Chief Executive Officer, Department for Child Protection and Family Support v IGR
[2019] WASCA 20
•1 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT -v- IGR [2019] WASCA 20
CORAM: QUINLAN CJ
MURPHY JA
BEECH JA
HEARD: 18 DECEMBER 2018
DELIVERED : 1 FEBRUARY 2019
FILE NO/S: CACV 18 of 2018
BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Appellant
AND
IGR
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: CURTHOYS J
Citation: G AND CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2018] WASAT 3
File Number : VR 169 of 2016
Catchwords:
Working with Children (Criminal Record Checking) Act 2004 (WA) - Application for an assessment notice - Negative notice issued - Tribunal issued assessment notice on review - Whether Tribunal failed to properly undertake required statutory task in evaluating whether 'unacceptable risk' of future sexual or physical harm to children - Whether Tribunal gave adequate reasons - Turns on own facts
Legislation:
Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(5), s 12(8)
Result:
Leave to appeal on grounds 1 and 2 granted
Appeal allowed
Order of Tribunal set aside
Matter remitted to Tribunal
Category: B
Representation:
Counsel:
| Appellant | : | C J Thatcher SC & H Richardson |
| Respondent | : | S Vandongen SC |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Bowen Buchbinder Vilensky |
Case(s) referred to in decision(s):
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Bohan and Department for Child Protection and Family Support [2014] WASAT 138
Brett v Sharyn O'Neill, Director General, Department of Education [2015] WASCA 66
Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
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; (2011) 214 A Crim R 259
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125
Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206
Falkingham v Hoffmans [2014] WASCA 140; (2014) 46 WAR 510
G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
Legal Professional Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142
M v M [1988] HCA 68; (1988) 166 CLR 69
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Selvanayagam v University of the West Indies [1983] 1 All ER 824
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
JUDGMENT OF THE COURT:
Introduction
In 2006, the respondent was acquitted of sexual offences against his de facto daughter. In 2015, he applied for a working with children permit, referred to as an assessment notice.
The appellant (the CEO) issued a negative notice.
The respondent successfully applied to the State Administrative Tribunal (the Tribunal) for a review of the CEO's decision. The Tribunal ordered that an assessment notice be issued.
The CEO appeals against the Tribunal's decision.[1] The CEO contends that the Tribunal failed to undertake its required task of evaluating whether there was an unacceptable risk, broadly speaking, that the respondent might cause harm to children. The CEO also contends that the Tribunal failed to give adequate reasons for its decision. For the reasons that follow, the second of these contentions must be accepted, the appeal upheld and the proceedings remitted to the Tribunal, differently constituted, for rehearing.
[1] G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3 (primary reasons).
It is convenient to begin by outlining the statutory framework and relevant legal principles.
Statutory provisions and legal principles
As its long title states, the Working with Children (Criminal Record Checking) Act 2004 (WA) (the Act) provides procedures for checking the criminal record of people who carry out, or propose to carry out, child‑related work. The Act also makes provision to prohibit, subject to exceptions, people who have been charged with or convicted of certain offences from carrying out child‑related work.
The central object of the Act was explained by Buss JA (with whom Wheeler JA agreed) in Chief Executive Officer, Department for Child Protection v Grindrod [No 2],[2] as follows:
The subject matter and scheme … 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 work in child-related employment and have been convicted of, or charged with, (including charged with and acquitted of) specific criminal offences. The evident legislative purpose is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in child-related employment who pose or may pose a potential threat.
[2] Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 [76].
The Act prohibits a person from being employed in 'child-related work' unless the person has a current 'assessment notice'.[3] 'Child-related work' is defined in s 6 of the Act.
[3] Section 24 of the Act; Grindrod [No 2] [2]; Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 [30].
Part 2 of the Act provides for notices. Applications for assessment notices are made under s 9 and s 10 of the Act. The CEO is to decide such an application in accordance with s 12, by issuing: (1) an assessment notice, which allows the applicant to engage in child-related work; or (2) a negative notice, which prohibits a person from so engaging.[4]
[4] Section 12(1) and s 23 of the Act; Brett v Sharyn O'Neill, Director General, Department of Education [2015] WASCA 66 [8]; Scott [No 2] [7].
The CEO must decide the application in accordance with any applicable conditions specified in the Table set out in s 12(3). Relevantly, Item 6 of the Table stipulates the applicable provision as s 12(5) where '[t]he CEO is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence.' 'Non-conviction charge' is defined in s 4 to mean 'a charge of an offence that has been disposed of by a court otherwise than by way of conviction'. By s 7, relevant offences are categorised as Class 1 or Class 2 by reference to, amongst other things, schedules 1 and 2, respectively.
Section 12(5) states:
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.
Section 12(8) provides, relevantly:
If subsection (5) … applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular … circumstances of the case having regard to -
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)the effect of the 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.
Section 3 of the Act provides that '[i]n performing a function under [the] Act, the CEO or [Tribunal] is to regard the best interests of children as the paramount consideration'.
In Grindrod [No 2], Buss JA (with whom Wheeler JA agreed) explained the proper construction of what was then s 12(4) and s 12(8) of the Act. Since then, the Act has been amended. What was then in s 12(4) was materially identical to the current s 12(5), with which this appeal is concerned. At the time relevant to Grindrod [No 2], s 12(8) did not include the current par (e), but was otherwise identical. In Chief Executive Officer, Department for Child Protection v Scott [No 2], Buss JA (with whom Newnes AJA agreed) substantially reproduced his Honour's explanation in Grindrod [No 2] in construing the previous s 12(5) (which was, relevantly, identical to the previous s 12(4)) and the previous s 12(8). Buss JA's analysis of the previous s 12(4), s 12(5) and s 12(8) in these cases included the following:
1.Section 12(4) and s 12(5) imposes on the CEO an obligation to evaluate whether or not, because of the particular circumstances of the case, a negative 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.[5]
2.The requisite state of satisfaction required by s 12(4) and s 12(5) must be attained because of the particular circumstances of the applicant's application by reference to the criteria in pars (a) ‑ (f) of s 12(8).[6] The criteria in pars (a) ‑ (f) constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction.[7]
3.Although the CEO must give separate consideration to each of the criteria in pars (a) - (f), each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform.[8] It follows from s 3 that the CEO must regard the criterion in par (a) as the paramount consideration. If and to the extent that, in any case, a criterion in paras (b) - (f) conflicts with the criterion in para (a), the relevant criterion in pars (b) - (f) must yield.[9]
4.The question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) ‑ (f) of s 12(8), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction, a negative notice must be issued. Otherwise, the CEO must issue an assessment notice.[10]
5.Parliament has adopted a precautionary approach in relation to protecting children from the risk of sexual or physical harm, including, relevantly, in relation to the issue of a negative notice to an applicant who has not been convicted of a Class 1 offence or a Class 2 offence, but has a non‑conviction charge in respect of such an offence.[11]
[5] Grindrod [No 2] [65]; Scott [No 2] [101].
[6] Grindrod [No 2] [62]; Scott [No 2] [98].
[7] Grindrod [No 2] [69]; Scott [No 2] [104].
[8] Grindrod [No 2] [70]; Scott [No 2] [105].
[9] Grindrod [No 2] [70] - [71]; Scott [No 2] [105] - [106].
[10] Grindrod [No 2] [74]; Scott [No 2] [108].
[11] Grindrod [No 2] [76] - [78]; Scott [No 2] [109] - [111].
In Grindrod [No 2], Buss JA observed that the relevant statutory provisions do not expressly state what finding, if any, the CEO must make in order to reach the relevant satisfaction.[12] His Honour proceeded to construe the Act to discern what, if anything, is implicit in relation to that question. As the Tribunal made specific reference to, or quoted, a number of the following paragraphs of Buss JA's reasons on that question, it is convenient to set them out in full. His Honour's conclusions included the following:[13]
[12] Grindrod [No 2] [75]; see also Scott [No 2] [112].
[13] Grindrod [No 2] [81], [83] - [87]; see also Scott [No 2] [123] - [128].
[81][I]t is implicit in s 12(4) and (8), in the context of s 3 and [the 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 paras (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.
…
[83]'Unacceptable risk' is a familiar concept in the context of family law disputes in relation to parenting (custody or access) matters. In M v M (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
'Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm' (A v A [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (B v B (Access) [1986] FLC 91-758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk': In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access (78).'
…
[84]It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.
[85]The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, 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 child-related employment. The risk in question has to be unacceptable, not likely. 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. …
[86]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 child-related employment; and
(d)the likelihood of any such future risk materialising.
[87]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, for the purposes of 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. (original emphasis)
In Scott [No 2], Buss JA and Newnes AJA held that, in this context, an appreciable or perceptible risk is an unacceptable risk.[14]
[14] Scott [No 2] [137] - [140], [160].
In Chief Executive Officer, Department for Child Protection v Hardingham,[15] this court considered the Act after it had been amended in the manner to which we have referred. The court described the amendments as 'affect[ing] the detail but not the substance of the Act'.[16] It confirmed Buss JA's approach in Grindrod [No 2] and Scott [No 2], concluding:[17]
The relevant finding for the purposes of s 12(4) (now s 12(5)), is whether on all of the information and other material properly before the decision‑maker, there is an unacceptable risk that the applicant for an assessment notice might in the future cause sexual or physical harm to children in the course of carrying out child‑related employment. The function of the decision‑maker is not to decide whether the applicant for an assessment notice is, or is not, guilty of the non‑conviction charge, but is an assessment of risk with the aim of preventing harm in the future.
[15] Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262; (2011) 214 A Crim R 259.
[16] Hardingham [24].
[17] Hardingham [49].
In Chief Executive Officer, Department for Child Protection v T [No 2],[18] Pullin JA (with whom Newnes JA agreed and Murphy JA generally agreed) confirmed that the task is to determine, on the basis of the information and other material properly before the decision-maker, and having regard to the criteria in s 12(8), whether there is the relevant unacceptable risk, based upon 'facts' or 'reasonable suspicions' bearing upon that risk.[19] Murphy JA stated:[20]
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.
His Honour observed that '"[r]easonable suspicions" may play a proper part in the evaluative process' of determining whether there is an unacceptable risk; however, it is not to be treated as an element of the statutory test requiring its own separate construction and application.[21]
[18] Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206.
[19] T [No 2] [45], [49].
[20] T [No 2] [64].
[21] T [No 2] [59], [62].
Background
On 3 August 2004, the respondent was charged, on indictment, with:[22]
1.five offences of indecently dealing with a child, under the age of 16, known to be his de facto child, contrary to s 329(4) of the Criminal Code (WA) (charges 1, 2, 5, 6 and 8); and
2.three offences of sexually penetrating a child, under the age of 16, known to be his de facto child, contrary to s 329(2) of the Criminal Code (charges 3, 4 and 7).
[22] Primary reasons [1], [53].
All of the charges related to the same complainant (C) who was the child of the respondent's partner (M).[23] Each was alleged to have been committed between May 2002 and June 2003 when C was 12 to 13 years old and the respondent was approximately 48 to 49.[24]
[23] Primary reasons [49].
[24] Primary reasons [53].
M and the respondent began a relationship in approximately October of 2000. They married two years later, on 7 December 2002.[25]
[25] Primary reasons [47].
M had four daughters from two previous relationships: C and her younger sister (S) and their half‑sisters, referred to as S1 and S2. The respondent had two daughters from a previous relationship, referred to as D1 and D2.[26]
[26] Primary reasons [48] - [49].
Charges 1 to 3 related to a series of incidents in a pool on one day (the pool incident). Charges 4 to 6 related to a later incident in a car on the same day (the car incident). Charges 7 and 8 related to separate incidents on different subsequent days.[27]
[27] Primary reasons [52].
On 23 August 2006, after a trial by jury, the respondent was acquitted of all charges.[28]
[28] Primary reasons [2].
The respondent's application for an assessment notice
On 1 September 2015, the respondent applied to the Department for Child Protection and Family Support (the Department) for an assessment notice.[29]
[29] Primary reasons [3].
The offences with which the respondent had been charged, but of which he was not convicted, were Class 1 (sexual penetration) and Class 2 offences (indecent dealing).[30] Therefore, the CEO's decision was governed by s 12(5) of the Act.[31]
[30] Primary reasons [14]; sch 1 and 2 of the Act.
[31] Item 6 of s 12(3) Table of the Act.
On 15 September 2016, a negative notice was issued to the respondent.[32]
[32] Primary reasons [5].
On 12 October 2016, the respondent applied to the Tribunal for a review of the CEO's decision to issue a negative notice.[33]
[33] Primary reasons [6].
On 18 January 2018, the Tribunal set aside the CEO's decision and ordered the CEO to issue an assessment notice.[34]
[34] Order of Tribunal, 18 January 2018; BAB 1.
The Tribunal's reasons
The central issues raised by the parties' submissions on appeal concern the manner in which the Tribunal's reasons are to be construed. The respondent contends, and the CEO denies, that the Tribunal implicitly made a positive finding to the effect that the events the subject of the criminal charges against the respondent did not occur. As we will explain, the merits of the appeal turn on whether, by necessary implication, the Tribunal made such a finding. Consequently, it is appropriate to outline the Tribunal's lengthy reasons in considerable detail. In doing so, we have, broadly speaking, followed the structure and language of the Tribunal, without attempting, at this stage, to distil the reasons or to reconcile any apparent tensions in different parts of the reasons.
The law
The Tribunal outlined the relevant legislative provisions, authorities and applicable principles in a manner consistent with what we have set out above, and which is not challenged on appeal.[35] We will return to the Tribunal's outline of the applicable principles in determining how the Tribunal's reasons are to be construed.
The evidence
[35] Appellant's submissions [33] - [34]; primary reasons [11] - [34].
The Tribunal outlined the evidence before it. This encompassed a number of interviews and examinations of C, including the following, as well as of other family members:[36]
1.C's interview with the Department on 16 June 2003 (C's Department interview).
2.C's witness statement dated 20 June 2003 (C's statement).
3.Pre-recorded evidence of C for the purpose of the respondent's criminal trial.
[36] Primary reasons [36] - [37].
The Tribunal also had before it witness statements of the respondent, D1, M, S1, S2, G's previous wife and a psychologist called by the CEO named Ms Rosemary Cant.[37] Additionally, it had before it a report from a consultant psychiatrist, Professor Lipton, prepared for a predecessor to the Department, for care and protection proceedings by it.
[37] Primary reasons [39].
The Tribunal stated that:[38]
In assessing the weight of the different sources of evidence it is important to bear in mind that the only evidence of C that was tested was the evidence given in C's pre-recording for the criminal trial. [The respondent] also gave evidence in the criminal trial. Statements made other than in a court context, although clearly relevant, do not necessarily have equal weight to evidence given in court proceedings.
The respondent's submissions to the Tribunal
[38] Primary reasons [38].
The Tribunal summarised the respondent's primary submission before it as being 'that the particular circumstances of this case did not override the prima facie position that an assessment notice be issued.'[39]
[39] Primary reasons [41].
The respondent's submissions invited attention to the reason why the respondent had been acquitted.[40] The Tribunal's summary of the respondent's submissions continued, as follows:[41]
[The respondent] denied that the allegations were true.
[The respondent] submitted that C had a history of lying and that she had a motive to lie in that she wanted to live with her father. [The respondent] submitted that the allegations were part of a plan by C to make allegations against [the respondent] so that C could move to her father's place.
[The respondent] further submitted that the evidence 'raised a significant doubt as to whether the first six of the eight counts could have happened at the time she alleged.' [The respondent] alleged that it was physically impossible that the incident as described in count eight could have occurred. (citations omitted)
[40] Primary reasons [42].
[41] Primary reasons [43] - [45].
The final submission of the respondent which the Tribunal recorded is as follows:[42]
[The respondent] submitted that it was of particular significance under s 12(8)(b) of [the Act] that the alleged incidents occurred in 2002 - 2003 and the application was made in 2016 without any intervening incidents.
Evidence of potential grooming before the alleged conduct
[42] Primary reasons [46].
The Tribunal described submissions that the CEO made about 'grooming' as 'extremely generalised'.[43] However, it stated that 'the signs of potential grooming are warning signs to which the Tribunal must pay particular attention.'[44]
[43] Primary reasons [55] - [56].
[44] Primary reasons [56].
The Tribunal noted evidence, including in C's pre-recorded evidence, of 'rough housing' between the respondent and C, prior to the alleged conduct, and between the respondent, C and S.[45] It appears to have accepted that roughhousing occurred, as it went on to state that '[t]hese actions are potentially evidence of grooming'.[46] However, the Tribunal did not find that this conduct was grooming. It referred to, and accepted, Ms Cant's evidence in cross-examination that actions that may constitute grooming may also be consistent with innocent behaviour.[47]
[45] Primary reasons [61] - [64].
[46] Primary reasons [65].
[47] Primary reasons [65].
It noted the circularity in Ms Cant's evidence on grooming which made it difficult to rely on grooming evidence as evidence of truth of the allegations. It concluded that '[e]vidence of grooming is likely to be more relevant to penalty if a person is convicted'.[48]
The history of disclosure
[48] Primary reasons [66].
C's evidence was that she told S1 what had occurred prior to her mother's wedding on 7 December 2002.[49] The Tribunal noted an inconsistency as to the timing of disclosure between C's evidence, and that of her mother and father (F) and the respondent.[50] The Tribunal resolved that inconsistency in favour of M, F and the respondent's evidence. Therefore, the Tribunal found that the probability was that disclosure did not take place until late February 2003.[51]
[49] Primary reasons [67].
[50] Primary reasons [68].
[51] Primary reasons [79], [83].
The Tribunal referred to the respondent's evidence of an occasion on which C was unconcerned at dinner when earlier that day S1 had told M that C had disclosed to S1 that the respondent had indecently dealt with C.[52]
[52] Primary reasons [73].
The Tribunal noted that the respondent was aware of the allegations concerning the pool incident by no later than late February 2003.[53]
[53] Primary reasons [74].
The Tribunal found that, if the alleged pool incident occurred, it occurred in early to mid‑2002 and no later than 19 October 2002.[54]
[54] Primary reasons [86].
The Tribunal did not attach any significance to the delay in the complaint. In that respect, it accepted the CEO's submissions, which pointed to the facts that:
1.there was no evidence in the respondent's criminal trial in relation to disclosures;
2.the trial judge directed the jury that C's delay in complaint was not indicative of a false account; and
3.this was consistent with literature and research in relation to disclosure of abuse by children, delays in doing so and the many reasons why that may occur.[55]
[55] Primary reasons [54], [87].
The Tribunal found that, following C's disclosure, a family meeting was held. It referred to M's evidence, unchallenged in cross-examination, that the respondent wanted to go to the police.[56] It stated that '[i]t seems unlikely that if [the respondent] had committed the offenses [sic] he would have wanted to go to the [p]olice'.[57]
[56] Primary reasons [75].
[57] Primary reasons [75].
The Tribunal noted inconsistency of evidence in C's statement, that after her disclosure her mother said that someone would come out and see her, with the evidence of M, F and the respondent.[58] The Tribunal accepted that it was reasonable to suspect on all of the information before it, that M did not believe the allegation and did not report it to investigating authorities.[59] However, it found that M did not ignore C; she contacted the school and arranged for C to see the school psychologist.[60]
[58] Primary reasons [69].
[59] Primary reasons [78] - [79].
[60] Primary reasons [76], [79].
The Tribunal found that C refused to see the school psychologist.[61] The Tribunal noted the respondent's evidence that M told him that C had threatened to run away if she was made to see the psychologist.[62] It also recorded F's evidence that C had refused to see the psychologist and had threatened to run away if she were made to do so.[63]
[61] Primary reasons [76].
[62] Primary reasons [76].
[63] Primary reasons [77].
The Tribunal accepted that, following C's reluctance to see a psychologist, nothing further in relation to the allegation occurred until allegations later came to the attention of investigating authorities.[64] They did so when C made disclosure to a teacher who then made an appointment for C to see the school psychologist. The psychologist then contacted the Department.[65]
[64] Primary reasons [78] - [79].
[65] Primary reasons [92], [94].
The Tribunal found that C saw the school psychologist on 5 June 2003 and 6 June 2003.[66] It noted that 6 June 2003 was the first recorded reference to the car incident by the complainant.[67] It observed:[68]
Given that the alleged incident [the subject of charge 8] occurred on 4 June 2003, it is difficult to understand why C did not refer to this in her disclosure to the teacher or to the school psychologist the following day (5 June 2003) or to the school psychologist when C saw her again on 6 June 2003. The Tribunal accepts that abused children may not report all of the details of the abuse at once. However, this is not a case of not reporting all the details of the abuse at once, but of not reporting an act of abuse that had allegedly occurred the day before in the context of reporting other incidents.
The accuracy of dates
[66] Primary reasons [95], [97], [98].
[67] Primary reasons [93].
[68] Primary reasons [98].
While the Tribunal accepted that C did not have an accurate sense of dates, it observed that she was consistent in placing the alleged conduct in relation to events and in saying that the incidents in the pool and in the car occurred on the same day.[69]
The pool incident: counts 1 - 3
[69] Primary reasons [101].
In C's statement and Department interview, C asserted, in broad summary, that, before his wedding to her mother, while she and the respondent were roughhousing in the pool at her grandmother's house, the respondent had put his hand inside her bathers and touched both her breasts and her vagina.[70]
[70] Primary reasons [105] ‑ [106].
The Tribunal observed that there were elements of C's evidence that were incorrect on an objective basis.[71] The Tribunal gave, as an example, the fact that the television program, which C had said in cross-examination that she had watched after the pool incident, had not been broadcast for about 18 months prior.[72]
[71] Primary reasons [104].
[72] Primary reasons [104], [110].
The Tribunal recorded the respondent's evidence that someone in the sunroom of the house could see into the swimming pool area.[73] It found that C's evidence that her grandparents and M were at the house when she left the pool made it likely that they were there during the incidents, if they occurred.[74] The Tribunal then stated:[75]
Sexual predators can be extremely audacious. One might have thought that the fact that family members might happen on the scene at any moment and potentially see the alleged conduct suggests that it less likely [sic] that the conduct occurred than if the alleged conduct occurred in the absence of people other than the alleged predator and the victim. However, Ms Cant's report suggests that whilst it may reduce the extent of the abuse, it does not necessarily prevent the abuse completely[.]
[73] Primary reasons [111].
[74] Primary reasons [112].
[75] Primary reasons [113].
The Tribunal found that C's grandparents left the country on 19 October 2002 and returned on 1 December 2002.[76] Consistently with its finding outlined at [43] above, the Tribunal stated:[77]
The evidence establishes that if the pool allegations, and therefore the car allegation, took place it was before 19 October 2002[.]
[76] Primary reasons [114].
[77] Primary reasons [116].
The Tribunal recorded the respondent's denial of the pool incident.[78] It also noted S's evidence that the respondent had swum in the pool with them only twice and that she had not seen C and the respondent roughhouse in the pool.[79]
The car incident: counts 4 - 6
[78] Primary reasons [117].
[79] Primary reasons [118].
In C's statement and in her Department interview, C said, in broad summary:
1.Later on the same day as the pool incident, C, S, M and the respondent all travelled to a country property. The respondent and C went in one car. M and S went in the other car.
2.While the respondent was driving, he reached over to C, who was in the front passenger seat, put his hand in her knickers, touched her vagina and inserted his fingers into her vagina. He then touched her breasts under her bra.
3.After removing his hand from her breast, the respondent put his hand under her knickers and touched her vagina again.[80]
[80] Primary reasons [119] ‑ [120].
The Tribunal rejected the suggestion made in cross‑examination that she would not have gotten into the car with the respondent if the pool incident had occurred as she had described it. The Tribunal accepted Ms Cant's evidence that victims of sexual assault may well continue to associate with the person who has sexually assaulted them.[81]
[81] Primary reasons [124].
The Tribunal recorded that the respondent denied the car incident occurred.[82]
[82] Primary reasons [125].
The Tribunal found that the evidence was not sufficient for it 'to conclude that there was some physical limit whilst driving [the respondent's] car to prevent him reaching across to reach the radio or the other passenger seat'.[83]
[83] Primary reasons [128].
The Tribunal considered the fact that the respondent had lost his right eye during his childhood as being '[o]f more significance'.[84] It noted the respondent's evidence that when he drives he looks more to the right hand side than straight ahead and that he could not afford to take his eye of the road because he only has one eye.[85] It also noted C's statement, in cross‑examination, that she was on the respondent's left side.[86] The Tribunal stated:[87]
The Tribunal accepts that there would be difficulties in keeping sight of the road whilst reaching over to the passenger seat from the driver's seat, particularly when travelling at 100 kilometres per hour. That does not exclude the possibility of someone being able to reach over to a passenger whilst driving at the same time.
[84] Primary reasons [129].
[85] Primary reasons [129].
[86] Primary reasons [130].
[87] Primary reasons [129].
The Tribunal identified undisputed evidence that extensive work had to be carried out to the country property in February 2003 to repair white ant damage.[88] It referred to the respondent's evidence that:
1.Renovations began in February 2003 (supported by photographs, including one showing work in C's bedroom which was dated around 10 March 2003).[89]
2.The family did not move to the country property until about 13 March 2003.
3.Nothing was moved into the country property until March 2003.[90]
[88] Primary reasons [145].
[89] Primary reasons [132].
[90] Primary reasons [132] - [133].
The Tribunal observed that the respondent accepted that he travelled back to the country property a couple of times a week to maintain the horses and get into the office and that on occasions he would have taken M, C and S.[91]
[91] Primary reasons [134].
Among other things, the Tribunal referred to the conflicting evidence of the respondent, that items were moved from the country property, and of C (initially), that during the car incident items were being moved to the country property.[92] The Tribunal found:[93]
It is logical that items would be moved from the country property prior to the wedding given that [the respondent] had moved in in September. There is no logical basis for C's books and toys having been moved to the country property before the family moved in in March 2003, or at least until the renovations were finished.
[92] Primary reasons [140], [147].
[93] Primary reasons [147].
The Tribunal did not accept submissions of the CEO alleging inconsistencies in the respondent's evidence.[94] It expressly rejected several of the CEO's submissions attacking the respondent's version of events.[95]
[94] Primary reasons [136].
[95] Primary reasons [149] - [152].
The Tribunal then made the following findings and observations:[96]
[153]C's evidence was that she and [the respondent] had left for the country property around dusk. One can reasonably assume therefore that by the time the country property was reached, 45 minutes to an hour later, it was dark. No rationale was offered for going to the property other than to take C's toys and books. As noted above, it is unlikely that that would happen in October 2002. There is no explanation as to why [the respondent] and M and C and S would have gone down there at dusk simply to take C's books and toys. One assumes that if there was work to be done with the horses or chores that that would have been done during daylight. The Tribunal does not regard [the respondent's] statement regarding 'late at night' as opposed to 'in the evening' to be of any significance. [The respondent's] concession that it 'might have been possible' simply recognises that things are possible. It doesn't amount to a concession that C's toys and books were taken down.
[154]The objective evidence was that significant repairs were necessary to the country property. The evidence is that those repairs were carried out in February 2003. [The respondent] had moved into the suburban property in September 2002. Although the CEO has pointed to minor inconsistencies in [the respondent's] evidence, in the context of the overall evidence it is difficult to see why C and M would have been moving possessions, particularly C's books and toys, to the country property in October 2002 when [the respondent] had moved into the city property in September - a month before.
[155]It is also important to bear in mind in relation to the car incident that the allegation was that it occurred after the alleged pool incident on the same day. The reasons why the family would not have gone down after being at the grandparents and before the wedding make sense in that context. There were obvious reasons for [the respondent] to go to the country property and he did not seek to avoid that in his evidence before the Tribunal.
[156]The evidence that it was not an unlikely event to take two cars down to the country property does not provide a basis for concluding that two cars were taken down prior to the wedding for the purpose of moving items to the property. Given that the allegation is that counts 1 to 6 are alleged to have occurred on the same day, when the incidents are looked at overall, there are significant improbabilities in C's evidence. (emphasis added)
The beach incident: count 7
[96] Primary reasons [153] ‑ [156].
C's statement and evidence in relation to count 7 was, in summary, that the respondent touched her on, and inserted his finger into, her vagina while roughhousing in the water at the beach with her and S.[97]
[97] Primary reasons [157].
The Tribunal noted a timing inconsistency between C's statement and an aspect of her oral evidence.[98] It observed that, apart from this, her evidence-in-chief was consistent with her earlier statements.[99]
[98] Primary reasons [158].
[99] Primary reasons [159].
The Tribunal referred to largely neutral evidence of S that she went to the beach with C and the respondent.[100] It recorded that the respondent denied that any incident occurred.[101]
[100] Primary reasons [160] ‑ [161].
[101] Primary reasons [162].
The Tribunal then concluded:[102]
Essentially there is no objective evidence. It is a credibility question as between [the respondent] and C.
The incident in the passageway: count 8
[102] Primary reasons [164].
C's statement and evidence in relation to count 8 was, in summary, that, in June 2003, while roughhousing with C and S in a passageway of their house, the respondent touched C's breast, after repeated attempts.[103] C's evidence was that S was facing the other way, 5 cm away from her and did not know what happened to her.[104]
[103] Primary reasons [166].
[104] Primary reasons [166].
The Tribunal noted the consistency between C's evidence in her Department interview, evidence‑in‑chief and statement.[105]
[105] Primary reasons [165] - [167].
The Tribunal referred to S's evidence which corroborated that roughhousing did occur.[106] It recorded the respondent's denial and features of his evidence which would make the incident's occurrence less likely.[107]
[106] Primary reasons [169].
[107] Primary reasons [168].
The Tribunal then stated:
[171]Again, this allegation essentially turns on the credibility of [the respondent] and C.
[172]However, the Tribunal notes that whilst it is not impossible to do so, it is difficult to see how C and S could have been back to back in a 900 millimetre passage having regard to C's size.
[173][The respondent] had been aware of the allegations made against him by C in late February 2003. One should not doubt the audacity of sexual predators, but it seems reasonable to infer that the fact that an allegation had been made makes it less likely that someone would have engaged in such behaviour once such allegations had been made.
C's character
The Tribunal considered C's character in detail.
It set out the CEO's extensive submissions on the subject, including submissions which referred to evidence that when C was about 11 she wrote a plan in a notebook and which was suggested to C to be deceitful.[108]
[108] Primary reasons [174].
The Tribunal concluded that 'the evidence establishes that C had a history of lying'.[109] It referred to C's ready admission in cross‑examination that she used to tell lies and stole $50 from F's wallet.[110] It also referred to evidence from M and D1 about C's deceitfulness.[111] Further, it referred to evidence of views expressed by various family members at a family meeting on 1 July 2003.[112]
[109] Primary reasons [180].
[110] Primary reasons [179].
[111] Primary reasons [177] - [178].
[112] Primary reasons [176].
In addition, the Tribunal referred to evidence of M and C's grandmother about C's allegations of a previous incident involving a male in a park.[113] It concluded that: 'It is difficult to know what to make of these incidents. It perhaps suggests a history of embellishing events by C'.[114]
[113] Primary reasons [182], [184].
[114] Primary reasons [185].
The Tribunal quoted passages from C's cross‑examination and re‑examination in which she admitted that she did not like the respondent and wanted to get rid of him, but denied that, to that end, she had made up the allegations.[115]
[115] Primary reasons [186], [188], [189].
The Tribunal appeared to find that C felt as if she was on the outer in relation to her family.[116] The Tribunal found that C was clearly eager to move in with F, but that there were difficulties in her doing so.[117] The Tribunal accepted evidence of M, that:[118]
1.C was very reluctant to move with her and the respondent to the country property and at one point in time had made arrangements to live with a friend instead, although she did not follow through with it.
2.She recalled F telling her that it would take something extremely serious or dramatic before he would be prepared to have C come and live with him on an ongoing basis, as his new partner did not want her to.
3.F's reason for telling her that was that C had asked him if she could leave the country property and go and live with him.
[116] Primary reasons [181].
[117] Primary reasons [192], [194].
[118] Primary reasons [190], [192].
It also noted that the respondent gave evidence to the contrary that, when it was decided that C should go to F's one day, C was 'unhappy and was begging her mother not to take her to [F's]'.[119] The Tribunal noted that this statement was:[120]
against [the respondent's] interests in that it is counter to the narrative that C wished to move to her father's place. Nonetheless, [the respondent] was still prepared to make it. This suggests that he was trying to give his evidence honestly.
[119] Primary reasons [194].
[120] Primary reasons [195].
The Tribunal found that if it was C's goal to live with F, she had achieved that goal by mid-June 2003. It observed that, thereafter, it might have been difficult for C to resile from what she had said about the respondent's conduct.[121]
[121] Primary reasons [198].
The Tribunal found that the evidence established that C's family, including M and her extended family but apart from F, did not believe C about her account of the respondent's conduct.[122]
[122] Primary reasons [196].
After setting out an extract from Professor Lipton's report, the Tribunal made the following observations:[123]
C's neutral emotions about [the respondent] are to be contrasted with her expressive emotions about her parents' separation and her perception of the way her mother treated her. C's emotions appear to be directed to her mother rather than to [the respondent].
[123] Primary reasons [202].
The Tribunal found that 'there was information and evidence that support[ed] the allegation that C was motivated to fabricate and continue with allegations so that she could move in with and remain with F'.[124]
C's possible knowledge of sexual molestation
[124] Primary reasons [204].
The Tribunal referred to evidence relating to C's exposure to magazine articles on sexual abuse and pornography.[125] It concluded that '[t]here is at least some evidence that is consistent with C having information upon which to base her allegations of sexual assault'.[126] Later in its reasons, the Tribunal observed that 'Professor Lipton did not suggest that C did not have adequate knowledge to conclude that C could not have made up the details of the assault'.[127]
C's actions, allegedly inconsistent with having been sexually assaulted
[125] Primary reasons [205] - [208].
[126] Primary reasons [209].
[127] Primary reasons [267].
The Tribunal did not accept that the fact that C continued to associate with the respondent, and that she was part of his wedding to M, was inconsistent with her allegations.[128] It observed that Ms Cant's expert evidence established that a victim of sexual assault will often continue to associate with the offender.[129]
The respondent's behaviour towards other female family members
[128] Primary reasons [212].
[129] Primary reasons [212].
The Tribunal referred to evidence and statements from M, the respondent's ex‑wife, D1, D2, S2 and S.[130] The Tribunal found:[131]
There was no suggestion from any other female family member that they had any apprehension about [the respondent] or that he had acted inappropriately towards them. This evidence is significant in light of Professor Lipton's comments[.]
Ms Cant's expert evidence
[130] Primary reasons [213] ‑ [218].
[131] Primary reasons [219].
The Tribunal described the report of the CEO's expert psychologist witness, Ms Cant, as 'necessarily of a general nature' as she did not interview C or any of C's extended family.[132] The Tribunal observed that her report was based on her experience as a psychologist dealing with child abuse cases and the scientific research it cited.[133]
Professor Lipton's report
[132] Primary reasons [220].
[133] Primary reasons [221].
The Tribunal stated that Professor Lipton 'was obviously engaged by [the relevant] Department because of his expertise in child abuse and child abuse appraisals'.[134] The Tribunal emphasised that Professor Lipton had the considerable advantage of having interviewed C and her extended family, and preferred his conclusions to those of Ms Cant.[135]
[134] Primary reasons [222].
[135] Primary reasons [228], [237].
The Tribunal set out lengthy passages of Professor Lipton's report, including the following:[136]
[136] Primary reasons [223].
1. Whether it is likely that [C] has been sexually abused as she alleges (or in any other manner) by [the respondent].
…
These comments open the way to three possibilities.
·That the molestation occurred as described.
·That in a rough and tumble or other play there was accidental contact between [the respondent] and [C's] genitals. In this case it is a possibility that, in imagination or fantasy, she developed the beliefs she has expressed. Such a development might well be unconscious and be firmly believed by the child. If this is a possibility her behaviour may well be influenced by some of the above mentioned issues such as seeking some notoriety, troubling her mother or gaining the advantage of living with her father.
·That the alleged episodes are a fabrication to manipulate her environment and those in it with a secondary gain of upsetting her mother, living with her father etc.
I cannot refute the first possibility and I have not had access to information which was hinted at by [the respondent's ex-wife] and which will be in the hands of the court. In view of the fact that men who undertake paedophilic behaviour are likely to have a history of that behaviour it is unfortunate that I do not have information about [the respondent's] history with his own daughters and perhaps with [the respondent's ex-wife's] older daughters.
In my view it is very difficult to take a clear view on the probability of the alleged offence to have occurred or not [sic]. Information may emerge in the court proceedings that support or fail to support the allegation but at the moment I am professionally inclined to favour the second or third possibilities.
2. Whether it is likely that [S] has been abused by [the respondent] or has been the target of grooming behaviour by [the respondent].
…
My professional view is that [S], despite her defensiveness generally, did seem to evince positive feelings for [the respondent] and gave no evidence of feeling unsafe with him or of being abused. (emphasis added)
The Tribunal noted that the evidence of G's ex-wife, D1, D2 and S2 was effectively that no abuse occurred.[137]
[137] Primary reasons [224].
The Tribunal went on to reject criticisms of Professor Lipton's report made in the CEO's submissions and by the CEO's expert, Ms Cant.[138]
The respondent in a position of trust and authority
[138] Primary reasons [225] - [236].
The Tribunal accepted the CEO's submission that, as a stepfather, the respondent was in a position of trust and authority.[139]
Strengths and weaknesses of the case
[139] Primary reasons [238].
The Tribunal observed that the case at trial was 'essentially one of word against word'.[140] It noted that 'in terms of reaching the criminal standard of proof, such cases are often difficult' and said that it could not be described as a strong case applying the criminal standard of proof.[141] In the context of the Tribunal's function, the purpose of characterising the strength of the case by reference to the criminal standard is, with respect, not altogether clear.
[140] Primary reasons [240].
[141] Primary reasons [240].
The Tribunal considered that '[t]he real strength of the case lies in C's consistency, both over time and under cross-examination'.[142]
[142] Primary reasons [244].
The Tribunal found that:[143]
The weaknesses in the case were that [the respondent] persistently denied the allegations and C's evidence, although consistent, has elements that were problematic. C had a history of untruths.
The CEO's submissions on the law
[143] Primary reasons [247].
The Tribunal accepted the CEO's submissions that:[144]
… 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.
[144] Primary reasons [249], quoting Bohan and Department for Child Protection and Family Support [2014] WASAT 138 [107].
In response to the CEO's submission that scientific literature suggests that false allegations of sexual abuse are rare, the Tribunal made the following observations:[145]
The problem with relying on scientific literature … is that C was interviewed by Professor Lipton at the request of the relevant Department, who concluded that he was professionally inclined to favour two possibilities, including a possibility that the alleged episodes were a fabrication. Even if they are rare, Professor Lipton, who interviewed C, concluded that in this specific instance he did not favour the possibility that sexual molestation had occurred.
It also relied on this reasoning to reject the CEO's submission that it was not reasonable to suspect that C was motivated to fabricate and maintain the allegations.[146]
[145] Primary reasons [253].
[146] Primary reasons [258] ‑ [259].
The Tribunal recorded the CEO's submission that C's account of alleged conduct had not been undermined sufficiently for the Tribunal to exclude, on reasonable suspicion or the balance of probabilities, the possibility that the applicant sexually abused her.[147] The Tribunal rejected this submission, reasoning as follows:[148]
… Grindrod read as a whole, is not authority for the CEO's proposition. The test is as set out in Grindrod above; that is, in order to issue a negative notice the Tribunal must be satisfied affirmatively on all the information and other material properly before it that in [sic] there is an 'unacceptable risk' that [the respondent] might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment.
There is no obligation on an applicant to undermine a complainant's account sufficient for the Tribunal to exclude that the applicant sexually abused the complainant.
[147] Primary reasons [255].
[148] Primary reasons [256] ‑ [257].
As will be seen, the Tribunal rejected, on several occasions, this consistent theme of the CEO's submissions.[149]
[149] See the Tribunal's rejection of pars 432 and 483 of the CEO's submission, referred to at [103] and [106] below, respectively.
The Tribunal stated the following, in rejecting a submission of the CEO that it was reasonable to suspect that there was an occasion where the respondent and C were in the pool together, before the pool incident was alleged to have occurred:[150]
For the reasons stated, and in particular C's consistent evidence that the incident occurred before the wedding, it is 'not clear' that there was an incident in the pool as alleged. The Tribunal notes that the test is not whether it was 'clear'.
[150] Primary reasons [260] - [261].
The Tribunal recorded the following submission of the CEO:[151]
[151] Primary reasons [264].
428.It is contended that, on the information as a whole, C's account was credible and authentic. It is reasonable on the information before the Tribunal to conclude that:
•C was a child in an emotionally vulnerable position within her family;
•Her mother's work, interests, and other children meant that M was often physically absent or, as perceived by C, not able to dedicate significant time to her.
•The [respondent] was available to fill the breach and undertook tasks in relation to the care of the children on M's behalf;
•C confided in peers rather than directly approaching adults or persons in authority about the allegations;
•Both C and S described roughhousing with the [respondent];
•C referred to what she initially thought was accidental touching during roughhousing. Such conduct is known to be engaged in by perpetrators to desensitise children to sexual touching and gradual boundary crossing;
•In the context of the dynamics of child sexual abuse and process perpetrators are known to be employ [sic], the time passed between accounts and any 'flaws' identified in C's account of the allegations are not sufficient to support a conclusion that they were fabricated;
•C continued with her allegations despite having moved in with F and S by June of 2003, and notwithstanding the isolation from M and her extended family that resulted from her allegations. C continued to subject herself over the next 18 months (approximately) to several interviews, medical and psychological examinations, and cross‑examination notwithstanding.
The Tribunal stated that these submissions had 'been dealt with above', not specifying where, in the preceding 264 paragraphs, this was done.[152] The reference to 'submissions' suggests that the Tribunal was responding to the various dot points set out in para 428 of the CEO's submissions. It is not clear whether and, if so, in what manner, the Tribunal was responding to the CEO's overarching submission that, on the information as a whole, C's account was credible and authentic.
[152] Primary reasons [265].
The Tribunal recorded the following submissions of the CEO:[153]
430.It is not the function of the decision-maker under the Act or the Tribunal on review to determine or re-determine the applicant's guilt or innocence: Grindrod at [84]; Hardingham 2 at [59]; T at [59]; Hardingham 3 at [39].
431.Relevantly a finding that an allegation of abuse has occurred is not required before the decision-maker may be satisfied that the applicant represents an unacceptable risk of harm to children in the course of child-related work: Grindrod at [84] ‑ [85]; see also T at [44] ‑ [46].
432.For the reasons set out above it is contended that, on the [sic] all of the information as a whole, the Tribunal cannot be satisfied that the [respondent] did not sexually abuse C: refer Grindrod [82] - [85].
The Tribunal stated that 'the test submitted by the CEO is that the Tribunal cannot be satisfied that the applicant did not sexually abuse C. That is not the test set out in Grindrod'.[154]
The section 12(8) factors
[153] Primary reasons [268].
[154] Primary reasons [269].
The Tribunal dealt individually with the factors set out in pars (a) to (f) of s 12(8). All that was said in relation to s 12(8)(a) is as follows:[155]
Paragraph 475 of the CEO's submissions stated:
475.The risk of sexual harm to a child from a person in a position of trust and authority over them is an unacceptable risk and the best interests of children would not be served by exposure to that risk.
The fact that a person is in a position of trust and authority is not of itself sufficient to justify the issue of a negative notice.
[155] Primary reasons [271] ‑ [272].
The effect of the Tribunal's findings concerning the other s 12(8) factors is, as is common ground on appeal, as follows:
1.As to s 12(8)(b), the Tribunal considered that the long interval between when the offences were alleged to have taken place and the date of the Tribunal's hearing favoured the grant of an assessment notice but was not of itself sufficient to justify such a grant.[156]
2.As to s 12(8)(c), the Tribunal concluded that the ages of the respondent and C, during the relevant period, was not a factor that would reduce any risk that might otherwise be identified.[157]
3.As to s 12(8)(d), the Tribunal found that the nature of the offences alleged against the respondent were highly relevant to child-related work.[158]
4.As to s 12(8)(e), the Tribunal acknowledged that if future conduct by the respondent was the same or similar to the alleged conduct it would adversely affect a child.[159]
5.In considering s 12(8)(f), the Tribunal referred to submissions, and character references of the respondent tendered at trial. The respondent accepts that the Tribunal referred to nothing else favourable to him. [160]
The CEO's concluding submissions
[156] Primary reasons [276]; appellant's submissions [58]; respondent's submissions [13].
[157] Primary reasons [277]; appellant's submissions [59]; respondent's submissions [13].
[158] Primary reasons [278]; appellant's submissions [60]; respondent's submissions [13].
[159] Primary reasons [279]; appellant's submissions [61]; respondent's submissions [13].
[160] Primary reasons [281] - [283]; appellant's submissions [62]; respondent's submissions [13].
The Tribunal recorded the following submissions of the CEO:[161]
[161] Primary reasons [286].
481.It is contended on the information before the Tribunal and for the reasons set out above particular circumstances have been identified in this case sufficient to refuse the application to set aside the original decision.
482.In summary those circumstances include:
•C's account of the [respondent's] alleged conduct was credible and plausible, and they cannot be characterised as inherently unlikely.
•C gave authentic description of the allegations consistent with tactics perpetrators are known to employ in order to build trust and desensitise and prepare children for sexual abuse;
•It is not reasonable to suspect that C had sophisticated knowledge of perpetrator conduct to inform and give plausibility to a fabricated account in this regard;
•No motive for such a fabrication has been established and C maintained the allegations for 2 years under considerable pressure to withdraw those allegations;
•While the [respondent] adamantly denied the allegations, important aspects of his evidence at trial has [sic] been undermined by information obtained outside of those proceedings.
483.The Tribunal cannot be satisfied on the information as a whole that the [respondent] did not sexually abuse C.
484.Where the information identifies risk of potential harm that is serious (such as sexual abuse), even a minimal risk that it might occur will be sufficient to regard the risk as an unacceptable one.
485.When all the circumstances as a whole are considered, it is contended that particular circumstances as required by section 12(5) of the Act have been identified in this case sufficient to satisfy the Tribunal that the [respondent] would expose children to an unacceptable risk of harm in the course of child-related work.
486.Where the Tribunal is so satisfied it may affirm the decision of the [CEO] to issue the [respondent] with a negative notice prohibiting him from engaging in child-related work: s 29(3)(a) of the State Administration Act.
The Tribunal stated that these submissions had been dealt with above.[162] Again, it is somewhat unclear which parts of the preceding 88 pages were being referred to as 'above'.
Conclusion
[162] Primary reasons [287].
The Tribunal concluded, as follows:
[288]When dealing with a non-conviction the Tribunal's task is more difficult than if there is a conviction. When such allegations are made the Tribunal will always be concerned that there is a risk, even if there is a non-conviction. However, the standard is not whether there is a risk, but whether that risk is unacceptable.
[289]In determining of [sic] whether there is an acceptable risk the Tribunal must have regard to all the s 12(8) factors identified in [the Act], although the paramount factor must be the best interests of children. The Tribunal has considered each of the factors as set out above. The Tribunal is not satisfied that there is an unacceptable risk to a child materialising if an assessment notice is issued to [the respondent].
[290]The Tribunal is not satisfied affirmatively on all the information and other material properly before it that in [sic] there is an unacceptable risk that [the respondent] might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment.
Grounds of appeal
The CEO advances two grounds of appeal, substantially as follows:
1.The Tribunal erred in law in finding at [290] that he was not satisfied that there was an unacceptable risk that the respondent might, in future, cause sexual or physical harm to children in the course of carrying out child-related employment; having not found that the non-conviction charge allegations were false, the Tribunal failed to analyse and evaluate:
(a)the degree of any future risk to children if the respondent was issued an assessment notice; and
(b)the likelihood of any such future risk materialising.
2.Alternatively, the Tribunal erred in law by not providing adequate reasons for his ultimate finding at [290] in that he failed to disclose the actual path of reasoning that led to the finding, thereby giving rise to a miscarriage of justice.
The ambit of an appeal against a decision of the Tribunal
An appeal against a decision of the Tribunal can only be brought on a question of law.[163] Leave is required.[164] The principles governing whether an appeal is brought on a question of law are well known and need not be repeated. See, for example, Paridis v Settlement Agents Supervisory Board;[165] Medical Board of Australia v Woollard.[166]
[163] State Administrative Tribunal Act 2004 (WA), s 105(2). The exception in s 105(13) does not apply to this case.
[164] State Administrative Tribunal Act, s105(1).
[165] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] ‑ [57].
[166] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [152] ‑ [154].
The principles governing the grant of leave to appeal, as explained in Paridis v Settlement Agents Supervisory Board,[167] have been applied in many cases. See, for example, Legal Professional Complaints Committee v Rayney;[168] and Scaffidi v Chief Executive Officer, Department of Local Government and Communities.[169]
[167] Paridis v Settlement Agents Supervisory Board [16] ‑ [18].
[168] Legal Professional Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142 [87].
[169] Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [207].
By s 105(12) of the State Administrative Tribunal Act 2004 (WA), any leave to appeal granted to the decision‑maker is to be granted on the condition that the costs of the other party are met by the decision‑maker, unless the court considers that the imposition of such a condition would be unjust or unreasonable. The CEO accepts that such a condition is appropriate.[170]
[170] WAB 29.
Adequacy of reasons for decision: legal principles
Principles relevant to an evaluation of the adequacy of reasons include the following:
(1)Reasons for decision need not be lengthy or elaborate.[171]
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.[172]
(3)It is not necessary to refer to every submission advanced by a party.[173] However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.[174]
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence.[175] An appellate court may take into account what can legitimately be inferred from the reasons.[176] Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration.[177]
[171] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [28].
[172] Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226, 248; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121 [32]; Scaffidi [201].
[173] Scaffidi [202], citing Centex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [103](c).
[174] Scaffidi [202], citing Mount Lawley v Western Australian Planning Commission [28], Centex [103].
[175] Garrett (248); SNF v Jones [32]; Falkingham v Hoffmans [2014] WASCA 140; (2014) 46 WAR 510 [304].
[176] Bennett v Carruthers [2010] WASCA 131 [27] ‑ [28]; Falkingham v Hoffmans [304].
[177] Falkingham v Hoffmans [87], [305].
The respondent's submissions
The respondent submits that, although the Tribunal did not make any express finding that the allegations made by C were false, by necessary implication, the Tribunal so found. Senior counsel for the respondent properly accepted that, if no such implication could be made, the appeal must succeed.[178]
[178] Appeal ts 12 - 13.
The respondent points to three broad considerations said to sustain, in combination, the implication he invites. The first is the issues joined in the respondent's submissions made to the Tribunal. The second is the structure of the Tribunal's reasons for decision. The third is the combined effect of a number of findings made by the Tribunal.
As to the first, the respondent submits that the proceedings before the Tribunal were conducted as though, and it was clear that, the principal issue to be determined was whether C's allegations were false. In that respect, he points to:[179]
(1)what was said in his statement of issues, facts and contentions before the Tribunal;[180] and
(2)the Tribunal's outline of the respondent's case, as summarised in [34] ‑ [36] above.[181]
The respondent essentially contends that, as it is clear from the Tribunal's treatment of s 12(8)(b) that it rejected the respondent's submission outlined at [36] above, it must have based its decision on a finding that C's allegations were fabricated.[182]
[179] Respondent's submissions [26], [31]; appeal ts 18.
[180] Respondent's submissions [23] - [24]; appeal ts 13 - 15, referring to BAB 190 - 191 and to primary reasons [41] - [46].
[181] Respondent's submissions [25].
[182] Respondent's submissions [30] - [33]; appeal ts 13 - 15, referring to BAB 191 and to primary reasons [275] - [276].
Secondly, the respondent points to the Tribunal's consideration of the mandatory and exhaustive factors enumerated in s 12(8) of the Act. The respondent's submission is to the following effect:
(1)on the Tribunal's analysis, each of the factors in s 12(8)(a) ‑ (f) was either neutral or favoured the issue of a negative notice; and
(2)consequently, it must be inferred that the Tribunal found that the events alleged by C did not occur, and that this was the reason for the conclusion reached by the Tribunal.[183]
[183] Appeal ts 18 - 19, 21.
Thirdly, the respondent submits that, taken together, a number of observations and findings made by the Tribunal support the conclusion, by implication, that it found that C's allegations were false. In this respect, the respondent points to the following findings and observations:[184]
[184] Respondent's submissions [35]; appeal ts 26 - 28.
(1)there were a number of inconsistencies in relation to C's evidence.[185]
[185] Referring to primary reasons [67], [68] - [69], and [158], outlined at [40], [46] and [67] above.
(2)There were issues about whether the pool incident occurred, arising from C's evidence and evidence about when C first complained.[186]
[186] Referring to primary reasons [70] - [86], substantially outlined at [40] - [48] above, as well as primary reasons [104], [110], [116], [118] and [261],outlined at [52], [54], [55] and [101] above.
(3)There were 'significant improbabilities' in C's evidence in relation to charges 1 - 6.[187]
(4)There was evidence that C had, on occasions, behaved in a manner that was inconsistent with her having been the victim of sexual abuse at the respondent's hands.[188]
(5)There were matters that cast doubt on whether the car incident occurred.[189]
(6)It was difficult to see how charge 8 could have occurred and the fact that an allegation had been made by the time charge 8 was alleged to have occurred made it 'less likely' that someone would have engaged in the conduct therein alleged.[190]
(7)C had a history of lying and stole $50 from F's wallet.[191]
(8)C's own family did not believe her allegations were true.[192]
(9)There was evidence that supported the respondent's allegation that C was motivated to fabricate and continue the allegations.[193]
(10)There was some evidence consistent with C having had access to information upon which to base her allegations.[194]
(11)There was no suggestion of apprehension about, or inappropriateness of, the respondent from any other female family member.[195]
(12)The respondent acted inconsistently with the alleged conduct having occurred and was honest in giving evidence.[196]
[187] Referring to primary reasons [156], extracted at [65] above.
[188] Referring to primary reasons [73], [76], [77] outlined at [41] and [47] above, as well as primary reasons [92] - [98], substantially outlined at [49] above.
[189] Referring to primary reasons [129], [147], [153] - [156], outlined at [60], [63] and [65] above, respectively.
[190] Referring to primary reasons [172] - [173], extracted at [73] above.
[191] Referring to primary reasons [176] - [180], [185] and [247], substantially outlined at [76] - [78] and [96] above.
[192] Referring to primary reasons [196], outlined at [82] above,
[193] Referring to primary reasons [204] and [259], outlined at [98] above.
[194] Referring to primary reasons [209] and [267], outlined at [85] above.
[195] Referring to primary reasons [219] and [224], outlined at [87] and [91] above, respectively.
[196] Referring to primary reasons [75] and [195], outlined at [45] and [80] above, respectively.
Further, the respondent emphasises that the Tribunal placed a great deal of weight on Professor Lipton's report, pointing out that:
(1)Professor Lipton had expressed the view that he was professionally inclined to favour the possibility that C had developed the belief she had expressed in imagination or fantasy or that the alleged episodes are a fabrication;[197] and
(2)the Tribunal expressly rejected the CEO's criticisms of Professor Lipton's report, found that he had had the considerable advantage of interviewing C and other members of the family in reaching his conclusions, and concluded that Professor Lipton's conclusions were to be preferred to those of Ms Cant.[198]
[197] Respondent's submissions [37]; appeal ts 22.
[198] Respondent's submissions [40]; appeal ts 23.
Disposition
In Grindrod [No 2], this court found that the Tribunal erred in reasoning that:
(1)It was not satisfied, according to the Briginshaw standard, that the applicant for an assessment notice had committed the offence of which he had been charged but not convicted.
(2)Consequently, that allegation was to be put to one side.
(3)When that was done, it was appropriate to issue an assessment notice.
This court found that the Tribunal's error lay in the second step. The fact that the Tribunal was not satisfied that the conduct as alleged had occurred did not make evidentiary material concerning that allegation irrelevant.[199] Rather, such material bore on the evaluation of whether there was an unacceptable risk of the kind to which we have already referred.
[199] Grindrod [No 2] [85] - [87], [100] - [101].
Grindrod [No 2] does not suggest, and it is not the case, that a positive finding by a decision-maker, that the conduct the subject of a non‑conviction charge did or did not occur, is irrelevant or impermissible. Depending upon the circumstances of the particular case, such a finding may be crucial.
As the passage from M v M[200] set out in Grindrod [No 2][201] makes clear, in a case of this kind, the CEO or Tribunal might reach one of the following three conclusions:
(1)a positive finding, applying Briginshaw, that the alleged conduct occurred;
(2)a positive finding that the alleged conduct did not occur; or
(3)that no positive finding, one way or the other, can or should be made.
[200] M v M [1988] HCA 68; (1988) 166 CLR 69, 78.
[201] Grindrod [No 2] [83].
Whether the decision-maker is able to reach a positive finding in terms of the first two categories is a matter for the decision-maker in light of all of the circumstances. As the court observed in M v M[202] (in the context of custody and access):
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless.
[202] M v M (77).
Consistently with the approach in M v M[203], in the present statutory context, if the decision-maker is able to make a positive finding (either way), it will be likely to have a significant, and in some cases decisive, impact on the decision. A positive finding that the alleged conduct did occur will have pervasive significance for the assessment required by s 12(8) of the Act, given that the best interests of children is the paramount consideration. A finding to contrary effect - that the conduct did not occur - will also be very significant. Where, as here, the alleged conduct is the sole ground for not issuing an assessment notice, a positive finding that the conduct the subject of the charge(s) did not occur will mean that an assessment notice will issue, as upon such a finding there will no longer be any impediment to that occurring.
[203] M v M (77).
The third category of case is that in which the decision‑maker concludes that it is not able to, or it is not appropriate to, make a positive finding one way or the other. That was the position in Grindrod [No 2]. That case demonstrates that an inability to make a positive finding, one way or the other, is not the end of the matter. The decision-maker must proceed to analyse and evaluate whether the relevant unacceptable risk has been established.
It is only in the third category of case that the factors enumerated in [86](a) and (b) of Grindrod [No 2], bearing on whether there is an unacceptable risk, arise for consideration.
As set out above, the respondent's case in this appeal is put on the basis that his case fell within the second category, and that the Tribunal implicitly so found.
In our view, for the reasons that follow, the Tribunal's reasons cannot fairly be read as impliedly making a finding that the alleged conduct did not occur. In other words, the Tribunal did not impliedly find that the case was in the second category.
First, findings that the conduct the subject of the non‑conviction charges had not occurred, and that C's evidence that it had occurred was fabricated, would have been of such critical significance to the result, and to the Tribunal's reasoning, that, if the Tribunal had been so satisfied, the findings would have been express.
As we have said, in assessing the adequacy of reasons, account is to be taken of what can legitimately be inferred from the reasons. It has been held that where a court or tribunal makes a finding, it need not also make an express finding as to each disputed piece of evidence relating to that finding, or relating to every intermediate finding relevant to the ultimate finding. In such a case, the inference as to what was found may be sufficiently clear.[204] However, the implication for which the respondent contends is considerably more ambitious. For the reasons already explained, in this case, a finding that the conduct alleged by C did not occur would have been of decisive significance. In short, any ground for refusing to issue an assessment notice would thereby have been removed. In our view, had the Tribunal's reasoning been founded on such a finding, the finding would have been expressed, not left to be divined by a process of construction or implication.
[204] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443, citing Selvanayagam v University of the West Indies [1983] 1 All ER 824, 826; Bennett v Carruthers [27] ‑ [33].
Secondly, nothing in the legal principles stated by the Tribunal suggest that the Tribunal considered that a finding that the alleged conduct did not occur was relevant, much less of critical significance. The Tribunal set out [84] and [85] of Grindrod [No 2][205] in which it was stated that:
(1)It is not the CEO's, or Tribunal's, function to adjudicate upon whether the applicant is in fact guilty or not guilty of the non‑conviction charge. Rather, the function involves an analysis and evaluation of risk.
(2)The critical question is whether, on all the information and other material before the decision‑maker, 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 child‑related employment.
[205] See [14] above.
Although the Tribunal set out very extensive passages from Grindrod [No 2], the Tribunal did not set out or refer to [83], or the passage from M v M which was there set out. Nothing in the Tribunal's statement of the applicable legal principles indicates that it considered that a finding of satisfaction that the conduct did not occur was or may be relevant.
Thirdly, the manner in which the Tribunal rejected significant elements of the CEO's case counts strongly against the implication for which the respondent contends. A central theme, perhaps the central theme, of the CEO's case before the Tribunal was the CEO's contention that C's account of the alleged conduct had not been undermined sufficiently for the Tribunal to exclude the possibility that the applicant had sexually abused her. The Tribunal twice rejected that submission on the express basis that the submission misstated the applicable test, as set out in Grindrod [No 2].[206] Had the Tribunal made a finding that the alleged conduct did not occur, that finding would have been a complete answer to this aspect of the CEO's submissions. Had the Tribunal made such a finding, in our view it could and would have stated that finding in responding to the submissions by the CEO. Its failure to do so counts strongly against the implication for which the respondent contends. Moreover, the Tribunal's statement that it was not relevant to enquire whether it could exclude the possibility that the conduct had occurred suggests that the Tribunal viewed the third category of case, set out in [121] above, as the universe of possibilities, rather than as one category applying when the Tribunal is not satisfied one way or the other.[207]
[206] See primary reasons [256] - [257], [269] set out at [99] and [103] above.
[207] As explained in [120] - [123] above, the Tribunal's statement that it was not relevant to enquire whether it could exclude the possibility that the conduct had occurred was erroneous, although that is not the subject of a ground of appeal.
Fourthly, the fact that the Tribunal considered and discussed the strengths and weaknesses of the case[208] only makes sense in a framework in which the Tribunal considered the case to be in the third category set out in [121] above. On appeal, counsel for the respondent properly accepted that this was so.[209]
[208] Primary reasons [240] - [247].
[209] Appeal ts 25.
Fifthly, contrary to the respondent's submissions outlined at [116] above, the Tribunal's consideration of the factors enumerated in s 12(8) of the Act counts against the implication invited by the respondent. The paramount consideration is the best interests of children under s 12(8)(a). In its consideration of that factor, the Tribunal said nothing concerning whether the alleged conduct had occurred.[210] A finding that the conduct had not occurred would have been of critical significance. On such a finding, given that the alleged conduct was the sole ground for not issuing an assessment notice to the respondent, no concern as to the best interests of children would have been engaged. Moreover, the matters in s 12(8)(a) ‑ (g) are exhaustive, as the Tribunal appreciated.[211] If the Tribunal had found that the conduct did not occur, and if it had not appreciated such a finding was relevant to par (a) of s 12(8), the finding would need to have been made relevant via s 12(8)(g); paragraphs (b) - (e) of s 12(8) are premised on the absence of a positive finding that the offence or alleged conduct did not occur. Thus, the fact that the Tribunal did not mention s 12(8)(g), or make any findings under that paragraph, also counts against the respondent's construction.
[210] See primary reasons [271] - [272], set out at [104] above.
[211] Grindrod [No 2] [69], quoted in primary reasons [21].
The respondent's submissions to the contrary, outlined at [114] ‑ [118] above, cannot be accepted. We have already dealt with the respondent's second point, set out at [116] above. As to the submissions outlined at [117] above, it may have been open to a decision‑maker to conclude that, by reason of the various findings and observations to which the respondent points, the conduct did not occur. But the critical question is whether the Tribunal impliedly so found. The substance and language of the findings on which the respondent relies are consistent with the Tribunal having considered that the case comes within the third category, or proceeding on the basis that all cases are to be dealt with as if in the third category. The manner in which these findings are expressed does not overcome the considerations to which we have referred at [128] ‑ [134].
The Tribunal's various favourable references to Professor Lipton's report to which the respondent points, outlined at [118] above, do not support the inference he invites. It is true that Professor Lipton's report stated that he was 'professionally inclined' to favour conclusions to the effect that the conduct had not occurred. However, Professor Lipton's report also stated that he could not refute the possibility that the conduct occurred as described and that it was 'very difficult to take a clear view' on the probability of the alleged offences having occurred. Further, in his report, Professor Lipton ultimately recommended an approach that involved avoiding or mitigating risk.
Finally, the respondent's reference, outlined at [115] above, to the manner in which he ran his case before the Tribunal can only take him so far. In the end, in discerning what can be implied from its reasons, primary weight must be given to the manner in which the Tribunal expressed its findings, reasoning and conclusions.
For these reasons, in our respectful opinion, it cannot be inferred that the Tribunal made a finding that the conduct, the subject of the non‑conviction charges and the subject of C's evidence, did not occur.
As we have said, senior counsel for the respondent conceded that, in such circumstances, the appeal must be upheld. That concession is properly made. Not having made a positive finding that the alleged conduct did not occur, the Tribunal was required to analyse and evaluate whether there was an unacceptable risk of the relevant kind. Although the Tribunal stated a conclusion on that question, the reasons of the Tribunal do not demonstrate that, and do not allow this court to assess whether, it performed its statutory task. Nor do they adequately disclose the process of reasoning that led to the conclusion that it was not satisfied of the relevant unacceptable risk. In our view, in the circumstances, ground 2 must be upheld.
The orders that should be made
Orders should be made in terms of the orders proposed by the CEO, namely:
1.Leave to appeal on both ground 1 and ground 2 is granted, in each case on condition that the respondent's costs of the appeal are met by the appellant.
2.The appeal is allowed.
3.The order of the Tribunal made 18 January 2018 is set aside.
4.The matter is remitted to the Tribunal, differently constituted, to be dealt with according to law.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech1 FEBRUARY 2019
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