Serious sex offenders

I stumbled across a peculiar case: Commission for Children & Young People v UR [2007] NSWSC 1099, in which judgment was delivered on 7 February 2007 but only recently published.  This was an appeal to the Supreme Court from a decision of the Administrative Decisions Tribunal, UR v Commission for Children and Young People [2006] NSWADT 78.

In January 1984, UR was convicted at Wyong Petty Sessions Court of an offence under the then section 81A of the Crimes Act, which was in the following terms:

“Whosoever commits an indecent assault upon a male person of whatever age, with or without the consent of such person, shall be liable to penal servitude for five years.”

The charge was:

“That you at Noraville in the State of New South Wales being a male person did commit an act of indecency with AB, a male person.”

UR pleaded guilty and was fined $1,000 and placed on a good behaviour bond.

At the time of the offence, on 25 September 1983, UR was 31, AB was 20. They had engaged in acts of al fresco fellatio and masturbation. However, the commission of the offences out-of-doors was, strictly speaking, neither here nor there, because at that time any sexual act between males was a crime.

Shortly after this, in 1984, male homosexuality was decriminalised in NSW, and section 81A was repealed. In fact, it is fair to say that, even at the time of the offence, section 81A was not generally enforced by the police in relation to offences committed in private between adults. UR’s and AB’s actions came to the attention of the police because they had occurred outdoors and, more importantly, in the presence of a 12-year-old boy, CD. Possibly the sex took place at a beat. There does not appear to be any suggestion that CD was there at the instigation of UR or AB.

UR was also charged under section 81 of the Crimes Act with indecent assault of CD. This likewise was an offence regardless of CD’s age, by reason of the criminality of all homosexual sex. The allegation was that UR had had held the penis and testicles of CD without his consent. UR denied this. UR’s police statement included the following account:

“An indecent suggestion was made to the young person by me, [this is police-statement talk] he agreed to the suggestion, I went and got my friend, came back to the boy. The boy then suggested that we go into the bush, led us to a side track.”

And, after denying the allegations of touching,

“… the boy seemed to give me the come-on, his penis was in a state of erection. He then asked me whether my friend and I did things together. I replied, “Yes.” The boy then stated that he would like to watch. I told the boy that I would go and ask my friend and see what he said. I did so and returned to the boy with my friend…I asked the boy where we could go and he [showed us]…my friend and I then proceeded up the track, lowered our pants and proceeded to masturbate ourselves. At this stage the boy was about five metres away and I noticed that he was watching us. The boy walked over towards us, stood beside us watching. I performed fellatio on [AB]. At this stage the boy was just standing there rubbing his crotch. We didn’t say anything to him and he didn’t say anything to us. I then asked the boy if he’d like to join us. He replied, “No” and walked back about five metres, turned, watched again for a few seconds and walked off.”

UR was discharged of the charge of indecently assaulting CD.

UR and AB are now (and presumably have been since that time) partners. UR has not been convicted of (or, I take it, charged with) any other offences.

Although the decision of the ADT and the judgment of the Supreme Court do not say, it can be assumed that UR is a teacher or otherwise engaged in child-related employment, and that by some series of events, UR was facing the prospect of being proscribed from such employment because, as a result of the events in 1983 and his conviction in 1984, he was a “prohibited person” under the Commission for Children and Young People Act 1998. This means “a person convicted of a serious sex offence…or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000.”

Under the Commission for Children and Young People Act, it is possible for a “prohibited person” to apply to the Administrative Decisions Tribunal (or in some cases, the Industrial Relations Commission) for an order that the act is not to apply to him or her. The Commission is to be a party to any such application. The relevant tribunal is not to make such an order “unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.” There is a shopping list of factors the tribunal is to take into account:

(a) the seriousness of the offences with respect to which the person is a prohibited person,
(a1) the period of time since those offences were committed,
(b) the age of the person at the time those offences were committed,
(c) the age of each victim of the offences at the time they were committed,
(d) the difference in age between the prohibited person and each such victim,
(d1) the prohibited person’s present age,
(e) the seriousness of the prohibited person’s total criminal record,
(f) such other matters as the tribunal considers relevant.

The tribunal can make the order subject to conditions. If it does not make an order, the applicant must wait 5 years before making any further application and therefore, if a prohibited person, will remain subject to the prohibitions against working with children under the Act.

UR made an application to the ADT at the beginning of 2006. One can assume that UR’s application would have sought to raise considerations of the seriousness of the offence, his age at the time (and AB’s age) and his lack of any other offences. But as a threshold question, UR’s position was that he was not a prohibited person at all because the offence of which he had been convicted was not a “serious sex offence.” This is because the definition of “serious sex offence,” which includes “an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more” was subject to the following exclusion in section 5(4) of the Act:

“An offence that was a serious sex offence at the time of its commission is not a serious sex offence for the purposes of this Act if the conduct constituting the offence has ceased to be an offence in New South Wales.”

The ADT agreed with this argument, concluding in its decision handed down in March 2006 that:

“It follows that the applicant is not a “prohibited person” under the terms of the CP(PE) Act [this is an abbreviation of the name of the then relevant Act] where the because he falls within the exception in s.5(4). The Tribunal accordingly has no jurisdiction to exercise under s.9. This means that the prohibitions imposed upon prohibited persons do not apply to the applicant and therefore it is not an offence for him to undertake, apply for, or remain in child-related employment.”

and made the following order:

“The application is dismissed for want of jurisdiction because the applicant is not a “prohibited person” under the Child Protection (Prohibited Employment) Act 1998.”

The Commission appealed to the Supreme Court. You can divine the Commission’s arguments from the judgment of Justice Adams, but the general gist of them was that the offence of which UR had been convicted included the conduct towards CD which he had admitted to in the police statement, even though no specific charge was made about this conduct and it did not form a necessary part (what lawyers call an “element”) of the offence. 

The Commission also objected to the order which the Tribunal made because under the relevant Act the Tribunal could only make an order if the applicant actually is a “prohibited person.”  Catch 22 anyone?

I have discussed this case with some other lawyers.  The general consensus is that the Commission’s arguments were just plain wrong.  The notion of the elements of an offence is a well-established one. Whatever other allegations were made do not turn someone into a prohibited person if the person was not convicted of a offence of which those allegations are an element.

Justice Adams upheld the Tribunal’s decision and the appeal by the Commission was dismissed with costs.  That must have been a relief to UR.  What concerns me is that the current climate of zeal for the protection of children subjected UR to such protracted proceedings and that the Commission should ever have thought that its position was reasonably maintainable.

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