D and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION - [2009] WASAT 166

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)

CITATION: D and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2009] WASAT 166

MEMBER: MR M ALLEN (SENIOR MEMBER)
MS F CHILD (MEMBER)

HEARD: 4 AND 5 MARCH 2009

DELIVERED : 26 AUGUST 2009

FILE NO/S: VR 109 of 2008

BETWEEN: D
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent

Catchwords:

Working with Children (Criminal Record Checking) Act 2004 (WA) Nonconviction charge of indecent dealing with granddaughter Charge not proceeded with because child complainant unable to give evidence Review of decision to refuse to cancel negative notice - Whether negative notice is required because of particular circumstances of the case Whether unacceptable risk that the applicant might in future cause sexual or physical harm to children

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 329(4)
Evidence Act 1906 (WA), s 36C
State Administrative Tribunal Act 2004 (WA), s 27, s 62(3)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7(1), s 7(2), s 12, s 13, s 19, s 19(3), s 19(8)

Result:

Decision to refuse to cancel negative notice set aside
Negative notice cancelled
An assessment notice is to be issued
Order that the applicant's name is not to be published

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr P Dixon (Representative)

Solicitors:

Applicant: Self-represented
Respondent: Working with Children Screening Unit

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant was issued with a negative notice under the Working withChildren (Criminal Record Checking) Act 2004 (WA) at a time when he faced a charge of indecent dealing with a child, his granddaughter. Subsequently, the prosecution of that charge was discontinued and the applicant applied to have the negative notice cancelled. The respondent refused to cancel the negative notice and the applicant applied to the Tribunal for a review of that decision.
The Tribunal examined the history of the charge and the circumstances in which the charge did not proceed to a trial, as well as all other relevant information available to the Tribunal concerning the applicant's circumstances.
The Tribunal concluded that, although there must be a suspicion that the applicant committed the offence with which he was charged, in the particular circumstances of the case the Tribunal could not be satisfied that it was necessary for the applicant to have a negative notice. Accordingly, the Tribunal decided that the decision of the respondent to refuse to cancel the negative notice should be set aside, the negative notice should be cancelled, and an assessment notice should be issued to the applicant.

Background

The applicant, D, was born in 1958 and was at the time of the hearing of the proceeding 51 years of age. For a number of years he has worked as a patient care assistant at hospitals and nursing homes in this State.
On 26 January 2007 D was interviewed by police officers in connection with an allegation that he had indecently dealt with his granddaughter, T. On 6 February 2007 D was arrested and charged with the offence of indecently dealing with T, a child who was to his knowledge a lineal relative, between 21 December 2006 and 21 January 2007, contrary to s 329(4) of the Criminal Code Act Compilation Act 1913 (WA).
Section 36C of the Evidence Act 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence. Publication of the applicant's name in these proceedings would offend that section. Accordingly, in these reasons the applicant will be referred to as D, and there will be an order made pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the name of the applicant not be published. These reasons have been prepared in a way that will not identify the applicant and through him the complainant.
In March 2007 D applied to the respondent for an assessment notice pursuant to the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) in connection with gaining employment at a private hospital.
As required by the WWC Act, s 12(2), the respondent obtained information about D's criminal record, including information concerning the charge referred to above and information about other convictions recorded against D. The charge of indecent dealing was in relation to a 'Class 2 offence' (see WWC Act, s 7(2)) whereas the other convictions recorded against D were neither Class 2 offences nor 'Class 1' offences (see WWC Act, s 7(1)).
Section 12 of the WWC Act relevantly provides that the respondent is to deal with applications for assessment notices by either issuing an assessment notice or by issuing a negative notice. In certain circumstances the respondent must issue an assessment notice (s 12(3)) or must issue a negative notice (s 12(7)). Neither of those provisions is relevant in this case. Section 12(4), s 12(5) and s 12(6) of the WWC Act deal with other situations, and provide as follows:
(4)If the CEO -
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a nonconviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(5)If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.

(6)If the CEO -
(a)is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;
(b)is aware of a Class 2 offence of which the applicant has been convicted; or
(c)is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence,

the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.

WWC Act, s 12(8), provides that if s 12(4), s 12(5) or s 12(6) apply then the Chief Executive Officer (CEO) is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to:
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to childrelated work;
(e)any information given by the applicant in, or in relation to, the application; and
(f)anything else that the CEO reasonably considers relevant to the decision.
When dealing with D's application, the respondent considered that WWC Act, s 12(6), was applicable at that time (because D had a pending charge in respect of a Class 2 offence) and in May 2007 the respondent informed D that the respondent proposed to issue a negative notice and invited D to make submissions before a final decision was made. At the same time, the respondent issued to D an interim negative notice as is permitted by the WWC Act, s 13.
D did not provide submissions to the respondent, and in August 2007 the respondent issued D with a negative notice.
In October 2007 the pending indecent dealing charge was discontinued by the Director of Public Prosecutions, the reasons for which will be referred to below in these reasons. As a result of that discontinuance D no longer had a pending charge for a Class 2 offence but, instead, had a 'non‑conviction charge', which expression is defined by s 4 of the WWC Act to mean '… a charge of an offence that has been disposed of by a court otherwise than by way of a conviction'.
Section 19 of the WWC Act provides that a person to whom a negative notice has been issued may apply to the respondent for the notice to be cancelled. Ordinarily, that application cannot be made sooner than three years after the negative notice was issued, but s 19(3) permits an application to be made sooner than three years if, as was the case with D, the Class 2 offence, with which the person was charged when the negative notice was issued, is later disposed of by a court otherwise than by way of a conviction.
On 12 November 2007 D applied for the cancellation of the negative notice and subsequently provided a written submission in relation to that application. The respondent then obtained information from the Department for Child Protection and from a previous employer of D.
Section 19(8) of the WWC Act relevantly provides that when an application is made for the cancellation of a negative notice, s 12(2) ‑ s 12(8) are to apply to the application as if:
(a)the application were an application for an assessment notice;
(b)a reference in those provisions to issuing an assessment notice were a reference to granting the application; and
(c)a reference in those provisions to issuing a negative notice were a reference to refusing the application.
The respondent considered that s 12(4) was applicable to the application and by letter dated 28 April 2008 the respondent notified D that his application for cancellation of the negative notice was unsuccessful.
Shortly thereafter D exercised his right to seek a review of that decision by this Tribunal. Such a review is by way of a hearing de novo; is not confined to matters that were before the decision-maker; and the purpose of the review is to produce the correct and preferable decision at the time of the Tribunal's decision upon the review: SAT Act, s 27.
The issue for the Tribunal is whether to affirm the respondent's decision under review not to cancel the negative notice or whether the decision under review should be set aside, the negative notice cancelled and an assessment notice issued to D.

The test to be applied

As noted at [17] above, when dealing with D's application to have the negative notice cancelled, the respondent proceeded on the basis that WWC Act, s 12(4), was applicable - and initially maintained that position at the hearing. At the hearing the Tribunal raised with Mr Dixon, who appeared for the respondent, whether s 12(4) was applicable, given that the subsection required the respondent to be both aware that D had a non‑conviction charge for a Class 2 offence (s 12(4)(b)) and not aware of any offence of which D had been convicted (s 12(4)(a)). It was common ground that s 12(4)(b) was applicable, but it could not be said that the respondent was unaware of any offence of which D has been convicted - as it was apparent that the respondent was aware that D had in the past been convicted of other offences that were not Class 1 or Class 2 offences (the convictions).
Although he was not prepared to concede that s 12(4) was not applicable to D, Mr Dixon submitted that an alternative was s 12(5) - because the respondent was aware that D had been convicted of non‑Class 1 or 2 offences. It was submitted that, if s 12(5) was applicable, in evaluating whether an assessment notice should issue it would be necessary and appropriate to have regard to all the circumstances of the Class 2 non‑conviction charge. If any of the specific factors set out in s 12(8)(b) to s 12(8)(e) were regarded as applying only to the convictions, then regard could be had to the circumstances of the Class 2 non‑conviction charge by reference to s 12(8)(a) or s 12(8)(f).
It seems to us that this approach should be adopted, because s 12(5) is the only subsection of s 12 that can be said to 'fit' D's situation. Because it is a criminal offence to carry out child‑related work without an assessment notice, it would seem apparent that the WWC Act is a vehicle by which every person should be able to apply for such a notice and have the application determined in accordance with the WWC Act. Every such application has to be decided in accordance with s 12, and it would be anomalous to conclude that s 12, by its terms, does not deal with all the types of situations that could arise.
In the context of the present proceeding, it seems to us that it will make no difference to D or the respondent whether the matter is determined by reference to s 12(4) or s 12(5). Both subsections require the respondent (and the Tribunal on review) to issue an assessment notice to D unless satisfied that a negative notice should be issued '…because of the particular circumstances of the case …', and s 12(8) applies to both.
In addition to the matters set out in the WWC Act, s 12(8) referred to above, s 3 of the WWC Act provides that in performing a function under the WWC Act the respondent, or the Tribunal, '… is to regard the best interests of children as the paramount consideration'. The Court of Appeal has in two recent cases considered the WWC Act and the legislative scheme it represents in cases focussing on s 12(4) and s 12(5). In the earlier of the two cases, Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 (Grindrod), Buss JA (with whom Wheeler JA agreed) observed at [69] and [70] that the respondent (and the Tribunal on review) is entitled and bound to take into account and give separate consideration to each of the criteria in paras (a) ‑ (f) of s 12(8); is not entitled to take into account any other factors; but each criterion is not of equal significance in the evaluative exercise because of the 'paramount consideration' referred to in s 3. 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 paras (b) ‑ (f) must yield. Whilst para (a) of s 12(8) will always be relevant and paramount, the other criteria in paras (b) ‑ (f) must always be taken into account, but the weight to be accorded to them will vary, depending on the facts and circumstances of the particular case. Grindrod was a case concerned primarily with s 12(4).
Because the respondent approached this case on the basis that s 12(4) was applicable, a summary of the approach taken by the Court of Appeal in Grindrod, when deciding applications under s 12(4), was submitted to the Tribunal. The applicant agreed with that summary. The subsequent case in the Court of Appeal, Chief Executive Officer, Department for Child Protection v Scott [No 2][2008] WASCA 171 (Scott), was one that was dealt with under s 12(5). Buss JA (with whom Newnes JA agreed) reproduced part of his analysis of s 12(4) in Grindrod, noting the similarities of the two provisions. The following summary of the principles to be applied in cases involving s 12(4) and s 12(5) is derived from the summary provided by the respondent with appropriate amendments.
•The 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, even though the civil rights of applicants issued with negative notices will be adversely affected, and in some cases, those applicants with non‑conviction charges may suffer serious or irretrievable damage to their reputations or a significant diminution of their earning capacity (Grindrod at [76], Scott at [109]).
•It is implicit in s 12(4), s12(5) and s 12(8), in the context of s 3, and the WWC Act as a whole, that the CEO (and the Tribunal on review of the CEO's decision) is not to issue a negative notice under s 12(4) or s 12(5) 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 s 12(8)(a) ‑ s12(8)(f) (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 (Grindrod at [81], Scott at [123] and [159]).
•The critical question for the Tribunal under s 12(4) or s 12(5) is whether, on all the information and other material properly before the Tribunal, 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. (Grindrod at [85], Scott at [127]).
•Even if the information and other material properly before the Tribunal does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw(1938) 60 CLR 336, 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 (Grindrod at [85]).

•The factors which bear upon risk include (but are not limited to):
(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 (Grindrod at [86], Scott at [127]).

•The analysis and evaluation of risk must be based on all the information and material properly before the Tribunal. It will be necessary for the Tribunal to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions (Grindrod at [87], Scott at [128]).
•The purpose of an assessment under s 12, where there is a non‑conviction charge, is not to re‑try the applicant's case. Neither the respondent nor the Tribunal is a court exercising criminal jurisdiction. It is not the function of the respondent or the Tribunal 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 and is not concerned with the proof of offences but with the prevention of potential future harm (Grindrod at [84]).

The applicant's background

D was born overseas but has lived in Australia for most of his life. He has two sons from his marriage to Ms J, from whom he separated in the mid‑1980s and subsequently divorced. His sons are C (who was 24 years of age at the time of the hearing) and G (22 years). The child against whom D was alleged to have offended (T) is the daughter of G and G's partner, Ms L.
D also has a daughter, who was aged about six years at the time of the hearing, from a relationship with a Ms W, that relationship having apparently ended in approximately mid‑2007.

D's previous criminal record

It was not in dispute between the parties that, apart from the indecent dealing charge, D's criminal record as a juvenile and adult is as set out below by reference to the dates upon which D was dealt with by various Courts of Petty Sessions or the Children's Court:
•January 1977: Stealing - dismissed under s 26 Criminal Code;
•January 1979: Speeding (two charges) - fines of $45 and $50;
•March 1979: Demerit points suspension - three months;
•April 1979: Refusal to supply or provide false name and address - fine of $10;
•April 1979: Driving whilst under suspension - fine $150, disqualification nine months;
•July 1979: Speeding- fine $60;
•June 1994: Breach of restraint order - dismissed (complainant refused to give evidence);
•January 1996: Threatening behaviour - fine $40;
•April 1997: Driving while under fines suspension - fine $500, disqualification nine months;
•May 1997: Unlicensed vehicle - fine $80;
•May 1997: False numberplate - fine $150;
•May 1997: Driving under suspension - fine $800, disqualification nine months;
•September 1998: Possession of prohibited drug - fine $300;
•August 2000: Unlicensed vehicle - fine $100;
•August 2000: Unlicensed vehicle - fine $140;
•October 2000: Unlicensed vehicle - fine $150;
•October 2002: Driving under fines suspension - fine $300; and
•October 2006: Unlicensed vehicle - fine $300.
The respondent has not suggested that any of the above convictions are relevant to the assessment of D for the purposes of this proceeding, other than the 1996 conviction of threatening behaviour, further reference to which will be made below.

The indecent dealing charge against D

In January 2007, D's son G, G's partner Ms L, and D's former wife, Ms J, made several statements to police concerning disclosures that were said to have been made to them by T, the then three‑year‑old daughter of G and Ms L.
Ms L said in her first statement that the first disclosures were made to her by T on Saturday, 21 January 2007, whereas G said in his first statement that the disclosure was made on Sunday, 21 January 2007. That discrepancy does not, we think, have significance.
Ms L said that she was in a bedroom of their home with T when T complained of a sore vagina, showed her where it was sore and, in response to a question, agreed that someone had touched her there. Ms L said that she asked T if a number of other named people had touched her in that way and she said that they had not - but then said 'Yes' to the question of whether she had been touched there by 'Pop', which Ms L said is the name by which D is known in the family.
G then became part of the conversation and T is said to have made a similar disclosure to him. G said that he asked T if it was 'Poppy' who had touched her, to which T said yes. G said that D is called Pop or Poppy by T and no one else is called that.
In her first statement, Ms L said that she and G asked T whether the touching had occurred in the house and T had said 'Yes' and had tried to count out on her fingers that it had happened on other occasions. G said in his first statement that he had taken T for a walk and he had again asked her where the touching had occurred. T said it had occurred out the back of the house on the trampoline. When asked, T also said that touching had occurred at the home of G's brother C, with whom D at one stage had lived.
Ms L said in her first statement that she had never completely trusted D with T and had never left them alone for long periods of time. She also said that she recalled an occasion three or four months previously when T had complained that her vagina was sore and Ms L said she could recall that she, G and T had been at C's house that day.
In her second statement, Ms L said that D would visit G about once a week on average, would play with T and draw with her on those visits, and that she considered there to be a normal grandfather/granddaughter relationship, with D showing affection towards T as any grandfather would. Ms L said that D and T would often be left alone together but never for long periods and Ms L would always be nearby.
In his first statement, G said that he would see his father on average once a fortnight, mainly at G's house but occasionally at C's house. G said that the last time T would have seen D prior to 21 January 2007 would have been on the previous Wednesday or Thursday when D had visited their house - but the only thing he could remember about that visit was that D was reading a story to T in the lounge room. He said that T often went out the back to the trampoline. He said that T was never left alone with D for more than 5 or 10 minutes at a time.
In his second statement, G said that there was physical contact between D and T, for example, if they were sitting on the lounge reading a book, D might have his arm draped around T.
G said in his second statement that his father would see T on average once or twice a week and sometimes three times a week and there were lots of periods when D was left alone with T but only for short periods of time to a maximum of 10 to 15 minutes. As far as he knew, the relationship between grandfather and granddaughter was normal and he did not try to monitor what D did with T whilst he was at the house.
Ms J gave a statement to police in which she said that on about 22 January 2007 she had arrived at the home of G and Ms L at about 6.45 pm and had taken T out to a park nearby. After a lengthy period of playing in the park, she had asked T whether anyone had touched her vagina and T said that someone had, that it had hurt and that it was 'Poppy' who had touched her. T said that it had occurred whilst she was 'bouncing on my trampoline' and that Poppy had 'come through the fence' and that her parents were inside the house. Ms J said that she had asked T whether this had happened previously and T said that it had happened at 'the park house', which could have referred to another house G, Ms L and T had lived in or the house of her other son, C.
Ms L, G and Ms J all said in their statements that T had not previously been exposed to sexual behaviour or conversation.
On 26 January 2007 D was interviewed by detectives under caution.
D said that he had a good relationship with G and that he had last seen him about a week prior to the interview on his days off - which are normally Friday and Saturday. He said he sometimes called in to G's house on other occasions if he was passing by, but usually only for a few minutes at a time. Prior to the last visit he had not seen G for three or four weeks. He thought that on average he visited G about once a fortnight but usually did not stay more than 10 minutes.
D said that as far as he knew, the relationship with Ms L was all right, and that he had no problems with her.
D said that the last time he visited G's house, he had had a shave there and then he had left.
D said that he had not seen T on many occasions because there had been a period of about a year when G had kept away from his family and there had been differences between C and G. Eventually he had restarted seeing G but his visits were short.
On the last visit he said that he had been with G and Ms L, sitting out the back at first and then they had come into the lounge for five minutes before he left. He said he had not played with T on the trampoline and he did not know whether or not they had a trampoline out the back.
D denied categorically that he had ever touched T's vagina. He then said that he understood that the allegation was caused by Ms L because there had been differences between her and G's side of the family.
D was asked what name T used to refer to him and he said he did not really know. He said she had once called him 'Granddad' and once 'Pop'.
D said that he had never given his granddaughter a hug or otherwise touched her in any way. He said this was because he had not seen G, Ms L or T for a long time after T was born because Ms L would not allow contact.
T was interviewed by two police officers at the Child Interview Unit on 26 January 2007. The interviewers obviously took considerable efforts to put T at her ease, but it is apparent from the transcript that T did not always respond to the questions put to her. She said she wanted to see her dad.
T was asked what she wanted to talk about, and her response was that her mother had told her that she had to 'say to police, "Put Poppy into gaol".' She then stated that Poppy had touched her, and it appears from the transcript that she demonstrated the part of her body where the touching had occurred. She was asked when the touching had occurred but did not answer. She said that the touching had occurred 'outside' at her house and that she was painting with D. Two of her friends were there, inside the house. She said that she had then gone inside. T confirmed that Poppy was her father's father. She said that D had touched her with his finger and that it had hurt. He had touched her on top of her knickers. She said that the finger had moved when it touched her.
T also said that Poppy had touched her in that way more than one time and then said that it had occurred on another time outside her house when she was painting.
The first part of the interview appears to have occupied approximately six minutes and there was then a break of approximately 20 minutes. The transcript reveals that T said that during the break she had talked to someone about the things that were being discussed at the interview but did not say whom she had spoken to or what had been said. T was asked further questions about where and when and how often other touching had occurred. She said that it had occurred somewhere else but did not otherwise answer the questions. The second part of the interview appears to have lasted for about four minutes.
The charge against D specified the offence occurring 'on a date unknown between 21 December 2006 and 21 January 2007'.
On 8 June 2007, D was committed for trial in September 2007 but on 3 September 2007 the Crown sought an adjournment because it required more time to proof T because of her young age and to then make a determination as to whether to proceed with an indictment.
On 3 October 2007, the District Court was advised that the matter would be discontinued because T had been '… recently assessed by Child Witness Services and she was unable to demonstrate a capacity to recall contemporaneous events, unsolicited, leading to the State to form the view that any evidence she might give, unsolicited, would not be capable of supporting the allegation, the subject of the charge. Accordingly, there are now no reasonable prospects of securing a conviction …'.
This view was apparently taken by the State because, as appears from a letter dated 15 October 2007 sent by the Director of Public Prosecutions to Ms L, T had been assessed by the Child Witness Service on 26 September 2007 and the assessment had been made that T was unable to provide an unassisted recall of her most recent birthday and leading questions were required to obtain any specific information.

Other information considered by the respondent

Apart from the circumstances of the non‑conviction charge referred to above, in deciding to refuse D's application to have the negative notice cancelled the respondent also considered that the circumstances of the conviction for threatening behaviour in 1996 was relevant - because it suggested some sort of antisocial orientation on the part of D. The charge related to D verbally threatening a neighbour whilst whirling nunchakus. D's response at the hearing to the circumstances of that conviction is set out below.
The respondent also referred to information obtained from a former employer of D, relating to work at a nursing home, where D was alleged to have made sexual and threatening remarks to elderly patients. Apparently, information was given to police by the employer but no action was taken and the respondent does not appear to have relied on this aspect of the matter when making the decision under review.
The respondent also had regard to certain information provided by the Department for Child Protection relating to contact made by officers of that Department with Ms W, D's former partner and the mother of D's child L. The Department established that D was having access to L each week, supervised by Ms W. Ms W is recorded as informing the departmental officers that she thought D was 'not normal' and that he acted 'a bit strange', but she could not provide examples and the case notes refer to Ms W not being able to understand the questions being asked of her at times.

The evidence at the hearing

Apart from receiving all the documentation held by the respondent referred to above, the Tribunal also received the oral evidence referred to below.
Ms Rosemary Cant gave evidence on behalf of the respondent. Ms Cant holds Bachelor and Masters degrees in Psychology and has experience since 1971 in the child protection area. She has evaluated police/child protection investigations in New South Wales and Western Australia, has been a member of the Case Review Board and the Child Death Review Committee and has conducted reviews of cases involving allegations of physical or sexual abuse of children for the Department for Child Protection.
Ms Cant provided a report to the respondent that formed part of her witness statement (exhibit 2). Ms Cant had not interviewed any of the persons involved in the matters in issue in these proceedings, but had examined the written statements provided to the police and other material.
Ms Cant referred to research over the last 20 years relating to the cognitive development, language and conceptual skills of children and their ability to recall events.
After reviewing the statements made by all the participants in the events in question, Ms Cant concluded that, in her opinion, T '… at the age of 42 months had the capacity to recall contemporaneous events (ie, those occurring within a few days or weeks). She would also have had the capacity to recall events after longer intervening periods, but may or may not have been able to recall particular events without cues. There is no evidence to support a view that the questions asked of [T] may have led to a false belief by [T] about being touched by her paternal grandfather or that her testimony is unreliable or untruthful'.
In response to questions from the Tribunal, Ms Cant said that the questioning of T by Ms L, G and Ms J was obviously not that of a trained interviewer, but there were aspects of T's statements that leant credibility to the proposition that some touching had occurred - examples being T's spontaneous showing of where the touching had occurred and her looking away when 'Poppy' was mentioned, that being different to her responses when other people's names were mentioned. This was all consistent and convincing of what was said. T's response to questioning was 'not atypical' of children in a difficult situation. Ms Cant said that when under four or five years of age, children are not comfortable in an interview situation.
Ms Cant thought that statements attributed to T about wanting to 'put Poppy in gaol' or having Poppy 'bashed up' were not particularly significant. At age three and a half a child would not really be aware of what going to gaol or being bashed meant. Overall, Ms Cant thought that the disclosures made to Ms J were more natural than the statements made in the formal interview.
As regards to inconsistencies about where the touching had allegedly occurred (that is, inside or outside the house or when painting), Ms Cant noted that there had not been any detailed exploration of those inconsistencies, but it was not unusual for a child to recall different aspects of events. The differences might be explained by there having been more than one incident of touching or the inconsistency may only have been due to the nature of the questioning of T.
In relation to T's statement that the touching had occurred on a Tuesday, Ms Cant said that she would not expect a child to locate a particular day accurately, although it was not unusual for a child to name a day even though it might not be the right day. That would not reflect on the accuracy of the child's recall.
C gave evidence in chief by way of a witness statement (exhibit 3) in which he said that between December 2005 and late 2006 D had lived with him, C's partner and their young son. D was working as a nurse and working long hours. D enjoys a normal interaction with C's son, but C would not describe D as being overly affectionate.
C said that there had been a history of disputation within his family, and times when G and Ms L have been estranged from the family. There have been many periods of months where G has not spoken to other family members, followed by periods when the family is 'reconciled'.
C said that he was aware that there was a period of between 6 and 12 months when D and G had no contact at all and they only commenced seeing each other on a regular basis in about September 2006 when D lived with C. G, Ms L and T came to C's house about once or twice a week in that period but D was not always at home when they visited. The visits never lasted more than an hour and T usually played with C's son.
During the same period C visited G's house a few times and was there on a few occasions when D visited but, again, D never stayed for long. There may have been about three occasions when C saw D at G's house and on those occasions D did not interact very much with T. D was certainly never overly affectionate towards T, speaking to her only briefly by way of a greeting. T appeared to be friendly towards D and did not appear to be afraid or uncomfortable in his presence.
In cross‑examination, C said that in the period at the end of 2006, when he saw G occasionally, the atmosphere was not comfortable because Ms L did not like the contact between G and his family. There were times when Ms L would not come into the house with G.
C said that there were frequent occasions when G asked him or D for money.
C also said that during this period towards the end of 2006 there were other people, who were friends of G, living in the house with G and Ms L.
N, who is D's brother, gave evidence in chief by way of a witness statement (exhibit 4). He said that he and D are part of a large family, there being 12 siblings, 24 grandchildren and 26 great‑grandchildren. The extended family is generally close and get together at their parents' home every Sunday and other occasions. At such gatherings there are many children of all ages and N said that he had had many opportunities to observe D's interactions and relationships with the children in the family. D appeared to get along very well with the children and they appeared to like him and enjoy his company.
N said that D had been left to raise his two sons, G and C, from when they were about 10 or 12 years of age. He had been a caring and devoted father and had done a good job in raising them on his own in often difficult circumstances.
D gave his evidence in chief by way of a written statement (exhibit 5). He said that he had brought up C and G after separating from Ms J in the 1980s. G had been a difficult teenager and had been in trouble with police on numerous occasions. There had been periods of family instability and acrimony between family members, including between D and G. D's contact with G had become less frequent after G commenced his relationship with Ms L some years ago. It was D's impression that Ms L did not like him or his family and tried to avoid contact with the family. Up until about mid‑2006, G and Ms L had lived with Ms L's father south of the river, which was a long way from where D was living and so there was limited contact during that period. However, in about July 2006, G and Ms L moved closer, and contact was re‑established with them. He saw G and Ms L on about a fortnightly basis, usually on paydays or days off, and in the 6 months from July 2006 until January 2007 he thought that he had had contact with them on about 10 or 12 occasions. Sometimes this was at C's house and sometimes at their house. Mostly this contact was so that G could ask D for money and often Ms L and T stayed in the car when they came to C's house.

During that period D said that he visited G's house on perhaps four or five occasions, only ever staying for 10 minutes to half an hour and his interactions were mostly with G.
D said that T seemed to be quite shy around him. She didn't speak a lot to him and he had never hugged or kissed her or sat her on his knee, although he could recall picking her up once and he may have draped his arm around her shoulders if she sat near him - but otherwise D could not recall having any physical contact with T.
D said that for many years G had used illicit drugs, and this had been a source of conflict between them from time to time. He referred to an incident in about September 2006 when G had tried to hit him and D had told G to leave the house or he, that is D, would report G's drug taking activity to welfare authorities.
After that incident D had no further contact with G or Ms L over the Christmas/New Year period but did visit him in early January 2007. He thought it was in the first two weeks of January. On that occasion he spoke to G at the front of the house near D's car. D said he had not gone into the house and he could not specifically recall whether he saw T on that occasion.
D said that about a week after that contact G had spoken to him and apologised for the incident in September 2006 and told D that he had no money and needed help. D said that on about 18 January 2007 or 19 January 2007 he visited G and Ms L and took Christmas presents for them from D's parents - that had been left under the Christmas tree at Christmas time because G and Ms L had not visited the rest of the family at that time. He also took some household items, such as toilet paper, and gave G some money. There were at least three other adults in the house at the time and T was running around playing with some other children. D said that he had a chat to G, had a shave in the bathroom of the house and a drink and he borrowed a shirt from G that he was going to wear on an outing with one of the other people who was staying in the house. D said that he exchanged greetings with T in the lounge room of the house, but in G's presence, and then D left the house without having any physical contact with T.
D said that he has no formal training or qualifications and has worked in various jobs, initially in the music industry. He had run the laundry at an old person's home and then undertook a patient care course while in that job, and for the past eight years has worked as a nurse/patient care assistant for agencies, primarily in aged care facilities. He had worked at a particular nursing home from 2002 until January 2007.
In mid‑January 2007 he was advised by the director of nursing at the facility that a complaint had been made against him by another staff member and that he was to be stood down from duties whilst the complaint was investigated by police. He said that he had been able to work out that the allegations had been made against him by a person named Fiona, to whom he had introduced, and whom he believed subsequently became a friend of, Ms L. He had been interviewed by police in relation to the allegations, but no charges were laid against him. He said the complaints were completely unsubstantiated. Nevertheless, while he was stood down from that work he sought alternative work at a hospital and when offered that employment he resigned from the nursing home.
D said that he had previously had an exemplary employment record and he found the process of the investigation into the allegations made against him stressful and distressing.
After taking up his new employment at the hospital he was advised that he needed to obtain a Working with Children Assessment Notice and because, in May 2007, the respondent had issued the interim negative notice, he was unable to take up his employment at the hospital.
After the prosecution was discontinued in October 2007, he had obtained another job as a patient care attendant at another hospital and he worked at that job until mid‑January 2008 when he was told that the respondent had advised the hospital that a negative notice had been issued against him and his employment was terminated as a result. In subsequent months he applied for a number of other jobs, unsuccessfully, and he has been advised that he will only obtain this kind of work if he is able to get a Working with Children clearance.
In relation to the threatening behaviour charge from 1996, D said that at the time C and G were 11 and 9 years old and on the particular day he was doing martial arts training with a friend. He was in his training gear and had nunchakus with him. The children came home from the park and said that a man who lived in the street had hit them. D and his friend went to the man's house and D said, 'If you touch my kids again you'll know what will happen to you' and gestured to the nunchakus.
In his oral evidence at the hearing, D said that although he was seeing G, Ms L and T towards the end of 2006, he was becoming frustrated that G was not able to obtain a job, was always asking him for money and Ms L was going to extreme lengths to try to separate G from his family.
D believes that Ms L and Ms W (his former partner) tried to undermine him because Ms W wanted to stop him seeing his daughter. He said that Ms L and Ms W used amphetamines together.
In relation to the indecent dealing charge, D said that there was no truth whatsoever in the allegations made against him and that he had never been called 'Poppy' by T.
D said that he believed that T's maternal grandfather, that is, Ms L's father, was known as 'Poppy' by T and he had some reason to suspect that Ms L might be trying to protect her father in some way by having T make allegations against D. He said that after he was charged with the offence, he was told by other people who lived in the house with Ms L and G that Ms L had shown T a photo album every day and repeatedly told T that he was 'Poppy'.
When asked in cross‑examination why he had not referred to these matters in his witness statement (exhibit 5), D could provide no specific explanation.
Ms Barbara Cunningham gave evidence by way of a statement (exhibit 7) and oral evidence. She said that she had known D from when he was a boy. She has family connections to D and has socialised with him over many years through the family connection. She described him as a trustworthy, honest and decent person and from her knowledge of D's personality and her observations of his relationship with others, especially the children in his family, she considers the allegation of indecent dealing with his granddaughter entirely out of character.
In her oral evidence, Ms Cunningham said that she could not fault the way D dealt with children. She was aware that G had been 'troublesome' during his teenage years and she was aware of longstanding problems between G and D.
Ms Noreen Baker gave evidence by way of a written statement (exhibit 8) and oral evidence. She said that D had worked under her direct supervision at the nursing home for about three years prior to January 2007. Her observation of D was that he was a kind and caring person towards both male and female residents. He had a good sense of humour, although he sometimes said things without thinking and not everybody appreciated his sense of humour. She thought he was always well intentioned and things said were intended to amuse other people.
Ms Baker said she was aware that D had been stood down as a result of allegations made against him. Although she was not aware of the precise nature of the allegations, she had never witnessed D make sexual remarks towards residents of the nursing home, nor make any physically threatening gestures towards residents. Ms Baker said that from her knowledge of D's demeanour, behaviour and performance at work, she would be reluctant to accept any such allegations against him without very clear evidence.
Ms Selma Hall gave evidence by way of a witness statement (exhibit 14) and oral evidence. She said that she met D when they were working together at the nursing home and they became personal friends, with Ms Hall knowing D's immediate family well, including his parents, children and grandchildren. D was a very good worker, caring and gentle with residents and had a good relationship with other staff. He was always joking with other staff and patients. She never witnessed D to be nasty, rough or inappropriate with any patients. Ms Hall said that she has an eight‑month‑old baby and she has no hesitation in leaving the baby in D's care.
A number of other statements were tendered by consent. Exhibit 11 consists of pay sheets for D from his employment at the nursing home in the period 21 December 2006 until the end of January 2007. They appear to show that D had Fridays and Saturdays off and that he did not work after 15 January 2007.
Exhibit 12 is a letter to D from another hospital, undated, but attaching an application form for a Working with Children Certificate that was required to be completed by D in relation to his application for employment.
Exhibit 13 is an email between another hospital and D's former solicitors advising that D was employed at that hospital from 17 December 2007 until 29 January 2008 on a casual basis as a patient care assistant but that his employment was terminated because the hospital received a negative notice and D was no longer able to engage in any child‑related work.

Considerations prescribed by s 12(8) of the WWC Act

In the light of all the information and evidence set out above, it is necessary to have regard to the criteria specified in s 12(8) of the WWC Act. In accordance with the principles that have emerged from the authorities referred to above, the paramount consideration is that set out in s 12(8)(a), namely the best interests of the children. If there is an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of carrying out any child‑related employment that he might undertake, then the best interests of children require that a negative notice be issued. We propose to look at each of the other considerations in s 12(8) before returning to consider the best interests of children. We have regard to all of the offences committed by D, as well as the Class 2 non‑conviction charge.

When the offences were or are alleged to have been committed ‑ s 12(8)(b)

As set out above, the offences of which D has been convicted run from 1977 until 2006 and the non‑conviction charge is alleged to have occurred between 21 December 2006 and 21 January 2007. For reasons referred to below, we do not consider that any of the convictions, apart from the January 1996 threatening behaviour conviction, have any relevance to our determination of the present proceeding. The threatening behaviour conviction in January 1996 is of limited relevance and it is the only conviction that appears to indicate any propensity of D to violence towards others - there being no evidence at all before us of the circumstances of the charge of breaching a restraining order.
The indecent dealing charge bears no resemblance to any of the convictions and there is nothing in D's criminal record that suggests to us that the indecent dealing charge was part of a pattern of behaviour.

D's age when the offences were or are alleged to have been committee - s 12(8)(c)

The earliest conviction recorded against D appears to have occurred when he was a juvenile because he was dealt with in the Children's Court. The other convictions, up until October 2006, occurred at various ages up until D was about 48 years of age - and he was that age when the indecent dealing offence is alleged to have occurred.
At the time of the alleged offence, T was three and a half years old and D was her grandfather and clearly in a position of trust. This is not a case where, if the allegations were proved, D's age could be said to in any way mitigate the seriousness of the conduct.

Nature of the convictions and alleged offence and relevance to child‑related work - s 12(8)(d)

None of the convictions recorded against D relate to children. In relation to the threatening behaviour charge, it is clear that D did not physically assault the complainant in that matter and we have no reason to doubt D's explanation about the circumstances of the offence - that is, his response to an assault upon his young children. We consider that the convictions against D are not relevant to child‑related work.
Clearly, however, the offence of indecent dealing of a young child is highly relevant to child‑related work, although the charge against D did not arise in a work‑related context. Although there was some suggestion that T may have been abused on more than one occasion, the charge against D was for a single offence.

Information given by D and anything else considered relevant - s 12(8)(e) and s 12(8)(f)

We regard all of the other information set out above in these reasons relating to D's background, the circumstances of the alleged offence and the various statements made by persons involved to be relevant to our consideration of the ultimate question to be determined - whether there exists an unacceptable risk to children if D were to be granted an assessment notice under the WWC Act.

Is there an unacceptable risk to children

In our opinion D would have been granted an assessment notice by the respondent had he not been charged with the indecent dealing offence. The real question for determination in this case is whether, in the circumstances of that charge and D's situation overall, the Tribunal can be satisfied that the risk of harm to children if a notice were to issue is such that D should not get an assessment notice.
The principles to be observed and the factors that bear on the assessment of that risk were identified by the Court of Appeal in the authorities referred to above and set out in para [24] and [para [25] above.
The circumstances in which D was not convicted of the offence with which he was charged are set out above. T could not give spontaneous evidence of past events, including the events the subject of the indecent dealing charge in a way that would be required in a criminal trial.
In relation to the apparent strengths and weaknesses of the case against D, the fact is that the evidence against him was never tested in a court. Similarly, no evidence was given at the hearing in this Tribunal by Ms L, G or Ms J and there has been no avenue to test the various inconsistencies in their statements about where and when any indecent dealings by D with T must have occurred, or whether D or anyone else was known as 'Pop' or 'Poppy'. Similarly, the Tribunal did not hear from Ms L and G regarding allegations made by D of their illicit drug use and other conduct which D said are the reasons for the false allegations and which undermine the reliability of the case against him. In addition, D's various statements and his oral evidence in the Tribunal were in a number of respects inconsistent and vague about how often he visited G, how long those visits lasted, and what opportunities he had for physical contact with T. His explanations or theories for the false allegations that he was 'Poppy' include some kind of response to his threat to involve the welfare authorities in relation to G's drug use, and an attempt by Ms L to divert attention from her own father were not raised in the police interview, although he did say that Ms L was possessive and trying to come between G and his family.
It seems likely that some sort of disclosure was made by T to her parents and Ms J and we accept that T made disclosures to police interviewers a few days later. We have no reason to think that T made up the disclosures of her own volition, but the question remains whether G or Ms L somehow induced her either inadvertently or intentionally to make those disclosures. As noted, we have had no opportunity to test that proposition by hearing from G or Ms L. However, Ms Cant acknowledged the shortcomings of the questioning by the parents and by Ms J when the disclosures were first made.
In trying to form a view about whether there is any real likelihood that the allegations made against D were false, there are several factors that might suggest there is substance to D's concerns about that - although we do not discount Ms Cant's evidence about the general reliability of statements made by children. Although, as we have said, we have not heard from G or Ms L on this aspect we accept D's and C's evidence (corroborated by Ms Cunningham) that longstanding differences existed in the relationship G (and Ms L) had with D and other members of his family.
We accept that D's visits to G and Ms L were relatively short in nature, some of those visits occurred outside the house, and also that other people, apart from G, Ms L and T, were living at the house at the time of the visits. In addition, we note the statements of G and Ms L that D was not alone with T for long periods. These factors support the submission that D had limited opportunity to commit the offence but we do not discount that there were on the evidence before us brief periods when D was alone with T when the offence could have occurred. However, the fact other people were in the household means both that D had reduced time to commit the offence and leaves open a possibility that another person may have been the offender.
In addition to the above, there is evidence, which we accept, that G and Ms L were themselves users of illicit drugs, which might have influenced their behaviour towards D.
On the other hand, D in his oral evidence was not an impressive witness. He was quick to accuse others of some kind of vendetta or conspiracy and his evidence (including his statement to police) was somewhat rambling and disjointed. On the other hand, although a solicitor prepared his submissions he was not legally represented at the hearing or at the police interview and his desire to accuse others is perhaps understandable given his often-stated denial of the accusations and his belief that his loss of employment at the time and his inability to work since then is due in no small part to unjustified actions by other people.
There must be some suspicion that D committed the offence. However, the case against him had apparent strengths and weaknesses, none of which was tested by a trial, and we are unable to conclude that we have a reasonable suspicion that he did or did not commit the offence.
As regards the degree of seriousness of future risk to children if D were to be engaged in child‑related employment and the likelihood of any such risk materialising, it seems to us that the presumption of the WWC Act is that if a person did do what he/she is accused of doing, in particular an offence referred to in the schedules of the WWC Act, then there is a risk of the person harming children in the future.
Although there must always be a suspicion that D has offended in the way alleged, on balance we are not satisfied that in the particular circumstances of this case a negative notice is required. We have reached this conclusion because of the following factors:
•the doubt raised about D's commission of the offence despite his identification by T - since there is a possibility that this was suggested to her either inadvertently or intentionally by Ms L;
•the fact that D has no record of other convictions or charges for offences that relate to harm to children;
•the views of third persons such as Ms Baker and Ms Hall who, although well aware of the charge against him, speak well of D's character and his work ethic - and who believe that any conduct of the type involved in the charge against him would be entirely out of character; and
•the fact that D has not in the past worked in an environment where he would regularly or often come into contact with children, namely his work in nursing homes. It seems to be the case (and we did not understand Mr Dixon to dispute this) that employers take a very wide view about what sorts of employment requires an assessment notice. Moreover, we accept D's evidence that he has not in the past, and has no desire to work with children in future.

For cases falling within the scope of WWC Act, s 12(5), a person such as D is to be issued an assessment notice unless the Tribunal is satisfied that, because of the particular circumstances of the case, a negative notice should issue.

Orders

For the reasons set out above, we are not so satisfied and we make the following orders:
1.The decision of the respondent made on 24 April 2008 to refuse to cancel the negative notice issued on 15 August 2007 is set aside.
2.The negative notice issued on 15 August 2007 is cancelled.
3.The respondent is to issue an assessment notice to the applicant.
4.Pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA), the name of the applicant shall not be published except by the respondent for the purpose of, or in connection with, the performance of any functions under the Working with Children (Criminal Record Checking) Act 2004 (WA).

I certify that this and the preceding [126] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR M ALLEN, SENIOR MEMBER