Chief Executive Officer, Department for Child Protection v T [No 2]
[2013] WASCA 206
•6 SEPTEMBER 2013
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- T [No 2] [2013] WASCA 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 206 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:155/2012 | 18 JUNE 2013 | |
| Coram: | PULLIN JA NEWNES JA MURPHY JA | 6/09/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Orders of the State Administrative Tribunal set aside Review proceedings remitted to the State Administrative Tribunal | ||
| B | |||
| PDF Version |
| Parties: | CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION T |
Catchwords: | Working with Children (Criminal Record Checking) Act 2004 (WA) Application for cancellation of negative notice Non-conviction charges and other material Refusal of application Hearing de novo before Tribunal Whether Tribunal misdirected itself |
Legislation: | Working with Children (Criminal Record Checking) Act 2004 (WA) |
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] WASCA 171; (2008) 38 WAR 125 Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507 Shaaban Bin Hussein v Chong Fook Cam [1970] 1 AC 942 T and Chief Executive Officer, Department for Child Protection [2012] WASAT 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- T [No 2] [2013] WASCA 206 CORAM : PULLIN JA
- NEWNES JA
MURPHY JA
- Appellant
AND
T
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE T SHARP (DEPUTY PRESIDENT)
Citation : T and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2012] WASAT 235
File No : VR 162 of 2011
Catchwords:
Working with Children (Criminal Record Checking) Act 2004 (WA) - Application for cancellation of negative notice - Non-conviction charges and other material - Refusal of application - Hearing de novo before Tribunal - Whether Tribunal misdirected itself
Legislation:
Working with Children (Criminal Record Checking) Act 2004 (WA)
Result:
Appeal allowed
Orders of the State Administrative Tribunal set aside
Review proceedings remitted to the State Administrative Tribunal
Category: B
Representation:
Counsel:
Appellant : Ms C J Thatcher
Respondent : Mr J A Davies
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Slater & Gordon
Case(s) referred to in judgment(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] WASCA 171; (2008) 38 WAR 125
Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
Shaaban Bin Hussein v Chong Fook Cam [1970] 1 AC 942
T and Chief Executive Officer, Department for Child Protection [2012] WASAT 235
1 PULLIN JA: This is an appeal from a decision of the Deputy President of the State Administrative Tribunal ('Tribunal') sitting as the Tribunal. The Tribunal in its decision upheld an application by the respondent for a review of a decision of the appellant. The appellant's decision dismissed the respondent's application to have the appellant cancel a negative notice issued to the respondent pursuant to the Working with Children (Criminal Record Checking) Act 2004 (WA) (the Act).
2 By orders dated 28 November 2012, the Tribunal set aside the appellant's decision, cancelled the negative notice, and ordered that the appellant (or delegate) take such steps as necessary to cause the respondent to be issued with an assessment notice under the Act in accordance with the Tribunal's decision: T and Chief Executive Officer, Department for Child Protection [2012] WASAT 235. The appellant appeals against the Tribunal's decision and orders.
3 The appeal is pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). An appeal can only be brought on a question of law. Leave to appeal is necessary. On 22 February 2013, Murphy JA ordered that the question of leave be referred to the hearing of the appeal.
4 The expressions 'negative notice' and 'assessment notice' appear in the Act. The Act prohibits a person from being employed in 'child-related employment' unless the person has a current 'assessment notice' issued by the appellant (s 24). The appellant also has power to issue a 'negative notice'. A person issued with a negative notice must not be employed in 'child-related employment' (s 23).
Background
5 For many years the respondent was a primary school teacher. In 2008, he applied for an assessment notice under the Act so he could continue working as a teacher. An assessment notice was issued by the appellant on 30 April 2008.
6 On 23 October 2009, the Department of Education and Training, in accordance with s 16(1) of the Act, provided written notice to the appellant that the respondent had been charged with offences of indecent dealing with a child under 13 years of age contrary to s 320(4) of the Criminal Code 1913 (WA). The offences were alleged to have occurred in 1995 against two complainants, who were then 11-year-old students at the school where the respondent taught. It was alleged that the respondent indecently dealt with the complainants in the classroom. The offences were class 2 offences under the Act (see s 7(2) and sch 2). On 26 October 2009, the appellant notified the respondent that he must again apply for an assessment notice (see s 16(3) of the Act). As a result, the respondent made an application for an assessment notice on 27 October 2009. On 5 May 2010, the respondent was issued with a negative notice pursuant to s 12(6) of the Act.
7 The respondent applied to the Tribunal for a review of the negative notice decision on 21 May 2010, prior to a trial of the indecent dealing charges in the District Court before a judge and jury. The jury returned a verdict of not guilty on the charges on 25 August 2010. The respondent then withdrew his application for a review of the negative notice decision and instead applied to the appellant, under s 19(1) of the Act, for cancellation of the negative notice on the basis of his acquittal.
8 The combined effect of s 12(3), the table in s 12 and s 19(8) of the Act is that if 'the CEO is aware that the applicant has a non-conviction charge in respect of a class 1 offence or a class 2 offence', then the CEO is to decide the application for the cancellation of the negative notice in accordance with s 12(5), which reads (as modified in accordance with s 19(8)):
If this subsection applies, the CEO is to [grant the application to cancel the negative notice] unless the CEO is satisfied that, because of the particular circumstances of the case, [the application should be refused].
9 A 'non-conviction charge' is defined in the Act (s 4) to mean 'a charge of an offence that has been disposed of by a court otherwise than by way of a conviction'.
10 Section 12(8) states that:
If [s 12(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 was alleged to have been committed;
(d) the nature of the offence and any relevance it has to child-related work;
(e) the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to the conduct the subject of -
…
(ii) any charge against the applicant;
(f) any information given by the applicant in, or in relation to, the application;
(g) anything else the CEO reasonably considers relevant to the decision.
11 The word 'charge' is defined in s 4 of the Act to mean 'a non-conviction charge or a pending charge'.
12 On 3 August 2011, the respondent was notified that the appellant refused to cancel the negative notice. That decision was made by taking into account not only the two 2009 'non-conviction charges', but also information relating to an inquiry in 1999 under s 7C of the Education Act 1928 (WA) (Education Act). The inquiry related to allegations of inappropriate touching of three boys at the school where the respondent was teaching.
13 On 31 August 2011, the respondent applied to the Tribunal for a review of the appellant's decision. The hearing in the Tribunal did not take place until 6 and 7 August 2012. The review hearing before the Tribunal was a hearing de novo: see SAT Act, s 27. The Tribunal reserved its decision, and delivered its reasons and made the orders appealed against on 28 November 2012.
Material before the CEO and the Tribunal
The 2009 non-conviction charges material
14 The Tribunal had before it the pre-trial witness statements of the two complainants. Also available was the transcript of the evidence given by the two complainants at the trial in the District Court in 2010. They testified, and the witness statements referred to, events which the complainants said occurred in 1995 when they were at school in Year 6.
15 The transcript reveals that the first complainant gave evidence that he was touched inappropriately in the classroom on two occasions. The first occasion was when he went to the teacher's desk to ask for help. The complainant said that the respondent touched the back of his knee and slid his hand up his hamstring to his lower buttocks. The second occasion was when the complainant was sitting at his own desk and he asked the respondent for help. The complainant testified that the respondent sat next to him, touched his knee and moved his hand back and forward up the inner of the complainant's leg, starting at the knee and going higher, and then placed his hand inside the alleged victim's shorts and started to touch his underwear. The complainant testified that the respondent did not touch his genitals, but that he did get his hand under the lining of the complainant's underwear and pulled it up slightly.
16 The second complainant gave evidence of minor incidents escalating to more serious incidents. In the first incidents the complainant said the respondent rubbed him on the back of his shirt, untucked his shirt and rubbed him on the back underneath his shirt. The complainant testified that later, on a number of occasions over a six month period, the respondent placed his hand on the complainant's buttocks, on the outside of his underwear, and then inside the complainant's underwear. The complainant testified that later the respondent put his hand down the front of the complainant's pants, on the inside of his underwear, and played with the complainant's penis.
17 The second complainant went to the police and reported this behaviour when he was in his 20s. Subsequently, he met the first complainant and they went to a hotel where there was a brief discussion about whether or not the respondent had touched them inappropriately. The second complainant asked the first complainant if he would make a statement to the police, which he did.
18 At trial, the evidence of the second complainant was somewhat fragmented because of his tendency to talk about what had happened on different occasions in generalised terms, rather than refer to the details of each incident in turn. Defence counsel, appearing for the respondent, cross-examined the complainants on their credibility. The first complainant was asked whether he had been convicted of lying to the police, which he admitted. Counsel put it to the second complainant that he had been disruptive at school, and elicited evidence that he had been under medical treatment. The complainants were cross-examined about why complaints had not been made earlier about the behaviour of the respondent, and about whether the complainants harboured a grudge.
19 The respondent gave evidence at the trial and denied the allegations made against him. He had earlier denied the allegations when interviewed by the police.
20 The jury's verdict of not guilty was a unanimous verdict.
The 1999 inquiry material
21 Also before the CEO and the Tribunal were the findings of an inquirer in a report prepared in 1999 following an inquiry conducted pursuant to s 7C of the now repealed Education Act. This related to allegations of misconduct concerning inappropriate touching of three boys, JR, GR and GG in the 1990s. The report was based on an interview with the mother of two of the three boys, an interview with the respondent and an interview with the principal of the school at which the respondent was teaching. The boys were not interviewed because the mother of two of them refused to allow it. The inquirer said that he thought that the third pupil's parents may not even have been aware of the complaints.
22 The mother wanted the matter to be dealt with quickly and confidentially. Prior to the inquiry, the police were informed of the allegations and subsequently interviewed two of the boys. The police then elected not to take any further action. The mother was critical of the manner in which the police had dealt with the initial complaint. They had interrupted a school sports day when they arrived to interview the two boys. The mother was also critical that they had initially not told the other boy why he was being taken from the sports oval. There was no information available to the CEO or to the Tribunal about what information the police obtained when they interviewed the boys.
23 The respondent told the inquirer that he speculated that there may have been a 'whispering campaign' against him after two students who he had reported to the police for graffiti, had called out across a sports oval where he was coaching that he was a 'paedophile'. The inquirer expressed the view that the reference to 'paedophile' was more likely to be a reflection that the respondent was, at the time, a 50-year-old bachelor, rather than having any connection with the incidents under investigation. The principal reported to the inquirer that he had been 'watching' the respondent since the report of inappropriate touching, and had not seen 'anything of concern'.
24 The inquirer found that the respondent was 'not guilty of misconduct' in relation to the allegations. The inquirer's report stated that there was no 'hard evidence' to support the allegations.
Other material before the Tribunal
25 Some expert evidence was given to the Tribunal. The experts explained the concept of grooming, and that the complainants' allegations, if true, would be consistent with grooming behaviour. The experts agreed that the absence of reported allegations since the alleged offences did not rule out the possibility that further abuse may have happened because of the low disclosure rate amongst boys.
26 Character references were tendered to the Tribunal attesting to the respondent's integrity.
The Tribunal's reasons
27 The Tribunal, in its reasons, summarised the evidence given by the two complainants in the 2010 trial and summarised the information given to the inquirer in 1999, the evidence of the experts and the character references. The Tribunal said that:
the real issue of contention between the experts is limited to the weight which can be given to the original allegations [92].
28 Under the heading 'Findings', the Tribunal then directed itself in terms of the Act, stated that the paramount consideration had to be given to the best interests of children, and said:
The task of the Tribunal is to determine whether, based on the evidence before it, T poses an unacceptable risk of sexual or physical harm to children if he engages in child-related employment. The degree of risk must be determined not only with reference to facts and evidence which would be admissible in court, but also with reference to 'reasonable suspicions'; Grindrod [87]. There must, however, be some established basis for the existence of that suspicion; Hardingham [152]. In determining whether the negative notice should be cancelled, the Tribunal must have regard to the factors listed under s 12(8) of the Act, and the relevant factors enunciated in Grindrod relating to unacceptable risk [93].
29 The Tribunal then referred to the trial in the District Court and said:
I turn first to the allegations in 2009 which led to T's trial and subsequent acquittal. There is no doubt that these were serious charges and highly relevant to childrelated work. The jury at the trial heard the evidence of the two complainants and that of the applicant. It then unanimously reached its decision to acquit the applicant of those charges.
The reason why the charges did not result in a conviction is, I expect, that the jury simply did not believe the complainants or preferred the evidence of the applicant.
In Hardingham, Heenan J said at [59] '… if … there is no cogent reason to conclude that the person charged actually committed the offence, then to reason from the mere laying of the charge to a conclusion that the offence had been committed is entirely unjustified and prejudicial'. He went on to say at [135] '… if the case is not one of those in which its strength is not destroyed or significantly diminished by the fact that an acquittal or dismissal resulted or that the prosecution was not pursued, it must mean that the resulting absence of a conviction is due to the weakness or absence of a case to establish that the person charged had committed the alleged offence'.
The prosecution in this case did not abandon the charges and presumably presented its case in the best possible light.
The significance of the fact that the two young men separately complained about incidents of indecent touching which had some similarities between them was somewhat diminished by the fact that, at the trial, one of the complainants admitted to discussing those incidents with the other in 1995 at the time they were said to have occurred [94] - [98].
30 As to the 1999 inquiry, the Tribunal said:
The allegations in 1999 led the police to interview only two of the boys concerned. They then decided not to charge the applicant. Again, this is probably because the police considered that the applicant had no case to answer or that there were weaknesses in the case that led them to conclude that it was pointless to proceed further.
The subsequent departmental inquiry also led to the conclusion by the Inquirer that the applicant was 'not guilty of misconduct'. In that case, the Inquirer gave his reasons for that conclusion, namely that there was insufficient evidence against the applicant to support the charges. The Inquirer was not permitted to interview the children concerned, but that did not lead him to say that he could not therefore draw any conclusions from his investigation.
The expert witnesses' view is that if the allegations against the applicant were true then children would be at risk if the applicant's negative notice is cancelled. That is undoubtedly so, but none of the allegations were made out and I have no justification for concluding that, based on fact, reasonable suspicions or both, the allegations are true [99] - [101].
31 The Tribunal then added:
Nothing emerged from the trial or the investigation of the 1999 allegations which constituted an admission of conduct which could be regarded as deplorable or in some way established that the applicant should not be involved in childrelated work.
I also note that there have been no allegations made against the applicant in other schools where the applicant has taught or in the sporting associations with which he has been involved.
…
Having regard to the factors set out in s 12(8) of the Act and on the information and other material before me, it is my conclusion that there is nothing to lead me to consider that the negative notice should not be cancelled. I do not consider that there are any circumstances of this case to suggest that to cancel the negative notice would result in an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of childrelated work [102] - [104].
Grounds of appeal
32 The appellant's grounds of appeal, all of which raise questions of law, read:
1. The learned Deputy President erred in law in applying the reasoning in Hardingham v CEO, Department for Child Protection [2011] WASC 86 at [59] and [135] to exclude consideration of the allegations made in 2009 and in 1999 from his assessment of whether there was an unacceptable risk that the Respondent (Applicant) might, in the future, cause physical or sexual harm to children: Reasons [95], [96], [99], [101];
2. The learned Deputy President erred in law in concluding that the reason the 2009 charges did not result in conviction was that the jury simply did not believe the complainants or preferred the evidence of the Respondent (Applicant): Reasons [95];
3. The learned Deputy President erred in law in failing to himself consider, on all the information and material properly before him, whether there was an unacceptable risk that the Respondent (Applicant) might, in the future, cause physical or sexual harm to children in the course of carrying [out] child-related employment: Reasons [93] - [104];
4. The learned Deputy President erred in law in concluding he had no justification for concluding that, based on fact, reasonable suspicions or both, the allegations were true: Reasons [101]
Ground 1
33 This ground alleges that the Tribunal erred in applying reasoning in Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 at [59] and [135] to exclude consideration of the allegations made in 2009 and in 1999 from his assessment of whether there was an unacceptable risk that the respondent might, in the future, cause physical or sexual harm to children.
34 This ground is ambiguous. It may be read as implying that the reasons in Hardingham were erroneous in the paragraphs to which reference is made, and that the Tribunal applied that erroneous reasoning and thus erred itself. Alternatively, the ground may be read as suggesting that, while there was no error in Hardingham, the Tribunal misunderstood it and erred by applying that erroneous understanding. Both aspects were the subject of oral submissions.
35 In written and oral submissions the appellant submitted that the approach taken in Hardingham conflicted with the principles expounded in Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 at [84] - [87]. Counsel for the appellant did not accept the proposition that there was no error in Hardingham.
36 In Hardingham, Heenan J correctly directed himself about points decided in Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 and Grindrod [No 2], namely that:
(a) the critical question for the decision-maker under s 12(5) was whether, on all the information and material properly before the decision-maker, he or she was satisfied there was an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related work [144];
(b) that the risk in question had to be 'unacceptable' and not 'likely', but that the existence of an unacceptable risk had to be based on facts or reasonable suspicions and not, in the words of Heenan J, on 'imagination or surmise' [152], [157].
37 One of the grounds of appeal in Hardingham was that there was no credible evidence or other material to support the Tribunal's finding of 'reasonable suspicion'. Heenan J embarked on a consideration of what was to be made of the fact that there was no conviction. His Honour discussed at length the reasons why a person might be acquitted of an offence. Heenan J made the point that there will be cases where it is clear that, notwithstanding that statements are made to the police giving rise to a reasonable suspicion that an offence has been committed, subsequent events may reveal that such statements are insupportable. His Honour gave examples at [46], including cases where it became clear it was one of mistaken identity, or that a charge had been the result of a false and malicious complaint, or that the alleged offence could not possibly have been committed because the person charged had an irrefutable alibi establishing that he or she was somewhere else at the time of the alleged offence.
38 The two paragraphs in Heenan J's reasons in Hardingham to which ground 1 of the appeal refers are [59] and [135].
39 In the two paragraphs before [59], Heenan J referred to the policy underlying the Act and said that s 12(4) of the Act (as it then stood) appeared 'to reflect a deep seated belief in the fallibility of the criminal law system, at least insofar as it may be relied upon to lead to the due conviction of offenders charged with having committed child sex offences' [58]. His Honour said that this 'attitude [was] clearly evidenced' in the Minister's second reading speech, which his Honour set out in [58], and in which the Minister said:
Not all offences against children result in convictions. Therefore, the Government has resolved the charges will be assessed also. We will not tolerate paedophiles who have escaped conviction for various reasons working with our children … [and] consideration [will] … be given to sexual and violent offences that have been dismissed on a technicality or have not proceeded because of the impact on the victim - particularly children - and the reliability of the evidence.
40 His Honour then said at [59]:
Great care needs to be taken with provisions such as s 12(4) and arguments along the lines reflected in the Minister's speech. The Honourable Minister's illustration proceeds on the assumption that the person charged with the offence was actually guilty of it but escaped trial or conviction fortuitously notwithstanding his or her actual guilt. If such a postulate can be demonstrated or is established by the available evidence then one would unhesitatingly join with the Minister in agreeing that such a person may well represent a risk of harm if working with children and for that reason, notwithstanding that the charge against him or her resulted in no conviction, that there may well be justification for a negative notice to issue. However, if that initial postulate cannot be justified and there is no cogent reason to conclude that the person charged actually committed the offence, then to reason from the mere laying of the charge to a conclusion that the offence had been committed is entirely unjustified and prejudicial. The 'no smoke without fire' approach when considering the significance of a fact that a charge has been laid cannot be accepted not only because of its pernicious tendencies, but because it is a reversal of the most fundamental of all rules of evidence, namely that the onus of proving any fact alleged, whether in the criminal or in the civil sphere, must rest upon the person asserting it - see Phipson On Evidence (17th ed, 2010) par 6-02, and Cross On Evidence (8th Australian ed, 2010) at [7010] and [7015], and Mills v Barber (1836) 1 M&W 425 and Robins v National Trust Co Ltd [1927] AC 515 (PC).
41 Paragraph [135] is the other paragraph to which the Tribunal referred and to which the ground of appeal refers. This paragraph was preceded much earlier in the reasons by observations at [47], where Heenan J said that a charge may fail:
because of some technicality or extraordinary omission - for example, some egregious error such as the prosecution failing to establish the victim's age or that he or she at the time of the offence was younger than some critical age, but where it could have been established that the victim was in fact less than the critical age.
42 It is also relevant when considering [135] to note that at [56] his Honour said that some charges do not proceed because they are abandoned by the prosecution and that 'sometimes the reasons for the abandonment may be significant as, for example, in a case of a death or disappearance of a crucial witness'.
43 At [135] his Honour said:
Previously in these reasons I have given some extensive attention to factors which might possibly lead to an acquittal or dismissal of a charge or its abandonment which do not, or do not necessarily, detract from the strength of the prosecution case. Those types of cases would represent ones within a category of cases where 'because of the particular circumstances of the case', a negative notice might be issued under s 12(4). However, if the case is not one of those in which its strength is not destroyed or significantly diminished by the fact that an acquittal or dismissal resulted or that the prosecution was not pursued, it must mean that the resulting absence of a conviction is due to the weakness or absence of a case to establish that the person charged had committed the alleged offence.
44 The appellant submitted that Heenan J's 'whole approach' was 'wrong'. In effect, the appellant submitted that Heenan J was wrong to give undue emphasis to the reason why the accused was acquitted. However, all his Honour was attempting to do was to point out that the reasons why there was an acquittal may be relevant because those reasons might affect the probative value of the information said to support a reasonable suspicion that there had been conduct of a kind relevant to the decision about whether there was an 'unacceptable risk' of harm to children in the future. The point to be extracted from Heenan J's decision is that the reason why a person is acquitted may be relevant to the assessment of the probative value of facts or suspicions which the CEO or Tribunal, on review, has to consider. In that respect, Heenan J was correct.
45 However, some of Heenan J's observations, for example about the impeachment of verdicts of acquittal [48] - [50] and about what conditions are to be met before a prosecutor will have reasonable and probable cause for laying a criminal charge [147] - [148], are matters the CEO or the Tribunal, on review, do not have to consider. A concentration on those points may distract the decision-maker from the task set under the Act. That task is to make a decision about whether there is the relevant unacceptable risk based upon 'facts' or 'reasonable suspicions' bearing upon that risk: Grindrod [No 2] [85] - [87].
46 As will appear below in the discussion about the other three grounds, the Tribunal erred because it misunderstood Hardingham and applied that mistaken view to guide it to its decision. The Tribunal seems to have drawn from [59] and [135] of Hardingham that, because the jury returned a verdict of not guilty and because the inquirer reported that the respondent was not guilty, that meant that the evidence given in support of the charges in the District Court and the material put before the inquirer should not be taken into account by the Tribunal in determining whether it was satisfied about whether there was an 'unacceptable risk' of future harm to children. After noting that the jury returned a verdict of not guilty (and concluding - erroneously, as appears below - that the jury did not believe the complainants) and noting the inquirer's decision, the Tribunal said that none of the allegations were 'made out', apparently because of what was said in [59] and [135] of Hardingham. That reveals a misunderstanding of Hardingham and when that misunderstanding was applied in the case, the Tribunal fell into error. Ground 1 should be upheld on the basis that the Tribunal misunderstood Hardingham and was then guided to its decision based on that misunderstanding.
Grounds 2, 3 and 4
47 These grounds can be dealt with together because, in effect, they raise different aspects of the same point which is made in Ground 3. That point is that the Tribunal failed to consider, on all the information, whether there was an unacceptable risk that the respondent might, in the future, cause physical or sexual harm to children in the course of carrying out child-related employment. That error occurred because of the errors referred to in grounds 2 and 4. Grounds 2 and 4 allege error by the Tribunal in its reasons at:
(a) [95], where the Tribunal said that the reason why the charges against the two alleged victims 'did not result in a conviction is, I expect, that the jury simply did not believe the complainants or preferred the evidence of the applicant'; and at
(b) [101], where the Tribunal said:
The expert witnesses' view is that if the allegations against the applicant were true then children would be at risk if the applicant's negative notice is cancelled. That is undoubtedly so, but none of the allegations were made out and I have no justification for concluding that, based on fact, reasonable suspicions or both, the allegations are true.
49 In [101] the error lies in the Tribunal considering that 'none of the allegations were made out' when speaking about both the allegations in the District Court and those referred to in the inquirer's report. It was not the task of the Tribunal to decide whether the allegations were 'made out' to some unspecified standard, and then to treat that outcome or the decision of the jury or the inquirer as determinative of the probative value of the evidence about the complainants. The task of the Tribunal was to determine, on the basis of the information and other material properly before the Tribunal and after having regard to the criteria listed in s 12(8) of the Act, whether there was or was not '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. The Tribunal did not consider whether there was an 'unacceptable risk'. The Tribunal concluded that because none of the allegations were 'made out' before the jury or the inquirer, it had 'no justification' for concluding that, based on fact or suspicion, the allegations were true.
50 Grounds 2 and 4 should be upheld. In consequence, ground 3 should also be upheld because, having decided that 'none of the allegations were made out', the Tribunal failed to consider all of the information and material properly before it in relation to the allegations to determine whether there was or was not the stipulated unacceptable risk.
51 Leave to appeal should be granted, the appeal upheld and the orders of the Tribunal set aside. The review proceedings should be remitted to the Tribunal, differently constituted, to be dealt with according to law.
52 NEWNES JA: I agree with Pullin JA.
53 MURPHY JA: Pullin JA has set out the background and the grounds of appeal which I gratefully adopt. I would only add in relation to [22] of his Honour's reasons, that the Tribunal also found that the mother of GR said to the inquirer that GR had told her that T had not touched him (see [25] and also [16] of the Tribunal's reasons).
54 I agree that the appeal should be upheld.
55 Ground 3 of the appeal is to the effect that the Tribunal erred in law in that it failed, in effect, to perform the statutory task entrusted to it by not evaluating for itself all the information and material properly before it. In my respectful view, the Tribunal did so err in law. The Tribunal's focus, in relation to the 2009 trial, was on the fact of the failure of the prosecution to prove its case rather than its own assessment of the underlying material. The Tribunal also said that 'none of the allegations' at the 2009 trial, or the allegations leading up to the departmental inquiry in 1999, were 'made out' [101]. This, in context, appears to be a reference to the outcomes of the criminal trial and of the previous departmental inquiry. Even though the Tribunal later said [104] that it drew its conclusion from the 'information and other material' before it, the Tribunal's findings, read as a whole, indicate that it relied on what it saw to be the effect of the outcome of the former departmental inquiry, and the acquittal of the respondent, at the expense of undertaking its own evaluation of the underlying materials. I would uphold ground 3.
56 As to ground 1, the Tribunal seems to have regarded the decision of EM Heenan J in Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 as providing support for its erroneous approach. The decision in Hardingham should be understood in light of and subject to the observations of Pullin JA at [44] - [45] of his reasons. The approach to the statutory task remains as set out 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 [85] - [87]. Generally, for the reasons given by Pullin JA at [46], I would uphold ground 1.
57 In relation to ground 2, I agree with the observations of Pullin JA at [48], with respect to the effect of the jury's verdict. However, the Tribunal's underlying error seems to me to be that it failed to undertake the proper statutory task, which is the subject of ground 3.
58 Ground 4 concerns the Tribunal's finding at [101], to the effect that there was 'no justification for concluding that, based on fact, reasonable suspicions or both, the allegations are true'.
59 The ultimate question for the Tribunal was not whether the allegations made by the former students were 'true'. The 'truth' of an allegation of misconduct could only be established by a finding of fact that the misconduct had occurred. Such a positive finding of fact could not be based merely on a 'reasonable suspicion'. The task of the Tribunal was to consider whether 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 employment (Grindrod [No 2] [85]). Reasonable suspicions may play a proper part in the evaluative process in that regard (Grindrod [No 2] [87]). The finding challenged in ground 4 tends to confirm that the Tribunal did not properly conceive the statutory task it was required to undertake. To that extent, but not otherwise, I would uphold ground 4.
60 I would add that we were also asked by the appellant, in effect, to construe the words 'reasonable suspicions' where they appear at [87] in Grindrod [No 2]. The appellant referred in this regard to the discussion by EM Heenan J in Hardingham at [151] - [152], and in particular to the case of Shaaban Bin Hussein v Chong Fook Cam [1970] 1 AC 942.
61 In Shaaban v Chong, the Privy Council was concerned with the proper construction of a provision of the Malaysian Criminal Procedure Code which empowered the police to make an arrest upon reasonable suspicion of an offence having been committed. The meaning of the phrase 'reasonable suspicion' was examined in the context of the criminal law, and Lord Devlin, speaking on behalf of the Board, observed that a suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end (445).
62 The term 'reasonable suspicions' in the court's reasons in Grindrod [No 2] [87] is not to be treated as an element of the statutory test requiring its own separate construction and application. Moreover, its meaning is not, in principle, properly determined by reference to statutory language in other statutory contexts, in the absence of some indication to that effect in the court's reasons, or that the court was using it as a term of art.
63 The words 'reasonable suspicions' in Grindrod [No 2] [87] are to be understood in their context. The context is a description of the way in which the relevant decision-maker may reach the level of satisfaction required by s 12(4) (now s 12(5)) of the Working with Children (Criminal Record Checking) Act 2004 (WA) in respect of what is, in essence, a value judgment. As the opening sentence in Grindrod [No 2] [87] and the decision of this court in Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 (HardinghamAppeal Decision) indicate, generally speaking, all information and other material properly before the decision-maker must be taken into account. This would include material which would not be admissible in a court of law, although, as the last sentence of Grindrod [No 2] [87] indicates, all such material and information must be weighed for its 'apparent probative value'. See also in this regard HardinghamAppeal Decision [56].
64 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.
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