Supreme Court New South Wales Medium Neutral Citation: CPD v Office of the Children's Guardian [2019] NSWSC 8 Hearing dates: 22 March 2018 Decision date: 17 January 2019 Jurisdiction: Common Law Before: McCallum J Decision: Appeal dismissed Catchwords: ADMINISTRATIVE LAW – judicial review of decision by NCAT confirming refusal to grant a "working with children check clearance" – where person seeking clearance had been tried for sexual offences against a child and found not guilty of all offences – finding by NCAT that the child's allegations were proved on the balance of probabilities – whether decision entailed legal error – application of so-called Briginshaw standard – alleged failure to afford procedural fairness – alleged failure to consider the plaintiff's sworn evidence – whether reasons revealed prejudgment – whether the finding was unreasonable – adequacy of reasons Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW), ss 14, 18, 30 Civil and Administrative Tribunal Act 2013 (NSW), ss 38(5)(c),57, 62, Sch 3 cl. 17(1)(a) Evidence Act 1995 (NSW), s 140 Administrative Decisions Review Act 1997 (NSW), ss 57, 58, 63 Cases Cited: BKE v Office of Children's Guardian [2015] NSWSC 523 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 CPD v Children's Guardian [2017] NSWCATAD 162 Greyhound Racing Authority v Bragg [2003] NSWCA 388 Haines v Leves (1987) 8 NSWLR 442 Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 M v M (1988) 166 CLR 69; [1988] HCA 68 Office of the Children's Guardian v CFW [2016] NSWSC 1406 Category: Principal judgment Parties: CPD (Plaintiff) Office of the Children's Guardian (Defendant) Representation: Counsel: Mr S Lawrence for the Plaintiff Mr P Singleton for the Defendant Solicitors: Archbold Legal for the Plaintiff Crown Solicitor's Office for the Defendant File Number(s): 2017/00185720 Publication restriction: The name of the plaintiff has been anonymised to protect the identity of the child complainant Judgment 1. HER HONOUR: A person engaged in child-related work in New South Wales must hold a "working with children check clearance" under the Child Protection (Working with Children) Act 2012 (NSW). The plaintiff in these proceedings was a bus driver for 19 years. He applied for a clearance in November 2015. He had at that time been charged with child sex offences allegedly committed against his niece but had been found not guilty of all charges following a trial by jury. The Children's Guardian refused the application for a clearance. The plaintiff sought review of that decision by the New South Wales Civil and Administrative Tribunal (NCAT). The Tribunal confirmed the decision of the Children's Guardian: CPD v Children's Guardian [2017] NSWCATAD 162. 2. The plaintiff now appeals against the decision of the Tribunal. An appeal lies from that decision to this Court on a question of law: Civil and Administrative Tribunal Act 2013 (NSW), Sch 3, cl 17 (1)(a). The criminal proceedings 1. The plaintiff's niece first complained of the alleged abuse in mid-2014. She was interviewed by the Joint Investigation Response Team (JIRT) in three recorded interviews, on 30 June 2014 (Court Book pp 465-514; I note that pp 467, 498 and 500-506 are missing from the Court Book); 7 July 2014 (Court Book pp 516-541) and 8 October 2014 (Court Book pp 571-594; p 581 is missing). 2. The trial commenced before Judge Haesler SC and a jury on 12 October 2015. The three JIRT interviews were played as the complainant's evidence- in-chief and she was then cross-examined over two days. The plaintiff gave evidence in his defence and was cross-examined. The transcript of his evidence runs for some 50 pages. 3. In his application to the Tribunal for review of the decision of the Children's Guardian, the plaintiff filed an affidavit annexing the trial transcript and stating that he was innocent of the allegations made against him by his niece. However, the affidavit did not annex the transcript of the three JIRT interviews (which were the complainant's evidence-in-chief). That material was placed before the Tribunal as part of a bundle of documents tendered by the Children's Guardian pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (exhibit R1 in the NCAT proceedings; exhibit I to the affidavit of Leonie Gittani sworn 22 December 2017 in the proceedings in this Court). 4. The hearing before the Tribunal was held on 18 January 2017. The documents relied upon by the parties were tendered and the plaintiff was then examined and cross-examined. Unsurprisingly, the complainant was not called as a witness before the Tribunal. The Tribunal's decision 1. Because of the criminal charges (even though he was acquitted of them), the plaintiff was subject to an assessment requirement pursuant to s 14 of the Act. Had he been convicted of those offences, he would have been a disqualified person within the meaning of s 18(1) of the Act and would not have been entitled to a clearance from the Children's Guardian. Having been acquitted of the offences, his application was governed by s 18(2) of the Act, which provides: "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." 1. The Children's Guardian was satisfied that, notwithstanding the outcome of the criminal trial, the plaintiff posed a risk to the safety of children. 2. In reviewing that decision, the task for the Tribunal was "to decide what the correct and preferable decision is having regard to the material then before it": s 63 of the Administrative Decisions Review Act 1997 (NSW). That decision was governed by s 30 of the Act, which provides a list of mandatory considerations. Section 30(1A) further provides: (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. The Tribunal acknowledged that it was required to approach that task in accordance with the principles stated by Beech-Jones J in BKE v Office of Children's Guardian [2015] NSWSC 523. The application of those principles is central to the present appeal and accordingly it is important to set out the relevant passage of the Tribunal's decision in full (at [46]): "The Tribunal is required to follow the decision in the Supreme Court in BKE v Office of the Children's Guardian [2015] NSWSC 523 Beech-Jones J, at [31]-[33], in relation to the assessment of risk. In that decision His Honour relied upon the approach of the High Court in the often cited decision of M v M [1988] HCA 68; 166 CLR 69. A positive finding of abuse might be made according to the civil onus, with due regard to the matters in section 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The Tribunal may also be affirmatively satisfied that an alleged incident did not occur. His Honour stated at [33] in relation to an application under section 28 of the Act for an enabling order: 'However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven.'" 1. The Tribunal consisted of two members, being a Senior Member and a General Member. The Senior Member found on the balance of probabilities that the plaintiff "engaged in the behaviour alleged": at [89]. He concluded at [140] that the correct and preferable decision was that the applicant does pose a risk to the safety of children and should not have a working with children check clearance. Accordingly, he proposed that the decision of the Children's Guardian should be confirmed. 2. The General Member reached the opposite conclusion. She found on the balance of probabilities that the allegations made against the plaintiff by his niece were "groundless": at [149]. She also made a determination favourable to the plaintiff in respect of the matters specified in s 30(1A). Accordingly, she proposed that the plaintiff should be granted a clearance. 3. In the circumstance of the members being equally divided in their opinion, the opinion of the Senior Member prevailed in accordance with s 57(3) of the Civil and Administrative Tribunal Act. The so-called Briginshaw standard 1. The amended summons filed 30 October 2017 identifies seven grounds of appeal. The first ground of appeal is: "The Tribunal erred at [89] to [90] in not applying in the relevant sense the 'Briginshaw standard' (Briginshaw v Briginshaw (1938) HCA 34; 60 CLR 336) when determining that the plaintiff had committed multiple acts of sexual assault of a child for which he had been acquitted." 1. This ground must be taken to invoke the remarks of Dixon J in Briginshaw at 360 to 362. The burden of those remarks is that, while there are only two standards of proof at common law (the criminal standard and the civil standard), the nature of the issue to be determined affects the process by which reasonable satisfaction is attained. The critical passage appears at 362 of Dixon J's judgment, as follows: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences." 1. That proposition is now reflected in s 140 of the Evidence Act 1995 (NSW), which provides: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. While NCAT is not bound by the rules of evidence (see s 38 of the Civil and Administrative Tribunal Act), there are circumstances in which it is required to have "due regard" to matters identified in those rules, as recognised in the passage from the Tribunal's decision set out above. 2. In arguing this ground, the plaintiff acknowledged that the application of the so-called Briginshaw standard in proceedings before administrative tribunals is not without complexity. The plaintiff's written submissions noted the discussion of that question by Beech-Jones J in BKE at [29], where his Honour said: "In Commissioner for Children and Young People v FZ [2011] NSWCA 111, Young JA (with whom Hodgson JA and Handley AJA agreed) expressed some concern about the reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 ('Briginshaw') in the above passage from IK (at [68]). I share his Honour's misgivings. Briginshaw warns about the use of "inexact proofs" in the context of making serious findings of fact (at p 362 per Dixon J). It is difficult to envisage how it applies to a party seeking to disprove a negative assessment of the risk they pose to children in the future. Further, the principles in Briginshaw were enunciated in the context of civil proceedings in a court, not administrative review proceedings in a body that is not required to apply the rules of evidence (CAT Act, s 38(2); see [63]). It is not necessary to decide whether a failure by NCAT to have regard to Briginshaw's admonitions might give rise to an appeal on a 'question of law'. It suffices to state that NCAT would be well advised to have regard to them if it was considering making a positive finding that an applicant sexually abused a child in circumstances where they were not convicted of doing so (see R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; 50 CLR 228 at p 256 per Evatt J)". 1. There is, with respect, much force in those observations. However, as his Honour noted, it was not necessary in that case to decide whether a failure by NCAT to have regard to "Briginshaw's admonitions" might give rise to an appeal on a "question of law". 2. The Children's Guardian submitted that this ground should be rejected because, "in short, Briginshaw is authority for the proposition that there is no Briginshaw standard". So much may be accepted but, as implicitly acknowledged in the remarks of Beech-Jones J set out above, the decision provides admonitions to which NCAT would be "well-advised" to have regard before making a positive finding in respect of a serious allegation. The more difficult question is whether a failure to do so entails legal error. Whether a finding of fact was open (by a process of reasoning that was not illogical or irrational) having regard to the material before the Tribunal may be accepted to raise a question of law. Beyond that, any examination of the Tribunal's assessment of the cogency or exactness of that material must stop at the gate into review of the merits of the decision. 3. In any event, assuming (without deciding) that an alleged failure to have regard to the seriousness of an allegation, the inherent unlikelihood of an occurrence or the gravity of the consequences flowing from a particular finding amounts to an error of law, I am not persuaded that the Senior Member failed to have regard to those matters in the present case. 4. The plaintiff's submissions focussed on the fact that there was no reference to Briginshaw considerations in the passage of the Senior Member's decision where the adverse finding was recorded ([89]-[90]). In the passages identified, the Senior Member said: 88 The Tribunal has read in detail the transcript provided of the criminal trial. The complainant answered questions asked of her in a straightforward and uncomplicated manner. In contrast, the applicant's evidence in the criminal trial is bare denials of the allegations. The complainant's evidence cannot be discounted as suggested by the applicant's submissions since there is a plausibility of abusive touching and opportunistic settings surrounding the whole of the history recounted by the complainant. 89 The evidence does not establish to the criminal standard that the offences occurred. It is completely understandable that convictions were unable to be obtained given the state of the evidence before the District Court. However, the Tribunal finds on the standard applicable in the Tribunal having regard to all of the evidence that the applicant engaged in the behaviour alleged. The Tribunal is satisfied that the events took place applying the civil standard of proof. In other words, the Tribunal is satisfied that it is more likely than not that the events occurred as alleged. 90 These are very serious matters which led to the imposition of the interim bar and subsequently to the refusal of the working with children check clearance. 1. However, as appropriately acknowledged by the plaintiff, the Senior Member had at [46] of the decision (in his discussion of the relevant legal principles) referred to the decision of Beech-Jones J in BKE and, in particular, had noted his Honour's statement that a positive finding of abuse might be made according to the civil onus "with due regard to the matters in s 140 (2) of the Evidence Act 1995 (NSW), which refers to those matters identified in Briginshaw v Briginshaw." 2. In light of those remarks, to the extent that this ground rests on an alleged failure to advert to Briginshaw considerations, it must be rejected. The plaintiff submitted that those remarks were "not sufficient for the Court to conclude that the principle was applied". However, as submitted on behalf of the Children's Guardian, it is for the plaintiff to establish legal error. 3. The Children's Guardian further noted that the plaintiff's submissions overlooked the detailed discussion earlier in the decision at [20]-[29] of authorities concerning the onus and standard of proof which included explicit discussion of the applicability of Briginshaw to the functions of an administrative tribunal not bound by the rules of evidence. The authorities referred to included the decision of the Victorian Court of Appeal in Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176; [2013] VSCA 305 at [36]-[39] which, in turn, approved the following statement of Santow JA in Greyhound Racing Authority v Bragg [2003] NSWCA 388 at [35] (which the Court said "captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present"): "I am accordingly satisfied that the Tribunal would have recognised that Briginshaw was the standard it would apply. But, as I later elaborate, how that standard was to operate must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence. The notion of 'inexact proof, and indefinite testimony or indirect references' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body." 1. I am not persuaded that, having adverted to those principles, the Senior Member failed to apply them. The plaintiff submitted that was the inference to be drawn from the absence of any reference to Briginshaw in the critical passage of the decision considered in the context of the "paucity" of evidence of guilt in the case. With respect, I do not think that word means what the author of the submission thinks it means. As already noted, the complainant gave three interviews to the JIRT team in which she was questioned extensively and often repetitively; the transcripts of those interviews were before the Tribunal; she was cross-examined over two days in the criminal trial and the Tribunal also had that transcript. Within that material, she repeatedly confirmed that the plaintiff had committed various offences against her. There was a profusion of evidence of guilt; the critical question was its cogency. The Tribunal's assessment of the cogency of the evidence is considered below in respect of the remaining grounds. For the reasons set out above and the additional reasons stated in respect of those grounds, ground 1 is not made out. Alleged denial of procedural fairness 1. Ground 2 is: "The Tribunal erred in applying s 38(5)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) and the common law doctrine of procedural fairness, by not sufficiently putting the plaintiff on notice of the realistic possibility that a. a positive finding would be made that he had committed multiple acts of sexual assault of a child for which he had already been acquitted and b. a positive finding would be made that it was 'more likely that the applicant will repeat his behaviours'." 1. The basis for this ground is the contention that the plaintiff was not put sufficiently on notice that the finding at [88]-[90] of the decision (set out above) might be made. It was submitted on that basis that the decision entailed an error of law in that the Tribunal failed to comply with s 38(5)(c) of the Civil and Administrative Tribunal Act. That section requires the Tribunal to ensure that the parties have "a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". 2. Counsel for the Children's Guardian appearing at the proceedings before the Tribunal took what was appropriately termed by different counsel appearing in this Court a "gentle" approach. In her oral submissions, she did not submit that the Tribunal should make a finding that the allegations made against the plaintiff by his niece were true. It was submitted on behalf of the plaintiff that, indeed, she had submitted to the contrary (Tcpt, undated, p 64(30)). She said: "As I've set out in my submissions, in these circumstances we don't say that the Tribunal's necessarily in a position to make positive findings of every one of those matters, because the state of the evidence doesn't allow such precision, even on the balance of probabilities. However, what we do say is that these allegations are not groundless and I use that word with reference in particular to the judgment by Harrison J in the case of CFW which I've referred to in my submissions." 1. The decision of Harrison J in Office of the Children's Guardian v CFW [2016] NSWSC 1406 referred to in that submission applied the approach stated by Beech-Jones J in BKE set out above. 2. The submission did not go so far as to say that the Tribunal should not make positive findings at all. Rather, the submission was that the Tribunal was not necessarily in a position to make a finding as to each count on the indictment. In written submissions provided to the Tribunal, the Children's Guardian relied upon the three JIRT interviews and contended that a "positive finding" that the allegations were true was "open" but not necessary. It was contended that the Tribunal should "at least" find that the allegations were not groundless but gave rise to an unacceptable risk. Having regard to the nature of the Tribunal's task, which was to reach the correct and preferable decision having regard to the material then before it in circumstances where neither party bore an onus, that was enough to alert the plaintiff as to the possibility of a positive adverse finding. 3. Separately, the plaintiff complains that at no point was it put to him during cross-examination before the Tribunal that the allegations were true or that the Tribunal might find that they were. However, as submitted by the Children's Guardian, the evidence and submissions presented by the parties and indeed the question posed by the legislation squarely raised the possibility of such findings and the plaintiff dealt with them in his case. 4. Both parties in the proceedings below referred to the decision of Harrison J in CFW, which applied the same principles as BKE. Those principles set out the universe of possibilities in cases such as the present. Justice Harrison summarised them in slightly different language, as follows (at [14]-[15]): "The first proposition is that, in assessing whether there is a risk to the safety of children, the court or tribunal should first consider whether (a) positive findings can be made as to any alleged act(s) of wrongdoing on the balance of probabilities, or (b) whether the court or tribunal has 'no hesitation in rejecting the allegation as groundless'. A positive finding on the balance of probabilities that relevant conduct has taken place, if such a finding can be made, will generally have a 'decisive impact' on the outcome of the application. The second proposition is that, even if no such 'positive finding' can be made, the court or tribunal is still obliged to consider questions of risk that may be indicated by all of the facts, unless it is determined that the allegation is 'groundless'. 1. In the circumstances, I do not think the requirement for procedural fairness required the Senior Member to articulate the possibility that he would make positive findings. As submitted by the Children's Guardian in this Court, its defence of the review proceedings was based exclusively on the niece's allegations and their acceptance in some degree, either on the balance of probabilities or at least as not being groundless and instead giving rise to a lingering doubt (the original decision of the Children's Guardian also had regard to concerns about the plaintiff expressed by a friend of the complainant in a separate JIRT interview but, in accordance with the "gentle" approach taken in the Tribunal, that evidence was not relied upon in the review proceedings, even though it was plainly relevant). 2. The plaintiff squarely addressed the case presented by the Children's Guardian. He gave evidence adhering to his denial of the allegations. 3. At to the position taken at the hearing before the Tribunal by counsel for the Children's Guardian, I do not think the fact that she did not put to the plaintiff that he engaged in the conduct alleged by his niece precluded the Tribunal from making a finding to that effect. The assessment of those allegations was the only issue before the hearing. The Children's Guardian did not have an onus to prove them to be true. Further, as already noted, the plaintiff did in fact respond to the allegations in his evidence before the Tribunal. 4. For those reasons, ground 2 is not made out. Alleged failure to consider sworn evidence 1. Ground 3 is: "The Tribunal erred in finding that the plaintiff had committed multiple acts of sexual assault of a child, by failing to consider the plaintiff's sworn evidence before the Tribunal that he had not." 1. The plaintiff submits that an examination of the Tribunal's reasons for decision shows that the Tribunal did not consider the evidence the plaintiff gave before the Tribunal. The argument was developed by reference to s 30(1)(j) of the Child Protection (Working with Children) Act. As already noted, that section provides a list of mandatory considerations for the Tribunal in determining an application for review. Section 30(1)(j) requires the Tribunal to consider "any information given by the applicant in, or in relation to, the application." 2. The structure of the Tribunal's reasons was to consider each of the mandatory considerations specified in s 30(1) under a separate heading. The Tribunal's consideration of s 30(1)(j) was set out as follows: "Any information given by the applicant in, or in relation to, the application 108 The applicant has provided information including the material recorded in the exhibits. 109 The Children's Guardian has not submitted that the applicant has failed to provide relevant information." 1. I do not think it is to be concluded from that formulaic recitation of the Senior Member's consideration of the matters listed in s 30 that he overlooked the fact that the plaintiff had given evidence before the Tribunal. 2. It may be accepted that the reasons for decision of the Senior Member did not directly discuss the evidence given by the plaintiff in the proceedings before the Tribunal. In my view, that is unsurprising having regard to the procedural history set out above. The matter did not come before the Tribunal in a vacuum; it had a lengthy history. While the Tribunal was of course obliged to have regard to all of the material placed before it, the principal focus of the review was a retrospective analysis of the evidence in the criminal trial. 3. Further, as the plaintiff had been acquitted, his application was logically focussed on the alleged weaknesses in the complainant's evidence. The fact that he had given sworn evidence in the criminal trial denying his niece's allegations was acknowledged by the Children's Guardian at the outset of closing submissions. Counsel for the Children's Guardian opened her closing address as follows (after reminding the Tribunal of her written submissions filed before the hearing): "and this is a case where the allegations were, in effect, tested at the criminal trial. [The plaintiff] gave evidence in that trial and his evidence is in R1 in the evidence before the Court - the Tribunal today. There is also no other significant matters that the Children's Guardian say are relevant to this determination so far as other complaints or allegations, so the focus is on the offences allegedly conducted against [the complainant]. The key points that I wish to make is that these allegations are, despite what the applicant says, not implausible. 1. The submission implicitly acknowledged that some weight was to be afforded to sworn evidence given by an accused person in circumstances where that person was subsequently acquitted. The submissions of both parties focussed instead on the significance of the admitted inconsistencies in the evidence of the complainant. 2. The Senior Member set out a lengthy discussion of the allegations in the criminal proceedings. That discussion appeared under the heading "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", which is the first mandatory consideration listed in s 30(1) of the Child Protection (Working with Children) Act. In that discussion, the Senior Member noted at [71] that the plaintiff had given evidence at his trial. 3. The Senior Member also noted at [72] the plaintiff's submission "that the evidence of witnesses given on oath or affirmation should be preferred over statements made where the witnesses were not cross-examined". That appears to have been a reference to paragraph 12 of the plaintiff's written submissions before the Tribunal, which stated "it is submitted that as the matter has now gone to trial, the witness statements should be given less weight than evidence of witnesses that have been given on oath or affirmation". That was a curious submission in circumstances where the three JIRT interviews were the complainant's evidence in chief in the criminal trial. 4. In any event, for present purposes the point is that the principal (if not exclusive) focus of the submissions of both parties before the Tribunal was the alleged inconsistencies in the complainant's evidence which emerged from the lengthy cross examination of her at the plaintiff's trial. In his closing submissions before the Tribunal, counsel for the plaintiff made no reference at all to the plaintiff's evidence before the Tribunal, focusing exclusively on the course of the trial. 5. The Senior Member's discussion of the seriousness of the matters that caused a refusal of a clearance, set out at [69]-[90] of his reasons, was directed to those submissions. The Senior Member noted in that context that the plaintiff had given evidence at the trial. Most of the discussion that followed directly responded to the extensive criticism of the complainant made on behalf of the plaintiff in the proceedings before the Tribunal. It is clear that, in short, the Senior Member rejected those criticisms. I am not persuaded that, in doing so, he overlooked the fact that the plaintiff had given sworn evidence in the proceedings before the Tribunal. Upon analysis, that evidence did not take the matter any further than his sworn evidence in the criminal trial, to which the Senior Member expressly referred. 6. Further, as noted on behalf of the Children's Guardian, the separate judgment of the General Member did explicitly discuss the plaintiff's evidence before the Tribunal. In the published decision, that discussion appeared on the same page as the Senior Member's conclusion (where it was acknowledged that the members were divided). That is an additional indication that the Senior Member must have been mindful of that evidence in reaching his determination. It is unsurprising that he did not refer to that evidence in circumstances where it had not even been referred to by the plaintiff's own counsel in closing submissions. 7. For those reasons, ground 3 is not made out. Alleged prejudgment 1. Ground 4 is: The Tribunal erred in prejudging that the complainant's allegations of sexual assault were true and therefore failing to exercise jurisdiction in an unbiased manner and therefore further erred by determining the matter in circumstances where the reasonable observer might have apprehended that the Tribunal might have prejudged that the complainant's allegations of sexual assault were true. 1. This ground is based entirely on an analysis of the Senior Member's reasons (written, of course, after he had reached a determination). The plaintiff submitted that the Senior Member "appears to have approached the evidence (such as it was) with a presumption that it was true". The interpolation "such as it was" is unfounded. I have read the three JIRT interviews carefully, and also the cross-examination of the complainant at the trial. I do not think her account can be dismissed in such terms. 2. In any event, the submission was that the Senior Member approached the complainant's evidence with a presumption that it was true and that the entire analysis was focused on why various inconsistencies and alleged implausible features of the evidence do not undermine that presumption. 3. Upon a careful review of the course of the proceedings before the Tribunal, the language of the Senior Member's judgment is easily understood. As already noted, the entire focus of the plaintiff's submissions was to attack the complainant's credibility. The Senior Member's reasons are framed in terms responsive to that attack. I do not think there is any foundation for the contention that the Senior Member failed to approach the matter in an unbiased manner. On the contrary, it is clear that he took care to go behind the extravagant criticisms of the complainant put forward by counsel appearing for the plaintiff in the Tribunal (not counsel appearing in this Court). The Senior Member's careful analysis shows that he gave thorough and impartial consideration to the complainant's evidence, importantly including her three JIRT statements as well as the ground counsel was able to make in cross-examination at the trial. 4. Consideration of the kind of alleged inconsistencies and implausibility relied upon by the plaintiff in the proceedings before the Tribunal must be undertaken fairly and with some understanding of the nature of the process in question as well as the characteristics of children in giving evidence. A thorough reading of the JIRT interviews reveals that the complainant was an intelligent and careful witness. In some instances, apparent inconsistencies arose due to the manner of questioning rather than the complainant's answers. 5. In cross-examination at the trial, every forensic advantage was taken over the witness. In describing the cross-examination in those terms, I mean no criticism of counsel who appeared at the trial. Astute forensic strategy is exactly the function of a barrister. However, that is a relevant consideration in considering the very different function of the Children's Guardian. On my reading, the complainant adhered to the nub of her allegations in a manner that was plausible and, in critical respects, consistent. Inconsistencies were established. That is almost invariably the case in cases of this kind, where lawyers insist on a measure of exactness from children (indeed, all witnesses) that simply cannot realistically be achieved. 6. For those reasons, I would, with respect, roundly reject the proposition that the Senior Member prejudged the matter for his determination. On the contrary, my consideration of the whole of the material before me persuades me that he undertook his task carefully, independently and fairly. Ground four is not made out. Whether the finding was unreasonable 1. Ground 5 is: "The Tribunal erred by unreasonably finding on the evidence in the absence of evidence capable of supporting the finding that the plaintiff had committed multiple acts of sexual assault of a child." 1. The Children's Guardian noted that, to the extent that this ground contends that there was evidence of the assaults but that it was unreasonable to accept that evidence, it goes beyond an appeal on a question of law, as explained in Haines v Leves (1987) 8 NSWLR 442 at 469. 2. I understood the plaintiff to accept that he must establish that the evidence was not capable of proving the assaults. The plaintiff submitted that it was not open to the Tribunal to find the complainant's allegations proved to the civil standard in circumstances where that assessment was, of necessity, undertaken on the strength of a transcript of the complainant's evidence as against sworn evidence given before the Tribunal by the plaintiff. 3. To the extent that the argument suggested evidence on transcript cannot, as a matter of law, be accepted in the face of sworn evidence from an applicant, it must be rejected. As submitted on behalf of the Children's Guardian, it would be contrary to the purpose of the Act to construe it as requiring oral evidence to be called from complainants, who might include children, and adults traumatised as children, about distressing matters. The object of the Act is to protect children. 4. Even leaving aside the comparison with the plaintiff's sworn evidence, to suggest that there is some inherent difficulty with a complainant's evidence-in-chief on the basis that it is only before the Tribunal on transcript is wrong. It overlooks the careful process by which JIRT statements are taken. As noted on behalf of the Children's Guardian, the complainant was on oath when the videos of the interviews were played in the criminal trial. It is not unusual for this Court to be left to consider evidence given orally in proceedings below by reference only to a transcript of that evidence. The content of such evidence is often as good a guide to reliability as the demeanour of the witness. In my assessment, the complainant's three JIRT interviews gave a cogent and plausible account of continuing, opportunistic sexual abuse. 5. The Children's Guardian's written submissions in this Court provided detailed references to the evidence which it was submitted was capable of supporting the Tribunal's findings. I have considered that material and am satisfied that there was prima facie evidence capable of establishing each count on the indictment. I did not understand the plaintiff ultimately to contend otherwise. Rather, the submission focussed on the form of the evidence (transcript as against sworn evidence) and the alleged inconsistencies and implausibility of the complainant's evidence. The assessment of those matters was a matter for the Tribunal. Ground 5 is not made out. Whether the Tribunal acted unreasonably and irrationally 1. Ground 6 is: "The Tribunal erred in unreasonably and irrationally reasoning at [88] 'the complainant answered questions asked of her in a straightforward and uncomplicated manner. In contrast, the applicant's evidence in the criminal trial is bare denials of the allegations' and using that conclusion materially in reasoning that the plaintiff had committed multiple acts of sexual assault of a child for which he had already been acquitted". 1. The plaintiff noted that the case at trial was that the offences simply had not occurred and that, in those circumstances, it might reasonably be expected that he could do little more than to offer bare denials. It was further submitted, however, that in fact he did substantially more than that. In particular, the plaintiff noted that his evidence-in-chief ran for over 30 pages of the transcript covering an array of relevant topics and that cross-examination ran for approximately 20 further pages similarly traversing an array of topics. In the circumstances, the plaintiff submitted that the Tribunal's interpretation of the trial transcript was unreasonable and irrational. 2. I do not think there is any force in that complaint. As submitted by the Children's Guardian, the Tribunal was entitled to characterise the evidence in the terms set out; those were aspects of the fact-finding task that are unassailable in an appeal on a question of law. Whether the Tribunal's reasons were inadequate 1. Ground 7 is: "The Tribunal erred by failing to give adequate reasons for finding that the plaintiff had committed multiple acts of sexual assault of a child for which he had been acquitted." 1. This ground focused on the Senior Member's failure expressly to refer to the sworn evidence given by the plaintiff at the proceedings before the Tribunal. It was submitted that, as the Tribunal gave no reasons for rejecting that evidence, it followed that inadequate reasons were given for the conclusions reached at [88] to [90] set out above. 2. The duty of the Tribunal to give reasons is stated in s 62 of the NCAT Act as follows: 62 Tribunal to give notice of decision and provide written reasons on request (1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings. (2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made. (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. (4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party. 1. As submitted on behalf of the Children's Guardian, the reasons are to be assessed having regard to the cases presented by the parties. As already noted, the plaintiff had sought to make a case that the complainant's evidence was inconsistent and implausible and accordingly that her allegations may be rejected as groundless. In my assessment, the Senior Member provided adequate written reasons at [69]-[90] for resolving that issue adversely to the plaintiff. 2. In particular, the Senior Member recorded the chaotic circumstances of the household in which most of the offences were alleged to have been committed and recorded the plaintiff's submission that it was implausible that offences could occur undetected in such a household. The Senior Member addressed that argument, considering that it was plausible and highly probable that no one paid particular attention to what was occurring with any of the children. He also explained his reasons for rejecting the submission concerning whether the offences happened with the door open or closed, saying at [76] "the conduct alleged is opportunistic. It could happen quite quickly and go unnoticed." 3. The Senior Member addressed the contention that the evidence was uncorroborated by noting that the complainant had told her friend and then her friend's mother of the alleged behaviour. 4. The Senior Member also explained at [81] his consideration of the uncertainty established by the cross-examination at the criminal trial as to the timing of the events and the specific detail of the acts alleged to have been committed by the plaintiff. 5. The central issue presented to the Tribunal was whether to believe the plaintiff or the complainant. I accept, as submitted by the Children's Guardian, that, in substance, to accept one was to reject the other. In my assessment, the Senior Member gave adequate reasons for rejecting the plaintiff's submissions concerning alleged deficiencies in the evidence of the complainant. Ground 7 is not made out. Conclusion 1. For those reasons, I have concluded that the appeal must be dismissed. ********** 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: 17 January 2019