A and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2016] WASAT 74
•27 JUNE 2016
A and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2016] WASAT 74
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 74 | |
| WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) | |||
| Case No: | VR:8/2016 | 19 AND 20 MAY 2016 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 27/06/16 | |
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | A CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT |
Catchwords: | Negative notice issued Factors considered pursuant to s 12(8) of the Working With Children (Criminal Record Checking) Act 2004 (WA) Best interests of children Unacceptable risk in carrying out childrelated work Complete lack of understanding of appropriate boundaries between adult and child Lack of understanding of social norms and interpersonal boundaries |
Legislation: | Criminal Code 1913 (WA), s 321(4), s 323 State Administrative Tribunal Act 2004 (WA), s 27(2) Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7(2), s 12(5), s 12(8), s 13, Sch 2 |
Case References: | Chief Executive Officer v Grindrod [No 2] [2008] WASCA 28 Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 Chief Executive Officer, Department for Child Protection v Scott [No 2] (2008) 38 WAR 125; [2008] WASCA 171 Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289 Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153 |
Orders | 1. The application is dismissed. |
Summary | An application was filed in this Tribunal seeking a review of the Department for Child Protection's decision not to cancel the applicant's final negative notice which had been issued to him by the Department as a result of a Class 2 nonconviction charge.,As a result of the applicant's evidence to this Tribunal concerning his previous alleged conduct towards a 17yearold girl while employed as a coach, the Tribunal determined that he was an unreliable witness.,The Tribunal found that the applicant disclosed a complete lack of understanding of the appropriate boundaries between an adult and a child under the Working With Children (Criminal Record Checking) Act 2004 (WA).,The Tribunal also noted that the conduct associated with the Class 2 nonconviction charge which occurred while the applicant was a coach, was consistent with grooming. It showed a continuing lack of appreciation of appropriate boundaries and a sexual interest in young women.,The alleged conduct in Western Australia, when seen in the context of the applicant's previous actions as a coach, supported the Tribunal's conclusion that the applicant posed an unacceptable risk to children who might come into contact with him when he is working as a coach at a gymnasium. The Tribunal determined that the applicant does not understand social norms and interpersonal boundaries.,Having regard to the factors to be considered pursuant to s 12(8) of the Working with Children (Criminal Record Checking) Act 2004, the Tribunal concluded that the best interests of children would be served by maintaining the applicant's negative notice because, in consideration of all of the evidence, there is an unacceptable risk that the applicant might cause harm to a child in the course of carrying out child-related work. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) CITATION : A and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2016] WASAT 74 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : 19 AND 20 MAY 2016 DELIVERED : 27 JUNE 2016 FILE NO/S : VR 8 of 2016 BETWEEN : A
- Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent
Catchwords:
Negative notice issued - Factors considered pursuant to s 12(8) of the Working With Children (Criminal Record Checking) Act 2004 (WA) - Best interests of children - Unacceptable risk in carrying out childrelated work - Complete lack of understanding of appropriate boundaries between adult and child - Lack of understanding of social norms and interpersonal boundaries
Legislation:
Criminal Code 1913 (WA), s 321(4), s 323
State Administrative Tribunal Act 2004 (WA), s 27(2)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7(2), s 12(5), s 12(8), s 13, Sch 2
Result:
Application dismissed
Summary of Tribunal's decision:
An application was filed in this Tribunal seeking a review of the Department for Child Protection's decision not to cancel the applicant's final negative notice which had been issued to him by the Department as a result of a Class 2 nonconviction charge.
As a result of the applicant's evidence to this Tribunal concerning his previous alleged conduct towards a 17yearold girl while employed as a coach, the Tribunal determined that he was an unreliable witness.
The Tribunal found that the applicant disclosed a complete lack of understanding of the appropriate boundaries between an adult and a child under the Working With Children (Criminal Record Checking) Act 2004 (WA).
The Tribunal also noted that the conduct associated with the Class 2 nonconviction charge which occurred while the applicant was a coach, was consistent with grooming. It showed a continuing lack of appreciation of appropriate boundaries and a sexual interest in young women.
The alleged conduct in Western Australia, when seen in the context of the applicant's previous actions as a coach, supported the Tribunal's conclusion that the applicant posed an unacceptable risk to children who might come into contact with him when he is working as a coach at a gymnasium. The Tribunal determined that the applicant does not understand social norms and interpersonal boundaries.
Having regard to the factors to be considered pursuant to s 12(8) of the Working with Children (Criminal Record Checking) Act 2004, the Tribunal concluded that the best interests of children would be served by maintaining the applicant's negative notice because, in consideration of all of the evidence, there is an unacceptable risk that the applicant might cause harm to a child in the course of carrying out child-related work.
Category: B
Representation:
Counsel:
Applicant : Ms M Mortimer
Respondent : Mr P Urquhart and Ms A Fox
Solicitors:
Applicant : Cleveland & Co Lawyers
Respondent : Department for Child Protection and Family Support
Case(s) referred to in decision(s):
Chief Executive Officer v Grindrod [No 2] [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262
Chief Executive Officer, Department for Child Protection v Scott [No 2] (2008) 38 WAR 125; [2008] WASCA 171
Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206
Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289
Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153
Introduction
1 On 23 December 2014, the Department for Child Protection (the Department) issued an interim negative notice to A under s 13 of the Working With Children (Criminal Record Checking) Act 2004 (WA) (the Act) (Exhibit A page 10).
2 The reason for the issue of the notice was:
Notification was received from WA Police on 22 December 2014 under section 17 of the WWC Act that [A] had been charged with the Class 2 charges of Indecent Dealings with a Child Over 13 and Under 18.
(Exhibit A page 11)
3 The covering letter of 23 December 2014 invited A to make submissions about the issue of a final negative notice (Exhibit A pages 1112). A failed to do so and a final negative notice was issued on 11 February 2015 (Exhibit A page 20).
4 On 27 May 2015, the charge against A of indecent dealing was dismissed for want of prosecution (Exhibit A pages 24, 34 and 95).
5 On 18 June 2015, A applied to cancel the negative notice (Exhibit A pages 2628).
6 On 16 December 2015, A was advised that his application was unsuccessful (Exhibit A pages 140145).
7 On 11 January 2016, A filed an application in this Tribunal seeking a review of the decision to refuse to cancel the negative notice.
Nonconviction charge
8 The reasons for the dismissal of A's charge for want of prosecution are explained in an email dated 28 April 2015 from the Department:
The decision has now been made to discontinue this prosecution on the basis that there is insufficient evidence for a reasonable prospect of conviction. The accused's behaviour is very inappropriate but legally does not go so far as to meet the definition of indecent.
(Exhibit A page 93)
9 Section 4 of the Act provides 'a nonconviction charge means a charge of an offence that has been disposed of by a court otherwise than by way of a conviction'.
10 A submitted that the charge had not 'been disposed of by a court'. However, the charge was dismissed as a result of an order of a Magistrate in court (Exhibit A pages 34 and 95).
11 The Explanatory Memorandum attached to the second reading speech (Exhibit C page 2) makes it clear that Parliament intended to cover A's circumstances, that is, where the charge is dismissed for want of prosecution. The Explanatory Memorandum specifically refers to charges that are withdrawn by the prosecution and do not proceed to a court decision (nolle prosequi).
12 In passing the Act, Parliament adopted a precautionary approach (see Chief Executive Officer v Grindrod [No 2] [2008] WASCA 28 at [76][79].
13 The Tribunal is satisfied that the charge was disposed of by a court and that it is therefore a nonconviction charge.
Legislation and authorities
14 The focus of the review is to produce the correct and preferable decision by the remaking of the decision under review: s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act); Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 (Hardingham 2 at [25], [34] and [69]).
15 The application is to be considered at the date of the Tribunal's decision (Hardingham 2 at [25] and [39]).
The legislation and authorities relevant to particular circumstances
16 Section 4 of the Act defines a 'child' as a person who is under 18 years of age.
17 A Class 2 offence is defined in s 7(2) of the Act by reference to Sch 2 of the Act. The Schedule includes sections 321 and 323 of the Criminal Code 2013 (WA).
18 Section 12(5) of the Act imposes an obligation on the Chief Executive Officer (the CEO) to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
19 It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice: Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289 (Grindrod) at [65].
20 Section 12(8) of the Act provides:
If subsection (5) … applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular … circumstances of the case having regard to
(a) the best interests of children;
(b) when the offence was committed or is alleged to have been committed;
(c) the age of the applicant when the offence was committed or is alleged to have been committed;
(d) the nature of the offence and any relevance it has to childrelated work;
(e) the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of
(i) any offence committed by the applicant; or
(ii) any charge against the applicant;
(f) any information given by the applicant in, or in relation to, the application;
(g) anything else that the CEO reasonably considers relevant to the decision.
21 The criteria in s 12(8) of the Act constitute an exhaustive statement of the factors the decision-maker is bound to take into account in deciding if the requisite satisfaction is attained. The decision-maker is not entitled to take into account any other factors: Grindrod at [69].
22 The best interests of children is always relevant and always the paramount consideration: s 12(8)(a) 12(8)(f) (Grindrod at [70] and s 3 of the Act).
23 The criteria in paragraphs (b) - (f) are never excluded by the criterion in paragraph (a); they are merely subordinated: Chief Executive Officer, Department for Child Protection v Scott[No 2] (2008) 38 WAR 125; [2008] WASCA 171 at [106] (Scott).
24 The purpose of the Act is as stated by Buss JA at [109] in Scott:
The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who are involved in child-related work and have been convicted of, or charged with (including charged with and acquitted of), specified criminal offences. The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.
25 The CEO is to be satisfied that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children in the course of carrying out child-related employment: Grindrod [81]-[83].
26 The impact on the psychological health of the child arising from the consequences of the sexual or physical harm must be a relevant factor in assessing whether there is an unacceptable risk.
27 The risk has to be unacceptable, not likely, on the basis of all of the evidence. In Grindrod at [85] and [87], Buss JA explained that:
… Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described …
…
The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether … s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.
28 In Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 (T) at [64], Murphy JA explained that:
The 'particular facts' to which reference is made in Grindrod [No 2] [87] would include both primary facts, and inferences of fact drawn from the primary facts. The term 'reasonable suspicions' is used in contradistinction to 'facts' and connotes a reasonable apprehension of matters for which there is nevertheless insufficient warrant to make a positive finding of fact.
29 In T, Pullin JA (Newnes JA agreeing) at [36] stated:
In Hardingham, Heenan J correctly directed himself about points decided in Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 and Grindrod [No 2], namely that:
(a) the critical question for the decision-maker under s 12(5) was whether, on all the information and material properly before the decision-maker, he or she was satisfied there was an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related work [144];
(b) that the risk in question had to be 'unacceptable' and not 'likely', but that the existence of an unacceptable risk had to be based on facts or reasonable suspicions and not, in the words of Heenan J, on 'imagination or surmise' [152], [157].
30 The reasons why a person is acquitted may be relevant to the assessment of the probative value of facts or suspicions which the CEO has to consider: T at [49].
31 In Hardingham 2 at [59], the Court of Appeal stated:
This conclusion is consistent with the decision of Heenan J in remitting the matter to the tribunal (Hardingham v Chief Executive Officer, Department for Child Protection). At [123] - [127] his Honour expressly upheld the correctness of the tribunal taking into account 'disreputable conduct not amounting to a conviction for a class 1 or class 2 offence or the subject of any such non-conviction charge' including conduct which does not disclose the commission of an offence:
If it constitutes some kind of deplorable conduct which either alone or in combination with other proved or alleged conduct may give rise to reasonable grounds for suspicion that the applicant may constitute an unacceptable risk of harm to children, then it must be taken into account [127].
33 Consideration of whether to cancel a negative notice does not require a finding that the applicant would commit or re-commit a sexual or other offence in the future; the focus is on the exposure of children to risk of harm whether intended or not. Hall J in Hardingham 3 said at [161]:
I note that the question is whether children would be exposed to an unacceptable risk of sexual or physical harm, not whether the applicant would commit a sexual offence. In these circumstances, it is relevant to take into account that harm may occur inadvertently because a person misunderstands or fails to appreciate social norms and interpersonal boundaries. Harm may occur to children in such circumstances even though the perpetrator did not intend to commit an offence. …
34 The prediction of future risk is not limited to the conduct that was the subject of the charges: Hardingham 3 at [39].
The British Gymnastics matter
35 On Sunday 16 May 2004, A was coaching at a competition in Reading (Birkshire, England). At the time of the incident, A was a casual employee of the Borough of Poole (the Borough). A had been attending the competition in that capacity.
36 There were children and adults present as spectators and competitors at the competition on 16 May 2004 (T:60; 19.05.16).
37 An official complaint about A's conduct was lodged on 22 May 2004 (Exhibit B page 29).
38 In essence, the complainant alleged that A grabbed a 17yearold coach's breast and cupped it in his hand (Exhibit B page 11). The 17yearold coach is identified as JP in these reasons.
39 JP was a child within the meaning of the Act at the relevant time. A claimed that he believed that JP was 18 years old at the time (T:31; 19.05.16).
40 A was 34 years old at the time (T:59; 19.05.16). There was a 17 year age gap between A and JP. The incident occurred when A was working with children as their coach.
41 On 24 May 2004, A was advised by the Chief Executive Officer of the British Amateur Gymnastics Association (British Gymnastics) of the allegation. The letter of 24 May 2004 also advised A that he had been suspended.
42 The Borough carried out an investigation into the allegation. In the course of its investigation, it took statements from JP, BC and NR. BC and NR witnessed the incident.
43 JP made the following statement to the Borough investigators about the incident that occurred on 16 May 2004 with A:
I sat talking to [BC]. [A] then came over and grabbed my breast and cupped it in his hand and then walked away shouting something about five points to him and about a cricket game.
I felt very shocked and disgusted. [BC] and [NR] were sat next to me and were also shocked. I asked [BC] what [A] was going on about and he said he didn't know. [NR] said he couldn't believe what happened, I answered I couldn't believe it especially being at a competition. He replied 'so it would have been alright otherwise?' I said no, I'm not saying that, it's not right, there's just lots of kids about.
[BC] made a comment 'we wonder where our reputation comes from'. Throughout the conversation [A] continued to shout about five points and a cricket game. I didn't know what to think and tried to forget it so I turned round to face the other direction.
Nothing else was said then between [NR], [BC] and myself. Later on I went to get my bag which was on the seat where [A] was sat. He said 'you know it was just about five points and the cricket game?' I was still confused by what he meant by cricket game and still shocked by what had happened. I ignored him and carried on.
I still feel shocked and I can't believe what happened, it was disrespectful and uncalled for. I am most upset that two girls I help coach were sat close by and saw the event. I feel something needs to be done in order to prevent this happening again and to anyone else.
(Exhibit B page 30)
44 It is convenient at this point to refer to JP's subsequent evidence of the incident. In the course of a subsequent disciplinary appeal hearing by the Borough held on 10 August 2004, JP was questioned during a telephone conversation. The notes of the conversation are:
Present:
Ms Tracy Comper
Mr Clive Smith
Mr Smith introduced himself and Ms Comper and explained the purpose of the call.
TC - WHAT WERE YOU DOING IMMEDIATELY BEFORE THE ALLEGED INCIDENT OCCURRED? WHO WAS THERE?
JP - I was sitting on the floor talking to [BC] and others. A few of the girls I coach were there. [NR] was also there. [A] was not with us.
TC - WHERE WAS [A]?
JP - I don't know.
TC - WERE YOU AWARE THAT A 'GAME' WAS BEING PLAYED?
I am aware now but still don't really understand what it was all about. I was not aware of it before the incident.
TC - DO YOU THINK ANYONE ELSE WAS INVOLVED IN THIS GAME?
JP - I didn't get that impression. [BC] and [NR's] faces showed their shock at what had happened.
TC - DID [A] MAKE PHYSICAL CONTACT WITH YOU?
JP - Yes he cupped his hand around my breast in the area where the cup of my bra would be. I felt this.
TC - CAN YOU DESCRIBE THE GESTURE OR ACTION [A] MADE TOWARDS YOU?
JP - [A] just appeared and grabbed me. I was sitting sideways on with the girls to my left and [BC] on my right.
TC - WOULD YOU SAY [A] ACTUALLY MADE CONTACT WITH YOUR BREAST?
JP - Yes.
CS - WHAT WAS YOUR REACTION TO THE INCIDENT?
I laughed but it was through embarrassment and shock. I didn't know how to react.
CS - WHAT WAS [A]'S REACTION IMMEDIATELY AFTER THE INCIDENT?
He was laughing [and] shouting but not at anyone in particular. It wasn't aimed at anyone in particular several people must have heard it.
CS - DID ANYONE WITNESS THE INCIDENT?
The four girls would have seen something. They were under eleven. I didn't ask them but my Mum spoke to their parents and they said the girls had noticed something was happening but could not say what. [NR] and [BC] were witnesses.
CS - WHAT WAS THE REACTION OF [BC] AND [NR]?
JP - [BC] was very apologetic, I have a good relationship with him. He phoned later to apologise as well. One or the other said something about the reputation of the club being damaged. [NR] was very shocked. I said I was worried about that behaviour in front of the kids. [NR] said so would it be OK otherwise? I said no.
CS - IT HAS BEEN SUGGESTED YOU WERE LAUGHING AND JOINING IN. IS THAT THE CASE?
JP - I was really embarrassed and shocked but it didn't really sink in at first. I eventually started to think that it shouldn't have happened and I told mum. I was really upset the girls were there. I felt it was very disrespectful to me to think that he can come up and do that.
DID YOU HAVE ANY FURTHER DISCUSSIONS WITH [A] ABOUT THE INCIDENT?
Not really my stuff was near him and I went to get it. [A] said you know it was only a game. I just picked up my stuff. Previously I had regarded him as a friend and admired him as a very good coach. At that point my opinion of him had dropped a lot.
CS - WOULD IT HAVE BEEN FAIRLY OBVIOUS TO [A] THAT YOU WERE DISTRESSED?
JP - I think it would have been obvious I wasn't very happy. He tried to tell me it was only a game. I think he realised he had overstepped the mark. I didn't speak to him again.
…
CS - HOW WELL DO YOU KNOW [A]?
JP - Quite well, I have only seen him at competitions as a coach. We would have friendly discussions, we all do at competitions.
Discussion ended.
(Exhibit B pages 3840)
45 The notes of the telephone conversation with JP on 10 August 2004 substantially confirm what JP had told the Borough investigators in May 2004.
46 The evidence of BC to the Borough investigators was:
During the course of the day [A] mentioned to me a game called 'tit cricket' after he accidentally brushed past someone, nudging their breast, this involves a points system of which I am uncertain of the rules. I took this as a passing comment and a joke, not realising it would go any further than our conversation.
Later in the afternoon I was sat between [NR] and [P], who was at an angle to my left hand side, whilst we were watching the competition. I saw [A] come over between Jessica and I and he appeared to touch [JP's] breasts. After this he walked off bragging about 5 points.
At first I did not register what he was talking about, but in hindsight I realised he was referring to his game 'tit cricket'.
[JP] looked shocked and a little embarrassed and [NR] and I were dumbstruck at what had just occurred.
[NR] then apologised for [A's] behaviour, whilst I made a comment along the lines of 'things like that can give our club a bad name'
I would like to state that in no circumstances was I involved in participating in 'tit cricket', or was I likely to be involved in this game.
(Statement of BC, Exhibit B page 35)
47 The evidence of NR to the Borough investigators was:
I was sat next to [BC], who was on my left hand side and on his left hand side was sat [JP] at a slight angle watching the competition in the late afternoon.
[A] dashed between [BC] and [JP], and leant over, and to the best of my knowledge touched her breasts following which he walked off, laughing and mentioning '5 points'.
[JP] sat quietly looking embarrassed and [BC] and I looked at each other speechless and in amazement.
I then apologised for his actions.
(Statement of NR, 25 May 2004, Exhibit B pages 3637)
48 The statements of BC and NR corroborate both each other's statements and that of JP.
49 On 24 May 2004, the Borough investigators met with A. The relevant notes of the meeting are:
At the meeting I informed [A] that an incident had been reported to me and that also a complaint regarding the incident had been made to the British Gymnastics Association.
I asked [A] for his side of the story to which he replied, 'what's the point you know what happened!'
I asked if he had touched the girl's breasts.
He replied that he had saying that he had known the girl for a long time and that it had been a bit of fun, a joke.
I said unfortunately it had not been taken as a joke and was a serious matter that could still be reported to the police.
He replied that he realised that now but had meant nothing by it, it was just a silly joke.
He said that he could not believe the girl's family could do this to him, and stated how one time when the girl, [JP], had injured herself on the trampoline one of the parents thanked him for helping her.
I asked him if there could be anything malicious in the complaint and after some thought he mentioned one time when [JP] had been competing as a guest at the leisure centre he had informed her that even if she won, she would not receive a prize because she wasn't in the main competition. [A] wondered if that could be a reason for making the complaint to get back at him for that.
I stated nonetheless 'you touched the girl's breasts and that is not acceptable behaviour'.
[A] replied 'so it's ok for her to pinch my bottom and touch my sides in a sexual way'.
I replied, 'no but as a coach shouldn't he resist that sort of behaviour from a younger person?'
[A] repeated that he had only acted in a joke and had only been larking around.
(Exhibit B page 34)
50 On 24 May 2004, A had an opportunity to deny the allegation. He did not do so. In fact, he admitted that he had touched JP's breasts. He regarded the incident as a joke.
51 A's response to the Borough investigators demonstrates a serious lack of insight on A's part. It is also of concern that he sought to blame JP for making the allegation.
52 The Borough investigators' report also notes that '[A] had subsequently issued a statement in which he is clearly trying to backtrack'. The exact date of this statement is not clear (Exhibit B page 31).
53 A's statement was:
I would like to start by saying of how shocked I was about the allegation made by [JP]!! I do not wish to put any slur on her character but I have known her for a few years now, and of late her responses on greeting me at competition have had sexual overtones in the way she has hugged and kissed me and on many occasions pinched my bottom, and tickled me when not expected. I appreciate morally I should have put a stop to these responses but I was under the impression that she was 18 years old, albeit making no difference, she bounces in the Over 18 age group at competitions and told my about the car she received as a birthday present, and as I do not coach her and she is not from my club, I did not give it a second thought.
I am very responsible at competitions as I want all performers to achieve their highest potential [where] possible.
I was made aware of this game called tit cricket on a night out with [BC]. [BC] and I, even though I am older [than] [BC], mix in the same social circle with friends around the same age as him.
The incident on the day in question I accept my responsibilities however, firmly believe that it was fuelled by [JP's] attitude towards me and a previous night out with [BC].
I came into the sports hall after going to the toilet, I saw [JP] sat next to [BC] and [NR]. There was a space between [JP] and [BC]. [JP] was sat to [BC's] left and [NR] was sat to [BC's] right. I walked between [JP] and [BC] and asked [JP] how many points had [BC] got now? She just laughed and I heard [BC] laughing as well as I was looking at [JP]. In jest I then slightly bent over towards [JP], I would imagine blocking the view of [BC] and [NR] which I add was not intentional, and made the gesture of touching her breast, extremely quickly, pulling away just as quick. With absolute no intent three of my fingertips lightly touched the area above her breast but at no time did my hand actually touch her breast. I turned and looked at [BC] and said is that 5 points? I didn't get an answer because both [BC] and [NR] were in fits of laughter. I was walking away at that point and I looked at [JP] who was laughing as well and it seemed to me that she knew about the game and thought of it as just a friendly joke. I stress that there was absolutely no sexual intent what so ever and there was no actual physical contact with [JP's] breast.
I have spent the last 26 years passionately committed to this sport. In my youth as an international performer and more recently as a coach. I have committed myself to achieving excellence in my coaching at high international performance level, producing performers to that level.
I'm at a complete loss in understanding after all my commitment and passion for this sport and its performers, how I made this error of judgement of character, following a well deserved relaxed night out with friends, will destroy my life.
As the senior person in this incident I would like to sincerely apologise for any distress this may have caused [JP].
(Statement of A, Exhibit B page 41)
- In A's statement, he slightly retreated from his original admission to the Borough investigators.
54 A's statement to the Borough investigators concedes that:
a) his hand lightly touched the area above JP's breast; and
b) he had shouted '5 points' immediately after he had contact near JP's breast.
55 A again blames JP for making the allegation.
56 A was summarily dismissed by the Borough as a result of his conduct.
57 A appealed against his summary dismissal.
58 A disciplinary appeal hearing was held by the Borough in early August 2004 which confirmed A's summary dismissal (Exhibit B pages 1415).
59 British Gymnastics held a disciplinary hearing on 24 January 2005.
60 On 31 January 2005, A was advised by British Gymnastics that his membership of British Gymnastics had been terminated (Exhibit B page 18).
61 A wrote to British Gymnastics on 28 February 2005. He stated:
I am very shocked at your decision to expel me as a member of British Gymnastics. What I fail to understand is how can you condone the actions of the Technical Director of Trampolining at an international competition, and not condone my actions with so called friends of mine. …
… my actions towards [JP] had no sexual intent, I never touched [JP] in any sexual way.
(Exhibit B page 19)
62 On 13 April 2005, British Gymnastics wrote to A advising that he could appeal the decision to terminate his membership (Exhibit B page 20).
63 British Gymnastics' letter of 13 April 2005 invited A to set out his grounds for the appeal (Exhibit B page 20).
64 A responded to British Gymnastics on 6 May 2005. In his letter he said:
With hindsight, I appreciate that my actions on the day in question were rash and foolhardy in the least, but by the fact that were done in a very public place and in a light hearted moment during a conversation between a group of friends, must somehow show that no devious intent was meant.
…
The young lady concerned had been an acquaintance of mine for some time. She had never been a pupil of mine, or a member of any club that I was with or under my direct charge in any way. Our relationship had always been of a light hearted social nature on both sides, meeting up at competitions as Coaches and exchanging friendly banter.
(Exhibit B page 21)
65 In his letter of 6 May 2005, A did not dispute the allegations made by JP but sought to excuse them on the basis of his acquaintanceship with JP. He moved from his statement of 24 May 2005 back to his original position before the Borough investigators.
66 On 4 July 2005, A was sent a hearing book for the appeal against the termination of his membership (Exhibit B page 23).
67 The allegation against A that was considered by British Gymnastics was that:
[A] engaged in conduct unbefitting a member of British Gymnastics contrary to the Association Rules on Conduct & Etiquette (contained in the Members Handbook, Section 15, pages 16 paragraph 2) namely the sexual assault of [JS] on Sunday May 16 2005.
(Exhibit B page 27)
68 The 'British Gymnastics Handbook' states at section 15, page 16 paragraph 2:
…
(ii) Conduct unbefitting a member of British Gymnastics which falls in two classes
(a) A breach of duty or prohibition imposed by the IOC, FIG, BOA, BS or any of its affiliated Associations.
(b) Conduct which a Disciplinary Committee has held to be conduct unbefitting a member of British Gymnastics.
The penalty for which is suspension or expulsion from British Gymnastics.
69 The minutes of the hearing to appeal the decision of British Gymnastics to terminate A's membership on 26 July 2005 record that:
[The Poole Borough Council (PBC)] had terminated the casual employment of [A] following the alleged incident on 16th May 2004. Mr Sommerville stated that The Case Referral Management Group [CRMG] of [British Gymnastics (BG)] had therefore suspended [A]'s membership pending the PBC hearing. Subsequently, having accepted the findings of the PBC Disciplinary Hearing, on the 24th January 2005 the CRMG permanently expelled him from membership of BG. This hearing was an appeal from that decision.
…
At the time of the incident [A] was 34 and [JP] was under 18. [A] has been involved in the sport for most of his life and has represented his country. He had been given much responsibility by PBC. He had not attended any Child Protection course, run either by BG or his employers. He admitted his general conduct at the competition towards [JP], who he had known for several years. He disputed the particular facts of the evidence relating to the game of 'tit cricket'. He did not accept he had cupped [JP's] breast in his hand but had only lightly touched her upper chest. He now realised that what took place could have embarrassed [JP] and would like to sincerely apologise for any distress this may have caused her. He was willing to undertake relevant training.
…
DECISION
Despite the inability to resolve the conflicting evidence The Panel considers that the conduct admitted by [A] was 'improper conduct' within Rule 2 (iii) of BG's Rules of Conduct & Etiquette.
The expulsion should be lifted.
The censure being that [A]'s membership of BG is to continue in suspension until he has attended both a Child Protection Awareness and an Implementation course, with the assistance of the Regional Development Officer.
(Exhibit B pages 4445)
- In the British Gymnastics appeal hearing, A admitted that he had lightly touched JP's upper breast.
Conclusions from the Borough/British Gymnastics proceedings
70 The following facts are supported by the evidence of JP, BC and NR:
a) A grabbed JP's breast and cupped it in his hand or otherwise touched JP's breast;
b) A then shouted something about '5 points';
c) JP was a child within the meaning of the Act at the time;
d) A was aware of the 'game', 'tit cricket', before he touched JP's breast; and
e) the incident took place in a public area.
71 At times, A made the following admissions:
a) he touched JP's breast; and
b) he shouted out '5 points' immediately thereafter.
72 The conclusion that can properly be drawn on the balance of probabilities from the evidence contained in Exhibit B is that JP's account of the incident on 16 May 2004 should be accepted.
73 If it had occurred in Western Australia, A's conduct to JP would potentially constitute an indecent assault under s 323 of the Criminal Code. An offence under s 323 of the Criminal Code is a Class 2 offence under the Act.
A's letter of 10 July 2015
74 On 10 July 2015, A wrote to the Working with Children Screening Unit (Screening Unit).
75 His letter stated:
I have been working with children for a period of approximately 20 years, and I have always been professional and courteous around the company of children. I have not had any charges brought against me for any improper behaviour or suggested behaviour within that time. The recent event was dismissed at the hearing stage and did not even get to court. The allegation was untrue and there was no evidence against me.
…
I have been working with children over many years, building relationships and trust, resulting in many champions including 2 world champions and the very first WA athlete to compete at a senior world championships. All this has been achieved without any concerns or allegations about any such, or suggested, improper behaviour. I have not been and will never be a threat to any child.
(Exhibit A pages 9798)
76 In crossexamination, A was referred to the second paragraph of his letter dated 10 July 2015 set out above.
77 When asked whether the paragraph was correct, A answered 'Yes. Apart from the one from [British Gymnastics]' (T:39; 19.05.16).
78 A sought to justify the paragraph on the basis that there had been no police allegations about improper behaviour (T:40; 19.05.16). A admitted that there was a concern which arose from the allegation involving JP. A stated that 'I thought she was 18, but that's no excuse' (T:41; 19.05.16).
79 In crossexamination, A grudgingly accepted that in 2005 he was found by British Gymnastics to have engaged in improper conduct in 2004. A offered no satisfactory explanation for his failure to disclose British Gymnastics' allegation of 16 May 2004 to the Screening Unit. It was clearly an allegation about improper behaviour, and clearly one that should have been disclosed to the Screening Unit. The Tribunal infers that A failed to disclose the incident because A wished to conceal it from the CEO.
A's evidence before the Tribunal concerning the 16 May 2004 incident
80 A's evidence before this Tribunal was that he touched JP on the shoulder on 16 May 2004 (T:32; 19.05.16). A's explanation for touching JP on the shoulder was (T:63; 19.05.16):
Yes? --- All right then. And anyway, and then then it went back to the game, or something. Anyway, so, my performer was on, so I stands up, yes, and I touched her on the shoulder, yes, and I went, 'He’s not going to phone you, so don’t worry about it'. You know, walks off, yes, okay, [BC] looks at me and he puts his thumb up, and I'm like I think (indistinct).
- A conceded that, nowhere in his written statement before this Tribunal (Exhibit D) did he say that he had made contact with JP's shoulder (T:45; 19.05.16).
81 In effect, A's explanation for his touching JP was that he was consoling her.
82 Before this Tribunal, A denied that he had conceded to the Borough that he had touched JP's breasts and that he had been acting in fun (Exhibit B page 31; T:70; 19.05.16). In the face of the records contained in Exhibit B, that denial is clearly incorrect.
83 In crossexamination, A denied he had ever played the game 'tit cricket' or heard about it until BC told him (T:58; 19.05.16). A denied that he knew anything about the points system of the game (T:59; 19.05.16).
84 A's evidence was that BC said something about five points, rather than that A had said anything about five points (T:63; 19.05.16).
85 At a later point in his crossexamination, A said that when he had said 'five points' it was a reaction to BC screaming out 'five points' (T: 68; 19.05.16).
86 A's evidence before this Tribunal was inconsistent with the statements of JP, BC and NR. A admitted that his account to the Borough regarding the incident with JP which appears at page 41 of Exhibit B, was not consistent with the evidence that he gave to the Tribunal at the hearing (T:7579; 19.05.16).
87 A's attention was drawn to paragraph 47 of his witness statement (Exhibit D) where he said, 'I acknowledge on this occasion I did behave inappropriately. I deny the cupping allegation, but I brushed the other coach's breast momentarily, but most certainly did not cup it'.
88 A sought to explain paragraph 47 of his statement on the basis that he had admitted it purely for the purpose of disposing of the matter before British Gymnastics. He said:
I said 'Right, well I'm sorry. I'm sorry it happened, yes. I apologise that it happened', and they've obviously put that down as I admitted to it.
89 It was pointed out to A that his motive for giving his written statement in this Tribunal had nothing to do with the British Gymnastics Tribunal hearing (paragraph 47 of his statement before this Tribunal).
90 A was unable to offer any satisfactory explanation for making that concession in his witness statement before this Tribunal (T:4345; 19.05.16).
91 Before this Tribunal, A denied that he understood what 'rash and foolhardy' meant, despite using that term in his letter to British Gymnastics dated 6 May 2005 (Exhibit B pages 2122; T:7273; 19.05.16).
92 A stated that his intention in writing the letter of 6 May 2005 was to make sure that BC did not get into trouble with British Gymnastics. A conceded that he wrote that at a time when he had been suspended by British Gymnastics (T:73; 19.05.16). The Tribunal does not accept that A would have put BC's career before his own.
93 A sought to discredit the Borough investigator who conducted his interview on the basis that she 'definitely had something against me' (Exhibit B page 34; T:71; 19.05.16).
94 A stated that 'the [British Gymnastics] one was a complete stitch up' (T:40; 19.05.16).
95 A sought to explain NR's statement on the basis that NR was upset that A had been picked as coach over him (T:68; 19.05.16). A gave evidence that NR suggested to JP that she make the allegation because NR wanted to go to the European titles with the British team for which A had been picked and NR had not (T:41; 19.05.16).
96 A also claimed that he had been 'stitched up' by NR (T:31; 19.05.16).
97 In relation to BC, A stated that (T:61; 19.05.16):
Because British Gymnastics look upon people under the age of 21 as a young impressionable teenager, and [BC] was just breaching out into coaching, so I said to him, I said whatever you do, I said, you know, you just be careful because she's only 18.
98 A sought to explain BC's statement on the basis that he had told BC off for telephoning JP at 4 am (T:61 & T:68; 19.05.16).
99 A further sought to explain JP's statement on the basis that he, A, had told BC not to sleep with JP (T:68; 19.05.16).
100 A's attempts to ascribe improper motives to others for their statements were a familiar theme in his evidence.
101 A's attempts to ascribe ulterior motives to the Borough investigator, JP, BC and NR simply do not make sense. It is implausible that four people would have motives for making misleading statements as part of the Borough investigation.
102 A's evidence before this Tribunal concerning the incident with JP on 16 May 2004 is rejected. A was simply attempting to resile from the evidence in Exhibit B and his admissions therein.
103 Mr Urquhart's crossexamination of A on the 16 July 2004 incident left A's credibility in tatters.
The Class 2 nonconviction
104 A said his partner (AP) emigrated from the United Kingdom in early 2012. A and AP worked as coaches at a trampolining/gymnastics centre.
105 AP coached the complainant (YG) involved in the Class 2 nonconviction. AP had first started coaching YG in February 2012.
106 A coached YG's younger brother (T:1920; 19.05.16).
107 In December 2012, YG began babysitting A and AP's two young children (T:20; 19.05.16). Thereafter, YG babysat once or twice a week (T:2122; 19.05.16).
108 A would pick up his children and YG after school, take them to his home, drop them off and then go to work as a trampolining coach (T:2123; 19.05.16).
109 AP and YG's mother were close and the families attended barbeques together (T:2021; 19.05.16).
110 The summary of A's conduct in relation to the Class 2 nonconviction charge, prepared by the Department for Child Protection (Exhibit A pages 1415), states:
Between 1 January 2013 and 12 September 2014 the victim was a babysitter for the accused's two younger daughters aged 3 and 5. The victim was 14 years of age and [the] accused was 43 turning 44 years of age during this period.
Sometime during this period the accused picked up his two daughters and the victim from school and drove them back to his home address of [address]. Whilst in the car the accused said to the victim 'are you a virgin?' The victim indicated she was. The accused followed by asking 'but are you a finger virgin?' The accused went on and told the victim about sexual acts he performed with his wife including oral sex. During this conversation the accused stated he had a small penis but it still did the job.
Further, during this period the accused approached the victim whilst at his address. He flipped up the victim's skirt and said 'that's a bit short'. The accused left leaving the victim to babysit.
Further, in this period the accused picked up the victim and his two daughters from school. The victim was wearing a skirt and tights. The accused asked 'What do you wear under your skirt?' The victim explained that she did not wear shorts under her tights. The accused said 'so you don't have anything on?' He further made comments about how easy it would be to see through the victim's tights. The accused again asked the victim to clarify she had anything on underneath her tights. The accused conveyed the victim and his daughters home and left.
Further, during this period the accused conveyed the victim and his children home from school. Before leaving the house the accused gave his daughters a kiss. One of his daughters commented on why the victim did not receive a kiss goodbye from the accused. The accused made the comment '[A] doesn't get a kiss - we are not that close, well not yet anyway'. The accused left the address.
Further, at the end of March 2014 the victim had a boyfriend. The accused asked the victim 'who's this boy you have been talking to?' The accused questioned the victim about any sexual acts she had performed with her boyfriend. He wanted to know the name of the victim's boyfriend and began tickling her until she told him.
Further, around 25 February 2013 the accused was driving the victim and his two daughters home from school. The partner of the accused was turning 29 years old. The victim asked when the accused met his partner. The accused stated 'when she was 16, so that's like you next year going out with a 30 year old man'. The victim-stated 'that's so old'.
Further, the victim was at the accused's' address. The victim went into the kitchen to get a drink. The accused approached the victim in the kitchen and showed her a series of photographs. The victim described the photographs as a black and white photo-shoot of the accused and his expartner. She stated the accused was in shorts and his ex-partner was naked only wearing G-string style underwear. She stated the photographs depicted a series of poses near a pool with the accused crawling over and onto his ex-partner, the accused diving into a pool and the accused posing next to his ex-partner.
Whilst showing the photographs to the victim, the accused stated how muscular he used to be and how good looking he was. The accused said 'if you saw me on the street at this age you would think I am pretty hot'. The accused prompted the victim to make comment on his appearance in the photographs. The victim recalled the photographs as being provocative, sexual and something depicted in an inappropriate magazine.
On 19 September 2014 the victim participated in a specialist child interview. During the interview the victim accurately described the photographs located at the accused's address.
On 19 December 2014 Police executed a search warrant at the accused['s] home address. The accused presented the photographs described by the victim to Police. He was questioned about the photographs and denied ever showing them to the victim. He declined to make any further comment.
The accused was arrested and bailed with the present charge preferred.
(Exhibit A pages 1415)
- A was charged with an offence under s 321(4) of the Criminal Code.
111 YG's record of interview appears at Exhibit A pages 3754. The summary prepared by the Department for Child Protection accurately summarises the record of interview.
A's denial
112 In A's evidence, he basically denied all of the allegations made by YG.
The photographs
113 The photographs referred to by YG appear in Exhibit A at pages 7489. The photographs were contained in a photograph album. The photographs show A and his then fiance (F) in bathers. F is topless in the photographs.
114 A described the photographs as 'Art Glamour'. The photograph which appears at Exhibit A page 80, shows A's mouth very close to, or on, F's nipple. It is clearly sexual.
115 A's house was searched by the police as a result of their investigation. The police seized a number of photographs. A informed Detective Lanternier, who took part in the search, that the woman in the photographs was in her mid20s (T:132; 19.05.16).
116 A met F when he was coaching trampoline at a gymnasium where she was a gymnast (T:48; 19.05.16).
117 A gave evidence that F was 16 years of age when the photographs were taken. A was 25 years old at the time. He was engaged to her and living with her at her parents' home. He had started dating her about six months before he started living with her (T:4647; 19.05.16).
118 A's evidence was that AP was not happy about A bringing the photographs to Australia (T:27; 19.05.16).
119 In paragraph 43 of A's statement (Exhibit D), he said:
On the basis of the above I ask SAT members to find the evidence of [YG] as unreliable and she invented the story that I was showing pictures to her so as to cover her own snooping behaviours into our own personal possessions during our absence.
120 A's evidence was that he would not show the photographs to a 14yearold girl and that he had not shown them to YG (T:56; 19.05.16).
121 A's evidence was that the photographs were normally kept in a filing cabinet. However, because he and AP were archiving materials, it was kept with a lot of other material on the dining room table for 'many, many months' (T:26; 19.05.16). In contrast, AP gave evidence that the photograph album had been on the dining room table for up to a week (T:9; 20.05.16).
122 In the course of his crossexamination, A sought to explain YG's knowledge of certain aspects of the photographs on the basis that he may have overheard a conversation A had with other people, for example, at barbeques.
123 A conceded that he had never identified F as his exwife to anyone in Australia (T:99101; 19.05.16).
124 A was unable to explain how YG could have known about the fact that F was A's exwife unless he had told her.
125 A speculated that YG must have been searching through his stuff and found the photograph album (T:27; 19.05.16).
126 A also sought to suggest that YG had been looking through his personal stuff on the computer because the computer had been turned on. It does not follow from the fact that the computer had been turned on, that YG had been looking through A's personal stuff on the computer. It is as likely that, if YG had turned the computer on, she had been using the computer for her own purposes (T:117; 19.05.17).
Other aspects of A's crossexamination
127 A conceded that, on occasions he had said:
He said his dick is small but he still makes kids, so it obviously works.
- However, he said that although he had said such a statement before, it was not said to YG. His explanation for YG being aware of it was that it was said to her father and she could possibly have been in the vicinity (T:105106; 19.05.16).
128 A expressed the view that he believed that he was a better person than YG's father (T:108; 19.05.16).
129 A conceded that he had never told YG off in relation to anything related to her babysitting of A's two daughters. He also admitted that he had never had any argument with her (T:8283; 19.05.16). There was no evident motive for YG to have made up a story.
130 In crossexamination, A denied that he had a close relationship with YG; he described it as a friendly relationship with her. However, in his statement (Exhibit D, paragraph 44 page 10) he stated:
I acknowledge that I have a close relationship.
(T:8485; 19.05.16)
AP's evidence
131 AP gave evidence that she believed that YG saw the photographs when she had been snooping around. AP also gave evidence of YG being on the computer (T:10; 20.05.16). Again there is no evidence that, if YG had been on the computer, she had looked at A and AP's files on the computer as compared to, say, searching the internet.
132 AP gave evidence that she had told A about what YG had confided to her about the problems YG was having with her father (T:15; 20.05.16).
Conclusion about A's evidence
133 A was not a credible witness.
134 A's lack of credibility arises from both the content of his evidence as set out above and the evasive manner in which he gave his evidence.
Grooming
135 Ms Rosemary Cant was a very well qualified witness in research on the topic of 'Child Sexual Abuse' (T:19; 20.05.16).
136 Ms Cant's evidence in her written report in relation to grooming was:
…
8. Question 1: With reference to YG's statement is her description of [A's] behaviour, in particular his conversations with her and the sharing of his photos, consistent with sexual grooming behaviour (Exhibit A pp 36-58)?
9. While definitions of sexual grooming of children in the literature vary, its role in the sexual abuse of children is now well recognized and there is reasonable agreement on the core aspects of the behaviour (see for example Bennett & O'Donohue 2014, 2016; Craven, Brown and Gilchrist, 2006, 2007; Glasser 1997; Lanning 2010; McAlinden 2006; Sullivan and Beech, 2004; van Dam 2006; Young 1997). After reviewing the literature, Craven et al have proposed the following definition of sexual grooming that attempts to capture some of its complexity:
A process by which a person prepares a child, significant adults and the environment for the abuse of this child. Specific goals include gaining access to the child, gaining the child's compliance and maintaining the child's secrecy to avoid the disclosure. This process serves to strengthen the offender's abusive pattern, as it may be used as a means of justifying or denying their actions. (Craven, Brown & Gilchrist, 2006, p. 297).
10. This definition reflects the three types of sexual grooming present in the literature: grooming the child, grooming the environment and significant others and self-grooming (Craven et al 2006).
11. More recently Bennett & Donohue (2014, 2016) drawing on commonalities in definitions used by various authors and on empirical studies of grooming behaviour have proposed that grooming be defined as 'antecedent inappropriate behavior that functions to increase the likelihood of future sexual abuse' (p. 969). To further clarify the definition the authors have provided a number of exemplars of grooming with emphasis on the inappropriateness of the behaviour in the context of the person's relationship with the child. The Bennett & Donohue (2014) definition is useful in that it focuses on acts that appear inappropriate at the time they are occurring and hence may enable intervention to stop abuse before it occurs.
12. The issue of whether YG's description of [A's] behaviour is consistent with grooming is considered in the light of the following Bennett & Donohue exemplars:
a. Any sexualisation of the relationship such as talking about sex in a way that is not permissible given the adult's relationship with the child or exposing the child to sexually explicit materials
b. Inappropriate touching of the child (e.g. excessive tickling, hugging, wrestling, sitting on lap)
c. Boundary violations - these include the adult sharing private information with the child, particularly around sexual or relationship information
d. Inappropriate isolation of the child where the offender and victim are alone.
13. At the time of her interview with the Child Assessment Interview Team [YG] was 15 years old and [A] approximately 45 years old. [YG] baby sat after school for [A's] two children and his partner was [YGs] gym coach. It is within the context of this relationship that [A's] conversations and actions must be considered.
14. There are examples in [YG's] evidence of [A] sexualizing the relationship by talking about sex in a way that is inappropriate given their relationship and by exposing [YG] to sexually explicit materials, inappropriately touching [YG], violating boundaries and isolating [YG]. All are recognized techniques used by offenders to gain a child's compliance with sexual abuse (Bennett & O'Donohue 2016).
15. Examples of [A] sexualizing his relationship with [YG] by talking about sex in a way that is inappropriate to their relationship and by exposing her to sexual material are as follows:
a. Asked about the last conversation with [A] and the events that made her feel uncomfortable [YG] said: 'Okay. There was one when I was in the car with him and we were driving home, and this was when he brought up the question and said, um, 'Are you a virgin?' And I obviously said, 'Yeah', cos I was 14, and my birthday is in July, so it was just before then. And I says, 'Yeah', and then he says, 'Oh, but are you a finger virgin?' And I was 'Oh my God, this is so weird. Like I didn't say that. And I felt really uncomfortable ...' [Book 1, p.40].
b. [YG] described being shown photographs of [A] and his ex-wife in which she thought his ex-wife was naked or maybe had a G-string. She described the photographs as a 'sort of photo shoot thing' and said he was 'showing me them and he was saying how muscley (sic) he used to be, and how good looking he used to be, trying to get me to say it to him' [Exhibit A, p48]. [YG] later described these photographs as 'provocative and really sexual, some of the things' [Book 1, p50]. Photographs consistent with [YG's] description were seized by Police from [A's] residence [Exhibit A, pp.69-89]. Some of the photographs are as [YG] states 'provocative and really sexual'. In my opinion it is inappropriate for a 44/45 year old man to have shown photographs of this nature to a 14/15 year old girl employed to babysit his children.
c. [YG] described another occasion in the car when [A] asks her about a boy she had been talking to 'Because he always asks about boys and stuff. And then I was like, "I'm not saying". And then he was like "oh tell me/' and then he asked me if I've like, basically done anything. He asks me - - Like you know what I mean if I say done'. [Questioner asks [YG] to explain] 'Like done anything as in like, done anything sexual, which I haven't with like, a boy'. [Exhibit A, p.44]. Again this discussion is inappropriate given their respective ages and relationship.16. Another step in the grooming process is initiating physical contact (touching) with the child (Bennett & O'Donohue 2014, 2016; Craven 2006; Gallagher 2000; McAlinden 2006; van Dam 2006). This may involve inappropriate touching of groins, bottoms, and breasts over clothing, tickling, and horseplay, hugging, and wrestling to gradually sexualize contact with the child. Examples of inappropriate touching in [YG's] evidence are:
a. [YG] refused to tell [A] the boy's name and he started to tickle her when they reached his house. The 3 and 5 year old daughters were present and thought it a game. However as [YG] described the incident it is inappropriate touching:
Um, I was panicking quite a lot because -I tried not to show it because he was tickling me and I hate being tickled. Like it always makes me want to cry; just laugh so much, because it, - - I don't know. And because he's a trampoline coach, he's quite small. Um. And he's quite strong though, and he was tickling me, and it was starting to really hurt. Um, and he was like tickling me everywhere and um, then he pushed me onto [his daughter's] bed and was still tickling me and everything. And I was like, 'Get off, get off, stop, stop, stop, stop. 'And - - and he says he's not stopping until I tell him this boy's name, and then I just told him a boy's name and he just kind of stopped after that ...'. [Exhibit A, p.45].
b. In [YG's] notes made prior to the Child Assessment Interview Team meeting she states that [A] 'hugs me a lot' [Book 1, p 56]. If this hugging is excessive, and the words 'a lot' suggest that it may be, then this is also inappropriate touching given their relationship.
17. Several of the conversations [A] has with [YG] are boundary violations - that is violations of [YG's] privacy and personal boundaries. Boundary violations are associated with the gradual sexualisation of the relationship between adult and child through physical and psychological grooming. On the occasion that [A] asked [YG] whether she was a finger virgin - in itself an invasion of [YG's] privacy - [YG] states that he talked about him and his wife 'doing oral all the time. Oh yeah and he also in that conversation, he said that he had a small dick but that it still does the job [Exhibit A, p.41]. Other examples of boundary violations are [A] flipping up [YG's] skirt [Exhibit A, p.42] and a discussion about what [YG] was wearing under her skirt [Exhibit A, p43].
18. Inappropriate touching, talking to children about sexual matters and showing them pornographic or sexually provocative material are part of sexual desensitisation – a tactic used by offenders to make a child compliant with sexual abuse (Bennett & O'Donohue 2016).
19. [A] should have been aware that his behaviour towards [YG] was unacceptable. In August 2005 at a disciplinary hearing of British Gymnastics he was required to attend both Child Protection Awareness and Implementation courses to lift his suspension from that organisation and there is evidence that he did so attend. The British Gymnastics Child Protection Policy 2004 makes it clear that 'Allow or engage in any form of inappropriate touching ' and 'Make sexually suggestive remarks to a child or vulnerable adult - even in fun' can never be condoned [Exhibit B, p.71].
20. From 2013 [A] picked up [YG] from school and took [her] to his house when she was required to baby sit. Prior to this her mother drove her to [A's] house to baby sit. Except for his two very young daughters, [YG] was alone with [A] in the car and in the house. In effect [YG] was isolated from adults, and peers. It was in the car that the inappropriate conversations occurred and in the house that [YG] was shown the sexually provocative photographs and the inappropriate touching occurred. From her statements [YG] was uncomfortable with [A's] conversation and actions but did not know what to do.
21. Taken both separately and together in my opinion [A's] actions and conversations are consistent with sexual grooming behaviour and by their nature increase the likelihood of sexual abuse.
22. That [A's] behaviour towards [YG] was likely harmful to her is evidenced by her overdosing on paracetamol. While being treated at the Joondalup Health Campus, [YG] disclosed to the Resident Medical Officer some of [A's] actions and conversations that she later recounted to the Child Assessment and Interview Team. [YG] was noted as exhibiting suicidal ideation at the time [Exhibit A, pp 66-68].
137 When asked in crossexamination if she could say with certainty that YG was being truthful about her dealings and interactions with A, Ms Cant responded (T:26; 20.05.16):
No that's true. But, as I say, there is no evidence that she is fabricating. Her evidence is quite consistent. There is no motive for fabrication and there is her mother's evidence that several of the matters had been raised with her.
- In essence, Ms Cant's evidence was that A's conduct towards YG, as described by YG, was consistent with grooming (T:2627; 20.05.16).
Other incidents
138 The Tribunal does not regard the 2008 British Gymnastics incident, or the 2014 Gymnastics Western Australia incident, as relevant and has not taken them into account in reaching a decision.
Section 12(8) considerations
Section 12(8)(b) when the offence was alleged to have been committed
139 The Class 2 nonconviction charge related to complaints of inappropriate behaviours that occurred between 1 January 2013 and September 2014, that is, relatively recently.
Section 12(8)(c) - the age of A when the offence was committed or is alleged to have been committed
140 A was born on 24 April 1970 and was 43-44 years of age at the time of the alleged offence. YG babysat A's children and aged 1314 years of age at the time of the alleged offence. There is no mitigation in considering A's age. He was mature. The age difference was about 30 years.
Section 12(8)(d) - the nature of the offences and any relevance it has to childrelated work
141 A was in a position of trust with, and authority over, YG. A's conduct is highly relevant to child-related work.
142 A was a coach in the gymnasium at which YG trained. Although A was not YG's coach, he was a coach in a position of authority at the gymnasium. YG was in A's employment as a babysitter.
143 The conduct is said to have occurred in A's car or home, and often when his own small children were present. The alleged conduct included engaging YG in highly inappropriate and sexualised conversations over a period of time, and showing her inappropriate and sexual photographs of himself and F.
144 The conduct complained of, showing inappropriate photographs and engaging YG in sexual conversations, is, on the basis of Ms Cant's evidence, consistent with sexual grooming behaviour, and could show sexual intent.
145 A's alleged behaviour shows a serious lack of awareness of proper boundaries.
146 Even if A's conduct is considered unintentional (that is, without sexual intent), the possible consequence of such inappropriate behaviours for a child is emotional and psychological harm. Apart from conversations with her mother, YG disclosed her distress about A's behaviour in the context of receiving medical treatment for a selfharm incident involving a paracetamol overdose (Exhibit A pages 6668).
147 Although YG's distress may also be caused by alleged conduct by another coach (T:3435; 19.05.16), people working with children need to understand and protect the needs of the child. Sexual abuse of children is prevalent in our society and if a child has been abused, then further contact which a child might perceive as sexual can have a significant impact on the child.
Section 12(8)(e) - the effect of future conduct by A in relation to a child if that future conduct were the same, or similar to, conduct the subject of any offence committed by A or any charge against A
148 If A's behaviour and conduct in relation to the non-conviction charge and YG were to recur with another child in the future, the effect could be particularly harmful to that child. The impact of A's behaviour on YG shows the potential consequences.
Section 12(8)(f) - any information given by A in, or in relation to, the application:
149 The CEO received A's submission on 11 July 2015. It included a statement by A and copies of coaching credentials and awards. A also included: a certificate of attendance at a safeguarding and protecting children seminar dated 14 March 2011; a copy of a certificate stating that A had attended a child protection implementation training module and awareness training on 29 September 2005 and 31 October 2005 by British Gymnastics; and nine character references (Exhibit A pages 97-116).
150 A stated that he had been coaching since 1998 after a period of competing. A documented an impressive list of coaching positions and roles in prestigious competitions from 2004 to 2014 (Exhibit A page 97). He stated, 'I have been working with children for a period of approximately 20 years and I have always been professional and courteous around the company of children'.
151 A also stated that he had attended three child protection courses. He stated, 'I have not had any charges brought against me for any improper behaviour or suggested behaviour within that time' and his history of childrelated work has been 'achieved without any concerns or allegations about any such, or suggested, improper behaviour. I have not been and will never be a threat to any child' (Exhibit A pages 97-98).
152 A stated that the allegations by YG were untrue and there was no evidence against him (Exhibit A, p 97).
153 A assured the CEO that he had never had any allegations of improper behaviour against him in his history of coaching. A's disclosure, as above, failed to note that he had been dismissed from child-related work in 2004 because of the incident with JP.
154 A put forward his certificates in child protection training as evidence of his training and as an assurance of his good behaviour with children, failing to disclose that the child protection courses he attended in 2005 were imposed as a result of the incident with JP, and were required to be completed in order for A to have his membership status with British Gymnastics re-instated (Exhibit B page 46). When A was asked by his counsel what he learnt from these courses, he said (T:121; 19.05.16):
Never trust anybody again. Obviously you you need to act appropriately around children.
- The emphasis in A's oral evidence was on 'Never trust anybody again'. A appears to have learnt very little from the courses.
155 Nine references were submitted on A's behalf. The referees were all supportive of A. In general, the referees spoke highly of A's expertise in, and dedication to, coaching and of his characteristics of being a family man, hardworking and trustworthy. Several referees stated that their children, who were coached by A, had not complained about inappropriate behaviour and generally, all referees attested to A's good character.
156 The Tribunal notes the CEO's submission that A possesses good character traits, has contributed in his field of coaching and is respected by his referees. The premise that a person with 'good character' is unlikely to harm a child is unfounded. An evaluation of A's character by others is ill-suited to reliably mitigate any identified risk in A's behaviours and conduct.
Section 12 (8)(g) - anything else the CEO [Tribunal] considers relevant to the decision
157 The harmful conduct in relation to the incident with JP is highly relevant to the decision. A engaged in a 'game' in which he indecently assaulted a 17yearold in front of other young children whilst he was engaged in childrelated work. A was 17 years older than JP at the time.
158 In relation to the incident involving JP, it is clear that A touched her breast and that he was participating in a game of 'tit cricket'. This occurred in a public space. The conduct involved touching the breast of a child within the meaning of the Act and there were other children present. The conduct took place at a time when he was attending the event as a coach. Plainly, that conduct was related to working with children. Disturbingly, the conduct discloses a complete lack of understanding of the appropriate boundaries between an adult and a child under the Act.
Sections 3 and 12(8)(a) - best interests of the children
159 A's evidence concerning the British Gymnastics incident shows that he is an unreliable witness. In the light of the Tribunal's assessment of the evidence A gave concerning the British Gymnastics incident, it is difficult to give weight to the denials he gave in relation to his alleged conduct against YG.
160 A's relationship with F shows that he has a sexual interest in young women. The alleged incident involving YG is consistent with a continuing lack of appreciation of appropriate boundaries and a sexual interest in young women.
161 The Tribunal notes that A's conduct as alleged by YG is consistent with grooming. This poses a potential threat to children who might come into contact with A when he is working at a gymnasium.
162 The Tribunal is satisfied that because of the particular circumstances of the case, a negative notice should be issued to A. The best interests of YG and other children whom A could potentially coach or meet through his coaching at a gymnasium requires that in considering the best interests of children, he is not permitted to work with them.
163 As Buss JA said in Scott:
[T]he Act is concerned to ensure that children are not put at risk of sexual physical harm through contact with people who are involved in childrelated work and have been … charged with … specified criminal offences.
164 The purpose of the Act is to benefit children in the sense that it protects them. In the particular circumstances of A's case and on all the information and material before it, the Tribunal is satisfied there is an unacceptable risk that A might, in the future, cause sexual or physical harm to children in the course of carrying out childrelated work.
Order
1. The application is dismissed.
I certify that this and the preceding [164] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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