WN v Commission for Children and Young People [2011] NSWADT 179 (25 July 2011)

Last Updated: 28 July 2011

Administrative Decisions Tribunal New South Wales

Case Title:	WN v Commission for Children and Young People
Medium Neutral Citation:	[2011] NSWADT 179
Hearing Date(s):	2 June 2011
Decision Date:	25 July 2011
Jurisdiction:	Community Services Division
Before:	L Goodchild, Judicial Member
Decision:	The application is dismissed.
Catchwords:	Declarations; prohibited person.
Legislation Cited:	Administrative Decisions Tribunal Act 1997; Commission for Children and Young People Act 1998
Cases Cited:	AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; Commission for Children & Young People v UR [2007] NSWSC 1099; Commission for Children and Young People v V [2002] NSWSC 949; R v Commission for Children and Young People [2002] NSWIR Comm 101; Commissioner for Children and Young People v IK and Anor [2005] NSWSC 1136.
Texts Cited:
Category:	Principal judgment
Parties:	WN (Applicant) NSW Commission for Children and Young People (Respondent)
Representation
- Counsel:	Counsel D Ward (Respondent)
- Solicitors:	WN (Applicant in person) State Crown Solicitor (Respondent)
File number(s):	104028
Publication Restriction:	s.126 of the Administration Decisions Tribunal Act 1997 applies.

REASONS FOR DECISION

1. The applicant, who in these reasons will be referred to by the pseudonym "WN", applies to the Administrative Decisions Tribunal for an order under the Commission for Children and Young People Act 1998 ("the Commission Act"). WN is a "prohibited person having committed a serious sex offence" , namely for the offence of indecent assault decided in the Campbelltown Children's Court in June 1994. At the same time he was also convicted of one count of obscene exposure. For these offences he was sentenced on each charge to a period of probation for 6 months. The applicant appealed against that conviction to the District Court and that appeal was heard in the Campbelltown District Court in November 1994 where the appeal was dismissed and the conviction was confirmed.

2. The applicant is a prohibited person by operation of s.33B of the Commission Act because, pursuant to s.33B (3) (a) of the Commission Act the conviction of the applicant of indecent assault falls within the definition of a serious sex offence. The conviction of obscene exposure does not fall within the definition of serious sex offence. The applicant was aged 15 at the time of the offence. Unless the order WN seeks is granted, it will be an offence for him to apply for, undertake or remain in child related employment (according to s.33C of the Commission Act ).

3. The applicant made an application to the Commission for Children and Young People seeking an order under s.33H of the Commission Act . By correspondence of 19 October 2010, Megan Mitchell, Commissioner, advised the applicant that the Commission had been unable to determine that he did not pose a risk to the safety of children at this time. That correspondence, which was attached to the applicant's application, discloses that the Commissioner made this determination because of an insufficiency of information provided by the applicant.

4. The applicant then filed on 4 November 2010 an application to this Tribunal for a declaration pursuant to s.33H of the Commission Act .

Relevant Legislation

5. The relevant provisions of the Commission Act came into effect on 2 January 2007 ( Commission for Children and Young People Amendment Act 2005 (No. 108)). This legislation inserted the requirement in s.32 that in determining applications such as these, the Tribunal is required to give paramount consideration to the safety and welfare of children, and in particular, the need to protect them from abuse (s.32). The welfare of children is therefore of paramount importance in the implementation of the Act, however, it is not the sole matter to be considered: Commissioner for Children and Young People v FZ [2011] NSWCA 111 per Young JA at 68.

6. The definition of ' children ' as provided in section 3 of the Commission Act means persons under the age of 18 years.

7. Section 33J (1) of the Commission Act provides that an order should not be made unless the Tribunal '' is satisfied that the person the subject of the application does not pose a risk to the safety of children ". This test is in similar, but not identical, terms to the corresponding provision in the now repealed Child Protection (Prohibited Employment) Act 1998 ("the CPPE Act").

8. The test under the CPPE Act has been considered by the Supreme Court (see, for example, Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476; Commission for Children and Young People v IK & Anor [2005] NSWSC 136; Commission for Children and Young People v UR [2007] NSWSC 1099; 173 A Crim R 300).

9. Some assistance on the application of s.33J (1) of the Commission Act can be gained from these previous decisions. However, care should be given in applying the principles developed to deal with different, albeit similar, legislative provisions. The CPPE did not provide for the "safety and welfare of children to be paramount consideration" . There was no equivalent to s.32 of the Commission Act.

10. Young CJ (in Equity) in Commission for Children and Young People v V , considered the meaning of the word "risk" in s.9 (4) of the CPPE Act. His Honour adopted Haylen J's analysis in R v Commission for Children and Young People [2002] NSW IR Comm 101. Haylen J said that s.9 (4) was focused on:

"Not a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights."

(Commission for Children and Young People v V at [22]: R v Commission for Children and Young People [2002] NSW IR Comm 101 at 104.)

11. The reference in the above excerpt by his Honour Young CJ to the notion of the ' joint ' protection of children and employees and the preservation of reasonable civil rights must be reconsidered in light of s.32 of the Commission Act . However, with respect to the content and scope of ' risk ', his Honour held (at [42]) that "risk" in the context of s.9 (4) meant a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child "... one must link the word 'risk' with the words that follow, namely, 'to the safety of children'.

12. Section 33J (2) provides that it is to be presumed that the applicant poses a risk to the safety of children, unless that applicant proves to the contrary. The applicant is seeking relief by declaratory order and, as in the normal case, the party seeking the declaration has the burden of proof, this being a necessary element of the declaration sought. As such, the applicant assumes the legal burden and the evidential burden of rebutting the presumption that he poses a risk to the safety of children. The evidence for the purposes of that rebuttal must be of sufficient cogency to persuade this Tribunal of the non-existence of the presumed fact of the applicant posing a risk to the safety of children.

13. In deciding whether or not to make the declaration sought by the applicant, the Tribunal is not to make an order unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at p.362. There, Dixon J said:

"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."

14. The exercise of the Tribunal's jurisdiction is protective and not punitive in nature: Commissioner for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61].

15. In deciding whether or not to make an order, the Tribunal must take into account the matters outlined in s.33J (3) as follows:

33J Matters to be considered in determining review applications

...

...

In deciding whether or not to make an order in relation to a person, the Commission or a relevant Tribunal is to take into account the following:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(b) the period of time since those offences were committed,

(c) the age of the person at the time those offences were committed, and

(d) the age of each victim of the offences at the time they were committed,

(e) the difference in age between the prohibited person and each such victim,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the prohibited persons present age,

(h) the seriousness of the prohibited persons total criminal record, and

(i) such other matters as the Commission or tribunal considers relevant.

Procedural History

16. The matter was set for hearing on 14 February 2010.

17. The matter did not proceed on this date. The applicant agreed to attend a psychologist for the purposes of the preparation of an independent report with respect to the subject matter of these proceedings. The hearing was adjourned to 2 June 2010.

18. On 2 June 2010, applicant appeared in person. The respondent was represented by Ms Ward of Counsel and, in addition to the material filed by the applicant and by the respondent, a report had been prepared by Dr Christopher J Lennings, psychologist. The matter proceeded to be heard on 2 June 2011.

Evidence

The Applicant's Evidence

19. The applicant relied upon a number of documents filed with his Application as follows:

• a copy of his date of birth that disclosed that he was born in New Zealand on 9 September 1985;
• a copy of heavy vehicle driver's licence;
• a copy of one page of his passport;
• a National Police Certificate dated 1 May 2009 from the NSW Police Force entitled, "Disclosable Court Outcomes" and outstanding matters recorded against the name of the applicant and which recorded four entries as follows - two being the Campbelltown Children's Court entries in 1994 of indecent assault and obscene exposure; one of the Campbelltown District Court entry noting the appeal against conviction; and a further matter listed in the Downing Centre Local Court on 31 August 1999 of a mid-range PCA drive motor vehicle where the applicant was convicted and fined $1,000 and disqualified for a period of 6 months;
• a copy of a handwritten letter which disclosed that the applicant had been, "selected by State Transit to drive for Sydney Buses" . The applicant had made an application to drive with Sydney Buses;
• a copy of a number of references including a reference dated in 1994 from a school teacher, from an employer dated May 1995, from a school teacher dated in May 1996, from a school teacher dated in September 1995, from a former neighbour in 1997 who had known the applicant for the past 12 years, from a company from who he sub-contracted dated 28 May 2010 , from a customer dated May 2010, from his general practitioner dated May 2010, from a woman who deposes to have known applicant for 12 months as her boyfriend's neighbour dated May 2010, from a next door neighbour dated 28 May 2010 who deposes to " knowing WN for 7 years and am fully aware of his conviction dating back over 16 years ago", and a letter from a former employer of the applicant deposing to have known the applicant in a variety of capacities over 11 years and including in an employment capacity.

20. The applicant also included a certificate acknowledging his successful completion of Basic Management Training and Duty Management Store Training; correspondence of December 2003 congratulating him on his appointment as a Customer Service Manager to a company; and correspondence dated April 2004 offering the applicant employment with a food service company in Parramatta.

21. In the applicant's undated letter accompanying the application, the applicant states that he had been in the service industry for the past 16 years; that most of his employment had been dealing directly with customers; that he has held many managerial positions in fast food outlets, and that he has been working and training with people of all ages. He further states that at the time of writing the letter that he was 32 years of age, married in 2005 and had one child. I note that by the time the hearing proceeded in February 2011, the applicant's wife had given birth to another child.

22. The applicant states in his cover letter that he wants to secure the future to provide for his children and wife, as his wife does not work. He states that he has " MADE MISTAKES IN THE PAST " and due to that he does not want his wife and children to suffer. He states he was 14 years old at the time of the offence (sic) . He further states ".... PLEASE GRANT ME WITH THE AUTHORISATION TO DRIVE FOR STATE TRANSIT. ALL I CAN SAY IS THAT I WON'T LET YOU DOWN.YOU WON'T RECEIVE ANY COMPLAINTS AGAINST ME. I HAVE PROMISED MINISTRY OF TRANSPORT AND I PROMISE YOU."

23. The applicant called no witnesses to give evidence on his behalf. He was cross examined by Counsel for the respondent.

The Respondent's Evidence

24. The respondent relied upon a bundle of documents filed on 25 and 27 January 2011. In addition, it relied upon a further document filed on 2 February 2011. These bundles were collectively marked exhibit 1. The respondent tendered at the hearing five (5) further bundles of documents marked Exhibits 2 to 6 which comprised various COPS event entries.

25. The respondent opposed the applicant's application.

26. In its opposition, the respondent relied upon the index offence - the offence of indecent assault for which the applicant was charged and convicted in 1994.

27. The respondent further relied upon 'a history of complaints' made against the applicant involving, what is said by the respondent, to amount to ' inappropriate behaviour of a sexual nature' . Other than the index offence, the respondent does not ask the Tribunal to make findings of fact in relation to the complaints. The respondent relies upon the complaints solely as evidence of complaint.

28. I consider that such a characterisation of the history of complaints as ' involving inappropriate behaviour of a sexual nature ' is not accurate. As is noted by the respondent, not all of the complaints involve allegations of inappropriate behaviour of a sexual nature by the applicant.

29. This ' history of complaints' relied upon by the respondent in their opposition to the application spans the years from 1996 to 2007 and involves 8 separate incidents, including the index offence. The evidence of the index offence is contained in material from the court file and the Department of Juvenile Justice. The evidence of the 7 other incidents is confined to 5 entries from the COPS database and ' various employment related material ' obtained by the Commission for Children and Young People pursuant to section 14A of the Commission Act .

30. The respondent called no oral evidence.

The 8 Specific Incidents

31. I propose to detail the facts and circumstances relied upon by the respondent with respect to the 8 specific incidents and to detail the applicants response to the allegations and, where relevant, any opinion or observation made by Dr Lennings in his report.

Incident 1 - Index Offence

32. The documents tendered on behalf of the respondent with respect to the index offence provide the following:

a) The circumstances of the index offence allegations are these -

• The applicant exposed his penis to two (2) girls in February 1994;
• At the time, the applicant was attending high school and in Year 10 and the two victims of the exposure were two girls aged 15 years of age;
• The victim of the index offence alleged that in February 1994 at around 7 pm, she got off the bus and a male person, whom she identified as being the applicant, placed his arms around her breasts and fondled her breasts;

b) In a record of interview given at the time by the applicant, he denied the allegation. He pleaded not guilty at the hearing. He was found guilty and convicted of the two offences at Campbelltown Children's Court on 17 June 1994 for unlawful and obscene exposure and indecent assault. On each charge he was given 6 months' probation;

He appealed this decision at Campbelltown District Court and the appeal was dismissed and the conviction was confirmed;

The Department of Juvenile Justice prepared an undated report with respect to the probation and notes that the applicant's attendance at the Sex Offender Program was regular and he kept his appointments for individual counselling except on two (2) occasions when he did not turn up. It noted that the applicant responded reluctantly and minimised his past offending behaviour;

The applicant was reported as presenting as a quiet young person of average intelligence with adequate interpersonal skills, appearing stable in terms of his family and peer relationships. It appears he was compliant and helpful in the assessment process in all areas with the exception of discussing the offences. He was breached for non-compliance with his probation because he failed to register after conviction. The breach papers note that the applicant did not attend because he was denying any involvement in the offences and he was strongly supported in this position by his parents. It appears that the applicant completed his probation order;

The breach papers note that the applicant's amenability to the program as unclear. The breach papers further note the "long-term denial (the applicant) has demonstrated for his offending behaviour and the fact that he has the full support of his parents in such denial. Such denial presents an obvious concern for the safety of the community given that (the applicant) appears to evidence no remorse for his behaviour".

33. Under cross-examination the applicant maintained his innocence with respect to the offences. He stated that the complaint perhaps arose from a communication difference and he referred to a boy that he went to school with, with whom he had his "ups and downs". He further stated that he did not know what to say anymore. He felt that he really did not understand and that he had been treated worse than a criminal. He strongly denied that he had acted indecently or that he had exposed himself, that he had never seen those girls in his life before and that the only explanation for the allegation related to a boy that he knew when he lived at home, and that he had been set up.

34. Under cross-examination, Counsel for the respondent enquired of the applicant if he had at the time, when being interviewed by the Police, told the Police that he had been set up by a person. He stated that he had not, that he was scared in the interview, and that he was young. He said that he still has that same story and that that is the same story until the day he dies.

35. Under cross-examination when he was asked if he learned anything useful during the sessions of counselling or probation, his response was, "No, honestly."

Incident 2 - 1996

36. The 2 nd incident relates to an event recorded in a COPS entry. The COPS entry records that on 21 August 1996, the applicant, when at his school, is alleged to have brandished what appeared to be a screwdriver in the face of a co-student whilst at the same time making statements to her of an intimidating nature. Both the applicant and the alleged victims attended the same school but were reportedly not in the same age group. This incident resulted in a personal violence order being issued for a 12 month period against the applicant. No charges were laid.

37. In cross examination, the applicant's initial evidence was that he could not remember the incident. At a later point in his evidence, he did remember ' a metal object in the amphitheatre '. He stated that he did not remember an AVO when he was still at school. It is clear that he had a very poor memory of this allegation such that he was not able to deny or confirm the allegation.

Incident 3 - 2002

38. The 3 rd incident relates to an allegation in 2002 when the applicant was employed at a fast food chain in western Sydney where it was reported that a fellow staff member recorded being harassed by the applicant in the context of what appears to be sexual harassment. The respondent's evidence with respect to this allegation is confined to two documents, one being a handwritten document (dated 12 November 2002) purportedly from the victim of the alleged harassment and the second document (dated 13 November 2002) correspondence from what appears to be the restaurant's training manager to the applicant with respect to the complaint.

39. Under cross-examination, the applicant confirmed that he had received the warning in 2002 with respect to the alleged harassment. He agreed that the document contained a complaint against him in 2002 for his behaviour. He stated that he did not dispute the allegations and that he accepted the allegations. He stated that he made the wrong judgment at that time, and he agreed that in 2002 he was not able to judge appropriate boundaries. The applicant agreed that his behaviour was unacceptable and in response to the question from Counsel for the respondent if he would have done anything differently - he replied " I would not approach anyone ". The applicant identified that there were other complaints whilst he was at this particular fast food restaurant and when questioned by Ms Ward as to the nature of those complaints, he identified the faxing of jokes that he saw as funny to a female crew member of another store. He identified that he was 24 years of age at the time. He was terminated from his employment. He took action against the fast food store for unfair dismissal. He was given a reference, but was not given his job back.

Incident 4 - 2004

40. The 4 th incident relates to an event recorded in a COPS entry. The COPS entry recorded that in February 2004, a 20 year old woman reported that the applicant approached her when she was opening up her premises and enquired if she had a boyfriend, requested her to make him coffee whereby he subsequently went away and brought back milk and then is alleged to have attempted to gain access behind the counter of the commercial premises indicating to the young woman that he wanted to kiss her. The COPS entry notes that when interviewed by the Police with respect to the incident, the applicant's version totally conflicted with the version given by the alleged victim, that he agreed that he was talking with her, that he went away to get some milk at her request, but he denied at any time attempting to kiss her or indecently assault her. The COPS entry notes that due to the fact that the victim did ask the applicant to obtain milk and that the victim left the incident for two (2) days before she called the Police, and also due to the fact that the victim stated to Police she was getting in trouble by family members for talking with the applicant, the Police doubt the version given by the victim. The Police declined to take any action.

41. The respondent did not call the alleged victim of this incident to give evidence in these proceedings. The evidence relied upon by the respondent with respect to the proceedings was that contained in a COPS entry of the event (Exhibit 3).

42. Under cross-examination the applicant recalled the event and largely confirmed the facts and matters outlined in the COPS entry. He considered that he was "in the wrong place at the wrong time" . He denied he said to the alleged victim that he wanted to kiss her. He said that he did not really know the woman. He had seen her a few times because he had been to the business before. When asked under cross-examination if he now regretted anything he said or did, his response was, "Right now, I don't look left or right. I've made mistakes. Life today was different to then." When asked under cross-examination if he would change anything, he said he wished he had never bought the milk.

Incident 5 - 2005

43. The 5 th incident relates to an event recorded in a COPS entry in January 2005 where Police were called to a hotel in Thornleigh because a complaint was made that the applicant was arguing with and verbally abusing a 24 yr old woman. The COPS entry notes that the victim had requested that the applicant leave the hotel and he refused. When the Police spoke to the applicant and a witness, the COPS entry notes the applicant admitting to becoming angry with the alleged victim because in circumstances where he had stayed in the room the previous night with the victim and the witness, and had driven them around Sydney during the day, the alleged victim would now not allow him to stay in the room. It was noted in the COPS entry that the applicant stated he would leave and return to the Campbelltown area where he resided; that the witness would remain in the hotel room as the alleged victim was staying in another room. The applicant drove from the scene and the alleged victim and witness returned to their respective rooms and no further Police action was required.

44. Under cross-examination the applicant recalled the incident. He recalled that Police were called, and he admitted becoming angry. His explanation under cross-examination was that he went to the hotel, that the Police were called because he was going to stay in the hotel room and the victim did not want him to. His explanation under cross-examination as to what prompted the Police being called was that we were too loud and that there was ' an exchange of words in an angry way '. He stated that the hotel staff called the Police.

Incident 6 - 2006

45. The 6 th incident relied upon by the respondent relates to when the applicant was sacked by a courier company for a purportedly poor attitude towards staff and unprofessional behaviour. In a letter dated 24 November 2006, it states that the applicant had already received two (2) written warnings with regard to previous matters in October and August 2006 and, effective immediately, he was terminated.

46. The respondent did not call any oral evidence with respect to this allegation.

47. Under cross examination the applicant agreed that when he was undertaking contracting work as a courier in 2006 that there were two written warnings regarding complaints from clients and that he was terminated. The applicant stated that the reasons for the sacking were that he had spoken to the customer about his goods, ' about them not being packaged right... as they could break one day when they fell off the tray '.

Incident 7 - 2007(i)

48. The 7 th incident relates to an event recorded in a COPS entry in February 2007 with respect to the applicant's brother and sister-in-law. The COPS entry records that the Police attended a residence where the applicant's mother, brother and cousin were residing as was the applicant's sister-in-law. A dispute arose amongst the family members and it was alleged that the victim, the applicant's sister-in-law, had been slapped by her mother-in-law and assaulted by the applicant. The allegation is that the sister-in-law suffered injury. When interviewed with respect to the alleged assault, the applicant denied the offence and stated that the injuries could have been caused by her slipping over outside the back of the house. The Police determined that there was insufficient evidence to proceed with any charges as the versions provided by the accused and witnesses were not consistent with the complainants and the accused had several supporting witnesses with alibi evidence. An AVO was requested and orders were made without an admissions basis against the applicant.

49. Under cross-examination, the applicant recalled the incident. It was put to him that his sister-in-law had complained that he had hit her across the face and that the Police photographed her injuries and she was taken to Campbelltown Hospital. The applicant denied that he had assaulted his sister-in-law and stated that she may have fallen over on the steps at the back door. He said that something had happened between his mother and her, that there were ' hands up in the air' , that she may have been injured when pulling them apart. He recalled that he grabbed his mother and moved his sister-in-law and when she ran out the back door, she fell over the steps and hurt herself. It was put to him that it was an interaction between his mother and his sister-in-law and he intervened. The applicant stated, "Yes, I just arrived at home with dinner and I'm pretty sure it was that flyscreen door." He confirmed that an AVO was taken out against him with respect to his sister-in-law and he confirmed that he lived in the same house after the AVO.

Incident 8 - 2007(ii)

50. The 8 th incident relates to an event recorded in a COPS entry in May 2007 (Exhibit 6). The entry reports that the alleged victim was at her place of employment when the applicant attended upon that location making a delivery. It is alleged that the applicant enquired of the victim when she was free, gave her his business card with his phone number on it, grabbing the victim by the left wrist and pulling her close to him. It is further alleged that the applicant touched the victim on the buttock and kissed her forcing his tongue into her mouth. The COPS entry notes there is an allegation that the applicant asked if he could come out the back to which the victim said no. The victim is said to have seen the applicant drive past and wave later that day. The COPS entry records that the applicant was contacted by telephone by the Police and requested to attend the Police Station which he did. He was cautioned, arrested and he participated in a recorded interview where the allegations made about him were put to him. The COPS entry notes that the applicant made certain admissions as to the circumstances surrounding the incident but denied grabbing the alleged victim's buttock or putting his tongue into her mouth. The applicant's version was that the alleged victim appeared to be flirting with him in the way that she spoke to him and in the close proximity that she was standing to him. He also said that the victim kissed him on the cheek and as he turned their lips connected and they kissed. The applicant agreed he had deliveries in the immediate area and saw the victim again walking near her place of employment, and that she waved to him and he waved back. The COPS entry notes that the applicant was compliant and forthcoming with information required of him and did not appear nervous or to have pre-formatted answers. The COPS entry continues that it was determined that the accused be released without charge due to a lack of physical evidence, no witnesses and that the reasonable explanation of the event by the accused cannot be disproved.

51. Under cross examination, the applicant recalled the incident. He agreed that he was delivering to the office on that day and that at that time, he had been married for 2 years. He agreed that he thought the woman was interested in him, that he did write the phone number on her arm, that he did pull her closer to him and that he got in her ' personal space' . The applicant stated that there was a kiss but no force used but there was contact. He agreed that he told the Police that she was flirting with him and that he felt that at the time he had permission to write his phone number. It was suggested to him at cross-examination that he may well have misread the intentions of the alleged victim. The applicant responded at the time, "I didn't think so. I told the truth. I thought that I had permission." He admitted that it was a mistake.

52. It was put to the applicant in cross-examination, when looking at the history of the incidents and the concessions that he has given, that he has problems reading clues and messages from women. He agreed with this. When Counsel for the respondent inquired of him how the Tribunal could have confidence, that in the circumstances of a provocatively dressed 16 year old on a bus acting out in a flirting way, he would not act inappropriately towards her, the applicant responded, "All I can say is that last incident happened after the marriage 07. It's now 2011. That's a 4 year gap and I've given my word to the Ministry of Transport. I guarantee nothing has happened since then until now, and no events."

53. Under cross-examination, the applicant agreed that the number of complaints made against him was unusual. The applicant stated that in 1997 / 1998 he studied flight attending and personnel skills and ' how passengers react' . He says that he learned how to pick up on the cues if passengers were angry. He stated that he has had training in hospitality and how to keep people satisfied, if they are not satisfied.

54. At the completion of the cross-examination, the applicant was given an opportunity to say anything further with regard to his application. The applicant requested the Tribunal to take into account his family, that he is trying his best, that he is trying to provide for his family and they are not well off, that he is trying to provide his family with everything, and that he is trying his hardest. He referred to the availability of bus driver surveillance being apparently recorded live back to base for the purposes of road rage incidents and accidents.

The Expert Evidence

55. A report of Dr Christopher Lennings dated 27 April 2010 was tendered (Exhibit 7). Dr Lennings is a clinical psychologist with a Masters Degree in Clinical Psychology and a PhD in research on personality. He is an accredited counsellor under the Commission for Children and Young Peoples Accreditation Scheme for working with sexual abusers. He is a member of the Children's Court Panel and Family Court Panel. He has a 32-year history of work within the forensic and substance abuse field.

56. Dr Lennings noted in his report that the applicant appeared to be cooperative with the assessment and someone who clearly felt somewhat put upon to undertake the assessment, nevertheless providing an account of himself throughout the assessment, at no stage becoming rancorous or difficult to get on with. He notes the applicant's understanding of the situation that he is seeking an exemption so as to drive a bus.

57. The applicant informed Dr Lennings that he considered that he has been maligned in the various documents that had been put to the Commission, that the interpretation which could arise that would place him in a negative light is an unwarranted interpretation. The applicant stated to Dr Lennings that the circumstances for most of the events once explained would have him appear in a much more benign way. He acknowledged the index offence, although he continued to assert his innocence. He does not believe that the passage of time means that he should continue to be haunted by what he sees as an unfair conviction. Dr Lennings reports on the applicant's personal history and history of his family. He also considers the applicant's education, employment history, medical issues, criminal record, substance use history, and relationship history.

58. With respect to the index offence, consistent with the applicant's position at the time of the offence and subsequently, the applicant denied the commission of the offence to Dr Lennings. He told Dr Lennings that he had never seen one of the girls in his life before, that the girl's boyfriend was a guy that he had a lot of problems with at school, and Dr Lennings opined that the applicant more or less implied without definitively saying it, that he is the victim of a payback conspiracy.

59. With respect to his dismissal from the fast food establishment (incident 3), the applicant reported to Dr Lennings that he took his employer to Court and ' apparently there was an issue of sexual harassment '. He informed Dr Lennings that he sent a fax to a manager he knew at Hungry Jacks. It was a joke page that had a number of sexual references in it.

60. Dr Lennings reports:

"Nonetheless, he says that whilst he doesn't really want to argue the point about whether his behaviour was irresponsible or not, he claims there was no harassment of any particular person. Nonetheless, he said there was a person incident (sic) in that he was a Duty Manager on shift and a couple of the staff made up stories about him. He said these allegations weren't true. Apparently the allegation is that he tried to grab one of the girls and he said this was simply not true."

61. In response to the incident in 2007 where he was delivering goods (incident 8), Dr Lennings reports:

"....he claimed that he dropped off goods and there was a young woman where he had dropped the goods off at. On his account, she simply came around from the desk and both looked at each other and then kissed as if it was a consensual act, although it sounds a strange thing to do given he was married at the time. He said he then rang back and asked for her number, and apparently when he rang back, someone else answered the phone and said that she was complaining to the Police. Apparently Castle Hill Police Station was contacted and he said he went and explained the story to them and he never heard anything else about it."

62. With respect to the employment issue in February 2004 where it is alleged that he attempted to kiss another work mate (incident 4), he claimed to Dr Lennings that he had no memory of that occurring. Dr Lennings opined at this stage the following:

"Given that he also continues to deny the offence, despite having been found guilty, it does raise concerns as to why either the extent of insight he is able to gather about his behaviour or the extent to which he may simply be denying his behaviour. The alternate, which is to accept his account, does require that I accept that he has had a huge amount of bad luck and considerable prejudice directed towards him by a variety of people."

63. With respect to the incident at the hotel in 2005 (incident 5), the applicant reported to Dr Lennings that he was invited to spend the night with his then girlfriend while she was doing a course and she was put up in a hotel. At the time, she was sharing the room with another one of her friends. He said he then had an argument with this friend. He agrees he was verbally abusive, although he said she gave as good as she got, so to speak. He says, ostensibly, she made threats to him and he admits to responding abusively and the Police were then called.

64. Dr Lennings undertook a personality assessment. Dr Lennings formed the impression that the applicant was a person who liked to maintain a very traditional family life in which the women was very largely focussed around the children and household duties, that he has a fairly authoritarian streak to him, although Dr Lennings notes that a number of his dismissals appear to be associated with attitudes with which Dr Lennings believe were generated because he had felt that he has been blamed for things and he finds that difficult to accept. The applicant reported to Dr Lennings that he has a good friendship network; he has good levels of social support; and he was in a good relationship with his two children - a 4 year old girl and another young daughter who is only 2 months old. He says the Department of Human Services have not been involved with either of his children.

65. Dr Lennings reports that the applicant's attitude to the issues is that the previous reports of his behaviour are simply his word against others, and whilst others have been believed, he believes that is erroneous. He says the past seems like a long time ago and he likes to concentrate on the present and wants to secure a future for his children and family. Dr Lennings opines:

"To that extent, I think he appears to be a person who is somewhat focused on the here and now almost as a defensive posture against having to admit to, or accept problems in, his past behaviours."

66. The applicant reports to Dr Lennings that his current job as a sub-contractor is problematic in as ' he really needs to have more time to spend with family' and he simply wants to change his work to get into paid employment. Dr Lennings reports that the applicant informs him that he believes that the case in 1994 is irrelevant and thinks that his background is not an issue; that he is feeling very aggravated; that he was asked to submit to a psychological assessment and feels keenly his outrage at being humiliated in a sense. Dr Lennings reports the applicant stating that he sees no risk in his role as a bus driver and feels that he has been personally maligned and all he wants to do is secure his future. He tells Dr Lennings that there has been ' no prior offences against children and he cannot see what the fuss is' .

67. In conclusion, Dr Lennings formed the view that the applicant presents as a person with a low risk of sexual violence that would attract a criminal penalty but his behaviour suggests a moderate risk of sexually harassing or boundary breaching behaviour. Dr Lennings opines that the most likely victim would be a young woman rather than a child, the most likely action would be an abuse of power but without violence of significant coercion, and will take the form of a breach of boundaries. It is likely to be an impulsive act rather than a grooming offence.

68. Dr Lennings further opined:

"The difficulty is that the applicant's impulsive behaviour in the past, his apparent denial of the sexual harassment nature of such behaviour and his inability to accept that he has done any wrong makes his risk problematic in situations where he has high opportunity to re-offend. Given the risk is a function of both individual proclivity and opportunity, the risk remains moderate when considering the context of driving a bus in which interaction with teenage girls is highly likely. As such his risk appears to be greater than would be expected from the average applicant for such a position."

69. In the formulation, Dr Lennings stated:

"The applicant continues to deny any acts of impropriety on his past. Despite a stable and settled childhood it seems he had some problematic behaviours at school but insufficient to warrant major discipline. He was charged with an indecent behaviour offence as a juvenile and despite being found guilty and 10 sessions of offence specific therapy, he continues to deny the offence. As an adult he was dismissed several times from work for alleged sexual harassment type activities all of which he either denies, forgets the details of, or redefines. He appears to have significant difficulty in accepting responsibility for his behaviour. The applicant does not reveal any sexual deviancy or high sexual drive, however, he presents as opportunistic and impulsive in his behaviour and without a capacity to reflect or acknowledge his past behaviour."

70. Dr Lennings opined:

"His behaviour has clearly targeted young women in a sexual way, moderate risk of harassing behaviour remains given the opportunity a bus driver's role provides for frequent (even if superficial) contact with young women. That is, compared to the average adult, (the) applicant's likely risk of harassing and (displaying) abusive behaviour towards female teenagers is above that of an acceptable threshold."

71. Dr Lennings found that the applicant does not present with either a mental illness or a personality disorder, although some immaturity of personality development may be present. Dr Lennings describes his primary difficulties as his impulsivity and sense of entitlement around sexual themes with young women.

72. Dr Lennings, however, did not see the applicant as a convincing candidate for therapy and considered it would be a major commitment on his part to engage with a therapist. However, he was of the view that should he engage with treatment, such treatment could be quite short:

"The applicant might well moderate his risk if he were to engage in meaningful psychotherapy to address his impulsivity, his denial, (and) his sense of sexual entitlement. If the applicant demonstrated an engagement with treatment, such treatment could be quite short if insight could be achieved."

73. Dr Lennings further states:

"Given that this risk is moderate, expects that after a successful conclusion of therapy would reduce his risk to low and on that basis a further application for an exemption may well warrant support."

74. Dr Lennings recommends his report being released to any clinical psychologist if it is proposed that the applicant engage in clinical treatment.

75. I now turn to consider the risk indicia contacted in s.33J(3) of the Commission Act .

Risk Indicia - s. 33J (3) Matters

Seriousness of the offence - s.33J (3) (a)

76. The respondent submits that the specified offence lies towards the lesser end of the spectrum but is by no means in the category of the least serious type of offence which could render the applicant a prohibited person. The respondent submits that the index offence followed on from an earlier incident involving the same victim, the obscene exposure was committed the day before and involved physically wrestling the victim to the ground. I accept that submission.

Period of time since the offence was committed - s.33J (3) (b)

77. The offence was committed in February 1994, over 17 years ago.

Age of the applicant at the time the offence was committed - s.33J (3) (c)

78. The applicant was 15 when the offence was committed.

Age of the victim at the time the offence was committed - s.33J (3) (d)

79. The victim was 15 years when the offence was committed.

Difference in age between the applicant and the victim - s.33J (3) (e)

80. The applicant and the victim were the same age.

Whether the applicant knew or could reasonably have known that the victim was a child - s.33J (3) (f)

81. There is no evidence that the applicant knew that the victim was a child. In the circumstances of the offence, it is reasonable to find that the applicant could reasonably have known that the victim was a child.

The applicant's present age - s.33J(3) (g)

82. The applicant was 32 years of age as at the date of the hearing.

Seriousness of the applicant's total criminal record - s.33J (3) (h)

83. In addition to the index offence and the obscene exposure, the applicant has a conviction in 1999 for mid-range PCA.

Other relevant matters - s.33J (3) (i)

84. Section 73(2) of the Administrative Decisions Tribunal Act specifies that the Tribunal is not bound by the rules of evidence. As such, the Tribunal has the discretion to act on material that is rationally probative to the determination of the real question in these proceedings. Consistent with that approach, the Tribunal can have regard to mere allegations as well as proven facts in making a determination as long as the Tribunal determines that having regard to such material was proper in all the circumstances and that procedural fairness was accorded to all parties.

85. With respect to the conviction for the index offence and the obscene exposure, the respondent referred to a report from the Department of Juvenile Justice in 1994 which stated as follows:

"(WN) denies any involvement. (WN)'s offences strongly show need for intensive supervision and counselling focusing on his abusive behaviour. While WN is having trouble facing up to his offences, his amenability to counselling is unknown. Similarly, while WN is not accepting responsibility for his actions the risk he poses to the community remains high."

86. A further report from Juvenile Justice, post the applicant's conviction, noted:

"(WN)'s amenability to the program is unclear. This is in view of the long-term denial that WN has demonstrated for his offending behaviour and the fact that he has the full support of his parents in such denial. Such denial presents an obvious concern for the safety of the community given that Nigel appears to evidence no remorse for his behaviour."

87. The respondent notes that Juvenile Justice report that after the applicant had attended 10 sessions of individual counselling he responded reluctantly and has minimised his past offending behaviour.

88. The respondent submits that the tribunal should have regard to all of the incidents referred to and find that there is a ' history of complaint made against the applicant by young women, unconnected to each other, with most complaints (but not all) involving allegations of inappropriate behaviour of a sexual nature by the applicant' .

89. I do not accede to the respondent's submission for two reasons. Firstly, because I do not consider all of the incidents ' relevant ' for the purposes of the exercise of my discretion. Secondly, because these complaints do not amount to a ' history of complaints involving allegations of inappropriate behaviour of a sexual nature' . The allegation which could be said to be of substance to involve allegations of inappropriate behaviour of a sexual nature by the applicant would of course be the index offence. There are two further allegations contained in COPS entries where the applicant is alleged to have behaved inappropriately towards 2 women - incident 4 and incident 8. Under cross examination the applicant made certain admissions and concessions with respect to his behaviour. There is an allegation of sexual harassment in 2002 (incident 3) about which, under cross examination, the applicant made certain admissions and concessions.

90. Of the 2 nd incident in 1996 when at school, the incident at the hotel in 2005 (incident 5), the incident at the courier company (incident 6), and the incident involving the sister-in-law (incident 7), none of these incidents could be characterised as involving allegations of inappropriate behaviour of a sexual nature by the applicant .

91. The respondent does not rely upon the complaints alleging sexual harassment as truth of the matters complained. The respondent says that this demonstrates at least a lack of interpersonal skills in the work context. The complaint at the hotel where the applicant gets into an argument and the Police are called, in the scheme of things, very little regard can be had to that material on its own. There is no suggestion that any of these incidents relate to a child or young person.

92. I do not have regard to the allegations that comprise incident 2. The evidence with respect to this allegation comprises a COPS entry and a subsequent AVO. This event occurred in 1996. The applicant could not recall this incident.

93. With respect to the incidents in 2004 and 2007, incidents 4 and 8. I do have regard to these incidents to the extent of the version confirmed by the applicant. The applicant admitted that complaints had been made about him and he conceded that he had acted inappropriately.

94. With respect to incident 3 in 2002, I do have regard to this incident to the extent of the version confirmed by the applicant. Again, the applicant conceded that in 2002 the sending of a facsimile was certainly inappropriate. The allegations, however, went further in terms of his harassing behaviour of another staff member. In cross-examination he conceded that he would have behaved differently, that he exercised wrong judgement.

95. As indicated above, little regard can be had to incident 5. I do have regard to incident 7 and 8 to the extent of the version confirmed by the applicant in cross examination.

Findings and Conclusions

96. At the time of the hearing of the application, the applicant continued to deny his past offending behaviour. Dr Lennings notes in his report that the applicant stated that the case in 1994 is irrelevant and that his background is not in issue. It is quite clear both in the applicant's presentation in these proceedings and also from Dr Lennings' observations that the applicant was aggravated at being asked to submit to psychological assessment. The applicant was agitated during cross-examination about being put to what he said was ' so much bother ".

97. It is perhaps understandable that the applicant feels frustrated and impatient with the process as he considers that what happened in the past should stay in the past. I also understand that the applicant is very keen to leave his current employment as a sub contracting courier driver and move to employment with Sydney Buses. He wishes to do this as he wants to spend more time with his wife and young family. The applicant should of course be encouraged in that regard.

98. However, s. 33J (2) of the Commission Act creates a rebuttable presumption that the applicant poses a risk to the safety of children. The applicant has to prove a negative to the civil standard. I have outlined earlier in these reasons the purpose of the statute and the import of section 32 that the welfare of children is of paramount importance. In determining whether the presumption has been rebutted, I am required to have regard to the matters listed at s.33J (3) of the Commission Act .

99. As stated earlier in these Reasons, it falls to the applicant to prove that he does not pose a risk to the safety of children.

100. The most persuasive evidence in these proceedings is the evidence provided by Dr Lennings by his independent assessment of the applicant. Dr Lennings is of the opinion that the applicant presents as impulsive, vacillates between a denial of the incident and then an acceptance of the incident, and has an inability (certainly to Dr Lennings) to accept that he has done anything wrong.

101. During cross-examination the applicant made some concessions with respect to his behaviour in a number of these incidents. It is apparent from the opinions of and observations made by Dr Lennings that the applicant did not make the same concessions during the applicant's consultation with him.

102. In my opinion, having regard to all the material before the Tribunal and the factors set out in s. 33J (3) of the Act and the need to give paramount consideration to the safety and welfare of children and young people (under s. 32), I am not satisfied that the applicant has provided sufficient evidence to rebut the presumption that he poses a risk to the safety of children and as such I dismiss the applicant's application.

103. In making this finding I have, on balance, been persuaded by the views of Dr Lennings. I have considered closely the evidence filed by the respective parties in the proceedings. I have had regard to the presentation of the applicant and the oral evidence given by the applicant during the proceedings.

104. More importantly however, the applicant has failed to produce sufficient evidence to persuade me that he does not pose a risk to the safety and welfare of children. It is simply not sufficient for an applicant in matters such as these, where the Tribunal is charged with the task of determining if, because of previous past criminal conduct, a person should receive the benefit of the declaration provided by the Commission Act , to rely upon mere evidence including outdated references, a very earnest and sincere desire to do the best for his family and a promise to this Tribunal that he will not let us down. The applicant in proceedings such as these bears the onus to disprove the presumption provided in s. 33J (2).

105. The applicant has demonstrated a lack of insight into the index offence for which he has been convicted in that he has not shown feelings of remorse or regret but instead wants to leave the past behind. This is evidenced through his oral evidence and through his consultation with Dr Lennings reflected in Dr Lennings report.

106. For these reasons, pursuant to s. 33J (1), I am not satisfied that the applicant does not pose a risk to the safety of children and thereby I cannot grant the order sought under s. 33H.

107. Consistent with the observations made by Dr Lennings, I am strongly of the view that if the applicant engaged in treatment with a therapist for a period of time, then I would expect that at the successful conclusion of the therapy that the risk identified by Dr Lennings in his report would be reduced considerably and of course, subject to any clinical recommendations, the result in a subsequent application with respect to the declaration sought in these proceedings may well be different.

108. The applicant should have close regard to the comments and observations made by Dr Lennings in his report with respect to the opportunity for counselling and/or therapy. I agree that Dr Lennings report should be released to any counsellor or therapist for such purpose. I am aware in New South Wales currently that Medicare services provide to a maximum of 12 individual sessions per client per calendar year for general psychology services after referral by a general practitioner.

109. For the purposes of section 33I(5) of the Commission Act , I order that the applicant is entitled to make an application for an order under this section or section 33H in respect of the offence after 12 months from the date of these orders.

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