NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR GQK V/S CHILDREN'S GUARDIAN CASE

Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 15:

1. On 20 August 2024, the applicant, who has been given the pseudonym GQK, applied for a working with children check clearance pursuant to the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act), nominating "clubs or other bodies providing services to children" as the relevant child-related employment sector. The applicant was notified that his application was refused by notice of decision dated 28 August 2024.

2. The basis for refusal was that the applicant is a "disqualified person" under the WWC Act because he was found guilty on 25 November 2020 of an offence identified as an "disqualifying offence" for the purposes of the WWC Act.

3. The applicant applied to the Tribunal review for the decision to refuse his application for a clearance on the grounds, amongst other things, that he was not dangerous to children, the decision was unjust, and the decision affects his livelihood and future employment prospects. He seeks an enabling order and an order to be granted a clearance under ss 28(1) and (6) of the WWC Act. There is no dispute that the applicant is eligible to make this application, and that the Tribunal has jurisdiction to deal with this matter under the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

4. The applicant represented himself and the respondent was represented by Counsel. The applicant gave evidence at the hearing and was cross examined by counsel for the respondent. In addition to references supporting his application, the applicant relied on a report from clinical psychologist and neuropsychologist, Mr Richard McBride, dated 5 December 2024. Mr McBride gave evidence at the hearing.

5. We have decided to refuse the application for an enabling order under s 28 of the WWC Act. These are our reasons.

Background

6. The applicant is a 48-year-old man who is married with young children. He grew up in New Zealand and moved to Australia in 2002 or 2003.

7. In February 2020 he was arrested and charged with the offence of sexually touching another person without consent. At the time of the incident, the applicant owned and managed a cafe located in the Sydney CBD. He employed the victim, who was a 22-year-old international student working at the cafe. She worked over a period of two weeks and alleges that during this period, the applicant would occasionally touch her on the shoulders, hip or bottom as he walked past her. The incident that was the subject of the charge occurred on 28 January 2020. The victim commenced work at the cafe early in the morning and, as part of restocking the cafe, she was required to access the cafe loft to retrieve stored items. This involved using a ladder. The victim climbed the ladder with the applicant standing behind her. She alleged, and this is part of the police fact sheet referred to below, that the applicant used both hands to pull her back towards him by her hips. She could feel the applicant's penis touching her on the backside and as she began to climb the ladder, the applicant used both hands to touch her on her bottom. She handed the applicant a number of boxes before climbing down the ladder and the applicant again put his hands on the victim's bottom as she climbed down the ladder.

8. The victim was very upset by this incident and later that evening sent the applicant a text message telling him she could not work with him again because of his inappropriate behaviour. The victim complained to police, which resulted in the charges. The matter proceeded to hearing on 28 September 2020. Both the applicant and the victim gave evidence and both were cross examined. The applicant accepted that he had touched the victim when she was on the ladder but denied this was sexual touching and gave evidence that this was solely for the purpose of ensuring that the victim was able to safely ascend and descend the ladder. During the hearing, the prosecution tendered, without objection, CCTV footage of the victim at the Town Hall and Redfern train stations taken immediately after her shift on the evening of 28 January 2020. The Magistrate accepted the victim's evidence and found the offence proven beyond reasonable doubt. On 25 November 2020, the applicant was convicted of the offence of sexually touching another person without consent, contrary to s 61KC of the Crimes Act 1900 (NSW). He was sentence to a community corrections order for 18 months.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19806b7315873d2e6defc123)

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