DIRECTOR OF ENERGY SAFETY and GEORGE
[2023] WASAT 112
•28 NOVEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: ELECTRICITY ACT 1945 (WA)
CITATION: DIRECTOR OF ENERGY SAFETY and GEORGE [2023] WASAT 112
MEMBER: MR D AITKEN, SENIOR MEMBER
MS KY LOH, MEMBER
MR R CAMPBELL, SESSIONAL MEMBER
HEARD: 30 MAY 2023
DELIVERED : 28 NOVEMBER 2023
FILE NO/S: VR 18 of 2022
VR 19 of 2022
BETWEEN: DIRECTOR OF ENERGY SAFETY
Applicant
AND
IGNATIUS GEORGE
Respondent
Catchwords:
Vocational regulation - Holder of electrical worker's licence and electrical contractor's licence convicted of offences of indecent dealing with a child in her home while carrying out electrical work - not a fit and proper person to be the holder of licences - Proper cause for disciplinary action - Licences cancelled
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA)
Electrical (Licensing) Regulations 1991 (WA), reg 19(1), reg 19(2), reg 30, reg 30(1)(a), reg 31(1), reg 31(2), reg 31(2)(a), reg 31(2)(c), reg 31(2)(d), reg 33(1), reg 46, reg 46(1)(a), reg 47(1), reg 47(2), reg 47(2)(a), reg 47(2)(b), reg 47(2)(c), Pt 3, Pt 4
Electricity Act 1945 (WA)
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Motor Vehicle Repairers Act 2003 (WA)
Occupational Safety and Health Act 1984 (WA) (repealed)
State Administrative Tribunal Act 2004 (WA), s 51(1), s 62(3)
Result:
Cause exists for disciplinary action against the respondent
Licences held by the respondent cancelled
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Derby |
| Respondent | : | Mr P Lochore |
Solicitors:
| Applicant | : | Department Of Mines, Industry Regulation and Safety - Legal Services Directorate |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Consumer Affairs v Curran [2023] SASC 6
Commissioner for Consumer Affairs v McCurdy [2004] SADC 174
Curran v Commissioner for Consumer Affairs [2022] SACAT 25
Director of Energy Safety and Hermanns and Rossi Electrical Contractors Pty Ltd [2007] WASAT 327
George v State of Western Australia [2020] WASCA 139
George v State of Western Australia HCATrans 212
Ives and Plumbers Licensing Board [2013] WASAT 125
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Psychology Board of Australia and Fawcett [2023] WASAT 86
Sobey v Commercial & Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In these proceedings[1] the Director of Energy Safety (Director) alleges that there is proper cause for disciplinary action against Mr Ignatius George (respondent) under reg 30(1)(a) and reg 46(1)(a) of the Electrical (Licensing) Regulations 1991 (WA) (Regulations) in that he is not a fit and proper person to hold an electrical worker's licence and an electrical contractor's licence under Parts 3 and 4 of the Regulations, because he has been convicted of two offences of indecent dealing with a child over the age of 13 years and under the age of 16 years.
[1] Matter Number VR/18/2022 is in respect of the respondent's electrical contractor's licence and VR/19/2022 is in respect of the respondent's electrical worker's licence. An order was made by the Tribunal on 19 September 2022 that the proceedings are to be determined together pursuant to s 51(1) of the State Administrative Tribunal Act 2004 (WA).
The Director contends that if the Tribunal finds that the respondent is not a fit and proper person to hold an electrical worker's licence and an electrical contractor's licence, the Tribunal should cancel the licences to protect the public or, alternatively, suspend the respondent's licences for a period of 12 months and impose a condition on each licence that the respondent must not carry out electrical work in respect of any residential premises where a person under the age of 18 years is present at the time unless the respondent is at all times during that work accompanied by a licensed electrical contractor.
The respondent contends that there is not proper cause for disciplinary action against him, but if the Tribunal decides that there is a need to take disciplinary action it should be proportionate to the protective or deterrent need identified and, in the circumstances of this case, cancellation of the licences is not justified and a suspension of the respondent's electrical contractor's licence and the imposition of a condition on each licence prohibiting the respondent from working in residences with persons under the age of 18 without a chaperone or allowing the respondent to only work in approved types of workplaces would be sufficient to protect the public.
For the reasons which follow, we will make a finding that there is proper cause for disciplinary action against the respondent and order that his electrical worker's licence and his electrical contractor's licence be cancelled pursuant to reg 31(2)(a) and reg 47(2)(a) of the Regulations.
The nature of the proceedings and the onus of proof
The proceedings come within the Tribunal's original jurisdiction.
The role of the Tribunal is to determine whether we are satisfied that proper cause exists for disciplinary action against the respondent under reg 31(2) and reg 47(2) of the Regulations in respect of the licences held by the respondent and, if so, what that disciplinary action should be.
The Director bears the onus of proving his case against the respondent. The civil standard of proof applies in these proceedings, together with the Briginshaw[2] approach, in recognition of the fact that the Director's applications for disciplinary action against the respondent are very serious. Consequently, clear and cogent evidence needs to be adduced by the Director, and the Tribunal must feel an actual persuasion of the occurrence or existence of relevant facts before it will find that proper cause exists for disciplinary action against the respondent.[3]
[2] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) (Dixon J).
[3] Psychology Board of Australia and Fawcett [2023] WASAT 86 (Psychology Board and Fawcett) at [15].
Regulatory framework
The Regulations provide the regulatory framework for the carrying out of electrical work in Western Australia.
Part 3 of the Regulations (regs 19 to 32) deals with the licensing of electrical workers.
Regulation 19(1) of the Regulations provides that electrical work can only be carried out by persons with an electrical worker's licence issued under the Regulations, except for types of work exempted under the reg 19(2).
Regulation 31(1) of the Regulations provides that the Director may allege to the Tribunal that there is proper cause for disciplinary action against a person who holds an electrical worker's licence.
Regulation 30 of the Regulations sets out the circumstances in which there is proper cause for disciplinary action against a person who holds an electrical worker's licence. One of those circumstances is where a person who holds an electrical worker's licence is not a fit and proper person to be the holder of the licence (reg 30(1)(a)).
Regulation 31(2) of the Regulations provides that if the Tribunal is of the opinion that there is proper cause for disciplinary action against a person who holds an electrical worker's licence, the Tribunal can make various orders including to cancel the licence (reg 31(2)(a)), to suspend the licence for a period not exceeding 12 months (reg 31(2)(c)) and to impose a restriction or condition on the licence (reg 31(2)(d)).
Part 4 of the Regulations (regs 33 to 47C) deals with the licensing of electrical contractors.
Regulation 33(1) of the Regulations provides that a person cannot carry on business as an electrical contractor unless they hold an electrical contractor's licence issued under the Regulations.
Regulation 47(1) of the Regulations provides that the Director may allege to the Tribunal that there is proper cause for disciplinary action against a person who holds an electrical contractor's licence.
Regulation 46 of the Regulations sets out the circumstances in which there is proper cause for disciplinary action against a person who holds an electrical contractor's licence. One of those circumstances is where a person who holds an electrical contractor's licence is not a fit and proper person to be the holder of the licence (reg 46(1)(a)).
Regulation 47(2) of the Regulations provides that if the Tribunal is of the opinion that there is proper cause for disciplinary action against a person who holds an electrical contractor's licence, the Tribunal can make various orders including to cancel the licence (reg 47(2)(a)), to suspend the licence for a period not exceeding 12 months (reg 47(2)(b)) and to impose a restriction or condition on the licence (reg 47(2)(c)).
The relevant difference between an electrical contractor and an electrical worker is that an electrical contractor carries on a business of carrying out electrical work, whereas an electrical worker is a person who carries out electrical work but does not carry on a business of doing so; in other words, works as an employee of someone else.
Issues to be determined
The issues to be determined by the Tribunal are:
(1)First, whether under reg 30(1)(a) and reg 46(1)(a) of the Regulations there is proper cause for disciplinary action against the respondent in that he is not a fit and proper person to hold an electrical worker's licence and/or an electrical contractor's licence under Parts 3 and 4 of the Regulations.
(2)Second, if the first issue is answered in the affirmative, what orders are appropriate under reg 31(2) and reg 47(2) of the Regulations or, in other words, what penalty should be imposed.
Background
The respondent is a sole trader who trades under the business name of 'Iggy Electrical Contractors'.
The respondent holds, and at all relevant times held, an electrical worker's licence and an electrical contractor's licence under Parts 3 and 4 of the Regulations (licences).
On 9 November 2018 the respondent was convicted after trial in the District Court of Western Australia of two offences of indecent dealing with a child over the age of 13 years and under the age of 16 years (convictions).
The facts of the offending resulting in the respondent's convictions are as follows:[4]
[4] Sentencing remarks of Gillan, District Court Judge on 9 July 2018; Exhibit 1, page 9.
•On 20 April 2017 the respondent was at the home of a female minor (the victim) then 13 years of age doing some work as an electrician.
•The victim was at home with her mother and her two younger sisters.
•The victim's evidence was that the respondent had been staring at her while he was working around the house, and she felt somewhat uncomfortable.
•The victim was in the laundry room of the house sorting out her laundry to load it into the washing machine when the respondent came into the laundry room.
•While standing behind the victim, the respondent asked if he could touch her hair and the victim agreed to that request.
•The respondent ran his hand down the victim's hair but went further and touched down her back and onto her bottom.
•The victim at first thought that touch was accidental and turned towards the respondent, who asked her if he could touch her hair again.
•The respondent touched the victim's fringe and then dropped his hand to squeeze her breast.
•The victim was shocked and very upset by the respondent's actions and ran out of the laundry through the external door to get away from the respondent and to tell her mother.
The respondent was sentenced to a total sentence of 15 months imprisonment, suspended for 15 months with no conditions.[5]
[5] Ibid; Exhibit 1, page 12.
The sentencing Judge made the following remarks:[6]
•The respondent did not have any history of offending and he was of prior good character.
•An aggravating factor was that the respondent was in the victim's home by invitation to perform work and it was an opportunistic offence.
•Her Honour accepted that the respondent was remorseful on the day of the offences but could not accept entirely that he was remorseful for no other reason than that he defended the matter. Her Honour accepted that the respondent had a degree of remorse and that in particular he was remorseful towards his wife.
•The offences were a serious matter, but not the most serious offences of this type primarily because it was a brief event, the touching was outside of the victim's clothing and that the respondent believed the victim to be older.
•Her Honour accepted that the respondent's offending did not disclose a particular interest in young girls.
[6] Ibid; Exhibit 1, pages 10 and 11.
The respondent's appeal in respect of his convictions was dismissed by the Court of Appeal.[7]
[7] George v State of Western Australia [2020] WASCA 139.
The respondent's application for special leave to appeal to the High Court of Australia was also dismissed.[8]
[8] George v State of Western Australia HCATrans 212.
The Tribunal has made an order pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the name of the victim is not to be published.[9]
[9] Order 1 of the orders made by the Tribunal on 30 May 2023.
Final hearing and evidence
At the final hearing of these proceedings the following evidence was put before the Tribunal.
The Director tendered into evidence his book of documents[10] and the respondent's statement of issues, facts and contentions dated 25 February 2023 (respondent's initial statement of issues, facts and contentions).[11]
[10] Exhibit 1.
[11] Exhibit 8. The reason for the Director tendering this document was for the respondent to be crossexamined regarding paragraph 7 of the document. See [77] and [78] of these reasons for decision.
The respondent tendered into evidence his book of documents[12], his witness statement dated 28 March 2023[13] and character references from Ms Sandy Sajitha George Ignatius,[14] Mr Jasdev Singh,[15] Ms Cheryl Wills,[16] and Mr Phillip Francis Madden.[17]
[12] Exhibit 2.
[13] Exhibit 7.
[14] Exhibit 3.
[15] Exhibit 4.
[16] Exhibit 5.
[17] Exhibit 6.
The respondent gave oral evidence and was cross-examined by counsel for the Director.
The Tribunal arranged for a Tamil speaking interpreter to attend the final hearing to translate for the respondent during the hearing.
Director's position
The Director relies on his submissions in his statement of issues, facts and contentions dated 25 October 2022, his written submissions dated 23 May 2023 and his written closing submissions dated 20 June 2023. The essence of the Director's submissions is as follows.
The Director refers to the principles set out by Wheeler J in Tavelli v Johnson[18] (Tavelli) regarding the relevance of prior criminal convictions in assessing whether a person is 'fit and proper' to hold a licence.
[18] Tavelli v Johnson (Unreported, WASC, Library No 960693), 25 November 1996.
The Director submits that the respondent is not a fit and proper person because:
(1)The offences resulting in the respondent's convictions occurred in the course of carrying out his regulated occupation and while he was the holder of the licences.
(2)The respondent was in the victim's home by invitation to carry out electrical work and, as such, the offences were opportunistic, and the respondent's licences afforded him such opportunity.
(3)Whilst the respondent's convictions are not offences involving dishonesty, they are very serious offences involving moral turpitude and reflect particularly poorly on the character of the respondent.
(4)The respondent's convictions are a very real cause for concern for the public's safety given the circumstance of their commission.
(5)The respondent has failed to demonstrate any genuine insight, remorse or contrition.
(6)Whilst it is noted that the sentencing judge accepted that the respondent had a degree of remorse and that in particular he was very remorseful to his wife, this is more indicative of the respondent regretting the personal effect of the offending on himself and his family.
(7)The passage of time since the respondent's sentencing in November 2018 is not substantial considering the seriousness of the respondent's convictions.
(8)There is no evidence of any change in the respondent's circumstances which indicate that the factors giving rise to the offences have been eliminated.
(9)In the circumstances, the respondent cannot safely be accredited to the public to be trusted with the sort of work that the licences entail.
The Director submits that throughout his evidence at the final hearing, even making allowance for language and cultural barriers and the lack of familiarity with the processes of the Tribunal, the respondent was frequently evasive and non-responsive in his answers.
The Director submits that the respondent often repeated, at length, matters unrelated to the particular question and he was often asked the same question more than once in order to elicit a direct answer.
The Director submits that it is relevant that in the letter which the respondent wrote to the Licensing Services Directorate of the Department of Mines, Industry Regulation and Safety dated 30 April 2020 in support of his application for a licence under the Motor Vehicle Repairers Act 2003 (WA)[19] (30 April 2020 letter) he knowingly put forward a version of events in respect of his convictions that was not true and that he did so because the truth was difficult for him to accept and he wanted, effectively to paint himself in a better light. The Director submits that the respondent's evasive and at times irrelevant answers to direct questions regarding this matter suggests that any claims by the respondent that he now accepts the fact of his conviction must be approached cautiously. The Director says these evasive answers are further evidence of the respondent's lack of acceptance and insight.
[19] Exhibit 1, page 18.
The Director refers to the apparent acceptance by the respondent at the end of his cross-examination, under direct questioning from a member of the Tribunal, that he had, in fact, committed the offences of which he was convicted.
The Director submits that the respondent's apparent concession demonstrates that the respondent appears, at best, to be at the very beginning of the process of acceptance of his convictions. The Director says that, given that acceptance and insight are highly important to the question of whether a person convicted of offences is nonetheless fit and proper, the fact that the respondent now appears to be at the start of the process of personal rehabilitation suggests that he is some way from meeting the criteria discussed in Tavelli. The Director says that the Tribunal ought to give significant weight to the need for the respondent to undergo the process of personal acceptance and insight before it can be satisfied that he is a fit and proper person.
The Director submits that, in the circumstances of this case, the appropriate order, in respect of both licence, consequent upon a finding that the respondent is not a fit and proper person to hold the licences, is to cancel the licences.
The Director says that in circumstances where the basis for a finding that a person is not fit and proper to hold a licence is that they lack the requisite moral character, an order that the licence be suspended allows that person to return to the licenced occupation after the mere passage of time, without necessarily taking any steps to address the reasons for the unfitness, does not promote the protection of the public.
The Director submits that an order for the cancellation of the licences protects the public by excluding the unfit person (the respondent), but it does not preclude the respondent from later applying for either type of licence should he, through his future actions, be able to demonstrate that he is at that time a fit and proper person.
The Director further says that whilst he forcefully contends that the appropriate outcome upon a finding of proper cause is that the respondent's licences be cancelled, if the Tribunal concludes otherwise, it then ought not do less than impose the maximum period of suspension (12 months) together with protective conditions that the respondent must not carry out electrical work in respect of any residential premises where a person under the age of 18 years is present at the time unless the respondent is at all times during that work accompanied by a licensed electrical contractor.
Respondent's position
The respondent relies on his substituted statement of issues, facts and contentions dated 21 April 2023, his written submissions dated 22 May 2023 and his closing submissions dated 4 July 2023. The essence of the respondent's submissions is as follows.
The respondent says, correctly, that there is no allegation that he does not have the appropriate technical skills to hold the licences and the sole allegation is that he is not a fit and proper person to be safely accredited to the public as a person entrusted with the sort of work which the licences entail.
The respondent submits that to be satisfied that there is proper cause for disciplinary action, the Tribunal should be satisfied that the public needs to be protected because the respondent is not a fit and proper person to be licenced as an electrical worker and as an electrical contractor.
The respondent makes the point that the offences were committed more than six years ago, which is a substantial period during which there has been no other misconduct by the respondent. The respondent also relies on four character references.
The respondent submits that he was not intentionally evasive and that his evidence shows that he went to considerable efforts to give detailed explanations. He says there was nothing dishonest or unreliable about his answers and he just struggled to appreciate what was being asked of him and to formulate concise and direct answers.
The respondent says that the suggestion that he crafted the 30 April 2020 letter to paint himself in a better light should be rejected, because he lacks the sophistication to plan and execute such a strategy.
The respondent says that he struggled to express himself coherently and succinctly as many people do, especially those from culturally and linguistically diverse backgrounds.
The respondent says that he has expressly and repeatedly demonstrated that he accepts the fact of his convictions. However, the respondent submits that the oral evidence he gave is not a full admission of guilt to the two offences for which he was convicted. He submits that his oral evidence reveals that he acted wrongly, some of what he was accused of was truthful and that he did touch wrongly. The respondent submits that his admissions show insight: he knows he touched a child without consent, he accepts the reality of his convictions, and he is determined that it will not happen again.
The respondent makes the point that he is a reportable offender under the Community Protection (Offender Reporting) Act 2004 (WA) for a period of 15 years from the date of his convictions, which includes the requirement to report on his employment and to notify Police within 24 hours if he has unsupervised contact with a child. The respondent concedes that this does not preclude him from all contact with children.
The respondent submits that in all the circumstances there is not proper cause for disciplinary action against him.
The respondent submits that if the Tribunal finds that there is proper cause for disciplinary action against him it should only order action that is proportional and appropriate to all the circumstances of the case and the protective or deterrent need identified.
The respondent contends that even if the Tribunal concludes that the conduct was sufficiently serious that cancellation of his licences is open, it does not necessarily follow that cancellation is the appropriate protective order to make in all the circumstances of this case.
The respondent says that the circumstances of this case do not justify a conclusion that he will remain unsuitable to be an electrical worker or an electrical contractor for the indefinite future. The respondent submits if the Tribunal identifies a need for some ongoing community protection, the suspension of his licences for a period of time and the imposition of a condition on each licence prohibiting the respondent from working in residences with persons under the age of 18 without a chaperone or allowing the respondent to only work in approved types of workplaces would be sufficient to protect the public.
Is the respondent a fit and proper person?
The approach to be taken by the Tribunal in considering whether a person is 'a fit and proper person' in vocational disciplinary proceedings is well established. The application of the test was usefully set out by the Tribunal in Psychology Board of Australia and Fawcett[20] in the context of a disciplinary proceeding under the Health Practitioner Regulation National Law (WA) Act 2010 (WA) as follows:
[20] Psychology Board and Fawcett at [32] – [36].
32.The concept of a 'fit and proper person':
… carries no precise meaning. It takes its meaning from the context, from the activities in which the person is or will be engaged and ends to be served by those activities. The concept 'fit and proper person' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of likely future conduct) may be sufficient to ground a finding that a person is not a fit and proper person to undertake the activities in question.
33Assessing whether a person is 'fit and proper' involves a value judgment:
In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision-maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
34When the legislature uses the expression 'fit and proper person' it gives the widest scope for judgment, and for the rejection of an application for a licence, or for an applicant for registration in a profession.
35In Hughes and Vale Pty Ltd v New South Wales (No. 2), Dixon CJ, McTiernan and Webb JJ observed that:
'Fit' … with respect to an office is said to involve three things, honesty, knowledge and ability: 'honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and executive his office, when need is, diligently and not for impotency or poverty neglect it.'
36To similar effect, in Sobey v Commercial and Private Agents Board Walters J said:
The issue whether [a party] has shown himself to be 'a fit and proper person' … is not capable of being stated with any degree of precision. … I think all I need to say is that … what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the [legislation] but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. (Footnotes omitted)
In Tavelli Wheeler J noted, at pages 7-8, that, while there can be 'no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework', a number of factors might influence the relevance of prior convictions in deciding whether a person is fit and proper to hold a licence. Those factors are:
•Past criminal convictions will generally be regarded as more serious if:
(1)they occurred in the course of or relate to the carrying out of the relevant occupation;
(2)they are offences of dishonesty, broadly understood;
(3)they occurred whilst the person was the holder of the licence in question; and
(4)they are otherwise so serious either in and of themselves or as representing a course of disregard for the law as to reflect particularly adversely on the character of the person committing them.
•Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions might include:
(1)where the person demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes and the understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
(2)the offences were committed a substantial time ago;
(3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated; and
(4)the person's character generally since the commission of the offences.
The convictions and the facts of the offending
We find the facts of the offending which resulted in the respondent's convictions to be as set out in [24] above. Those facts are apparent from the sentencing remarks of the judge following the conviction of the respondent in the District Court of Western Australia.
Respondent's oral evidence
As we have stated above, the Tribunal arranged for a Tamil speaking interpreter to attend the final hearing to translate for the respondent during the hearing.
At the commencement of the final hearing the presiding member[21] sought clarification about the utilisation of the interpreter during the hearing; whether everything needed to be interpreted or only when the respondent wanted something explained. Counsel for the respondent said that the respondent wished to have the entire proceedings interpreted. The respondent then said, through the interpreter, that he can understand English and that it is just that because these matters 'are leading to legal things' he 'did not want to take a risk of not understanding certain words' and 'misunderstanding things totally'.
[21] Senior Member Mr D Aitken.
Therefore, the hearing proceeded with the interpreter translating everything said in English to the respondent in Tamil and then translating to the hearing in English everything said by the respondent to the interpreter in Tamil. Accordingly, in the transcript of the hearing the statements made by the respondent are stated to be made by the interpreter, except for occasions when the respondent stated something directly himself in English (when he is stated to be the witness).
At the commencement of his oral evidence, with one correction, the respondent confirmed that the contents of his witness statement[22] are true and correct.
[22] Exhibit 7.
Counsel for the respondent then asked the respondent the following question:[23]
[23] With some involvement by Senior Member Mr D Aitken.
LOCHORE, MR: Thank you. With the leave of the tribunal, I have one supplementary question to ask. Mr George, why should the tribunal believe that you will not be in trouble again?
INTERPRETER: In the past, I did not know. I was ignorant of lots of things, Member. Now, I have learnt things and I would not indulge my – my – my – myself in that, those acts any more.
LOCHORE, MR: May I clarify, you would not do what?
INTERPRETER: Take – okay. I – these sort of things would not happen till the day I – I am alive.
AITKEN MR: Do you want to clarify that because I would like to - - -
LOCHORE, MR: Yes.
AITKEN MR: - - - clarify what he means when he says "these things".
LOCHORE, MR: Yes, I was wondering and stretching my leave, but what particularly will not happen?
INTERPRETER: Okay. What I'm trying to say is this, Member, in this country, I will never, ever touch anybody, be it young kid, child, men, women, or any elderly person without their permission. As I did not – sorry, as I know things now, this would never, ever happen in my life.[24]
[24] ts 41, 30 May 2023.
Counsel for the Director then proceeded to cross-examine the respondent, by reference to the respondent's witness statement.
The following exchange then took place regarding the respondent's witness statement:[25]
[25]With some involvement by Senior Member Mr D Aitken.
DERBY, MR:Mr George, I just want you to look at your witness statement again, and specifically at paragraph 10 that you have just been referring to.
THE WITNESS: Yes.
AITKEN MR: Sorry to interrupt, but I – just so it's clear from the tribunal's point of view, can Mr George read English? Is this an English version of his witness statement that he has got in front of him?
LOCHORE, MR: Sir, as Mr George indicated, he wrote the statement. I didn't have an instructing solicitor so it was not practical for me to be drafting it for him.
AITKEN MR: Okay.
LOCHORE, MR: So he wrote this and it's his English.
AITKEN MR: Okay. Well, can I just clarify from the tribunal's point of view, did Mr George type this himself or did he have someone that could speak Tamil and English who typed it? I just – but most particularly, what I want to be sure of here is if he is being referred to paragraph 10, I want it either read to him if he can't read it himself, so that it's quite clear what he's being questioned about. So can we just clarify that with Mr George.
INTERPRETER: I read it myself, Member.
AITKEN MR: Okay. So he typed it himself. So if he has typed that, I – could we please just clarify Mr George can read and understand what he has typed.
INTERPRETER: For sure.
AITKEN MR: Okay.
INTERPRETER: I can understand.[26]
[26] ts 42-44, 30 May 2023.
Counsel for the Director then referred the respondent to paragraph 10 of his witness statement and the following exchange took place:
DERBY, MR:You say that you reported the incident to Energy Safety and WorkSafe?
THE WITNESS: Yes.
DERBY, MR:Can I ask – Interpreter, I think there's a – is that the respondent's book of documents?
INTERPRETER: Yes.
DERBY, MR:Can I ask that Mr George be shown the respondent's book of documents.
INTERPRETER: Yes.
DERBY, MR:Could you ask Mr George to turn to page 3.
INTERPRETER: Yes. Yes. Okay.
DERBY, MR:Can you ask Mr George if he recognises the document.
INTERPRETER: I do. This is my report to WorkSafe. This is what I reported to WorkSafe.
DERBY, MR:Thank you. Can you refer Mr George to the box with the blue word "resolution".
INTERPRETER: Blue word "resolution". Okay. Yes, please.
DERBY, MR:And can you please read to Mr George the words in the box Comments.
INTERPRETER: Yes, I can read it. I can read it myself, he says. Yes.
THE WITNESS: Electrician (indistinct) home doing light checks. Open door and accidentally touched someone who has accused him of sexual harassment. Wanted to make known with us that he has spoken to us (indistinct).
DERBY, MR:Does Mr George understand what those words mean?
INTERPRETER: Okay. Did you understand? Okay. This is what has been taped by someone who - - -
DERBY, MR:Sorry - - -
AITKEN MR: It's not the questions. It's - - -
DERBY, MR: I just wanted to make sure that he read it out in English, he understands, that he doesn't need it interpreted.
INTERPRETER: Okay. I did. I did understand.
DERBY, MR:Are those words an accurate summary of what you reported to WorkSafe?
INTERPRETER: For sure it's a no. I spoke to them for about 10 minutes. They have written what they had in their mind – what they thought in their mind.
DERBY, MR:Is any part of the words in that box what you told WorkSafe?
INTERPRETER: That's it, any of the words?
DERBY, MR:Is any part of the words in that box that you read what you told to WorkSafe?
INTERPRETER: Okay. Words are there. The meanings are different. There's slight difference in term of meaning. A matter can be viewed differently by different people. I do not know how this was viewed.
DERBY, MR:Did you tell WorkSafe that you opened the door and accidentally touched someone?
INTERPRETER: Yes, I did. I did what – I did what had happened and according to my mental state and to my understanding. I did say – if that makes sense. I did say according to my mental state and what I understood at that particular time.
DERBY, MR:Can I just clarify, you told WorkSafe that you opened the door and accidentally touched someone?
INTERPRETER: I opened the door and accidentally touched someone – was – accused him of sexual harassment. I did.[27]
[27] ts 43-45, 30 May 2023.
Counsel for the Director then put to the respondent that he had made the report to WorkSafe to establish a defence to the charges against him and the following exchange took place:[28]
DERBY, MR:What I suggest to you is that you made the report to establish a possible defence.
INTERPRETER: I have to be someone who's very – very – highly intelligent or someone like you who knows lots of things. I do not know anything about this.
DERBY, MR:Did not know anything about what?
INTERPRETER: I do not know the legal system here, the cultural differences and I have only limited language ability. I – I couldn't – I – I did not get any advice from my friends. I don't have any relatives here. The only way that I saw was this, to call the Energy Safety and to tell them, "Now, look, I am in this situation. What do I do?"[29]
[28] With some involvement by Senior Member Mr D Aitken.
[29] ts 46, 30 May 2023.
The respondent states in paragraph 12 of his witness statement: 'I haven't been to do any electrical work after 20 April 2017 to any stranger's house'. Counsel for the Director asked the respondent why he had stopped doing electrical work in strangers' houses and the following exchange took place:[30]
[30] With some involvement by Senior Member Mr D Aitken.
INTERPRETER: Yes, I've got many – I understood the question. I've got many reasons. Can I elaborate the reasons, Member?
DERBY, MR:Yes.
AITKEN MR: Yes, please.
INTERPRETER: Okay. On 20 April when the police interviewed me I got back home after – let me start again, Senior Member. On 20 April 2027 – 2017, sorry – after finishing the interview with the police I returned home and disclosed everything to my wife. Okay. Neither my wife nor did I want to get into this sort of problem in future by doing – by carrying out work in someone else's house without knowing things around us – around me. I have problem with my language, cultural problem. There are all – all – various types of people around. And I can't – in those circumstances I can't just think of just earning some – a few dollars and complete my work and come back. I cannot live like that. Okay. All right. I – I have to – I have some negative qualities and – negative qualities and lack of understanding about things around me. I have to overcome them. Only then do I want to be successful by carrying out work.
DERBY, MR:So the reason you stopped was (1) the risk?
INTERPRETER: Okay. Not one risk. I understood many risks that's surrounding me.
DERBY, MR:When you say risks, what do you mean?
INTERPRETER: Sorry, Member. You used the word "risk"; right? Did you say "risk"?
DERBY, MR:Yes, risks.
INTERPRETER: Yes.
DERBY, MR:When you say "risks", what do you mean?
INTERPRETER: Okay. The risk that you have report is one. I am thinking about my family, the community around, people around me. For all like that I'm – I'm concerned about as well. That's what I meant risks.
DERBY, MR:And that's why – all those risks are why you say you stopped working in strangers' houses?
INTERPRETER: It's not a permanent decision. I listed down the risks that I foresaw. Okay. First the language problem – first is language problem. I've gone to TAFE and I've completed the English course. I am using an interpreter today here just to make sure that I'm conversing well. I have attended police interviews without an interpreter and encountered lots of problems.
DERBY, MR:Can I ask directly, did you stop working in strangers' houses because you were worried about being falsely accused of sexual offences?
INTERPRETER: At that time that – that was a reason. Later I understood – I understood things. Okay. I've come across all the four issues that I've just listed down, language, cultural, community – and community. This is the last – the fifth one.
DERBY, MR:What is the fifth one?
INTERPRETER: The allegations that we're talking.
DERBY, MR: Worried about being falsely accused?
INTERPRETER: Yes. About allegations, false allegations, yes.
DERBY, MR:Thank you. Now, it's the fifth one at this time?
INTERPRETER: I attended TAFE for my language proficiency, okay. I – I did attend counselling - - -
DERBY, MR:I think we're going a little bit away from my question, which was just: is worry about false accusations now his fifth reason at this time, yes or no?
INTERPRETER: My apologies for not being able to understand questions, Senior Member.
AITKEN MR: So can we just – give that it's being interpreted into Tamil, can we please just explore that a bit. Is this a translation problem or - - -
INTERPRETER: No, if I could – sorry.
AITKEN MR: If you could put that to Mr George and he answer.
INTERPRETER: I'm missing something. He can understand but – the learned counsel is asking what I am saying, but he says he's missing something. He's not allowing me to interpret, Senior Member. That's the problem I'm facing.
AITKEN MR: So can I just suggest, if he doesn't understand the question by all means through you he can ask Mr Derby to please clarify.
INTERPRETER: Yes.
AITKEN MR: So I don't want him to answer questions if he doesn't understand what the question is, because clearly he won't be answering accurately.
INTERPRETER: Let me speak. Let me interpret first.
THE WITNESS: Sorry.[31]
[31] ts 48-50, 30 May 2023.
The interpreter explained that the respondent was answering the questions before the interpreter was able to translate them into Tamil. After some discussion between the presiding member[32] and the respondent and the interpreter, the cross-examination then continued on the basis that the respondent would confirm that he understood the question put to him, translated from English to Tamil, before then answering the question in Tamil, which the interpreter would then translate into English.[33]
[32] Senior Member Mr D Aitken.
[33] ts 50-53, 30 May 2023.
Counsel for the Director referred the respondent to the letter dated 30 April 2020 which the respondent sent to Licensing Services at the Department of Mines, Industry Regulation and Safety [34] (30 April 2020 letter). That letter states as follows:
[34] Exhibit 1, page 18.
From,
Ignatius George
[address]
To,
Licensing officer
Licensing Services Directorate
Department of Mines, Industry Regulation and Safety
303 Sevenoaks Street Cannington WA 6107
Respected sir,
I am Ignatius George, [address]. I was a qualified electrician working for houses in April 2017. Someone called me to fix electrical RCD tripping for their home. I was started diagnosing electrical room to room entire house no power.
When I tried to open a messy laundry door with a ladder in my other hand, the door was half open and struck, I tried to remove the blockage by other hand and accidently touched something behind the door and realise that was a person working in the laundry. I asked sorry for that person and walt for them to go then continued my work, I finished work and got paid then left to next job. I was in that house that day 9.15 am to 9.45 am. I reported this issue to Wotksafe WA (report number - 578649) and Energy safety WA
Same day evening I got a call from a police officer and they charged me as deliberated touching. I got convicted later in trial without proper representation.
Now the case is in appeal court and waiting for further assessment.
I stopped my business same day in April 2017 because I decided working in a stranger house more dangerous that electrical hazard. My electrical contractor licence is still valid and current.
I started working as an Auto electrician. Last 3 years I am concentrating automotive Vehicles and working various companies as an employee.
Now I want to start a small automotive workshop in my home to survive.
I attached police certificate and appeal court document with this letter.
Please consider my application and request you to grant my licence to survive me and my family. I am happy to submit if any more document needed.
Sincerely,
Ignatius George
30/4/2020
The respondent confirmed that he sent this letter as part of an application he made for a 'motor vehicle repair licence'.[35]
[35] ts 56, 30 May 2023.
Counsel for the Director questioned the respondent about the reason for the respondent sending that letter. After a short break, the following exchange took place:
DERBY, MR:And I might step one back just to make sure the scene is set again, seeing as we had a break. Yes. You were asked to provide the particulars of your convictions to the department; yes?
INTERPRETER: Question understood. Yes. He says yes, Member.
DERBY, MR:Paragraph 2 of that letter was your effort to provide the particulars.
INTERPRETER: Question understood. Answer is yes.
AITKEN MR: Thank you.
DERBY, MR:Do you agree that paragraph 2 does not accurately state the facts of your convictions?
INTERPRETER: Understood the question. Yes. He says yes.
DERBY, MR:Did you write that paragraph because you knew that the real facts would look bad for you.
INTERPRETER: Question understood, but I was asked to give brief – but I was asked to write it briefly.
DERBY, MR:But you agreed that it does not reflect the facts of your conviction.
INTERPRETER: Question understood. Can you please explain further. Can I explain further, Member? He wants to explain.
DERBY, MR:I'm fine with him answering.
AITKEN MR: Yes. Yes, please, by all means.
INTERPRETER: The date stated on this letter is 2020. At that time – okay – I had a Court of Appeal matter pending then. I was waiting for the hearing date or the hearing. I was convicted at the District Court. 12 – the members of jury, 12 of them found me guilty of the offence, but I wasn't satisfied with the way the police interview was done and – and the conviction. Hence my appeal to the Court of Appeal. And that was a time I wrote this letter.
DERBY, MR:You wrote it when your appeal was going through.
INTERPRETER: Yes. Because, Senior Member, question understood. Answer is yes.
DERBY, MR:I'm not sure the question I first put was answered directly, so I'm going to put it again. Did you write paragraph 2 because you knew the true facts would look bad for you?
INTERPRETER: Question understood. Now I can understand. Not at that time. Please understand that I understood this now, but not at that time.[36]
[36] ts 60-61, 30 May 2023.
Counsel for the Director then referred the respondent to paragraph 7 of the respondent's initial statement of issues, facts and contentions[37] which states as follows:
[37] Exhibit 8. The respondent's initial statement of issues, facts and contentions dated 25 February 2023 was prepared by the respondent and it was subsequently replaced by the respondent's substituted statement of issues, facts and contentions dated 21 April 2023 which was prepared by Mr Lochore after he commenced representing the respondent on 17 March 2023.
7.The facts of the resulting in my Convictions, are as follows:
7.1.On 20 April 2017 the I was invited for performing electrical live testing alone, at the home of 3 children running around and the mother in the house was talking with someone over the phone.
7.2.I was diagnosing RCD tripping issue at the house which needs to reset RCD again and again located outside house, when splitting circuits inside house to find out faulty circuit in the house.
7.3.I was so stressed for safety of the children and looking at the children when walking outside and inside that the electricity may kill them if they go and touch the exposed live wires when I reset RCD outside house at the main DB.
7.4.I complain to mother and the children number of times to keep them away from the house to perform the task safely.
7.5.Children stayed away little bit but couple of minutes later again does same thing. They didn't understand the danger what I was telling them.
7.6.I don't remember what words I was using to them also not understand what they replied because they come somewhere from Africa, too dark skin with different accent and rough behaviours.
7.7.I was also not in good communication at that time which resulted no positive communication, cultural gaps, body language and expressions.
7.8.Somehow started bit unpleasant at that workplace which resulted the children got angry with me without reason.
7.9.Still not understanding after that on that day anything happened to me, was a trap or real accident. (number 10 of applicant statement).
7.10.I fixed the RCD tripping issue, got paid, issued receipt, issued safety certificate, followed everything as per instruction. Reported to Worksafe of WA by phone, reported in detail to department of Energy safety of WA by phone (all done in same week at April 2017).
7.11.From that day everything gone uncontrolled to me, everyone looked at me as a criminal including police officers, lawyers or whoever I speak to.
7.12.I attended police interview myself without understanding of what complainant raised against me, or what criminal charges they possess, what legal procedure police offered to me to choose.
7.13.Haven't understand the charges was a series sexual crime so missed to choose a lawyer or an interpreter prior to the interview.
7.14.Police interview or procedures gone so fast as standard to a common man schooling done in this country. Police officers understood at the time of the interview that I am not familiar with any of the procedures followed by them or questions asked but no one helped me to understand the seriousness of the charge's complainant raised.
The following exchange took place between counsel for the Director and the respondent:[38]
[38] With some involvement by Member Ms KY Loh.
DERBY, MR:Mr George, is paragraph 7 – sorry, let me start again. Was paragraph 7 intended to be at that time your explanation to the tribunal of your convictions?
INTERPRETER: Question understood. Okay. That was when I – this – again, I wrote this paragraph at whatever mental state I was. Sorry, that make sense? I'm not sure the language. Yes. Okay. Thereafter lots of miracles took place.
DERBY, MR:Thank you. When you filed this document, was paragraph 7 the version of events you wanted the tribunal to know?
INTERPRETER: I wrote this at a time where I was not – I did not fully understand the situation. I wrote these things at the time when I did not understand the situation fully.
DERBY, MR:Which situation?
INTERPRETER: Can I explain, Member?
AITKEN MR: Yes, please.
INTERPRETER: I am a committed person. Or contrary, I am a convicted person, sorry, not a committed person.
THE WITNESS: Convicted person.
INTERPRETER: Okay. Okay. I was a convicted person. Okay. Okay. Hold on. He's referring to witness statement of him, Member, Ignatius George, paragraph 1. He's pointing it to paragraph 1 and say, "My lawyer asked me questions then. It was kind of a shock to me then".
DERBY, MR:You said in a previous answer that you wrote the 25 February document when you didn't understand the situation. Which situation were you referring to?
INTERPRETER: I understood the question. As I stated earlier, my – I have language problem and that has been fixed.
THE WITNESS: Cultural problem.
INTERPRETER: Yes, cultural problem. And I proceed for about 80 per cent and is still an ongoing thing.
THE WITNESS: System problem.
INTERPRETER: Okay. System problem. I did not understand – understand the (indistinct) then. And after I – I realised that I was a convicted person after – after the lawyer asked me those questions. No one help me then – okay. Prior to this, nobody help me. Even for the appeal, I went myself. Member, just for the record, he said just now "court" and he was pointing at your direction. He is asking whether court or the - - -
THE WITNESS: Tribunal. Tribunal.
INTERPRETER: - - - tribunal.
THE WITNESS: Tribunal help me under - - -
INTERPRETER: Okay. He went at the Court of Appeal. I represented myself. There is no one to even – to advise me. And I was blaming others, thinking that they have pled me out. I did not realise it was my mistake. I was just blaming others. See, if I don't know the language, my problem. Again, for culture, if I'm not – if I don't know the culture, it's my problem.
DERBY, MR:I think we're, again, getting away from the question and may be covering some issues that you already have. I want to bring it back to the particular questions I was asking.
INTERPRETER: Yes.
DERBY, MR:Is it your evidence that you only understood yourself to be a convicted person once you obtained legal representation in these proceedings?
INTERPRETER: Question understood. Yes, only at that time did I fully understand.
DERBY, MR:Before you had that understanding, you wanted to argue to the tribunal that you are an innocent person.
INTERPRETER: Question understood, yes. At that time, at whatever mental state I was, whatever that I understood, I put forward my argument before the tribunal.
DERBY, MR:Do you agree that paragraph 7 of that document - - -
INTERPRETER: Yes.
DERBY, MR:- - - does not accurately state the facts of your convictions?
INTERPRETER: Question understood. Now I understand, not at the time when I prepared the document.
DERBY, MR: Now you understand that that paragraph doesn't accurately state the facts of your convictions.
INTERPRETER: Question understood. Not now. After – after we explained by my lawyer did I understand and answer is yes.
LOH MS:Can I ask a more direct question.
DERBY, MR:I have no problem.
LOH MS: I just have a little concern about negatives and double negatives and you answered, "Yes." Could you just interpret this.
INTERPRETER: Yes.
LOH MS:Do the facts of paragraph 7 – are they the facts of your conviction? So it's a yes or no.
INTERPRETER: I didn't understand the question.
LOH MS:Okay. So do you say that what you said in paragraph 7 happened?
INTERPRETER: Question understood. That matter can be viewed from various angles. The victim saw it and the jury decided. The jury believed the victim, so my – it's no point talking about it now as the jury did not believe my – my version.
LOH MS: So this version in paragraph 7 is still the version of what happened that day.
INTERPRETER: Question understood. Okay. If I – okay. If I were to write this today, it would be differently worded. At that time I only wrote how I understood it then. There is a misunderstanding and it's a problem. And that - - -
THE WITNESS: Culture problem.
INTERPRETER: Okay.
THE WITNESS: System problem.
INTERPRETER: Okay.
THE WITNESS: And a language problem - - -
INTERPRETER: And this was the problem, language, system and the cultural problem. I have fixed the language problem and the rest, no.[39]
[39] ts 64-67, 30 May 2023.
Counsel for the Director then put a final question to the respondent and the following exchange took place:[40]
[40] With some involvement by Member Ms KY Loh.
DERBY, MR:At this time do you consider – at this time do you think that you are innocent of your criminal conviction?
INTERPRETER: Question understood. Hold on. Hold on. Sorry, hold on a second. Sorry. I do admit there is – that I do admit that I contributed towards – towards it. I don't think I'm innocent now, I don't think. The reason being – okay. Okay. Yes. Yes. Hold on. Hold on a second. Hold on. The culture that I have grown up with may not deem certain things, spoken or otherwise, to be wrong, but in other cultures it could be deemed otherwise.
THE WITNESS: I agree - - -
INTERPRETER: I agree I am a convicted person. I agree I am a convicted person. Only lately did I felt that I have done something wrong, but – okay. Okay. Hold on. Hold on. Later I became unsatisfied with the police interviews, the direction hearing, the trial and the plea procedure. I realised in term of the victim, I realise that I've made a mistake. Okay. Hold on. Even as far as the victim is concerned, even if I had made a mistake, while I was the – I was at the police station and when I was questioned, I was not provided with an interpreter, where I answered the question without knowing what I was saying and I just say, "Yes, yes, yes."
DERBY, MR:I might just interrupt because, again, getting a little bit away. Do you now say that you did what you were convicted of?
INTERPRETER: Do you understand the question? Yes, question understood. Yes. Hold on. Hold on. Hold on, sorry. There is truth in it. You can view it in that angle. I want to take it up on appeal.
THE WITNESS: Sorry.
INTERPRETER: I have come to a state where I will make sure that these sort of thing does not recur. I want to add one more thing. I know my boundaries now, as well as the – or the boundaries of the other person. With this – all this trial now, I have – I have been made to understand legal procedures clearly.
THE WITNESS: And the system problem – system - - -
INTERPRETER: I can understand the system well now. Culturally I don't have enough friends. It's – it's ongoing. I am learning – I am learning it fast. I should be able to fix it soon.
DERBY, MR:Can I just ask, as I think we've gone into – can you provide a direct yes or no answer to the following question.
INTERPRETER: Yes or no.
DERBY, MR:Did you do what you were convicted of doing?
INTERPRETER: Question understood. I won't answer the question?
DERBY, MR:Thank you.
LOH MS:Perhaps I can rephrase. Can you ask this question.
INTERPRETER: Yes, ma'am. Yes. Sure.
LOH MS:Did you touch a child indecently by touching her bottom and her breast?
INTERPRETER: Okay. You asked the question correctly. I understood. At that situation – hold on. Hold on, sorry. Whether or not it was that inappropriately, I'm not able to say at that time. Now I understand it is wrong, I would not have done it. I accept that in their view it is wrong.
LOH MS:So you do accept you did touch a child on her bottom and her breast.
INTERPRETER: (indistinct) my story. I am a committed person. The perception is I am saying something that is not practical.
LOH MS:Mr George, it's a simple yes or no question, because it's a fact. So it is a case of did you touch somebody in a particular place.
INTERPRETER: Hold on a second. Do you understand the question? Yes, question understood.
LOH MS:Yes or no?
INTERPRETER: Yes or no?
THE WITNESS: Yes.
LOH MS: Yes. Thank you.
INTERPRETER: Can I explain? Can I get a chance to explain further?
DERBY, MR:I have no further questions of Mr George and I'm sure Mr Lochore - - -
LOH MS:Yes. And, look, the purpose was only – it's really a subset of the question you had asked, which was only just to set out what the - - -
DERBY, MR:Yes. And I hadn't actually anticipated the first question I started that chain with would lead to that point, but I wanted to be sure that he had the opportunity. And I think, Member, you asked questions better than I did to directly answer the question one way or the other, seeing as we, by his own answers, entered that territory where there's a possible admission to the conduct.
LOCHORE, MR: Yes.
DERBY, MR:But from my perspective, as cross-examination goes, I have no further questions.
LOCHORE, MR: Perhaps the interpreter speak that - - -
INTERPRETER: Can I get an opportunity to explain to – to the tribunal, to the panel to – about my answer.
LOH MS:Yes. And can you explain to Mr George that that opportunity generally comes when his lawyer gets the chance to ask him some questions.
INTERPRETER: Okay. When – when you ask me for a yes or no answer, it has to be a yes answer. That's what everybody believes.
LOCHORE, MR: Yes. Members, I have only two matters in reexamination and the first was to, while it was in his mind, allow him to do that.
LOH MS:Yes, please do.
LOCHORE, MR: So in follow up, I would like Mr George to have the opportunity to give the explanation for the "yes" that he gave.
INTERPRETER: Okay. Okay. Understood. Hold on. Member, you asked whether – first place. First, number 1, you asked if he was a small child. I did not know. At that time I did not know it was a small child. Okay. Number 2, you said I have touched on a top and a bottom.
LOH MS:Bottom. Yes.
INTERPRETER: I don't know where – where the – the touching really happened. Even though so I just say, "Yes," to whichever part of the body I touched – I touched. That's what – and I – that is you believe and I was believe and I admit it was my mistake.[41]
Character evidence
[41] ts 69-72, 30 May 2023.
The respondent relies on four character references.
The first character reference is from the respondent's wife, Ms Sandy Sajitha George Ignatius.[42] She is aware of the convictions and says that the respondent will 'never be a threat to this community or to anyone'.
[42] Exhibit 3.
The second character reference is from Mr Jasdev Singh.[43] He says that he is a lawyer who has known the respondent for approximately 1.5 years, and he assisted the respondent with preparing an appeal against the convictions. He says that the likelihood of the respondent posing a threat to the public or community is limited because he has been sentenced for the convictions, he has a supportive family, he is involved in his local church, he has the best interests of his children and spouse at heart and he has no prior offending to suggest that there is a pattern of offending.
[43] Exhibit 4.
The third character reference is from Ms Cheryl Wills.[44] She says that she has been a friend of the respondent for approximately 10 years. Ms Wills says has been made aware of the convictions and finds it hard to believe and she does not believe the respondent is a threat to anyone.
[44] Exhibit 5.
The fourth character reference is from Mr Phillip Francis Madden.[45] He says he has been a friend of the respondent for about 10 years. Mr Madden says he is surprised to learn of the respondent's convictions and feels that 'it must surely be a mistake, as this man's life is too busy for him to be thinking of anything but his work and family'.
Cases concerning similar licences
[45] Exhibit 6.
The respondent has drawn the Tribunal's attention to several cases concerning similar licences to those held by the respondent:
•Commissioner for Consumer Affairs v McCurdy (McCurdy);[46]
•Director of Energy Safety and Hermanns and Rossi Electrical Contractors (Hermanns and Rossi);[47]
•Ives and Plumbers Licensing Board (Ives);[48] and
•Curran v Commissioner for Consumer Affairs (Curran).[49]
[46] Commissioner for Consumer Affairs v McCurdy [2004] SADC 174.
[47] Director of Energy Safety and Hermanns and Rossi Electrical Contractors Pty Ltd [2007] WASAT 327.
[48] Ives and Plumbers Licensing Board [2013] WASAT 125.
[49] Curran v Commissioner for Consumer Affairs [2022] SACAT 25.
McCurdy was a case in the District Court of South Australia in which the Commissioner for Consumer Affairs alleged grounds for disciplinary action against Mr McCurdy, contending that his electrical contractor's licence should be cancelled due to his convictions for indecent assault, inciting a child to commit indecent assault and unlawful sexual intercourse with a child under 12 years, for which he served 12 months imprisonment. The offences were not committed during his work. He pleaded guilty to two of the offences and he voluntarily attended the Sexual Offenders Treatment and Assessment Programme and successfully completed that programme. He had been released from prison on parole for a period of three years on conditions, one of which was that he was not to be in the company of any child under 16 years of age unless accompanied by his parole officer, his wife or a person approved by his parole officer.
In deciding that Mr McCurdy was a fit and proper person the Court found:
•the three offences were part of one brief and uncharacteristic episode of serious misbehaviour;
•there was powerful subjective evidence of his previous good character and his subsequent successful efforts to obtain early professional advice and assistance were impressive; and
•his parole condition that he not be alone with young children should allay any possible public apprehension about his future behaviour and he would not be able to perform electrical work in premises where young children are present.
Hermanns and Rossi was a case in the Tribunal where an electrical worker, Mr Rossi and another employee of an electrical contractor company, attempted to install a light pole which came into contact with high voltage overhead wires which resulted in the death of a crane operator working on the site. The company and Mr Rossi were convicted of criminal offences under the Occupational Safety and Health Act 1984 (WA) (repealed). The Director commenced disciplinary proceedings in the Tribunal alleging that the company was not a fit and proper person to hold an electrical contractor's licence and that Mr Rossi, who was the nominated electrical worker and a director of the company, was not a fit and proper person to hold an electrical worker's licence. The Director also alleged that the company and Mr Rossi had permitted or carried out electrical work in a manner that endangered a person or was negligent.
The Tribunal found that the company's and Mr Rossi's safety practices had improved significantly since the accident and was not satisfied that they were not currently fit and proper to hold a licence but found that there was proper cause for disciplinary action on the ground that they had permitted or carried out electrical work in a manner that endangered a person and was negligent. The Tribunal censured the company and Mr Rossi and imposed conditions on their licences, including that Mr Rossi be supervised when conducting electrical work for one year. The Tribunal also cancelled Mr Rossi's registration as the nominated electrical worker for the company and ordered that he was not permitted to reapply for such registration for one year.
Ives was a case in the Tribunal in which Mr Ives sought a review of the decision of the Plumbers Licensing Board to refuse to grant a plumbing contractor's licence in circumstances where Mr Ives had been convicted of driving and traffic offences, breaching a violence restraining order, wilful and unlawful damage to property and breaching a bail undertaking. None of the offences were committed during his work as a plumbing contractor.
The Tribunal found that Mr Ives was a fit and proper person to hold a plumbing contractor's licence. The Tribunal considered Mr Ives' medical evidence and explanation for the events which had resulted in his convictions and the evidence of the treatment he underwent for mental health and alcohol use issues. The Tribunal found that Mr Ives had insight into his underlying conditions and the triggers for the behaviour that had resulted in his convictions. The Tribunal was also satisfied that Mr Ives had demonstrated true remorse for his conduct.
Curran was a case in the South Australian Civil and Administrative Tribunal (SACAT) in which Mr Curran sought the review of the decision of the Commissioner for Consumer Affairs to cancel his electrical contractor's licence and his electrical worker's registration on the basis that he was not a fit and proper person to hold that licence and registration because of his convictions for aggravated assault, cultivating a controlled plant (cannabis) and assault and failing to pay a taxi fare.
SACAT found Mr Curran to be a fit and proper person to hold an electrical worker's registration and electrical contractor's licence based on character references he had submitted, that he had no record of offending for over five years, that he had been without his registration and licences for five and a half months and the significant financial impact this had on him.
The Commissioner for Consumer Affairs appealed that decision to the Supreme Court of Appeal and the appeal was upheld on two of the four grounds of appeal.[50] Those grounds were that SACAT had erred in its consideration of Mr Curran's fitness and propriety to hold his registration and licence. It is not known what the disposition of the matter has been since the appeal was upheld.
Consideration
[50] Commissioner for Consumer Affairs v Curran [2023] SASC 6.
In our view, the offences for which the respondent was convicted are relevant in determining whether the respondent is a fit and proper person to be licensed as an electrical worker or as an electrical contractor. The offences were serious and reflect adversely on the character of the respondent, particularly because they occurred during the respondent carrying out electrical work under his licences in the home of the 13-year-old victim.
We acknowledge that the offences were committed more than six years ago and that the respondent has not been charged with or convicted of any offences since then. We also accept that the four character references submitted by the respondent attest to his good character.
However, applying the Briginshaw approach, we find on the balance of probabilities that the respondent does not have genuine remorse and contrition for the offences, especially in respect of the impact they must have had on the victim and members of her family, who had invited the respondent into their home to carry out electrical work. We also find, on the same basis, that the respondent does not have true insight and understanding of the turpitude of the offences of which he has been convicted for the following reasons.
First, in our view, the respondent was not a credible or reliable witness.
The respondent said during his oral evidence that he can read and write in English[51] and that he wrote his witness statement,[52] the 20 April 2020 letter[53] and the respondent's initial statement of issues, facts and contentions.[54] During his cross-examination, on several occasions as soon as counsel for the respondent asked a question the respondent answered in English before the interpreter was able to translate it to the respondent in Tamil.[55] Also during cross-examination there were occasions when the respondent stated something in English directly after the interpreter had translated into English something which the respondent had said in Tamil.[56] In our view, the respondent has a good grasp of English, both written and spoken, although it is not his first language. Nevertheless, in accordance with his request at the commencement of the final hearing, everything said in English was translated in Tamil to the respondent by the interpreter and everything said by the respondent in Tamil was translated in English by the interpreter during the hearing. We therefore do not accept that the respondent had any difficulty in understanding everything which was said during the hearing and the documents which he wrote that were put before him in his cross-examination.
[51] See [64] of these reasons for decision.
[52] See [69] of these reasons for decision.
[53] See [75] and [76] of these reasons for decision.
[54] See [77] and [78] of these reasons for decision.
[55] See [69] and [70] of these reasons for decision where the transcript shows 'witness' rather than 'interpreter' and [73] where the interpreter raised this issue.
[56] See [78] and [79] of these reasons for decision where the transcript shows 'witness'.
On several occasions the respondent was asked a clear and simple question, which simply required a 'yes' or 'no' answer, and, in our view, he answered in an evasive manner.[57]
[57] For example, ts 66-67, 30 May 2023 (and see [76] of these reasons for decision) and ts 69-71, 30 May 2023 (and see [77] of these reasons for decision).
When the respondent was being cross-examined regarding paragraph 7 of the respondent's initial statement of issues, facts and contentions, he referred to a 'cultural' or 'culture' problem and a 'system' problem, but he has not provided any evidence or explanation of what those problems are. In our view, the respondent raised these 'problems' to attempt to obfuscate the situation he found himself in during his crossexamination, rather than to provide a direct answer to the questions put to him.[58]
[58] ts 66-67, 30 May 2023 (see [76] of these reasons for decision).
We note that in the decision of the Court of Appeal in George v The State of Western Australia, which dismissed the respondent's appeal in respect of his convictions, the majority (Quinlan CJ and Mitchell JA) state at [132]:
The appellant did not come across as a credible or reliable witness. In particular, he appeared to be intentionally and significantly exaggerating the difficulties which he has in speaking and understanding English.
Their reasons for reaching that view are provided at [133] – [142] of that decision. Our view that the respondent was not a credible or reliable witness in these proceedings accords with the view of the majority in that appeal.
Secondly, we are not satisfied that the respondent has accepted the facts of his offending which resulted in his convictions in the District Court of Western Australia, which are set out in [24] above.
Counsel for the Director cross-examined the respondent regarding the report he made to WorkSafe, the 30 April 2020 letter and paragraph 7 of the respondent's initial statement of issues facts and contentions.[59] It is clear to us that the respondent did not accept or acknowledge the facts of his offending on any of those occasions. Further, we do not accept that the incorrect versions of events on the day of offences given by the respondent on those occasions was due to any language or cultural issues, or lack of ability by the respondent to express himself coherently.
[59] See [70] – [76] of these reasons for decision.
We are also not sure that the respondent even accepted those facts when he was asked, first by counsel for the Director whether he did what he was convicted of doing and then by a member of the Tribunal[60] whether he touched the victim on her bottom and her breast. Whilst the respondent did eventually say yes to the latter question, after the member pursued it four times, the respondent was initially evasive in his answer to the question and then, on re-examination by his counsel, the respondent said, 'I don't know where – where the – the touching really happened'.[61]
[60] Member Ms KY Loh.
[61] ts 70-72, 30 May 2023 (see [79] of these reasons for decision).
Thirdly, the respondent has not provided any explanation as to why he committed the offences.
Fourthly, the respondent has not taken any action to seek or obtain any professional treatment or counselling to address the cause/s of his conduct in committing the offences.
Due to our finding that the respondent was not a credible or reliable witness, we give little weight to the oral evidence which the respondent gave during the final hearing that he 'will never, ever touch anybody, be it young kid, child, men, women, or any elderly person without their permission'.[62]
[62] ts 41, 30 May 2023 (see [67] of these reasons for decision).
Further, we are not convinced by his submission[63] that he accepts the fact of his convictions and that his admission during the final hearing that he touched a child without consent and that he is determined that it will not happen again.
[63] See [54] of these reasons for decision.
Accordingly, as we have stated in [97] above, we have found that the respondent does not have genuine remorse and contrition, nor true insight and understanding of the turpitude of the offences of which he has been convicted.
Consequently, we do not think that the respondent is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public as a person to be licenced as an electrical worker or as an electrical contractor.[64]
[64] Sobey v Commercial & Private Agents Board (1979) 22 SASR 70 at page 76.
The following statement by the Full Bench of the Supreme Court of Western Australia in Legal Profession Complaints Committee v in de Braekt is apposite:[65]
… The practitioner's lack of appreciation of the impropriety of her conduct, and apparent lack of insight into the reasons for her misconduct significantly increases the risk of its recurrence[.]
[65] Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [35].
We have therefore decided that the respondent is not a fit and proper person to hold the licences.
Regarding the cases referred to in [85] – [94] above, we do not consider that any of those cases assist the respondent for the following reasons:
•In the case of McCurdy, Mr McCurdy did not commit the offences during his work as an electrical contractor, he pleaded guilty to two of the offences, he sought professional advice and assistance and there were parole conditions to ensure the protection of the public. Mr McCurdy clearly was found to have genuine remorse and true insight and understanding of the turpitude of the offences and had taken actions to address the cause of him committing the offences. This is in distinct contrast to the respondent in this matter. Also, we do not consider Mr McCurdy's parole conditions to be comparable to the respondent's reporting requirement under the Community Protection (Offender Reporting) Act 2004 (WA).
•The case of Hermanns and Rossi was factually completely different to this matter.
•In the case of Ives, Mr Ives did not commit the offences during his work as a plumbing contractor, he had insight into the causes of his conduct, and he demonstrated remorse for his conduct. This is in distinct contrast to the respondent in this matter.
•The case of Curran must be treated with caution because of the successful appeal.
Conclusion
For the reasons set out above, we have decided that the respondent is not a fit and proper person to hold the licences.
Therefore, there is proper cause for disciplinary action against the respondent under reg 30(1)(a) and reg 46(1)(a) of the Regulations respectively regarding his electrical worker's licence and his electrical contractor's licence.
What penalty should be imposed?
The purpose of disciplinary proceedings against a person licensed in a particular industry or profession is to protect the public. The purpose is not to punish the holder of the licence in the sense in which punishment is imposed under criminal law. The public is to be protected by the making of orders which will prevent a person who is unfit to practise from practising or by the making of orders which will secure the maintenance of proper professional standards.[66]
[66] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [37] (Buss P).
The practical effect of a cancellation of a licence is that the onus is on the person who held the licence to establish that they are a fit and proper person should they seek to resume practice in the particular industry or profession, and they apply for a licence at a future time.[67]
[67] Medical Board of Australia and Singh [2017] WASAT 33 (S) (Singh (S)) at [34].
Suspension of a licence is a less serious result and differs from cancellation of a licence because suspension is for a specified period and the practical effect of a suspension is that the holder of the licence can resume practice in the particular industry or profession after that period without the need to establish that they are a fit and proper person. Suspension is suitable where the Tribunal is satisfied that upon completion of the period of suspension the holder of the licence will be fit to resume practice.[68]
[68] Singh (S) at [35] - [37].
We accept that the cancellation or suspension of the respondent's licences will likely cause financial hardship to the respondent and his family. However, given the purpose of disciplinary proceedings is the protection of the public, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public.[69]
[69] Singh (S) at [30(11)].
We have found that the respondent does not have genuine remorse and contrition for the offences and that the respondent does not have true insight and understanding of the turpitude of the offences. In our view, the respondent's lack of insight into the reasons for him committing the offences and his lack of action to seek or obtain any professional treatment or counselling to address the cause/s of his conduct in committing the offences, means that we cannot be confident that at any future time he will be fit to be entrusted by the public to work as an electrical worker or an electrical contractor.
Therefore, in our view, it is necessary for the protection of the public that the licences be cancelled. If the respondent seeks to resume work as an electrical worker and/or an electrical contractor, the onus will be on the respondent to establish that he is a fit and proper person to be licenced as an electrical worker and/or as an electrical contractor.
Costs
The Director stated in his written submissions dated 23 May 2023 that if he is successful in the proceedings, he will seek his costs of the proceedings.
We will therefore make programming orders in relation to costs if the Director wishes to proceed with an application for costs.
Orders
We will make the following orders in Matter VR 18 of 2022:
The Tribunal orders that:
1.Proper cause exists for disciplinary action against the respondent pursuant to reg 47(1) of the Electrical (Licensing) Regulations 1991 (WA) (Regulations).
2.The electrical contractor's licence held by the respondent under Part 4 of the Electrical (Licensing) Regulations 1991 (WA) is cancelled pursuant to reg 47(2) of the Regulations.
3.The applicant has liberty to apply for their costs of the proceeding by filing with the Tribunal and giving to the respondent the following documents within 21 days of the date of these orders:
(a)a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents on which the applicant wishes to rely; and
(b)written submissions addressing the basis on which it is contended costs should be awarded and the amount of costs claimed.
4.If the applicant makes an application for costs pursuant to order 3 above, the respondent may file with the Tribunal and if so must give to the applicant written submissions opposing the application and any supporting documents on which the respondent wishes to rely within 63 days of the date of these orders.
5.If the applicant makes an application for costs pursuant to order 3 above, subject to further order, the Tribunal will determine the application on the documents pursuant to s 60 of the State Administrative Tribunal Act 2004 (WA) after the date referred to in order 4 above and will fix the amount of any costs awarded and the date by which the costs must be paid in the same determination.
We will make the following orders in Matter VR 19 of 2022:
The Tribunal orders that:
1.Proper cause exists for disciplinary action against the respondent pursuant to reg 31(1) of the Electrical (Licensing) Regulations 1991 (WA) (Regulations).
2.The electrical worker's licence held by the respondent under Part 3 of the Electrical (Licensing) Regulations 1991 (WA) is cancelled pursuant to reg 31(2) of the Regulations.
3.The applicant has liberty to apply for their costs of the proceeding by filing with the Tribunal and giving to the respondent the following documents within 21 days of the date of these orders:
(a)a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents on which the applicant wishes to rely; and
(b)written submissions addressing the basis on which it is contended costs should be awarded and the amount of costs claimed.
4.If the applicant makes an application for costs pursuant to order 3 above, the respondent may file with the Tribunal and if so must give to the applicant written submissions opposing the application and any supporting documents on which the respondent wishes to rely within 63 days of the date of these orders.
5.If the applicant makes an application for costs pursuant to order 3 above, subject to further order, the Tribunal will determine the application on the documents pursuant to s 60 of the State Administrative Tribunal Act 2004 (WA) after the date referred to in order 4 above and will fix the amount of any costs awarded and the date by which the costs must be paid in the same determination.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
28 NOVEMBER 2023
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