Commission for Children & Young People v UR [2007] NSWSC 1099

Commission for Children & Young People v UR [2007] NSWSC 1099

The conviction under s81A of the Crimes Act 1900 was charged as an act of indecency with AB and the factual elements were confined to the sexual conduct between the applicant and AB. It could not safely be inferred that the Magistrate was aware of or took into account CD's presence or age, and even if CD's presence was considered it was at most an aggravating feature, not conduct constituting the offence. Because the charged conduct had ceased to be an offence in New South Wales, the Tribunal was correct to conclude that the offence was not a serious sex offence and that the applicant was not a prohibited person. The applicant was entitled to raise that issue as a preliminary...

Jurisdiction
Australia
Judgment Date
07 February 2007
Procedural Posture
Appeal on a Question of Law From the Administrative Decisions Tribunal Under S9(11)(b) of the Child Protection (prohibited Employment) Act 1998 / Application for Leave to Extend Time for Filing a Notice of Appeal and Determination of Appeal
Outcome
Leave to extend time for filing a notice of appeal was granted; the appeal was dismissed; the Commission was ordered to pay the applicant's costs.
Legal Topics
['prohibited Persons in Child Related Employment' 'serious Sex Offence' 'conduct Constituting the Offence' 'jurisdiction of the Administrative Decisions Tribunal' 'extension of Time to Appeal']
['administrative Law' 'child Protection' 'criminal Law'] ['prohibited Persons in Child Related Employment' 'serious Sex Offence' 'conduct Constituting the Offence' 'jurisdiction of the Administrative Decisions Tribunal' 'extension of Time to Appeal']

Case Brief

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Procedural Posture

Appeal on a Question of Law From the Administrative Decisions Tribunal Under S9(11)(b) of the Child Protection (prohibited Employment) Act 1998 / Application for Leave to Extend Time for Filing a Notice of Appeal and Determination of Appeal

Legal Issues

  1. 1 ["Whether the applicant's conviction under s81A of the Crimes Act 1900 was a serious sex offence within s5 of the Child Protection (Prohibited Employment) Act 1998." 'Whether the presence of CD, allegedly aged 12 years, was conduct constituting the offence or merely an aggravating circumstance.' 'Whether the Administrative Decisions Tribunal had jurisdiction under s9 when the applicant contended he was not a prohibited person.' 'Whether the Tribunal proceeding was an abuse of process or procedurally irregular.' 'Whether leave should be granted to extend time for filing the notice of appeal.']

Ratio Decidendi

The conviction under s81A of the Crimes Act 1900 was charged as an act of indecency with AB and the factual elements were confined to the sexual conduct between the applicant and AB. It could not safely be inferred that the Magistrate was aware of or took into account CD's presence or age, and even if CD's presence was considered it was at most an aggravating feature, not conduct constituting the offence. Because the charged conduct had ceased to be an offence in New South Wales, the Tribunal was correct to conclude that the offence was not a serious sex offence and that the applicant was not a prohibited person. The applicant was entitled to raise that issue as a preliminary...

Court Disposition

Leave to extend time for filing a notice of appeal was granted; the appeal was dismissed; the Commission was ordered to pay the applicant's costs.

Orders

  • ['Leave to extend time for filing a notice of appeal is granted.' 'The appeal is dismissed.' "The Commission is to pay the applicant's costs."]