CRM, aged about 80, wanted a working with children check clearance so that he could work in a volunteer capacity. Regulations under the Child Protection (Working with Children) Act specify a wide range of volunteer roles for which such a clearance is required.
He applied to the Children’s Guardian for this on 24 June 2015.
In 1953 CRM was charged with and was subsequently convicted of an offence of carnal knowledge.
If CRM was 18 at the time of committing the carnal knowledge offence this would count as a disqualifying offence under the Child Protection (Working with Children) Act 2012. The Children’s Guardian would be obliged to refuse CRM a clearance. CRM could apply to NCAT for an enabling order to be issued with a clearance, but under section 28 of the Act, he would be presumed to pose a risk to the safety of children unless he could prove otherwise. This is known as “the onus.”
The Children’s Guardian could not tell how old CRM was when he committed the carnal knowledge offence. The relevant court records were missing and it may be presumed that CRM, if he had referred to it in his application, had not given the precise date.
CRM also had a conviction for obscene exposure. On a Friday in May 1961 he exposed his penis to a 15-year-old girl on a train. He was aged 26 at the time.
I am a bit surprised that this was not also a disqualifying offence but it was probably still an offence which would trigger a requirement that the Children’s Guardian undertake a “risk assessment” to determine whether CRM posed a risk (over and above the normal risk anyone poses) to the safety of children before deciding whether issue him with a clearance.
The first step if there is to be a risk assessment is that the Children’s Guardian inform the applicant of this and give the applicant the opportunity to provide further information. Obviously, the Children’s Guardian would need also to find out from CRM when the carnal knowledge offence was committed.
CRM’s application went nowhere for about a year because he had not given an email address and apparently this prevented the Children’s Guardian from even sending him a letter. As with Centrelink, the Children’s Guardian has moved its systems online in order to deal with the enormous volume of applications it has to process.
In May 2016, CRM rang the Children’s Guardian to complain that a year was a long time to wait to hear from them. It’s not clear whether he got to speak to a person then but you can assume that at this point his call was merely logged. A month later they rang him back.
Even then it does not look as though they asked CRM the right question. CRM told them he was 18 when he was convicted.
A Children’s Guardian officer went ahead with a risk assessment and decided that CRM did not pose a risk to the safety of children. Then someone higher up spotted the carnal knowledge offence and determined that CRM was a disqualified person. The Children’s Guardian was obliged to refuse CRM a clearance, and accordingly knocked him back.
CRM applied to NCAT for an enabling order. As is always the case, a barrister appeared for the Children’s Guardian. CRM, by now 81, appeared for himself.
At these hearings, the Children’s Guardian puts into evidence (though the legal rules of evidence do not apply) its file and all the information it has collected. CRM filed what the Tribunal called a “bundle of material” including the following:
- a Certificate II in Security Operations,
- a Notice of probationary appointment as Commissionaire at a Government Office, dated 23 June 1982,
- a Certificate, dated 18 June 1987, stating the applicant held the appointment of Special constable for the State of NSW in the capacity as Commissionaire,
- a heavy vehicle driver licence, a security industry licence and a bus drive licence in the name of the applicant,
- a number of references from past employers and friends dated 17 September 1978, 17 December 1981, 21 December 1982, 17 November 1987, 22 February 1988, 28 May 1988, 31 May 1990, 15 May 1991, 20 December 2001, 2 October 2003, 23 June 2008 and 3 May 2011, and
- a couple of newspaper articles in regard to “sex offenders” and the “criminal classes.”
You can tell from (6) that CRM really didn’t have much of a clue about how such hearings might proceed. You can also infer that the point he wanted to make was that he had worked in a number of jobs with exposure to the public including children (he had retired as a bus driver in 2002) where he was trusted and without any incident or further complaint since 1961. I expect his view was that what had happened was a long time ago when he was a much younger person and should not lead to the conclusion that he was a risk to the safety of children in the light of his blameless life since. He obviously did not appreciate what the fuss was or would be about.
The tribunal in its reasons states that at the hearing CRM conceded that he was over 18 years of age at the time the carnal offence was committed. That probably means that without that concession the Tribunal would not have been sure of that. How sure could CRM have been of that? Nevertheless, the concession stood.
CRM had spoken on the phone with officials of the Children’s Guardian when they conducted the assessment (which had led them to form the view that he did not pose a risk apart from being a disqualified person). Notes of these conversations were amongst the material produced by the Children’s Guardian. He also almost inevitably, since he was presenting his own case, gave oral evidence on which he was cross-examined by counsel for the Children’s Guardian.
The following is the Tribunal’s account of that material in relation to the carnal knowledge offence:
In July 2016, when initially asked by an officer of the respondent about the circumstances giving rise to the carnal knowledge offence, the applicant explained that at the time he was working for the salvation army and he had picked up “the woman” in a bus stop as she was all alone and had no place to go. He said he invited “the woman” to stay at his place. He said the woman “undressed herself” and they engaged in “consensual sex.” He said he later found out that “the woman” was underage and that she had escaped from the dormitory of a high school.
In a subsequent conversation that day, with another officer of the respondent, the applicant added he met “the child who was waiting at a bus stop and as he came from ‘Christian upbringing’ he felt compelled to assist her.” He said the child had indicated she had been kicked out of home and as his mother worked in social welfare he assisted the child to obtain appropriate accommodation. He said that when he returned, “nature took its course.”
In his oral evidence in these proceedings, the applicant said the victim of the carnal knowledge offence wore “a very revealing blouse” and that there “should have been something to protect” him. He said the victim jumped into bed with him and he re-iterated “nature took its course.”
The first two of these excerpts above are based on file notes of officials of the Children’s Guardian It is likely that CRM called the (under 16) victim a “woman.” The use of the word “child” in the second is probably the official’s wording.
This is the Tribunal’s consideration of that material, emphasis added in the second extract:
While the age of “the woman” is unknown, the applicant has acknowledged she was a high school student and given the nature of the offence she must have been under the age of 16 years.
While we accept that the applicant’s recollection of events dating back to 1953 may not be clear, we nevertheless have considerable difficulty in accepting his account of events. The victim was a child, a high school student, who was unknown to him. She was vulnerable, alone and in all probability trusted him; otherwise she would not have gone with him. In such circumstances it cannot be accepted that there had been consensual sexual intercourse. Having regard to his evidence, we were left with the impression that the applicant has a complete lack of understanding about his offending conduct and the impact it may have had on the victim. He appeared to blame her for the situation he found himself in, rather than questioning his own behaviour.
“it cannot be accepted that there had been consensual sexual intercourse”
WHOAH! Where did that come from, and what use is the Tribunal making of it?
With those weasel words I think the Tribunal has taken a step too far. Of course I wasn’t there (and nor were they in 1953) but I have to very seriously doubt whether they have made a proper assessment of something an 81-year-old man has said about how it is that he came to commit an offence when he was 18 – when he was a lot younger than he is now and when the victim was not much younger than he was.
When charged with the obscene exposure offence in 1961, the victim had first told the police that he was (as the phrase used to be at railway toilets) “adjusting his attire” and that he should have been more careful. However he subsequently admitted that was false and pleaded guilty. The following is based, I expect, on the magistrate’s sentencing notes:
He told the Magistrate he had a very bad home life and his father sent him to a church home for boys. He explained his prior stealing convictions were due to having “got in with a crook mob”. He explained he had married in 1955, but his wife “had lost her desire for sexual relationships”, but they were still living together. He said this and their money worries had placed a great strain on him. The money worries were due to him having not been able to work because of illness. When asked if he had seen a doctor about his offending conduct, the applicant responded he had seen a psychiatrist once and that he didn’t take to him very well. He said he had discussed the matter with his wife and prior to admitting guilt he told the Magistrate that he had come to the “point of asking for some help in medical ways.”
The Tribunal noted that CRM did not in fact obtain any treatment.
The Tribunal was required to consider “the likelihood of any repetition by the person of the offences … and the impact on children of any such repetition.” They found:
Given the applicant’s age and the fact that he has not reoffended in a similar manner for many years, the likelihood of him re-offending as he did in 1953 and 1961 is probably low.
OK, you might think – give him the enabling order. But no, they were obviously troubled by all this “woman,” “revealing blouse” and “nature taking its course.” They went on:
However, given his account of past offending, we are not persuaded the applicant the has any understanding today of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. As we have noted, the applicant appears to have blamed others for what occurred and we doubt he has at any time appreciated the seriousness of his offending in so far as it concerns issues of child protection.
Accordingly, even though there was a low risk of re-offending, CRM had not discharged the onus of proving he was not a risk to the safety of children because of his lack of insight when accounting for, at the age of 81, his conduct when he was 18 or (though I can’t quite see where this comes from in the tribunal’s account of his evidence) blaming his wife for his conduct when he was 26.
What is of concern to us is the applicant’s lack of understanding about the seriousness of his offending conduct in 1953 and again in 1961 and the impact that conduct may have had on the victims. Instead he continues to blame the victim, or his former wife, for the situation he found himself in. While we do not believe the applicant is likely to offend in a similar way today, given his responses to his prior offending, we are not persuaded the applicant has any understanding of child protection issues, or what he should do in circumstances where a child protection issue may arise and he is required to deal with it. It is for this reason that we find the applicant has failed to discharge his onus.