DVM v Children’s Guardian [2020] NSWCATAD 323

In this matter Greg Walsh appeared for the Applicant DVM who had worked as a primary school teacher for over 30 years. In 2015, the Applicant whilst the Deputy Principal of a primary school was the subject of allegations that he had touched students at the primary school inappropriately. At that time, the Applicant had a lengthy and distinguished career as a teacher and was highly regarded by his colleagues.

The Applicant was happily married and had 4 children.

The Applicant was not aware that he suffered from autism spectrum disorder (ASD). He and family members were aware of certain personality traits which ultimately were found to be consistent with that disorder.

A fellow teacher at the school had allegedly observed the Applicant talking to some students in the playground. The Applicant was a popular teacher and would supervise children during lunchtime. It was alleged that the Applicant had patted the children on their lower back or bottoms after speaking to them.

The principal of the primary school frequently attended the classrooms of all the teachers at the school. The Applicant taught a disabled child and there were always two special teachers in the classroom to assist in teaching and supervising that child. The Applicant would mark homework and conduct reading sessions with the children and in doing so sit at a desk. On occasions, some children impulsively jumped up on his lap and he would immediately place the child from his lap on to the floor. The evidence was that he had contacted a number of such children’s parents and disclosed to them what had happened and then asked them to reinforce to the child that they were not to do this. On each occasion when he contacted the child’s parents, no such further incident occurred.

The principal on a regular basis had observed how the Applicant had related to the children during the course of lessons and she noted that the children were very happy and had a good relationship with the Applicant.

A ‘no go and tell’ class was conducted by the teacher who allegedly observed the Applicant patting the two children in the playground. The class was a combined one and children were asked to write down in each other’s presence, any experiences or observation they had of someone touching them inappropriately. This had followed a lesson in which repeated representations had been made as to certain types of conduct which the teacher presenting the class regarded as being inappropriate.

Some of the children looked at other children’s notes and adopted what other children had said.

The teacher concerned spoke to the principal of the school, who contacted the Department of Education and in turn the Police. A Police task force was then created and a large number of children interviewed. The interviews were conduced in a manner which involved the use of leading and closed questions. Many of the children did not provide accounts consistent with any allegation of indecent assault.

The Applicant was arrested and charged with a large number of counts of indecent assault involving the touching of children on their lower back and bottoms and also on their breasts. The latter charges were in circumstances where the children concerned were very young, namely 10 and 11 years of age and had no breasts.

The Applicant was immediately removed from his school and eventually dismissed from his employment with the Department of Education.

Another significant feature of the case was that parents had been involved in perpetrating rumours in the township where the school was situated and the Applicant resided. One of the persons concerned had professional qualifications which had the effect of causing enormous prejudice to the Applicant.

One of the parents who had been involved in making unfounded representations acknowledged to the principal to the school that she should not have done so and when she spoke to her son, he quite clearly denied that the Applicant had ever touched him on the bottom or sat him on his lap whilst marking work.

The Applicant after his arrest and charging, was granted conditional bail. As a result of lack of communication on the part of his then legal practitioner and himself, the Applicant contacted the principal of the school to seek to obtain some information and documentation relating to the allegations against him. He was immediately arrested on the basis that he breached his bail and he was taken into custody and placed on remand at the notorious Goulburn Gaol. He was placed in a cell with another prisoner who had seriously assaulted apparently a paedophile. The Applicant had never been in custody (apart from his initial arrest) experienced a truly horrific ordeal. He was eventually granted further conditional bail, however he found his incarceration in such circumstances to be humiliating and extremely frightening.

The Applicant’s trial took place over a considerable period of time having regard to the necessity of 17 complainants having their evidence recorded and being subject to cross examination. An important feature of the evidence was that there was no evidence that the Applicant had in any way touched the children in any sexualised context.

The Trial Judge, Townsden J, said to the learned Crown Prosecutor:

HIS HONOUR — Right, smack on the bottom, go on, move on, that’s it. How does that at the criminal standard, perhaps on a social —perhaps in danger to go off course here — but how on a social setting does that lie with the concerns that we have in a community that teachers feel that they can ‘t even touch the students in a primary school. And that male teachers feel that they can ‘t be comfortable to even be a male teacher in a primary school. Are you aware of that social issue, Mr Crown? “

The learned Trial Judge was also provided with evidence both from experts on behalf of the prosecution and defence as to the Applicant suffering from the previously undiagnosed autism spectrum disorder. A trait of that disorder is that such persons are often very tactile and not aware of boundaries so far as physical touching is concerned. There was evidence that the Applicant quite frequently would pat children on the back of the head, shoulders, upper back and lower back.

His Honour was not satisfied that such conduct amounted to an indecent assault. See R v Harkin (1989) 38 A Crim R 296 at 301.

On 30 October 2017, Judge Townsden acquitted the Applicant in respect of each of the 17 counts of indecent assault against him.

An application for costs under the Costs in Criminal Cases Act 1967 was made on behalf of the Applicant and was granted by His Honour.

An application was made by the Applicant for a Working with Children Check Clearance to the Children’s Guardian. As the Applicant had been charged with criminal offences, the Children’s Guardian was required to undertake a risk assessment of him (Ss.14 and 15 Child Protection (Working with Children) Act 2012. The Children’s Guardian, after conducting the risk assessment, refused the Applicant’s Working with Children Check Clearance.

Greg Walsh represented the Applicant in proceedings heard by Senior Member S Leal and General Member S Davidson. See DVM v Children’s Guardian [2020] NSWCATAD 323

It was the Children’s Guardian’s position up until extremely late in the proceedings of rank opposition to the application for a Working with Children Check Clearance.

The Tribunal was required to determine whether the Applicant posed a real and appreciable risk to the safety of children and if he does not pose a real and appreciable risk to the safety of children, then to consider;

Whether a reasonable person would allow the Applicant to have direct and unsupervised contact with their children; and

Whether it is in the public interest to grant the Applicant a Working with Children Check Clearance. 

In determining whether the Applicant posed a real and appreciable risk to the safety of children, the Tribunal needed to consider:

Whether the Applicant inappropriately touched students who attended the school where the Applicant last taught.

Whether in light of his mild autism spectrum disorder, the Applicant has the ability to look after children in his care;

Whether the Applicant has gained insight into his behaviour.

The Tribunal also needed to take into account those matters under s. 13(1) of the Child Protection (Working with Children) Act.

The Tribunal, after considering a large body of evidence, was satisfied that the Applicant may have touched students on the bottom but it was not his intention to do so. It found “rather it was his intention to pat them on the lower back, generally as a gesture to send them on their way after having spoken to them.”

There was also evidence that in respect of a student that he lifted the student up by the waist to reach the top of the white board so the student could wipe it. He agreed that he would not do this now.

In the context of children being pulled or placed on to his lap, the Applicant gave evidence in respect of which the Tribunal was satisfied that some students had climbed onto this lap but he never encouraged them to do so and told them to get off and made them sit on the floor. This evidence was corroborated by a former principal.

The Tribunal considered at length, the evidence of a number of eminent experts, including Dr Peterson, Dr Chenoweth (Crown Expert), Dr Edwina Birch, Dr Olav Nielssen and Dr Adrian Keller.

The Tribunal considered carefully all of the statutory considerations and was not satisfied that the Applicant posed a risk to the safety of children. It found “having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the Applicant. Specifically, we are satisfied that the Applicant has skills and experience in the care and management of children, including children with a disability and that he has a particular expertise in drama and the creative arts and these are important skills for the education and development of children.”

The judgement can be found at https://www.caselaw.nsw.gov.au/decision/176832e7ca11e1b274332091