherwise would require in the case of acquittal of an offence, the Tribunal to ignore even a confession that an offence of which an applicant had been acquitted, had in fact been committed. 2. That would ignore the statutory injunction imposed on the Tribunal by s 27, to decide the "correct and preferable decision" in the circumstances confronting it, on the relevant evidence. 3. Nor is it open to conclude that the decision which the Tribunal reached on the evidence, that the "correct and preferable decision" was to refuse CFK the clearance which he sought, was unreasonable. 4. On the evidence earlier discussed, it is apparent that his is not a case where there was an error of law because there was no evidence to support the Tribunal's conclusion that CFK did pose a risk to the safety of children. 5. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 the concept of unreasonableness, which also arose in the case pressed in submissions, was explained at [68] - [76]: [68] Lord Greene MR's oft-quoted formulation of unreasonableness in Wednesbury [139] has been criticised for "circularity and vagueness", as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation, which was decided less than two years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area. [69] In Wednesbury, Lord Greene MR discussed the various grounds upon which an exercise of statutory power may be abused. His Lordship foreshadowed defining those grounds under a single head of unreasonableness, stating that it was "perhaps a little bit confusing to find a series of grounds set out. Bad faith, dishonesty ... unreasonableness, attention given to extraneous circumstances, disregard of public policy" were all relevant to the question of whether a statutory discretion was exercised reasonably. [70] The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson [145], a case which is cited chiefly in relation to the unreasonableness of the exercise of delegated law-making power, may avoid some of the circularity identified in the Wednesbury formulation. Lord Russell considered that unreasonableness was found where delegated laws were: "partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; [or] if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men". [71] In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, Lord Diplock opined that unreasonableness would be shown where "no sensible authority acting with due appreciation of its responsibilities" would have so decided. This reflects the requirement of the law that a decision-maker understand his or her statutory powers and obligations. It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury [149], such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations. [72] The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. [73] In Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation, reference was made to an analysis of three paradigm cases of unreasonableness which were thought to be consistent with a view of Lord Greene MR's "doctrine", as based on the law as to the misuse of fiduciary powers. The third paradigm involved the application of a proportionality analysis by reference to the scope of the power. [74] In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1). With that in mind, consideration could be given to whether the Tribunal gave excessive weight – more than was reasonably necessary – to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis. [75] In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (citations omitted)" 1. Approaching the Tribunal's decision in this way, it is not apparent that the decision arrived at was unreasonable, despite the time that had passed since the events of 1995 and the evidence favourable to CFK, which was before the Tribunal. 2. CFK was cross-examined not only about his understanding, in 1995, of the victim's lack of consent, but also as to his subsequent life and his views at the time he gave his evidence, about relevant matters. 3. That evidence did not convince the Tribunal, that the "correct and preferable decision", was to grant CFK the clearance which he sought, for the reasons which it gave. In particular, it took into account at [105] that CFK had: "… sought and obtained youth work at a facility for vulnerable young persons aged between 13 and 17. The facility has vulnerable young girls as residents. The applicant has not and did not disclose to his employer the circumstances of the alleged offences and the extent of his admitted participation in that activity. It is a factor which would have been relevant to consideration by his employer of any risk that the applicant may pose to those vulnerable young people with whom he worked." 1. Amongst the conclusions reached at [125] – [126] were that: "[125] The Tribunal finds that there is an unacceptable risk of harm posed by the applicant to children having regard to all the circumstances referred to in the preceding paragraphs. The Tribunal cannot accurately predict whether the conduct of the applicant will be repeated. The evidence from the applicant is not persuasive that there is no risk of repetition. If it is repeated behaviour the impact on children is likely to be significant and adverse to their healthy development. [126] The applicant has not shown any real insight into the psychological and emotional impact on the victim. Instead, the applicant appears preoccupied with the psychological and emotional effect on him of being identified in the community as a sexual abuser, even though he has no criminal convictions." 1. No doubt reasonable minds could differ over these questions, but it is pertinent that the Tribunal's conclusions were influenced by: "[140] The jurisdiction of the Tribunal under the Act is protective, not punitive, and an assessment of risk should err on the side of caution whilst balancing all of the risks which may be posed to children. The paramount principle under the Act requires that the protection of children, particularly from child abuse, is the main focus but it is not the only factor which must be considered. … [143] If the applicant is granted a clearance he may work with any children of any age. No conditions may be imposed upon the grant of a clearance. For the purposes of these proceedings, it is sufficient to observe that the evidence establishes on the balance of probabilities that there is a real and appreciable risk of harm to children posed by the applicant." 1. These conclusions were open. There was no legal error in the Tribunal arriving at these conclusions, on the material before it. Orders 1. In the result the appeal must be dismissed. The usual order as to costs is that they follow the event. That would in this case be an order in favour of the Guardian. Unless the parties approach to be heard within 7 days, that will be the Court's order. 2. Accordingly, I order that: 1. The appeal is dismissed. 2. Unless the parties approach to be heard within 7 days, CFK is to bear the Guardian's costs, as agreed or assessed. 1. …………… Amendments 26 April 2017 - typographical error in [2] - "cl 2(b)" changed to "cl 1(1)(b)" 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: 26 April 2017