BOHAN and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2014] WASAT 138
•16 OCTOBER 2014
BOHAN and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2014] WASAT 138
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 138 | |
| WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) | |||
| Case No: | VR:38/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 16/10/14 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Application for review of refusal to cancel negative notice dismissed | ||
| B | |||
| PDF Version |
| Parties: | BERNARD LEE BOHAN DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT |
Catchwords: | Negative notice No exceptional circumstances |
Legislation: | Criminal Code, s 183, s 203(2), s 320(2), s 320(4) Evidence Act 1906 (WA), s 31A State Administrative Tribunal Act 2004 (WA), s 31(1) Working With Children (Criminal Record Checking) Act 2004 (WA), s 3, s 7, s 7(2), s 9, s 10, s 12, s 13(5), s 19, s 19(8) |
Case References: | Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 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 Chief Executive Officer, Department of Child Protection v S [2007] WASCA 230 D and Department for Community Development [2007] WASAT 154 Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289 Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153 J and Chief Executive Officer, Department for Child Protection [2010] WASAT 70 L and Chief Executive Officer, Department for Child Protection [2010] WASAT 82 Lu and Chief Executive Officer, Department for Child Protection [2013] WASAT 69 |
Orders | On the application heard before President, Justice Curthoys on 16 October 2014, it is ordered that:,1. The application for cancellation of the negative notice is dismissed. |
Summary | In 2009, the applicant sought the cancellation of a negative notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) so that he could coach young boys' football.,The applicant was convicted of four Class 2 offences in 1973. In 1994, he was charged with six Class 2 offences but acquitted at trial.,The convictions and the nonconviction charges arose from contacts he made as a football coach for young boys. The 1973 offences demonstrated a clear sexual attraction to young boys by the applicant.,The applicant has failed to exhibit any real remorse or display any insight into the circumstances that led to his convictions and the nonconviction charges.,The lack of remorse or insight led the Tribunal to conclude that, in circumstances where the applicant had a sexual attraction to young boys, a lack of insight in relation to the need to avoid circumstances where he might be at risk of acting on his sexual attraction, is an unacceptable risk to young boys. There are no exceptional circumstances to justify the cancellation of the negative notice |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) CITATION : BOHAN and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2014] WASAT 138 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 16 OCTOBER 2014 FILE NO/S : VR 38 of 2013 BETWEEN : BERNARD LEE BOHAN
- Applicant
AND
DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent
Catchwords:
Negative notice No exceptional circumstances
Legislation:
Criminal Code, s 183, s 203(2), s 320(2), s 320(4)
Evidence Act 1906 (WA), s 31A
State Administrative Tribunal Act 2004 (WA), s 31(1)
Working With Children (Criminal Record Checking) Act 2004 (WA), s 3, s 7, s 7(2), s 9, s 10, s 12, s 13(5), s 19, s 19(8)
Result:
Application for review of refusal to cancel negative notice dismissed
Summary of Tribunal's decision:
In 2009, the applicant sought the cancellation of a negative notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) so that he could coach young boys' football.
The applicant was convicted of four Class 2 offences in 1973. In 1994, he was charged with six Class 2 offences but acquitted at trial.
The convictions and the nonconviction charges arose from contacts he made as a football coach for young boys. The 1973 offences demonstrated a clear sexual attraction to young boys by the applicant.
The applicant has failed to exhibit any real remorse or display any insight into the circumstances that led to his convictions and the nonconviction charges.
The lack of remorse or insight led the Tribunal to conclude that, in circumstances where the applicant had a sexual attraction to young boys, a lack of insight in relation to the need to avoid circumstances where he might be at risk of acting on his sexual attraction, is an unacceptable risk to young boys. There are no exceptional circumstances to justify the cancellation of the negative notice
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : Department for Child Protection and Family Support
Case(s) referred to in decision(s):
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
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
Chief Executive Officer, Department of Child Protection v S [2007] WASCA 230
D and Department for Community Development [2007] WASAT 154
Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289
Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153
J and Chief Executive Officer, Department for Child Protection [2010] WASAT 70
L and Chief Executive Officer, Department for Child Protection [2010] WASAT 82
Lu and Chief Executive Officer, Department for Child Protection [2013] WASAT 69
Introduction
1 Mr Bernard Lee Bohan wishes to work with children, in particular, as a coach of a young children's football team.
2 In order to work with children, a person must apply to the Chief Executive Officer, Department for Child Protection and Family Support (the CEO) for an assessment notice (s 9 and s 10 of the Working With Children (Criminal Record Checking) Act 2004 (WA) (the Act).
3 The CEO may:
a) issue an assessment notice to the applicant; or
b) issue a negative notice to the applicant.
- (s12(1))
5 A negative notice prevents a person from working with children (s 12(2)).
6 In order to decide the application, the CEO must make a criminal record check of the applicant (s 12(2)).
7 Under the Act, there are different classes of offences (s 7). The class of offence determines how the CEO deals with an application under the Act.
8 If a person has been convicted of a Class 1 offence, then the CEO must issue a negative notice (s 12(3), s 12(7)).
9 If a person has been convicted of a Class 2 offence, the CEO must issue a negative notice unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant (s 12(3), s 12(6)).
10 The distinction between the two classes is explained by Buss JA (Wheeler JA agreeing) in Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 (Grindrod) at [9].
11 The Act also provides for a situation where an applicant has been charged with a Class 1 or Class 2 offence but not convicted. This is referred to as a nonconviction charge (s 4).
12 If the CEO is aware that a person has a nonconviction charge in respect of a Class 1 offence or a Class 2 offence, the CEO is to issue an assessment notice unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant (s 12(3), s 13(5)).
Documents
13 On 22 July 2014, an order was made that the case be decided on the documents. The documents consist of seven volumes which have been admitted as Exhibit 1. The Tribunal has also considered Mr Bohan's various submissions and the associated documents that appear at folio 39 of the Tribunal file.
Background
14 On 16 August 1973, Mr Bohan was convicted of four offences of indecently dealing with a child under 14. He was sentenced to two years' probation on each charge (Exhibit 1, Vol 1 page 7). The boys were aged 7, 9 and 11 years at the time of the offending.
15 The offending was against members of a junior football team Mr Bohan was coaching (Exhibit 1, Vol 4 page 685).
16 On 10 February 2006, Mr Bohan applied for an assessment notice.
17 Mr Bohan sought to work with children as part of the 'Tuart Hill Dragons' Auskick' as 'President/Coach. An assessment notice was issued on 1 March 2006. It was subsequently revoked because an intitial search had not disclosed the 1973 offences (Exhibit 1, Vol 1 pages 77 78).
18 On 5 May 2009, Mr Bohan was issued with a negative notice under s 12(7) of the Act. The basis for the issue of the notice was the 1973 offences. The CEO classified those offences as Class 1 offences. Accordingly, the CEO was obliged to issue a negative notice.
19 Section 19 of the Act permits a person to whom a negative notice has been issued to apply for its cancellation three years after the negative notice was issued. On 4 September 2012, Mr Bohan applied for a cancellation of the notice (Exhibit 1, Vol 4 pages 643 646).
20 The criteria to be considered in determining whether a negative notice should be cancelled are the same as whether a negative notice should be issued (s 19(8)).
21 The application was refused by the CEO by letter dated 29 January 2013. The basis for the refusal was the same as the reason for the issue of the negative notice, namely that Mr Bohan had been convicted of a Class 1 offence under the Act (Exhibit 1, Vol 4 pages 650 653).
Request for review
22 On 19 February 2013, Mr Bohan applied to this Tribunal for a review of the CEO's decision of 29 January 2013.
23 The focus of the review is to produce the correct and preferable decision by the re-making of the decision under review: s 27(1)(2) SAT Act; Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 (Hardingham 2) at [25], [34], [69].
24 The application is to be considered at the date of the Tribunal's decision (Hardingham2 at [25], [39]).
Referral for reconsideration by the CEO
25 A preliminary hearing was held by President Chaney. On 4 July 2013, the President declared that Mr Bohan's four convictions under s 183 of the Criminal Code (as it then was) (the Code) were Class 2 offences under s 7(2) of the Act (Exhibit 1, Vol 5 page 848). President Chaney's decision was based on the elements of s 183 of the Code, as it then was, and its comparison to the elements of the offences in Class 1 and Class 2, rather than the particular facts of the offending.
26 The President's decision was referred back to the CEO pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA). The CEO was directed to reconsider its decision on the basis that the four counts under s 183 of the Code were Class 2 offences. As such, the CEO was required to consider whether there were exceptional circumstances.
27 The effect of the 1973 offences being declared as Class 2 offences was that the CEO had a discretion. For the exercise of that discretion it became relevant for the CEO to consider a number of nonconviction charges, which are detailed below. The nonconviction charges form part of all the material before the CEO.
28 It remained the case that the CEO's discretion was enlivened and informed by the 1973 offences. That is, the CEO was to issue a negative notice unless there were exceptional circumstances that would allow otherwise.
The legislation and authorities relevant to exceptional circumstances
29 Section 12(6) imposes on the CEO an obligation to evaluate whether or not, because of the exceptional circumstances, a notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice (Grindrod at [65]).
30 Section 12(6) of the Act provides that in the case of Class 2 offences:
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.
31 Section 12(8) of the Act provides:
If subsection … (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the … 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 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.
32 The criteria in s 12(8) constitute an exhaustive statement of the factors the decisionmaker is bound to take into account in deciding if the requisite satisfaction is attained. The decisionmaker is not entitled to take into account any other factors (Grindrod at [69]).
33 The best interests of children is always relevant and always the paramount consideration (subsections 12(8)(a) (f) (Grindrod at [70]), s 3).
34 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)).
35 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.
36 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 childrelated employment (Grindrod at [81] [83]).
37 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.
38 The risk has to be unacceptable, not likely, on the basis of all of the evidence. 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. (Grindrod at [85] and [87])
39 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.
40 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[No2] [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].
41 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]).
42 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].
44 Consideration of whether to cancel a negative notice does not require a finding that the applicant would commit or recommit a sexual or other offence in future; the focus is on the exposure of children to risk of harm whether intended or not: Hall J in Hardingham andChief Executive Officer, Department for Child Protection [2012] WASAT 153 (Hardingham3) at [161].
45 The prediction of future risk is not limited to the conduct that was the subject of the charges (Hardingham 3 at [39]).
Exceptional Circumstances
46 The 'exceptional circumstances' threshold under the Act has been considered in four matters before the Tribunal: D and Department for Community Development [2007] WASAT 154 (D); J and Chief Executive Officer, Department for Child Protection [2010] WASAT 70 (J); L and Chief Executive Officer, Department for Child Protection [2010] WASAT 82 (L) and Lu and Chief Executive Officer, Department for Child Protection [2013] WASAT 69 (Lu).
47 A case involving the 'exceptional circumstances' threshold under the Act has not yet been considered by the Supreme Court. However, while considering 'particular circumstances' threshold cases under the Act, members of the Court of Appeal in Scott made the following comments in relation to matters involving 'exceptional circumstances' see Scott per Mclure JA at [19]; and Buss JA at [116] and [118]:
18 … [The Act] regards a conviction of a criminal offence as rendering that person actually (Class 1 offence), prima facie (Class 2 offence) or possibly (any other offence) unsuitable to work with children. That can only be because the applicant, solely by reason of one or more convictions, poses a risk of repeating the type of criminal conduct in which they have previously engaged. The legislation identifies all offences which actually or prima facie require the issue of a negative notice. Under s 12(6), the exceptional circumstances must be such as to negative the risk that the legislature itself deemed to be unacceptable, namely the risk of repetition.
…
116 … Ordinarily, a negative notice will be issued to the applicant. The Parliament has conferred a power on the CEO, however, where the CEO is affirmatively satisfied that 'exceptional circumstances' exist, to issue an assessment notice. Section 12(8) applies. An analysis or evaluation of the risk or degree of risk that the applicant might cause harm to children, in the course of carrying out child-related work, is required.
…
118 … But the discretionary power under s 12(6) is more circumscribed than the discretionary power under s 12(4) and (5). Section 12(6) stipulates that 'exceptional circumstances' must exist whereas s 12(4) and (5) stipulate merely that 'particular circumstances' must exist.
48 These comments in Scott (which were made following D, and before L, J and Lu) were made prior to the amendments to the Act commencing in October 2010 which, among other things, altered the numbering in s 12. These comments remain relevant to those provisions that attract the 'exceptional circumstances' threshold.
49 In D, Justice Chaney discussed the meaning of 'exceptional' under the Act as follows at [19] - [22]:
The Act does not define 'exceptional circumstances'. The Australian Concise Oxford Dictionary (2nd ed), Oxford University Press, Melbourne, 1992 defines exceptional as 'forming an exception; unusual; not typical'. In Baker v The Queen(2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:
'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'
In Ho v Professional Services Review Committee No 295[2007] FCA 388 at [26], Rares J after referring to the observations of Griffiths v R(1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that 'although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances', said:
'Exceptional circumstances within the meaning of s 106KA(2) [of the Health Insurance Act 1973 (Cth)] can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional …
It is not correct to construe ''exceptional circumstances'' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ''circumstances'' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ''exceptional circumstances'' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.'
Although those observations were made in the context of different statutory provisions, they are, in my view, equally applicable to the expression as it appears in the Act.
The circumstances enumerated in s 12(8)(b), (c) and (d) are unlikely, by themselves, to be capable of categorisation as 'exceptional'. Section 12(8) must, therefore, contemplate that the circumstances enumerated in the subsection will be considered in combination to determine whether they might be regarded as exceptional.
50 The approach was also accepted in L by Judge J Pritchard, Deputy President, at [50], and by Senior Member M Allen in Lu at [30].
Prima facie unacceptable risk of harm presumed for Class 2 convictions
51 McLure JA in Scott at [19] stated:
… The legislature regards a conviction of a criminal offence as rendering that person actually (Class 1 offence), prima facie (Class 2 offence) or possibly (any other offence) unsuitable to work with children. That can only be because the applicant, solely by reason of one or more convictions, poses a risk of repeating the type of criminal conduct in which they have previously engaged.
52 Consideration is not confined to the circumstances of the applicant's convictions or his criminal record; all matters that go to assessing the relevant risk are relevant: Hardingham 2 at [54].
53 Chaney J in Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289stated at [42]:
The existence of a future risk of physical and sexual harm is assumed by the Act by reasons of harmful conduct in the past.
54 The task under s 12(6) is to identify the seriousness of the risk posed by the convictions, and to consider all relevant information since that time to establish if circumstances of an exceptional character can be identified so as to satisfy the decisionmaker to overturn the default position that the negative notice remain in place.
The CEO's reconsideration
55 The CEO reconsidered the decision and on 9 August 2013 and refused to cancel the negative notice. The basis for the CEO's decision was that the circumstances as a whole were not sufficient to affirmatively satisfy the CEO that a negative notice should not issue (Exhibit 1, pages 756 765).
The circumstances of the 1973 offences
56 Three of the offences occurred on 12 April 1973 and involved three separate boys. The fourth offence occurred on 14 April 1973 and involved one of the boys the subject of the 12 April offences (Exhibit 1, Vol 4 pages 677 680). No reasons for conviction were published.
57 The evidence of the first of the boys was that on 12 April, Mr Bohan came into the shower where he and two other boys were showering. He stated:
He [Mr Bohan] lifted me up onto railing - part between showers. He lifted me up and down and his doodle was rubbing on my bottom and back. His doodle was rather big. After that he put his finger in my bottom. I got down and he lifted [the second boy] up. I saw him push up [the second boy] or [the third boy]. (Exhibit 1, Vol 4 page 685)
58 The first boy gave further evidence that on 14 April:
Bernie came in [to the shower] and lifted me under arm pits and he lifted me in air once or twice and down again … When he lifted me up his doodle rubbed against my legs and bottom.
(Exhibit 1, Vol 4 pages 686)
59 The second boy corroborated the first boy's evidence of 12 April. He gave evidence that in his case he said: 'Then [Mr Bohan] got me in shower and rubbing me up and down partition' and '[Mr Bohan's] private was rubbing up and down my back as well'. (Exhibit 1, Vol 4 page 690).
60 The third boy gave evidence that corroborated the evidence of the other two boys and said 'Bernie lifted me up but I fell down …' (Exhibit 1, Vol 4 page 692).
61 The notes of Detective Sargent Lippe's evidence record admissions by Mr Bohan in the course of a police interview (Exhibit 1, Vol 4 pages 694 696). Those notes disclose that Mr Bohan admitted to taking each boy into the shower with him while he and they were naked. He admitted that he had an erection. He admitted that his penis was between their buttocks as he lifted the boys up and down. He stated: 'Not on purpose but it did touch them a few times'. Mr Bohan stated that he took each of the boys into the shower and played with them 'but only in fun'. He denied putting his fingers into the first boy's bottom.
62 The Magistrate's notes disclose that Mr Bohan admitted in his oral evidence to lifting the boys up to do chin ups (Exhibit 1, Vol 4 page 700). He also admitted that he was naked (Exhibit 1, Vol 4 page 704).
63 Mr Bohan was asked at trial if he turned one of the boys to the wall and had him push up towards the wall while he pushed his penis between the boy's legs. Mr Bohan's response was 'No, not like that, I was only playing and he did not object … I tickled him a lot but I didn't mean any harm' (Exhibit 1, Vol 4 page 695).
64 The offence occurred after junior football coaching.
65 On 15 April 1973, Mr Bohan wrote to the parents of one of the boys, apologising for 'any action or any conversation which may have upset you' (Exhibit 1, Vol 4 page 706).
66 Mr Bohan sought an order to review in the Supreme Court to quash the convictions. Jackson CJ dismissed the order to review:
The evidence which is relied upon by the respondent to corroborate that of the boys is evidence given by two detectives in relation to certain admissions said to have been made to them by [Mr Bohan]. Those submissions are sufficiently referred to in the evidence of Det. Lippe at pp. 25 and 26 of the appeal book. Again, I do not need to state all the particulars of that evidence but in substance it amounts to this - that [Mr Bohan] is said to have admitted to the detective that on the Thursday he was in the shower cubicles with the boys all being undressed, without clothing, that they were having showers, that he lifted the boys, one by one, up onto a dividing wall between the showers, that he had an erect penis at the time and that at that time his penis did touch the boys' buttocks a few times but it was by accident and not on purpose and also at the time he was tickling them and tickling them on their tummies.
As regards the incident of 14th April, [Mr Bohan] is said to have admitted that he was in the shower without clothes at the same time as the boy who was the complainant in respect at that charge and again that he tickled him and he got a bit excited, had an erection and may have touched him with his penis and that he was only playing with him and that the boy did not object.
In my view it is quite plain that that evidence, if accepted, could amount to corroboration of the evidence of the boys in some material particular and of course it implicated the accused. …
(Exhibit 1, Vol 4 pages 749 - 750)
Mr Bohan's reaction to the convictions
67 In the years after his conviction, Mr Bohan expressed minimal remorse for the 1973 offences of which he was convicted. He consistently blamed:
a) the police (Exhibit 1, Vol 1page 35);
b) the magistrate (Exhibit 1, Vol 1, page 43); and
c) the boys against whom he was found to have offended (Exhibit 1, Vol 1, page 49).
68 A probation report notes:
On 17.7.73, Bohan was convicted in the Perth Childrens Court of Having Unlawfully and Indecently Dealt with three children under the age of 14 years (boys aged 7, 9 and 11 years respectively). He was remanded on bail pending submission of this report.
As late as 13.8.73, Bohan stoutly maintains his innocence. Evidence given by the boys, however, described incidents in a shower block following junior football practice, when Bohan was said to have encouraged the lads to do 'push-ups' whilst gripping the edges of partitions. The boys variously claimed that contact was made, during these proceedings, between Bohan's erect penis and various parts of their bodies, including buttocks and anus. It was further claimed by one boy that his penis was touched by Bohan.
Despite his vehement protestations of innocence, Bohan has admitted to a great degree of indiscretion in his dealings with the boys, although he pleads that he had not foreseen the probable interpretation. He saw nothing strange in lifting the boys to facilitate physical exercises in shower recesses. Similarly, when taxed on the question of his having-touched a boy's penis, he pleads that his only aim was to inculcate the need for male hygiene in that area. Only with, reluctance, did he agree that a classroom setting would have been infinitely preferable for such instruction.
(Exhibit 1, Vol 1 page 121)
69 A letter of August 1974, about a year later, from Mr Saxon, Mr Bohan's probation officer to Dr Rollo, the psychiatrist superintendent, informed him that Mr Bohan had sent a letter to one of the boys:
Apparently in the letter Bohan explained that his past conduct towards the boy had been caused by mental illness, which had now been cured by pills. Bohan went on to say that he had not slept properly during the last year because of his distress over the loss of the boy's regard. Bohan said that he could not bear to be thought of as an evil old man – that he badly needed to know that [name removed] was aware of his concern and that their friendship had not been destroyed. Bohan then suggested a meeting.
(Exhibit 1, Vol 1 pages 124 125)
70 Mr Saxon sent a letter to Mr Bohan, dated 28 August 1974 which stated:
…
I must advise you that it is essential that you put aside any plans to meet or otherwise communicate with this boy. Moreover, you should make certain that you are never placed in any situation where you are left alone in the company of pubescent boys. For the remainder of your period of probation, at the very least, (and, for safety's sake, far beyond that time), you cannot take the risk of being involved in any way with boys in this age group. In the case of [name removed] in particular, I understand that he lives not far from your home and that you are liable to encounter him accidentally from time to time. Whenever you do see him, I suggest that you go out of your way to avoid any facetoface confrontation. You cannot afford to place your liberty in jeopardy again.
…
(Exhibit 1, Vol 1 page 126)
71 In about August/September 1974, Dr Rollo wrote to Mr Saxon:
This man attended and there appears to be no great change in the situation. He did not say so specifically but it appears that he is determined to go his own way with little regard for the legal restraints on him. He does not believe that he is acting either improperly or illegally.
He acknowledges very plainly that he is aware of feelings of vindictiveness including towards [name] the stepmother of [the boy]. He said his recent actions were motivated in part so as to get back at [the boy's stepmother] whom he believes has told lies.
When we discussed the possibility that his actions raised the possibility of a breach of probation so that imprisonment could not be excluded, he said that if he should go to prison he would take care to satisfy his feelings (i.e. to seek vindication) by psychological means.
These feelings are deepseated as it is his sense of grievance and injustice. I regret to report that I feel unable to influence him or alter the course of events. Nevertheless, he does acknowledge feelings quite freely and in the hope that this 'ventilation' is not without use I propose to continue seeing him. (Exhibit 1, Vol 1 page 127)
The 1993 - 1994 nonconviction charges
72 On 7 April 1994, six complaints were laid against Mr Bohan: one of wilful exposure (s 203(2) of the Code), one of attempted sexual penetration (s 320(2) of the Code) and four of indecently dealing with a child under the age of 13 (s 320(4) of the Code). (Exhibit 1, Vol 1 pages 128 134). The charges involved an 11 year old boy and related to three separate events.
73 Mr Bohan was committed for trial on 23 August 1994. The indictment read:
1) On a date unknown between 21 August 1993 and 7 April 1994 at Mount Sec Hawthorn BERNARD LEE BOHAN indecently dealt with [name], a child under the age of 13 years, by rubbing his penis.
(2) AND FURTHER that on another date unknown between 21 August 1993 and 7 April 1994 at Mount Hawthorn BERNARD LEE BOHAN indecently dealt with [name], a child under the age of 13 years, by squeezing his buttocks.
(3) AND FURTHER that on the same date and at the same place referred to in count 2 BERNARD LEE BOHAN attempted to sexually penetrate [name], a child under the age of 13 years, by attempting to engage in fellatio.
(4) AND FURTHER that on the same date and at the same place referred to in count 2 BERNARD LEE BOHAN indecently dealt with [name], a child under the age of 13 years, by masturbating in his presence.
(5) AND FURTHER that on another date unknown between 21 August 1993 and 7 April 1994 at Nollamara BERNARD LEE BOHAN indecently dealt with [name], a child under the age of 13 years, by touching his penis and buttocks.
(6) AND FURTHER that on the same date and at the same place referred to in count 5 BERNARD LEE BOHAN attempted to sexually penetrate [name], a child under the age of 13 years, by attempting to penetrate his anus.
74 Mr Bohan faced two trials over the offences in 1995 and 1996.
75 In the course of the first trial, the jury was directed to enter verdicts of acquittal on charges 2 and 3 on the basis of insufficient evidence. In addition, charge 3 was dismissed for technical reasons arising from the presentation of the Crown's case (Exhibit 1, Vol 5 pages 321 322).
76 On the remaining charges, the jury was discharged after a juror heard a comment by a member of the boy's family (Exhibit 1, Vol 2 pages 420 - 424).
77 Mr Bohan was acquitted of the remaining 1993 - 1994 charges following a second trial in 1996.
The circumstances of the nonconviction charges
78 At the time of the alleged offending in 1993 - 1994, Mr Bohan was coaching the 11year old boy in football.
79 Mr Bohan had had a number of contacts with the boy, including taking him to a Claremont football match, taking him and a number of boys swimming at Whitford's pool, taking him roller skating, taking him to and from football training and coaching him (Exhibit 1, Vol 2 pages 332 335; Vol 3, pages 521 527 and pages 545 546).
80 In 1993 1994, Mr Bohan invited the boy over to his house.
81 Mr Bohan and the boy watched a video. While they were watching the video, the boy alleged that Mr Bohan put his hand on the boy's pants in the area of his penis, then inside the boy's pants and that he fondled the boy's penis.
82 Mr Bohan bought the boy a pair of skates. The boy alleged that Mr Bohan offered the boy a pair of skates to keep quiet.
83 The boy's mother's evidence was that Mr Bohan had bought the boy numerous presents including roller skates, footballs, money and lollies (Exhibit 1, Vol 1 page 157).
84 The boy alleged that the next weekend, while the boy was sorting football jumpers, Mr Bohan said the boy was dirty and suggested that the boy have a bath. Mr Bohan then came into the bathroom wearing only a towel and got into the bath with the boy. He squeezed the boy's buttocks. Mr Bohan then told the boy to put his mouth over Mr Bohan's penis. When the boy refused, Mr Bohan attempted to put his mouth over the boy's penis.
85 The boy alleged that Mr Bohan then masturbated to the point of ejaculation, and that Mr Bohan again told him not to tell anyone and bought him a big bag of sweets and a drink.
86 The boy alleged that about a month later, Mr Bohan put a video of a cartoon of people having sex and then took his clothes off. He put his hand inside the boy's shorts and fondled his penis and buttocks. He then attempted to anally penetrate the boy. (Crown opening 7 August 1995, Vol 2 pages 237 241)
87 The Crown opening reflected the boy's witness statements.
88 Mr Bohan gave incongruous answers in the course of his police interview (see the Crown's analysis in the opening in the 1996 trial (Exhibit 1, Vol 3 pages 445). Detective Sergeant Dodson's record of interview with Mr Bohan stated:
I said, 'What I do know Bernie, is that I think something wrong of a sexual nature has happened between you and [the boy] and that we should at least be honest with each other so that we can sort everything out. Don't you agree?'
He said, 'If I ever touched him down there it would have been an accident.'
I said, 'Are you saying you could have touched him on the penis?'
He said, 'Maybe, but it would have been an accident.'
I said, 'Can you remember ever touching his penis by accident?'
He said, 'No, I never touched him.'
(Exhibit 1, Vol 1 page 171)
I said, 'Did you sit down on the floor next to [the boy] and touch him on the penis while he was watching the movie?'
The accused did not answer.
I said, 'Did you Bernie?'
He said, 'If I did it was an accident.'
I said, 'He says that you rubbed his penis both outside his shorts and inside his shorts on this occasion. Is that true?'
He said, 'No, it's not.'
(Exhibit 1, Vol 1 page 173)
89 Mr Bohan denied that the police record of interview was accurate (Exhibit 1, Vol 3 pages 536 539, pages 559 586). In particular, Mr Bohan denied saying to the police in the interview 'If I ever touched him down there it would have been an accident' (Exhibit 1, Vol 2 pages 382 383).
90 No basis was advanced by Mr Bohan as to why the police would not have accurately recorded the interview.
91 Mr Bohan admitted that he had bought the skates (Exhibit 1, Vol 2 page 341; Vol 3, page 127). Mr Bohan gave conflicting explanations as to why he had bought the skates (Exhibit 1, Vol 2 pages 341 342; pages 362 364; Vol 3, pages 527 530, pages 547 549).
92 Mr Bohan admitted lying to the police in the course of the police interview (Exhibit 1, Vol 2 pages 375 377).
93 In the 1996 trial, the Crown opened on the same basis in relation to the remaining four charges (Exhibit 1, Vol 3 pages 440 444).
94 The boy's evidence was consistent with the Crown opening (Exhibit 1, Vol 3 pages 449 457).
95 Mr Bohan denied that the events took place. Other than Mr Bohan's general denial of the events, the defence was based on two primary issues: firstly, Mr Bohan's lack of mobility and secondly, his inability to have an erection (Exhibit 1, Vol 3 pages 515 521).
96 Mr Bohan gave evidence of seeing his general practitioner about his erection problems but the general practitioner was not called to give evidence (Exhibit 1, Vol 3 page 550).
97 Mrs Bohan gave evidence as to her husband's erection difficulties but not as to his mobility difficulties (Exhibit 1, Vol 3 page 590).
98 In Mr Bohan's submissions in Exhibit 1, Volume 6, page 9, there is a report from a Dr Denis Cherry dated 23 April 2014 which states that Mr Bohan was seen by him in July/August 1994. Dr Cherry's opinion was that 'it would seem unlikely [sic] that without treatment, he would have found it very difficult to achieve vaginal penetration and engage in sexual intercourse'.
99 Dr Cherry was not called at the trial in 1996.
100 The Tribunal notes that charge 6 was attempted sexual penetration, rather than penetration.
101 In the second trial, Mr Bohan gave the following evidence in response to questions as to whether the boy was a favourite:
Q: Was he a favourite of yours?
A: He was a favourite but he wasn't the only one. I have had friends in the team.
Q: And the reason you ?
A: I had … yes, I had, you know, let's be frank. He was a favourite. He was a friend of mine, put it that way. I wouldn't say - I wouldn't use the word 'favourite'.
(Exhibit 1, Vol 3 page 547)
102 The jury acquitted Mr Bohan of the four counts. All that can be said about the verdicts is that the jury was not satisfied beyond reasonable doubt as to the evidence in relation to each count.
103 The jury did not hear the evidence as to Mr Bohan's previous convictions. Section 31A of the Evidence Act1906 (WA) which permitted evidence of previous convictions to be admitted was not inserted until 2004. It does not necessarily follow that evidence of the 1973 convictions would automatically have been admitted.
104 It is not the function of the decisionmaker or Tribunal on review to adjudicate whether Mr Bohan is guilty or innocent of nonconviction charges to some other unspecified standard and then to treat that outcome as determinative: Grindrod at [84 – 85], T at [49].
105 The decisionmaker is also not required to establish or be satisfied of the truth of a specific allegation before a negative notice may issue. The truth of an allegation in any event could only be established by a finding of fact that the conduct had occurred and such a positive finding of fact could not be based on reasonable suspicions: T at [59].
106 The information obtained relating to Mr Bohan's charges and allegations are relevant and may, depending on that information, contribute to a 'reasonable apprehension of matters for which there is nevertheless insufficient warrant to make a positive finding of fact': T at 206 per Murphy JA [60] [64]. This is the case notwithstanding that some of that material would not normally be admissible in a court of law: T at 206 per Murphy JA [60] [64].
107 The working with children scheme is not punitive and the focus is on the rights of children to be protected from potential harm. Guilt or innocence is subservient and ancillary to the determination of what is in the best interests of the child. Provided that there are facts and reasonable suspicions sufficient to establish that the applicant may expose children to an unacceptable risk of harm, the paramount consideration requires that doubts be resolved in favour of children.
Mr Bohan's attempts to approach the boy the subject of the 1993 1994 charges
108 A condition of Mr Bohan's bail was that he was not to contact the boy or the boy's family, directly or indirectly (Exhibit 1, Vol 2 page 208).
109 On 16 February 1995, Mr Bohan was interviewed by Detective Sergeant Dobson regarding a breach of Mr Bohan's conditions. It was alleged that Mr Bohan had been driving past the boy at the bus stop for two weeks. When asked why he was driving past the bus stop, Mr Bohan said 'I want him to know I still love him, that's all'. Mr Bohan further said 'Well if you's would let me see him this wouldn't have happened'; and 'I just wanted to see him. Besides I can drive where I like'; and 'You can't stop me driving down the road. I only look at him. I don't talk to him' (Exhibit 1, Vol 2 pages 183 184).
110 Mr Bohan appeared in the District Court 22 February 1995. He agreed to new bail conditions which required him to avoid the area of the boy's bus stops during school travelling hours and not to approach within a kilometre of the boy's school (Exhibit 1, Vol 2 page 224).
111 The boy complained that in March 1996, June 1996, July 1996, August 1996, November 1996 and December 1996, Mr Bohan had been watching him.
112 In his submissions to this Tribunal, Mr Bohan gave an extensive account of how he happened to be seen by the boy (Exhibit 1, Vol 1 pages 112 118).
113 On 28 January 1997, Mr Bohan appeared in the Joondalup Court of Petty Sessions. Mr Bohan accepted a restraining order preventing him from approaching the boy (Exhibit 1, Vol 7 pages 993 995).
114 Mr Bohan was charged with loitering near the boy's school on 18 March 1996. The charge was heard on 27 November 1996. The charge was not proven on the basis that there were two inferences to be drawn as to Mr Bohan's presence in the area (Exhibit 1, Vol 7 page 986).
115 Mr Bohan was subsequently charged on 29 July 1997 with stalking the boy, contrary to s 338D(1) of the Code (Exhibit 1, Vol 7 page 990). The charge was heard by Calder SM on 28 November 1997. The charge was not proven on the basis that there were two inferences to be drawn as to Mr Bohan's presence in the area (Exhibit 1, Vol 7 page 1016).
116 The boy and his mother moved on a number of occasions to try and avoid Mr Bohan (Exhibit 1, Vol 5 page 791). The impact of Mr Bohan's activities on the boy was plainly devastating. The boy left school because other students found out about the charges and were taunting him. (26 July 1995 Exhibit 1, Vol 5 page 775). Following the discharge of the jury in the first case, the case manager described it as the worst case he had seen in 20 years in terms of the emotional impact on the boy and his mother. The boy was suicidal (16 August 1995 - Exhibit 1, Vol 5 page 778).
117 It appears that in February 1997, Mr Bohan served a restraining order on the boy who was then 14 years old (Exhibit 1, Vol 5 page 785).
118 Mr Bohan's notes as to the grounds of the restraining order were:
REQUEST BY BERNARD LEE BOHAN FOR A RESTRAINING ORDER AGAINST [THE BOY]
CONDITIONS ASKED FOR:
To refrain from loitering at the following corners or vicinity:
1. Corner of Brighton and Northstead Roads, Scarborough. (About 300 metres from Calais St in which [the boy] resides)
2. Corner of Ulrich St and Buntine Road, Churchlands. (About 500 metres from Churchlands Senior High School)
2. Corner of West Coast Highway (or also known as Drive) and St Helier Drive (Opposite the Hillary's Marina)
Furthermore [the boy], if in the company of associates, is not to incite his associates to do anything regarded as offensive or provocative against Mr Bernard Bohan or his relatives who live near the aforementioned corners.
This was an outline of a restraint I [Mr Bohan] wanted but withdrew it in court when [the mother of the boy] wanted a court hearing with witnesses.
(Filed with the Tribunal on 4 August 2014)
119 Mr Bohan also made a complaint of perjury against the boy's mother and she was required to attend a police station for an interview (9 July 1987 Exhibit 1, Vol 5 page 790).
120 Mr Bohan continues to allege that the boy involved in the 1993 1994 nonconviction charges 'proved to be misleading police'. Mr Bohan also alleged various acts of 'misconduct' by the boy (Exhibit 1, Vol 1 page 71 - 73). There is no evidence to support his allegations.
121 Mr Bohan's attempts to contact the boy after he had been charged reveal a disturbing lack of insight into the effect of his contact on the boy. This conduct is consistent with the vindictiveness that concerned Dr Rollo in 1974.
When the offence(s) were committed or were alleged to have been committed - s 12(8)(b) of the Act
122 The 1973 offences occurred some 40 years ago. Viewed in isolation, that might seem to be a factor suggesting a reduced risk of repetition. However, the circumstances surrounding Mr Bohan's 1993 - 1994 nonconviction charges mean that the 1973 offences cannot be viewed in isolation.
123 When viewed over 40 years, there have been two incidents - the 1973 offences and the 1993 1994 nonconviction charges. As set out below, the circumstances surrounding the 1993 1994 nonconviction charges when considered with the 1973 offences, means that, although the 1973 offences occurred long ago and the 1993 - 1994 nonconviction charges some 20 years ago, the length of time since the offending does not, without more, give rise to 'exceptional circumstances' of the sort that would constitute exceptional circumstances.
124 It is of particular concern that, despite the passage of time, Mr Bohan shows no insight into the effect of his conduct or any acceptance of his 1973 convictions. He has taken no steps to remove himself from coaching young boys or to remove himself from situations that might present a risk.
The effect of future conduct in relation to a child if that future conduct were the same or similar to conduct the subject of - (i) any offence committed; or (ii) any charge against the applicant - s 12(8)(e)
125 Section 12(8)(e) of the Act must also be regarded when considering the time since offending: Lu at [36]. The section was inserted into the Act commencing 6 October 2010. The second reading of the Bill that inserted the provision shows that the legislature sought to distinguish the assessment of the weight to be given to evidence under the Act from the assumptions and considerations that inform the weight traditionally applied to factors in other contexts, such as sentencing and parole of offenders: Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary).
126 By inserting this amendment, the Government intended that, even when an offence against a young person 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 (see Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010, p 24736b 2477a).
127 The effect of a repetition of Mr Bohan's conduct on a vulnerable child has the potential to significantly harm a child.
128 There is nothing that can be considered to amount to exceptional circumstances in favour of Mr Bohan in relation to this factor.
The age of the applicant when the offence(s) were committed or were alleged to have been committed - s 12(8)(c) of the Act
129 Mr Bohan was approximately 40 years of age at the time of the 1973 offences. The boys were 7, 9 and 11 years of age at the time. Mr Bohan was approximately 30 years older than the boys when the offences occurred.
130 Mr Bohan was approximately 60 years of age at the time of the 1993 1994 nonconviction charges. The boy was 11 years old.
131 At all material times Mr Bohan was a mature adult and was significantly older than the children concerned. It cannot be said that Mr Bohan's conduct was the result of any youthful lack of judgment and that he might exercise better judgment as he matures.
132 There is nothing that can be considered to amount to exceptional circumstances in favour of Mr Bohan in relation to s 12(8)(c) of the Act.
The nature of the offence(s) and any relevance they have to childrelated work - s 12(8)(d)
133 The nature of the 1973 offences and the 1993 1994 nonconviction charges are serious and are highly relevant to childrelated work. They arose from Mr Bohan's contact with young boys as a result of coaching junior football.
134 The nature of, and the circumstances surrounding, the 1973 offences and the 1993 1994 nonconviction charges are set out above.
135 In the case of the 1973 offences and the 1993 1994 nonconviction charges:
a) Mr Bohan was coaching young boys;
b) the interaction between Mr Bohan and the boys arose from Mr Bohan meeting the boys through football coaching;
c) the boys the subject of the 1973 offences were aged 7, 9 and 11 and the boy the subject of the 1993 1994 nonconviction charges was 11 years old;
d) the evidence for the 1973 offences establishes that Mr Bowen was sexually aroused by young boys;
e) it is, at the least, odd for a man of Mr Bohan's age at the time of the 1973 offences and the 1993 1994 nonconviction charges to describe young boys as his friends;
f) Mr Bohan tried to contact one of the boys the subject of the 1973 offences after his conviction and in a general, if not a strictly legal sense, stalked the boy the subject of the 1993 1994 nonconviction charges; and
g) Mr Bohan exhibited vindictive characteristics following both of the 1973 offences and the 1993 1994 nonconviction charges.
136 The 1973 offences and the 1993 1994 conviction charges clearly arose out of contact established through Mr Bohan's work coaching young boys. The reason why he wants the negative notice to be cancelled is so that he can coach young boys again. The link between Mr Bohan's contact with, and his coaching of, young boys is clearly very strong. No exceptional circumstances exist in relation to s 12(8)(d) of the Act.
Any information given by the applicant in, or in relation to, the application - s 12(8)(f) of the Act
137 Various submissions were received from Mr Bohan.
138 Mr Bohan provided information about his long career in teaching and a long and successful career in coaching football and cricket. His success is acknowledged (Exhibit 1, Vol 1 page 55 61). He relied upon the benefits to children of his coaching to children (Exhibit 1, Vol 1 page 50).
139 Successful coaching (and whatever benefits may accrue to children from that), is not of itself a reason to disregard the harmful effects of sexual assault on a child.
140 Mr Bohan described the 1973 offences as of 'an isolated nature' (Exhibit 1, Vol 1 page 28).
141 The 1973 offences cannot be viewed as isolated having regard to the circumstances surrounding the 1993 1994 nonconviction charges. In particular, the 1993 1994 nonconviction charges show a complete lack of appreciation of the appropriate boundaries between a mature man and the young boys he coached.
142 Mr Bohan is critical of the police, the boys and the magistrate. He still does not acknowledge his offending behaviour (Exhibit 1, Vol 1 pages 35 41 and 43 45; see also his submissions in support of his application to this Tribunal).
143 It is of concern that in the information provided by Mr Bohan. He states: 'the sending of a negative interim notice based on inaccurate accounts by police has backfired if your intention has been to stop contact with children' (Exhibit 1, Vol 1 page 85). Mr Bohan appears to think that he has outsmarted the system.
144 Mr Bohan had been advised by his probation officer (Mr Saxon), not to be involved with young boys beyond his probation. Nevertheless, Mr Bohan continued to engage with young boys.
145 The fact that Mr Bohan was advised in 1973/1974 to not take the risk of being involved with boys in a particular age group, yet continued coaching young boys, is difficult to understand. It also demonstrates a significant lack of judgement in placing himself in a situation similar to the subject of his previous convictions.
146 Mr Bohan submitted that over the years he had shown that he was not susceptible to irrational periods of judgement (Exhibit 1, Vol 1 page 41). The circumstances of the 1993 1994 nonconviction charges, as well as his 'following' the boy afterwards, show that Mr Bohan's behaviour was totally lacking in judgment.
147 Mr Bohan provided information as to his health in 1973 and the stresses he was under (Exhibit 1, Vol 1 pages 46 47). He appears to blame those stresses for his 'uncharacteristic action' and his attachment to one of the boys. There is no medical evidence to support these allegations.
148 Mr Bohan also relies on his emotions at the time (Exhibit 1, Vol 1 page 48 49). However, his purported explanation really amounts to nothing more than criticism of the boys.
149 Mr Bohan also appears to excuse his conduct on the basis that the boys had subsequently approached him; here the boys 'had apparently not been traumatised to any great degree and that they did not regard that he was an evil person' (Exhibit 1, Vol 1 pages 53 54). Even now, Mr Bohan continues to display a complete lack of insight into his offending behaviour and the potential for harm.
150 Evidence of successfully completed and appropriately targeted counselling together with demonstrated techniques employed to assist Mr Bohan better respond to such stresses in his life would need to be shown before the risk identified can be accepted to have been sufficiently mitigated so as to contribute to the exceptional circumstances in this case.
151 There is conflicting information before the Tribunal in this regard.
152 At a directions hearing in this matter on 1 October 2013, Mr Bohan provided a letter dated 17 July 1975 (Exhibit 1, Vol 5 page 767) that appears to be written on his behalf by a probation and parole officer. The letter is redacted and it is not possible to determine if it is the same probation officer as that in other information before the Tribunal. That correspondence is to the Department of Education at that time and is in respect of Mr Bohan's request for reemployment. It states, among other things, that he reported regularly and cooperated with the probation officer, and that he received psychiatric counselling on a regular basis. Consistent with the Mr Bohan's later submissions to the CEO, the letter acknowledges that Mr Bohan had stated that he was aware at that time of the underlying reasons for some emotional duress he had in the past.
153 Mr Bohan has provided no names or records in relation to the counselling he received and it is not clear what kind of counselling Mr Bohan has received, for how long, and importantly with what success.
154 It is apparent from the information available that Mr Bohan rejected that his conduct in 1973 was indecent immediately following his convictions and this led to the opinion, at that time, that counselling was unlikely to be effective in his case (Exhibit 1,Vol 1 page 122). Dr Rollo, psychiatrist superintendent at that time, commented that Mr Bohan remained determined to go his own way 'with little regard for the legal restraints on him' (Exhibit 1, Vol 1 page 127).
155 It thus remains of concern that in submissions made to the CEO in support of his application some 40 years following the convictions, Mr Bohan accepts that he has those convictions but continues to reject the finding that he actually behaved indecently. This undermines Mr Bohan's claim that he has successfully undergone the type of counselling that would assist him to deal more appropriately with life stresses.
156 Mr Bohan also referred to wishing to interact with his grandchildren and great grandchildren (Exhibit 1, Vol 1 pages 98 99). The WWC Act does not prohibit Mr Bohan's interaction with his own family; it only regulates work that is childrelated work. As long as the activities with his great grandchildren and grandchildren do not involve childrelated work, Mr Bohan is free to interact with his grandchildren.
157 The various submissions and documents provided by Mr Bohan do not provide information, which would constitute exceptional circumstances.
Anything else that the CEO reasonably considers relevant to the decision - s12(8)(g) of the Act
158 A further matter of concern is that Mr Bohan sought to establish a coaching program for young boys outside the official NAB Auskick program (Exhibit 1, Vol 5 pages 807 808). It is of concern that he would seek to establish a program for young boys without the supervision that an official NAB Auskick program might provide.
159 Mr Bohan's explanation was that Auskick required a minimum number of players (Exhibit 1, Vol 6 pages 13 14).
160 Mr Bohan could have volunteered his services at an established Auskick centre and the children could have gone to other Auskick centres. The fact that parents wanted the boys coached at a particular reserve is not sufficient reason to not operate within the WAFL Auskick system. It appears that Mr Bohan is seeking to place himself in a position where there is no supervision of his conduct.
161 Mr Bohan's application contained misleading information. The Tuart Hill Dragons Auskick, as named in the Mr Bohan's 2006 application, was not a registered Auskick program at the relevant times (Exhibit 1, Vol 5 pages 807 - 808).
162 It was later discovered that the employer representative named in Mr Bohan's application, Cheryl Simon, was his daughter (see for example evidence given by Mr Bohan during criminal proceedings at Exhibit 1, Vol 3 pages 526 527).
163 It was also later discovered that the property named as the employer's address was a property owned by him and which had been leased to a tenant, Cindy Eddy, for many years (Exhibit 1, Vol 3 pages 526 - 527). The Electoral Commission has confirmed that according to the Western Australian Electoral Roll, Ms Eddy has been registered at the address since November 1988 (Exhibit 1, Vol 5 page 873).
164 Mr Bohan, even in his application, has been at least 'loose' with the truth.
The best interests of children
165 The 'best interests of children' is the paramount consideration when considering the application. The overriding concern is with the potential for future harm to children.
166 As noted above, there are some factors that provide support for Mr Bohan, including the passage of some 40 and 20 years respectively in relation to the offences and the charges; there has been no further reporting of similar conduct in the last 20 years; and, Mr Bohan has engaged in childrelated work in that time.
167 It is acknowledged that Mr Bohan has coached or has otherwise engaged in childrelated work for a considerable period of time and his endeavours, programmes and skills have aided in the development of a number of young boys.
168 Nonetheless, Mr Bohan's 1973 convictions arose out of his work as a coach of children and he met the boy the subject of the 1993 - 1994 nonconviction charges through his work as a football coach.
169 The nature of the behaviour associated with the 1973 convictions and the associated issues following Mr Bohan's convictions, as well as the circumstances of the 1993 1994 nonconvictions, together with Mr Bohan's perceptions of his behaviour, undermine any satisfaction that exceptional circumstances. Mr Bohan:
• fails to demonstrate insight in relation to the behaviours surrounding the 1973 convictions and the 1993 1994 nonconviction charges;
• continues to deny the sexual aspect of the incident, being the touching of his erect penis against the buttocks of the individual boys;
• admits to unbalanced judgments and overindulgence with one of the boys in relation to the 1973 conviction and subsequently befriending another boy in similar circumstances; and
• demonstrates a significant lack of judgment by placing himself in a similar situation in relation to the circumstances of the nonconviction charge to the circumstances of the previous conviction and by doing so shows a willingness to expose children to situations where they are at risk of harm,
170 Mr Bohan lacks any appreciation of the impact of his activities on the boys the subject of his intent. He describes himself as vindictive towards one of the mothers of the boys the subject of the 1973 offences. His behaviour towards the boy and the boy's mother the subject of the 1993 1994 nonconviction charges exhibits a lack of insight and judgment. Mr Bohan is more concerned with the boys' perception of him than his impact on the boys.
171 Mr Bohan's behaviour demonstrates a lack of any real understanding of his actions upon others. In particular, his vindictiveness has the potential to cause real harm to a child. In 1974, Mr Bohan could have potentially caused emotional or psychological harm to a child, whom he was arguably using to inflict retribution upon the stepmother for 'perceived lies'.
172 The Tribunal has a real concern in relation to Mr Bohan's refusal to acknowledge his wrongdoing in his past. Instead, he continues to challenge the facts and basis of the convictions and the impact of his actions on a young boy (see Pullin JA in Chief Executive Officer, Department of Child Protection v S [2007] WASCA 230 at [14].
173 If Mr Bohan had followed the advice of his parole officer in 1974, he would never have found himself in the position he found himself in 1994, being charged with six offences against young boys.
174 Mr Bohan has never demonstrated any substantial remorse. Such statements of remorse as he has made are essentially selfserving and contradicted by the rest of his statements.
175 Mr Bohan has no insight into the offences. Even on his own oral evidence in the 1973 trial, his behaviour towards the boys was totally inappropriate.
176 Mr Bohan continued to coach young boys and he ignored the very clear advice not to be involved with them.
177 Given his lack of insight and judgment and his proven sexual arousal by young boys, there is an unacceptable risk that Mr Bohan would expose children, (in particular, young boys) to harm if his negative notice were cancelled.
178 The existence of a future risk of physical and sexual harm is assumed by the Act by reasons of harmful conduct in the past. The fact that Mr Bohan has been convicted of Class 2 sexual offences in the past establishes, prima facie, that he may expose children to unacceptable risk of harm should he engage in child-related work. Exceptional circumstances are required before the Tribunal on review is sufficiently satisfied to move from the default position that a negative notice must issue in this case.
179 Mr Bohan has otherwise failed to successfully demonstrate insight or the existence of protective behaviours or techniques sufficient to satisfy that any risk identified by his criminal conduct has been adequately mitigated.
180 The information before the Tribunal, when taken as a whole, is sufficient to sustain a finding that Mr Bohan continues to befriend young boys and has difficulty recognising and drawing appropriate boundaries in his relationships with young boys, with consequent potential to expose those children to mental, emotional and sexual harm.
181 Mr Bohan has not established that there are any exceptional circumstances. The circumstances as a whole are not sufficient to affirmatively satisfy the Tribunal that a negative notice should not issue.
182 The Tribunal is satisfied that there is an unacceptable risk that Mr Bohan might cause sexual or physical harm to children in the course of carrying out childrelated employment. There are no exceptional circumstances that warrant the cancellation of the negative notice.
Order
The Tribunal makes the following order:
- 1. The application for cancellation of the negative notice is dismissed.
- I certify that this and the preceding [182] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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