B and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
[2011] WASAT 3
•26 JANUARY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: B and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2011] WASAT 3
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MR M ALLEN (SENIOR MEMBER)
MS H MCGLADE (SESSIONAL MEMBER)
HEARD: 26 OCTOBER 2010
DELIVERED : 26 JANUARY 2011
FILE NO/S: VR 75 of 2010
BETWEEN: B
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent
Catchwords:
Working with Children (Criminal Record Checking) Act 2004 (WA) - Issue of negative notice - Nonconviction charge - Whether unacceptable risk to children - Best interests of children paramount consideration
Legislation:
Criminal Code 1913 (WA), s 320(4)
Evidence Act 1906 (WA), s 36C
State Administrative Tribunal Act 2004 (WA), s 26, s 27, s 27(1), s 29, s 62(3)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 9(1), s 9(4), s 11, s 12, s 12(5), s 12(8) s 13, s 14(1), s 14(1), s 14(2), s 19, s 24, s 26(2), Sch 1, Sch 2
Working with Children (Criminal Record Checking) Amendment Act 2010 (WA) (No. 7 of 2010)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr PJ Urquhart
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
C and CEO, Department of Community Development [2007] WASAT 116
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
B applied for a review of a decision to issue him with a negative notice under the Working with Children (Criminal Record Checking) Act 2004 (WA). The notice had been issued as a result of six 'nonconviction charges' against B.
The Tribunal examined the circumstances surrounding the offences and the information and character references submitted by B. It concluded that, notwithstanding character evidence in his favour, the issue of a notice permitting B to work with children would give rise to an unacceptable risk of harm to children and the decision to issue the negative notice should be affirmed.
Background
The applicant, B, had been a TAFE lecturer for approximately seven years at a metropolitan TAFE college.
B was initially issued with an assessment notice on 26 October 2007. His application for that notice states that he applied under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act), being in childrelated employment as a TAFE lecturer.
On 16 September 2008, B notified his employer that he was 'subject of a relevant change' pursuant to s 29 of the WWC Act. His employer notified the Chief Executive Officer, Department for Child Protection (CEO) of the change. Section 32 of the WWC Act provides that the CEO must treat such a notice of a relevant change as an application for an assessment notice. Where such a person has a current assessment notice, s 12 of the WWC Act applies to the application as an application for a further assessment notice.
Subsequent investigations by the CEO pursuant to the application for a further assessment notice revealed that B's stepdaughter had made allegations that she was indecently dealt with on numerous occasions by B in 2005 and that B had been charged accordingly. The charges are listed in Sch 2 of the WWC Act and are 'Class 2 offences' under the WWC Act.
Under s 12 of the WWC Act, the CEO is required to issue persons with pending charges in respect of Class 2 offences with a negative notice unless there are exceptional circumstances to the contrary.
Accordingly, on 18 September 2008, B was given notice under s 13 of the WWC Act that the CEO proposed to issue him with a negative notice and invited him to make a submission. Pursuant to s 13(3) B's employer was also advised of the interim negative notice.
On 9 December 2008, prior to a decision being made by the CEO, B withdrew the application from the CEO by written notice under s 11 of the WWC Act. On withdrawal of the application the interim negative notice ceased to have effect and B was subsequently prohibited from engaging in childrelated employment as he did not have an assessment notice.
On 30 June 2009, B reapplied for an assessment notice.
On 19 November 2009, B was advised that the CEO proposed to issue a negative notice to him, and he was invited to make a submission pursuant to s 13 of the WWC Act.
The CEO reviewed the materials relating to the charges, and resolved to issue B with a negative notice by correspondence on 13 April 2010.
On 4 May 2010, B applied to the Tribunal for a review of a decision by the CEO to issue a negative notice to B under the WWC Act. It is that application for review which now falls for determination.
That review is conducted in the exercise of the Tribunal's review jurisdiction: s 27 and s 29 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The issue is whether, on all of the information and material before us, we are satisfied that there are particular circumstances which warrant a decision to issue a negative notice to B. In determining whether we are thus satisfied, we must have regard to s 3 of the WWC Act and to the criteria in s 12(8) of the WWC Act. The best interests of children is the paramount consideration.
Non-publication of the applicant's name
The complainant in relation to the charges the subject of the indictment was a stepdaughter of B. Section 36C of the Evidence Act 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence. An order was made by the Tribunal pursuant to s 62(3) of the SAT Act prohibiting the publication of the names of the applicant and his family. In these reasons the applicant will be referred to as B.
The applicant's background
The applicant was born in 1965 and at the time of the hearing of the proceeding was 45 years of age. Until September 2008, he was employed at a TAFE as a lecturer. He held that position for approximately seven years.
After commencing a relationship in 1996, the applicant married his wife in 1999. His wife had a daughter from a previous relationship who is the complainant in relation to charges the subject of indictment. She was born in 1992 and is presently 18 years of age. The couple also had two children together, who were born in 1998 and 2000 respectively.
The relevant provisions of the WWC Act
In the decision of Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 (Grindrod) Buss JA (with whom Wheeler JA agreed) set out fully the relevant provisions of the WWC Act (at [5] [16]). Because that analysis identified and discussed the provisions relevant to this particular matter, it is convenient for us to adopt that analysis, some of which is set out below.
It should be noted however, that the Working with Children (Criminal Record Checking) Amendment Act 2010 (WA) (Amending Act) came into operation on 6 October 2010. This was, of course, after the date of the decision by the CEO to issue a negative notice to B under the WWC Act and it was also after the date of the decision in Grindrod. The Amending Act had not come into operation at the time when B applied to the Tribunal for a review of the CEO's decision, but it had come into operation by the time the Tribunal heard the parties in respect of that review. Because the review is de novo under s 27(1) of the SAT Act, the provisions of the WWC Act as amended by the Amending Act, will apply. References to the WWC Act in the passage from Grindrod below are of course references to the WWC Act prior to its amendment. However, the views expressed by Buss JA which follow continue to apply in relation to the present case.
Section 3 states that, in performing a function under the [WWC ]Act, the CEO or the Tribunal is to regard the best interests of children as the paramount consideration.
Section 6 defines the term 'childrelated work'. The term includes, relevantly for present purposes, work if the usual duties of the work involve, or are likely to involve, contact with a child in connection with a coaching or private tuition service of any kind (but not including an informal arrangement entered into for private or domestic purposes) and a club, association or movement (including of a cultural, recreational or sporting nature and whether incorporated or not) with a significant membership or involvement of children (but not including an informal arrangement entered into for private or domestic purposes).
Section 7 defines the meaning of 'Class 1 offence' and 'Class 2 offence'. It provides:
(1)A Class 1 offence is
(a)an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 1 offence;
(d)an offence that, at the time it was committed -
(i)was a Class 1 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section was an offence of a kind referred to in this subsection.
(2)A Class 2 offence is -
(a)an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 2 offence;
(d)an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this subsection or subsection (1);
(e)an offence that, at the time it was committed
(i)was a Class 2 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
It is unnecessary to reproduce the offences described in each of Sch 1 and Sch 2. The offences in Sch 1 relate, in general, to sex offences against children under the age of 13 years. The offences in Sch 2 include various sex offences against children and also offences which do not necessarily involve children but would ordinarily be regarded as rendering a person who has committed them (or, probably, has been charged with them) unsuitable to carry out work involving, or likely to involve, contact with children. I note, for present purposes, that the 'Class 2 offences' include the offence of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code 1913 (WA).
By s 9(1) [of the WWC Act], a person who is, or is proposed to be, employed in childrelated employment by another person (the employer) may apply to the CEO for an assessment notice. On receiving the application, the CEO is empowered, by s 9(4), to ask the applicant to provide any further information or documents that the CEO reasonably needs to establish the applicant's identity or for a proper consideration of the application.
Section 12, as amended by the Amending Act, is of central importance to this proceeding, as it prescribes how applications under the WWC Act are to be determined. As amended, s 12 now provides as follows:
(1)The CEO is to decide an application under section 9 or 10 in accordance with this section
(a) by issuing an assessment notice to the applicant; or
(b) by issuing a negative notice to the applicant.
(2)The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3)If one or more conditions specified in the Table apply in relation to an applicant, the CEO is to decide the application in accordance with -
(a)if any one condition applies, the applicable provision opposite that condition; or
(b)if more than one condition applies, the applicable provision opposite the condition that has the higher or highest item number in the Table.
Table
Item
Condition
Applicable provision
1.
The CEO is not aware of
(a) any offence of which the applicant has been convicted; or
(b) any charge of an offence against the applicant.
s. 12(4)2.
The CEO is aware that the applicant has a nonconviction charge in respect of a Class 3 offence.
s. 12(4)3.
The CEO is aware, not as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence.
s. 12(4)4.
The CEO is aware, as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence.
s. 12(5)5.
The CEO is aware of a Class 3 offence of which the applicant has been convicted.
s. 12(5)6.
The CEO is aware that the applicant has a non‑conviction charge in respect of a Class 1 offence or a Class 2 offence.
s. 12(5)
7.
The CEO
(a) is aware of a Class 3 offence of which the applicant has been convicted; and
(b) reasonably believes that in the course of committing the offence the applicant performed an indecent act.
s. 12(6)8.
The CEO is aware of a pending charge against the applicant in respect of a Class 1 offence or a Class 2 offence.
s. 12(6)9.
The CEO is aware of a Class 2 offence of which the applicant has been convicted.
s. 12(6)10.
The CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted.
s. 12(6)11.
The CEO is aware of a Class 1 offence (that was not committed by the applicant when a child) of which the applicant has been convicted.
s. 12(7)(4)If this subsection applies, the CEO is to issue an assessment notice to the applicant.
(5)If this subsection applies, the CEO is 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.
(6)If this subsection applies, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7)If this subsection applies, the CEO is to issue a negative notice to the applicant.
(8)If subsection (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional 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 child‑related 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.)
The applicant's convictions and nonconviction charges
B has some convictions for property, traffic related and drug related offences which were committed between 1985 and 1996, together with six 'nonconviction charges'.
Section 12(5) of the WWC Act specifies that where the CEO is aware that the applicant has been convicted of a nonscheduled offence (or Class 3 offence as it is now designated under the WWC Act), or the CEO is aware of a nonconviction charge in respect of a Class 1 offence or a Class 2 offence, the CEO is 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.
It will be seen that the Class 3 convictions which are referred to later in these reasons were considered by the CEO to be of little relevance to childrelated work and as a result were not given weight in the assessment of the applicant's application.
Section 4 of the WWC Act defines a nonconviction charge as meaning 'a charge of an offence that has been disposed of by a court otherwise than by way of conviction'.
The nonconviction charges were in relation to a complaint made by the applicant's de facto child, who was 13 years old at the time of the incidents.
The facts which gave rise to the nonconviction charges and which are set out below in relation to each of the non-conviction charges are drawn from the complainant's witness statement.
Count 1
On a date unknown between 25 April 2005 and 2 July 2005, B indecently dealt with the complainant by touching her breast. The circumstances of the offence were that B approached the complainant and climbed into her bed beside her. The accused snuggled up against the complainant. The accused then put his left hand on the complainant's left breast and massaged her nipple.
Count 2
On a date unknown between 25 April 2005 and 2 July 2005, B indecently dealt with the complainant by touching her vagina. The circumstances of the offence were that the accused tried to put his hand down inside the complainant's underwear. The complainant tried to stop him but he pushed her hand away. The accused got his hand under the complainant's clothing and began to massage her thigh area before massaging her vagina.
Count 3
On the same date and at the same place as in Count 2, B sexually penetrated the complainant by penetrating her vagina with his finger. The circumstances of the offence were that whilst massaging the complainant's vagina the accused put his index finger inside her vagina for a short while then pulled it back out. The accused then continued to massage her vagina area for a short time then stopped. The accused then gave the complainant a back massage and then left the room.
Count 4
On a date unknown between 25 April 2005 and 2 July 2005, B indecently dealt with the complainant. B got in bed beside the complainant and snuggled up against her like he was going to go to sleep. The accused grabbed the complainant's right hand and said 'put your hand there'. He began to guide her hand towards her vagina area. The complainant tried to pull her hand away. The accused made her touch her own vagina under her clothes.
Count 5
On the same date as Count 4, B incited the complainant to engage in sexual behaviour. B tried to force the complainant to put her fingers inside her vagina. The complainant said 'No'. The accused again told her to put her hand on her vagina and again tried to force her to put her fingers inside her vagina. The complainant said 'No, why?' and the accused replied 'Because I can't do it'. The accused then stopped, sat on the bed and gave the complainant a shoulder massage then left the room.
Count 6
On another date unknown between 25 April 2005 and 2 July 2005, B indecently dealt with the complainant by undressing her. The circumstances of the allegation were that the complainant was trying new underwear on in her bedroom and the applicant came into her room and proceeded to adjust her bra straps although the complainant has not asked him to. The complainant's mother, whilst coming out of her bedroom, looked into the complainant's bedroom at which time the applicant then walked out of the complainant's bedroom.
The complainant had a conversation with her mother about the applicant after the adjusting of the bra straps. Her mother asked her questions and she told her mother that the applicant had been massaging her and pointed to her vagina.
The matter came to a head in 2008. The applicant's wife and family, including B, had watched a movie called 'Georgia Rules', a movie which concerns a girl who is sexually abused by her stepfather. The complainant's mother gave evidence that the applicant went red and looked nervous and, at the end of the movie, the complainant's mother asked the complainant whether anything had previously happened. The complainant said yes. The complainant's mother confronted the applicant the next day and he denied that anything had occurred.
The applicant's wife and family left the applicant on the same day. A complaint was made to the police and B was subsequently charged.
The trial
The matter proceeded to trial over three days in May 2009. The video record of interview with the complainant and B was played to the jury.
Count 4 and Count 5 of the indictment were both the subject of not guilty verdicts at the conclusion of the State case as ordered by the trial judge. This was because the complainant gave no evidence at trial in relation to these allegations.
Further, the complainant's evidence was different to the State's opening address in relation to Count 2 and Count 3 on the indictment, her evidence being that they occurred on a different day to the offence constituting Count 1. The indictment was amended, without opposition from defence counsel, to reflect the evidence given by the complainant.
During the trial, evidence was given by B, by the complainant and by the complainant's mother. There were obvious conflicts between the evidence given by each of them. Some of these conflicts could be because the events in question took place in 2005, but the complaint was not made until 2008.
B refuted all of the allegations. He conceded that he had sometimes given the complainant massages on her shoulders, back, legs and thighs, but he denied that at any time he had indecently dealt with or sexually penetrated the complainant. He accepted that on an occasion he had helped the complainant straighten her bra strap because it was twisted, but he denied that he had ever undressed her. He said that he still considered the complainant to be a child and that he had not noticed that the complainant had grown up.
Three character witnesses also gave evidence on behalf of the applicant. These witnesses had been told of the extent of the alleged offending behaviour. None of these witnesses had seen the applicant's interactions with his children in the early morning.
After around two hours of deliberation, the jury returned unanimous not guilty verdicts in relation to the remaining four counts on the indictment. We do not, of course, know how the jury arrived at its conclusion. We cannot say whether that was because the jury positively accepted the evidence of B, positively rejected the complainant's version of events, or simply were left in doubt as to which version to accept. It is sufficient to say that the jury could not be satisfied beyond reasonable doubt that B was guilty on any of those counts.
Reasons for the respondent's decision
The respondent provided an extensive statement of its reasons for the decision to issue a negative notice to B. It is appropriate to set out here some of the factors which the respondent took into account when reaching its decision:
Property, traffic related and drug related offences
The convictions for property, traffic related and drug related offences were committed between 1996 and 1985, being between 11 and 29 years ago. The applicant was approximately aged between 20 and 31 years of age at the time of the nonscheduled convictions. The applicant was an adult and fully responsible for his actions.
The alleged offences are property, traffic related and drug related offences and on the information available, have not occurred in circumstances where the applicant was carrying out childrelated work. In relation to the traffic related offences, there is little information available and the stealing offences are considered to be minor. The drug related offence is also not considered a serious offence. There is no indication of a pattern of drug related or traffic related offending that demonstrates a risk to the safety of children; the offences of which the applicant has been convicted are not considered serious offences. The nonscheduled offences are not considered relevant to childrelated work.
The Class 2 nonconviction charges
The focus of the assessment is on the Class 2 nonconviction charges and these are the primary focus of this assessment.
When the offences were committed or are alleged to have been committed
The offences were alleged to have been committed on unknown dates between 25 April 2005 and 2 July 2005. These alleged offences were committed approximately 4 years ago. These are relatively recent occurrences.
Where there are long periods without convictions on a person's criminal record and during that time they have been carrying out childrelated work without incident, this constitutes a significant consideration: see Chief Executive Officer, Department for Child Protection v Scott [No. 2] [2008]WASCA 171. There are no convictions of a sexual or violent nature on the applicant's criminal record. The applicant has applied for an assessment notice indicating that he is carrying out childrelated work, in connection with category 3, as a lecturer at a TAFE college.
Clearly the weight given to this circumstance for the purposes of the CEO's satisfaction that there is an unacceptable risk that the applicant may harm a child in future is mitigated somewhat given that the judge ordered acquittals in relation to two counts and the jury return unanimous not guilty verdicts in relation to the remaining counts on the indictment.
This is not a consideration on its own that determines the application, and needs to be considered with all the other factors with the best interests of children being paramount.
The age of the applicant when the offences were committed or are alleged to have been committed
The applicant was 40 years of age at the time of the nonconviction charges. This is not a case where the age of the applicant may mitigate the seriousness of the alleged offence by reference to 'immature folly'. The applicant was clearly an adult and fully responsible for his actions. There was a significant age different between the applicant and the complainant at the relevant times the complainant being 13 years of age.
Given that the offences are nonconviction charges and not convictions, the simple fact that the applicant was 40 years of age at the time of the alleged offences is relevant relative to the age of the complainant, but is not a sufficient circumstance of itself to justify the issuing of a negative notice.
However, clearly, if the allegations had been proved, the applicant's age could not be said in any way to mitigate the seriousness of the conduct.
This is not a consideration on its own that determines the application.
The nature of the offences and any relevance they have to childrelated work
The alleged offences are of a sexual nature against a 13 year old child and are therefore extremely serious offences relative to the aims of the Act. The offences, of which the applicant was alleged to have committed, are not 'minor'. Nonconviction charges for Class 1 and Class 2 offences are treated on the same basis as convictions for non scheduled offences; they are treated as analogous to convictions that may possibly render a person unsuitable to work with children: see Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289 at [43]. The applicant is therefore possibly unsuitable to work with children. The alleged offences are of a sexual nature against the applicant's stepdaughter, who at the time was 13 years of age. The alleged offences have occurred in circumstances where the applicant has been alone with the complainant in her bedroom in the early morning against a background of massages, whilst her mother was only a short distance away.
The fact that the offences allegedly occurred in a domestic setting is also relevant given that an assessment notice permits a person to carry out a broad range of childrelated work, including foster care of children and babysitting of children. The applicant was clearly in a position of trust and responsibility being the stepfather of the complainant, she referring to him as 'dad'.
The nonconviction charges are highly relevant to childrelated work in that they:
• involved allegations of indecent dealing and sexual penetration of a 13 year old child
• involved a substantial age difference between the applicant and the complainant (40 years and 13 years respectively)
• involved an alleged breach of trust by the applicant by, at the very least, causing the complainant significant embarrassment in massaging her on her inner thighs
• occurred in circumstances where the child was alone with him, with the complainant's mother only a short distance away and with the applicant's other children also present in the house.
This is not a consideration on its own that determines the application.
Any information given by the Applicant in, or in relation to, the application
On 13 November 2009, the CEO's delegate gave the applicant notice informing him that the CEO was proposing to issue a negative notice, stating the applicant's criminal record and inviting the applicant to make a submission about his suitability to be issued with an assessment notice. On 9 December 2009m a submission was received from the applicant.
The applicant's submission makes the following points:
• he completes the submission to emphasise his acquittal of all the alleged charges and to enable him to gain suitable employment to provide and maintain financial security for his family and to remove possible concerns the CEO may have to the veracity of his claim
Comment: It is acknowledged that the applicant has been acquitted of the alleged offences, however, the Working with Children (Criminal Record Checking) Act 2004, requires consideration to be given to the particular circumstances of the case, which necessitates consideration of anything else the CEO considers relevant to the decision, which includes the nonconviction charges for the Class 2 offences. The legislation does not have a punitive or disciplinary purpose even though the civil rights of applicants who are issued with negative notices will be affected adversely (see Chief Executive Officer, Department for child Protection v Grindrod [No 2] (2008) 36 WAR 39, 57). The issuing of a negative notice may have an adverse impact on the applicant's earning capacity, however, this is not a factor that the CEO is obliged or entitled to take into consideration (Buss JA, Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, at [109]).
The prejudice to an applicant is not a relevant consideration, the ultimate issue is whether the issue of an assessment notice would not be in the best interests of children (McLure JA, Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [23]).
If a negative notice were to issue, this only prohibits the applicant from carrying out childrelated work not work generally, and the applicant would be able to continue to lecture where children are not in the class.
• in relation to the court transcript, he corrects errors made by the DPP:
• as to page 10 paragraph 2, the prosecutors opening address is incorrect he and the complainant's mother had been dating since 10 October 1996, started living together as a family in February 1997, were engaged April 1999 and married 4 September 1999 when the complainant was 7 years and 9 months old
• on 28 April 1998, their natural son Ethan was born and on 14 January 2000 Rhiannon was born making them the complainant's halfbrother and sister this distinction had not previously been made due to the family environment
there have been major mistakes made in declaring Ethan and Rhiannon, the complainants' stepsiblings, when they are in fact halfbrother and halfsister to the complainant. This mistake occurred when the court was told that Ethan and Rhiannon were from a previous relationship, when he and the complainant's mother are their natural parents.
Comment: This is noted and acknowledged and appears to have been addressed in the testimony of the various witnesses.
• counts 1 to 3 and 6 no such acts ever occurred and he emphatically and categorically denies the allegations
Comment: This is noted and is consistent with his plea of not guilty and the subsequent outcome of the trial.
• counts 4 and 5 the Judge directed the jury to enter verdicts of not guilty and amended indictments were subsequently issued; no such act ever occurred and he emphatically and categorically denies the allegation
Comment This has been acknowledged in the assessment report, the complainant gave no evidence in relation to these counts and therefore the applicant had no case to answer.
• he emphatically refutes the allegations brought against him. His wife had a temporary violence restraining order (VRO) issued against him shortly after the charges were laid, however, due to the wife's nonattendance at court appearances for that matter and his subsequent acquittal the VRO was dismissed
Comment: This information is note of, however does not advance the matter any further.
• as to the nonscheduled offences, he had previously been advised that these were of no relevance to his application for a WWC Check and employment in his chosen field and his previous application for a WWC Check in October 2007 was successful
Comment: The applicant was previously issued with an assessment notice and of themselves the nonscheduled offences are of little relevance to childrelated work. However, in conducting a new application for an assessment notice a criminal record check is required to be made and consideration in the applicant's case, of the particular circumstances of the case includes the totality of the applicant's criminal record, which comprises the applicant's nonscheduled convictions have been addressed above.
• as soon as the WWCSU contacted his employer (Swan TAFE) on 18 September 2008 and advised that a negative notice may issue in relation to the alleged charges, he was suspended from all duties at Swan TAFE.
Comment: On 18 September 2008, the applicant's chldrelated employer was advised that an interim negative notice had been issued as required pursuant to section 13(3). The employer would have been required to take all necessary steps to remove the applicant from childrelated employment in order to comply with its obligations pursuant to section 22 and had the necessary protections in section 41. What those steps may entail is dependent on the employer's particular circumstance, for example, options to consider could include, but is not limited to, whether to suspend the applicant on full pay, transfer the applicant to another section if possible, or dismiss the applicant.
• the lengthy delays in the legal system have meant that it appears that he will not see or have contact with his children for a second successive Christmas. Since the dismissal of the VRO in May 2009, he has been attempting through the children's school to ascertain the effect on their schooling the situation has had. Finally, he has received a copy of their school reports and attendance record, which has caused him some concern due to the significant decline in their attendance and grades. He has attempted to arrange 2 alternative dispute resolution conferences through Legal Aid and the Family Court, which have been refused by his wife. These actions and the removal of his WWC Card have caused him immense financial hardship and he has been unable to provide the financial support and security that his children need. He has attempted through the headmaster of the children's school to have Ethan and Rhiannon assessed by the school psychologist to check on their wellbeing and arrange some form of contact, however, this was flatly refused by his wife.
Comment: This information is noted. As addressed above, the issuing of a negative notice may have an adverse impact on the applicant's earning capacity, however, this is not a factor that the CEO is obliged or entitled to take into consideration. The issuing of a negative notice does not prevent the applicant from carrying out work that is not child related work.
• during this whole period he had been unable to see or have contact with his children, he loves his children deeply and has on advice taken steps to avoid causing them any further stress as they have suffered enough through the break up
Comment: This information is noted.
• during the 12 years he has been with his wife there has been no allegation nor suggestion of violence by him to any of his family or any one else and despite the allegations his wife and family still mean the world to him. His parents have also been isolated from their grandchildren which has caused great anxiety and distress to them
Comment: This information is noted. There are no convictions or charges of a violent nature on the applicant's criminal record to the knowledge of the CEO, however, assumptions of nonoffending cannot be made.
• during his employment he had a reputation of being a calm and patient instructor, using natural empathy with a record of having achieved good results with a range of trainees and can provide character references
Comment: This is noted, however, there is no independent evidence to confirm this.
• he wishes to regain his employment in the field to which he is eminently qualified and suitable for and needs to provide the financial assistance his family requires
Comment: The legislation does not have a punitive or disciplinary purpose even though the civil rights of applicants who are issued with negative notices will be affected adversely and while a negative notice may have an adverse impact on the applicant's earning capacity, this is not a factor that the CEO is obliged or entitled to take into consideration. The prejudice to an applicant is not a relevant consideration, the ultimate issue is whether the issue of an assessment notice would not be in the best interests of children (McLure JA, Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [23]). Section 3 of the legislation is the paramount consideration, and the CEO is required to determine whether there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out childrelated work.
If a negative notice were to issue this would not prevent the applicant from carrying work other than childrelated work.
The applicant also provided a written submission in relation to his previous application, which he withdrew. At the time that the applicant made the submissions on 9 October 2008 and 12 November 2008, the Class 2 offences were pending charges. The applicant has subsequently been acquitted of these charges after a trial. Despite the applicant's acquittal of all charges, the CEO is required to give consideration to Class 2 nonconviction charges. Consideration has therefore been given to what the applicant has submitted at that time in relation to the offence in terms of considering issue of consistency and issues that should otherwise be addressed. Some issues of note:
• the applicant understood the nature of the Class 2 charges, as they were at that time, were relevant but he had been training for 7 years with no questions raised as to his suitability. He requested that he be permitted to continue subject to certain conditions, he work with students 16 years and above, there be regular appraisals of his conduct, supervision if required and any other conditions as required.
Comment: The legislation does not permit assessment notices to be issued subject to conditions (see Chief Executive Officer, Department for Child Protection v Grindrod [No 2] (2008) 36 WAR 39, 60 62). Further, as an interim negative notice had been issued at that time, the applicant could not carry out childrelated work. A child is defined in the legislation to be under the age of 18 years, therefore the applicant could not carry out childrelated work with 16 or 17 year olds. Withdrawing the application for an assessment notice caused the interim negative notice to cease to have effect; however, the applicant could not be employed in childrelated employment or carry on a childrelated business without making a fresh application.
• the applicant recounts the confrontation with his wife the following morning after watching the move Georgia Rules, indicating that he still was not clear as to the reason for his wife and children leaving
Comment: This does not appear consistent with what had occurred during the confrontation in 2008 just prior to the applicant being interviewed by police. However, the applicant makes no mention of the 'confrontation' in 2005, where his wife confronted him about anything going on between him and the complainant. The applicant also gave evidence at his trial in relation to a discussion that occurred 2005 where his wife, on his version of the discussion, told him that he had embarrassed the complainant by massaging her the way he had.
Anything else that the CEO reasonably considers relevant to the decision
Consideration is given to the factors that bear upon risk as follows:
(i) The circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness)
Counts 4 and 5 on the indictment were the subject of not guilty verdicts at the conclusion of the State case as the complainant quite simply gave no evidence in relation to those allegations. The jury returned unanimous not guilty verdicts on the remaining counts on the indictment following slightly more than two hours' deliberation. The evidence was presented to the jury and was therefore tested, admittedly, at the higher standard of beyond a reasonable doubt.
The ability to assess charges, which includes nonconviction charges, will enable 'consideration to be given to sexual or violent offences that have been dismissed on a technicality or have not proceeded because of the impact on the victim particularly children and the reliability of evidence': see Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947. The charges proceeded to a hearing and were not dismissed on any technicalities.
The State case was based on the uncorroborated evidence of the complainant. It is difficult to speculate in cases where it is oath against oath as to the reason for the outcome, other than the jury could not be satisfied beyond a reasonable doubt of the uncorroborated evidence of the 17 year old complainant who had delayed in making her complaint for 3 years.
Little weight can be attached to this factor in considering the particular circumstances of the applicant's application.
(ii) The apparent strengths or weaknesses of the case against the applicant in relation to the nonconviction charges in question
The apparent strengths and weaknesses of the case against the applicant have been highlighted largely within the content of the report. As to the apparent strengths and weaknesses of the case against the applicant, the outcome of the trial would suggest that the case was a particularly weak case. Clearly, the members of the jury were not satisfied beyond a reasonable doubt as to the credibility and reliability of the evidence of the complainant. The fact that the complainant did not come up to proof in relation to two of the counts on the indictment would likely have been a factor.
The evidence at the hearing of the Tribunal
At the hearing, B was closely questioned by counsel for the respondent about the incidents which gave rise to the subsequent charges. B answered those questions in substantially the same way that he did at his trial. He provided no new evidence, but instead continued to argue to the Tribunal that he had been acquitted of the nonconviction charges 'by a judge and a jury of my peers in a court of law - namely the Western Australian Law Courts' and contended that therefore the respondent should have issued him with an assessment notice. He did not appear to grasp the importance of demonstrating to the Tribunal that he did not present a risk to children, or the significance of even what he was prepared to admit to.
B provided statements from three individuals as to B's good character. Two of those individuals had given evidence at B's trial. One described B's home life as 'robust and inclusive'. He described the complainant as 'somewhat reserved or fractious'. He described B as a man of good conscience and character.
The second described B as 'very honest and trustworthy'. He confirmed that he had never been present to see any interaction between B and his children.
The third statement is from an individual who has known B for about three years. He expressed in his statement a great deal of concern about the 'gross injustice' of what he refers to as the 'Justice System', namely the length of time taken to bring this matter to a conclusion. He confirmed that he has seen B in the company of the complainant on more than one occasion and he states that they appeared to be a 'happy family group'. None of these character referees was crossexamined before us.
B clarified one issue which arose from the evidence which he gave at his trial. When he had been asked during his police interview whether or not he had done the things he was accused of, he had responded with words to the effect of 'not intentionally' or 'not to my knowledge'. At the hearing, he made the point that, when he used those words, he believed that they had the effect of an absolute denial and had not appreciated that they would be taken as in any way qualifying his denial.
The test to be applied
As has been observed, s 12(5) of the WWC Act (formerly s 12(4)) requires that, if the CEO is aware of a non-conviction charge for a Class 2 offence, an assessment notice is to be issued to B unless the Tribunal is satisfied that, because of the particular circumstances of the case, a negative notice should be issued.
In Grindrod, Buss JA (with whom Wheeler JA agreed) said (at [81]):
In my opinion, it is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), 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.
The 'unacceptable risk' test was reiterated by Buss JA in Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171 (Scott) at [123].
In relation to nonconviction charges, Buss JA in Grindrod observed that it is not the Tribunal's function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the nonconviction charge in question. Rather, the relevant function involves an analysis and evaluation of risk, and the prevention of potential future harm (at [84]). The risk in question has to be unacceptable, not likely (at [85]). Buss JA also observed at [87] that it will be necessary for the Tribunal, in deciding whether there is an unacceptable risk, to rely partly on facts and partly on reasonable suspicions.
In Grindrod at [86] Buss JA said:
The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non-conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in childrelated employment; and
(d)the likelihood of any such future risk materialising.
Bearing in mind that the best interests of children is the paramount consideration, it is necessary to consider the factors set out in para (b) (g) of s 12(8) of the WWC Act, as amended by the Amending Act, having regard to the factors identified in Grindrod at [86]. In Scott at [104] Buss JA stated that the CEO (and therefore the Tribunal) is bound to take into account each of the criteria in para (a) - (f) and is not entitled to take into account any other factors.
Considerations prescribed by s 12(8) of the WWC Act
In accordance with the principles which have emerged from the authorities referred to above, the paramount consideration is the best interests of children. If there is an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of carrying out any childrelated employment that he might undertake, then the best interests of children require that a negative notice be issued. We propose to look at each of the considerations in s 12(8) except s 12(8)(a) before returning to consider the best interests of children. We have regard to all of the offences committed by B, as well as the Class 2 nonconviction charges.
We agree however, with the respondent's conclusion that B's property, traffic related and drug related offences occurred more than 25 years ago and, in any event, are not considered relevant to childrelated work.
When the offences were or are alleged to have been committed s 12(8)(b)
The alleged conduct giving rise to the nonconviction charges is said to have occurred between 25 April 2005 and 2 July 2005. The Tribunal regards the alleged conduct as being relatively recent and the fact that the five years have elapsed since then is not in the Tribunal's view a significant factor in favour or against the applicant.
The age of the applicant when the offence is alleged to have been committed s 12(8)(c)
The applicant was born on 22 January 1965. Thus at the time of the alleged conduct, the applicant was 40 years of age. He is now 46 years of age. In C and CEO, Department of Community Development [2007] WASAT 116, Barker J stated at [101] that:
The age of a person at the time of an offence was committed or was alleged to have been committed may reasonably be considered relevant on the basis that, amongst other things, if the applicant were relatively young at the time, he or she may have outgrown a certain immaturity they then had and may possibly be considered, taking into account other factors, unlikely to engage in such conduct again.
This is not a case where the applicant's age could have any mitigating effect on his alleged conduct. The Tribunal does not agree with any proposition that there is some difference in maturity between a man aged 40 and a man aged 46.
Nature of the convictions and alleged offence and relevance to child-related work s 12(8)(d)
It is not in issue that the nature of the alleged offences are highly relevant to childrelated work. While they did not occur in the course of childrelated work, they involved allegations of indecently dealing with and sexually penetrating a 13 year old girl, they involved an alleged breach of trust by B in that the complainant regarded B as her father, and they occurred in a situation where no other adults were present. B admits to giving the complainant massages on her shoulders, back, legs and thighs while she was in or on her bed, and assisting her with dressing. B conceded at both his trial and at the hearing of the Tribunal that he had not noticed that the complainant was no longer a child, that she had reached puberty and that she was 'growing up'. These events demonstrate, at the very least, a serious lack of judgment on B's part and are highly material to the consideration of the likelihood of any future risk to children materialising, notwithstanding that the alleged offences occurred in a domestic setting.
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 - s 12(8)(e)
This is a new sub-section inserted by the Amending Act. This requires the Tribunal to give specific consideration to the effect on a child were the applicant to behave in a similar way to a previous charge or conviction.
In the Second Reading Speech that accompanied the passage of the Amending Act through the Legislative Assembly, it was stated that, even if the alleged conduct took place many years ago, the passage of time without further charges or convictions will not be sufficient to issue an assessment notice if a repetition of that type of behaviour would result in significant harm to a child: Western Australia, Parliamentary Debates Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary).
The Tribunal has already formed the view that the alleged conduct took place relatively recently and no weight is given in the Tribunal's determination to the passage of time since the trial, other than to observe that a repetition of the type of behaviour which has been alleged would most certainly result in significant harm to a child.
Information given by the applicant in or in relation to the application s 12(8)(f)
The information provided by B in relation to his application has been summarised and thoroughly reviewed by the respondent as set out at [44]. The Tribunal agrees with the conclusion of the respondent, namely that none of this information has much or any bearing on the paramount consideration, which is the best interest of children.
Other matters relevant to the decision s 12(8)(g)
In relation to non-conviction charges, the factors identified by Buss JA in Grindrod at [86] need to be considered. It is clear that there was evidence at the trial which, if accepted by the jury, was capable of sustaining the charges against B. The prosecution's case was based entirely on the credibility, reliability, accuracy and truthfulness of the complainant's evidence. The complaint was not made until three years after the alleged offences. The jury clearly did not accept some or all of the complainant's evidence and were not satisfied beyond reasonable doubt as to the guilt of B.
As we have previously observed, it is not the Tribunal's function to adjudicate upon whether B is or is not guilty of the nonconviction charges. The Tribunal has not attempted to do so. However, the Tribunal does regard the failure on B's part to recognise properly the boundaries of acceptable behaviour as a significant future risk if the applicant were to be engaged in childrelated employment. The Tribunal cannot say that there is no likelihood of that future risk materialising.
Is there an unacceptable risk to children?
We have already considered the circumstances which culminated in the charges being disposed of by the Court. As we have already concluded, it is not appropriate to try to determine the veracity of the complainant's evidence. If B did do what he is accused of doing, then the assumption underlying the WWC Act is that there is a future risk that he might harm children. If the offences were committed, there is no doubt that they were serious enough to require a negative notice to issue. As we have said, it is not the Tribunal's task to determine whether or not B is guilty of the offences with which he was charged.
At the hearing, B maintained his stance that he had been found not guilty of those offences and he failed to address the Tribunal's concerns as to whether there is an unacceptable risk to children. For example, he made no attempt to offer an alternative explanation as to why the complainant made the allegations against him, nor why his wife and family left him in 2008. There are, of course, many reasons for a relationship to break down, but it can be inferred that B's wife felt there was some risk if she and her children were to remain in the family home.
What we have concluded is that B has demonstrated an astonishing lack of judgment in giving massages to a postpubertal girl while she was in or on her bed and while the two of them were alone. The fact that he entered the bedroom of that girl while she was dressing is a similar demonstration of that lack of judgment. These were not the activities of a younger man who might well years later see the error of his ways. These events were comparatively recent and our conclusion is that B's judgment has not improved.
In all the circumstances, our concern is at a level that we consider that there is an unacceptable risk to children in the future if B were to be granted an assessment notice.
We therefore find that the decision of the respondent to issue a negative notice should be affirmed and the application for review dismissed.
Orders
1.The decision of the respondent to issue a negative notice to the applicant is affirmed.
2.The application for review is otherwise dismissed.
I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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