A New South Wales tribunal has refused a former care worker a working-with-children check after finding it was likely he had sexually assaulted a 14-year-old “high needs child” in his care.
In May 2016 the NSW Civil and Administrative Tribunal denied a man – known as BJQ because of laws preventing the publication of his name – a working-with-children check after he was earlier refused one by the NSW Children’s Guardian. The check was refused in June 2015 because the man had been charged with the alleged sexual assault of the 14-year-old girl in 2012. The girl later died.
A report about the case by the Daily Telegraph on Monday sparked criticism of the NSW director of public prosecutions for discontinuing the prosecution of the man, who was charged with aggravated sexual intercourse with a girl of 14 or under.
A letter from the NSW director of public prosecutions quoted in the tribunal decision said: “Our office did not proceed with this matter as the complainant passed away.
“Despite the fact that there was forensic evidence supporting the complainant, there were some inconsistencies in relation to statements made by her prior to her passing, that it would have been necessary for her to be available for cross examination, which given her passing was obviously not possible.”
The full basis of the DPP’s decision not to continue the prosecution is not publicly known. Only an excerpt of the letter is available from the tribunal proceedings.
Criminal proceedings require a much higher standard of proof – as well as strict rules about the use of evidence – than the tribunal’s proceedings.
Overall, the tribunal found it was probable the man did have sexual intercourse with the girl, which would pose significant risks of further harm if he were granted a working-with-children check and allowed to begin working as a carer again.
“On the balance of probabilities the applicant had sexual intercourse with the victim,” the tribunal said. “In those circumstances, it is the tribunal’s determination that the applicant abused his position for sexual gratification with a highly vulnerable young girl.
“The behaviour was part of a pattern of repeated events, and is relatively recent. If repeated, the concerning behaviour would perpetrate harm to other children. There has not been provided evidence of significant and sustained positive changes since the behaviour occurred. Recurrence of the concerning behaviour over a period is established by the evidence, and genuine and sustained effort to remedy the conduct and past behaviour is not evident on the evidence provided to the tribunal.”
The family and community services minister, Brad Hazzard, has requested a review of the case by the DPP.
