G and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2018] WASAT 3
•18 JANUARY 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: G and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2018] WASAT 3
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
HEARD: 23 OCTOBER 2017
DELIVERED : 18 JANUARY 2018
FILE NO/S: VR 169 of 2016
BETWEEN: G
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent
Catchwords:
Negative notice issued - Factors considered pursuant to s 12(8) of the Working With Children (Criminal Record Checking) Act 2004 (WA) - Best interests of children - Working with children card issued
Legislation:
Criminal Code 1913 (WA), s 321, s 323, s 329
State Administrative Tribunal Act 2004 (WA), s 27(2)
Working With Children (Criminal Record Checking) Act 2004 (WA), s 3, s 7(2), s 4, s 12, Sch 2
Result:
Working with children card issued
Summary of Tribunal's decision:
The applicant sought a review of the decision of the Chief Executive Officer (CEO) of the Department of Child Protection and Family Support to issue him with a negative notice. The focus of the review was to produce the correct and preferable decision by the remaking of the decision under review pursuant to s 27(2) of the State Administrative Tribunal Act 2004 (WA).
In determining the application, the critical issue was whether 'particular circumstances' existed such that a negative notice should be issued to the applicant.
In order to issue a negative notice, the Tribunal must be satisfied affirmatively on all the information and other material properly before it that 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.
In determining whether there is an unacceptable risk, the Tribunal must have regard to all the factors identified in s 12(8) of the Working with Children (Criminal Record Checking Act) 2004 (WA) (the Act).
The Tribunal was not satisfied affirmatively on all the information and other material properly before it that in there was an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out childrelated employment.
Accordingly, the Tribunal was not satisfied affirmatively that a negative notice should be issued to the applicant. The CEO was ordered to issue an assessment notice to the applicant under s 12(1)(a) of the Act.
Category: B
Representation:
Counsel:
Applicant: Mr P Urquhart
Respondent: Ms L Anderson
Solicitors:
Applicant: Cleveland & Co Lawyers
Respondent: Department for Child Protection and Family Support
Case(s) referred to in decision(s):
Bohan and Department for Child Protection and Family Support [2014] WASAT 138
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262
Chief Executive Officer, Department for Child Protection v Scott [No 2] (2008) 38 WAR 125; [2008] WASCA 171
Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206
Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153
M v M (1988) 166 CLR 69
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 3 August 2004, G was charged, on indictment, with eight offences of sexual penetration or indecent assault of a child (C) under the age of 16 years, under s 329 of the Criminal Code 1913 (WA) (Criminal Code) (Exhibit L pages 80-81).
G was acquitted of all charges on 23 August 2006 after a trial by jury (Exhibit L pages 392395).
Issue of the Negative Notice
On 1 September 2015, G applied to the Department for Child Protection and Family Support (the Department) for a Working with Children Card (Exhibit L pages 14).
On 6 July 2016, the Department invited G to make submissions about the issue of a Working with Children Card or a Negative Notice. G responded by his solicitor's letter of 24 August 2016 (Exhibit L pages 1824).
On 15 September 2016, the Department issued a Negative Notice to G (Book 1 page 40). The Department also provided reasons for decision (Exhibit L pages 3337).
On 12 October 2016, G applied to the Tribunal for a review of the Chief Executive Officer's (CEO) decision to issue a Negative Notice.
Nomenclature
In these reasons the following pseudonyms have been used:
Gthe applicant, C's stepfather;
Cthe complainant in G's criminal trial
MG's wife, C's mother
FC's father
SC's younger full sister
S1C's half sister
S2C's half sister
D1G's older daughter;
D2G's younger daughter
This usage follows the letters as used in the CEO's submissions paragraph 46.
Legislation and authorities the review
The focus of the review is to produce the correct and preferable decision by the remaking of the decision under review: s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act); Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 (Hardingham 2 at [25], [34] and [69]).
The application is to be considered at the date of the Tribunal's decision (Hardingham 2 at [25] and [39]).
The relevant legislation
Section 4 of the Working with Children (Criminal Record Checking) Act 2004 (WA) (the WWC Act) defines a 'child' as a person who is under 18 years of age.
Section 4 of the WWC Act provides that 'a nonconviction charge' means a charge of an offence that has been disposed of by a court otherwise than by way of a conviction.
Section 12 of the WWC Act provides:
(1)The CEO is to decide an application under section 9 or 10 in accordance with this section
(a)by issuing an assessment notice to the applicant; or
(b)by issuing a negative notice to the applicant.
(2)The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3)If one or more conditions specified in the Table apply in relation to an applicant, the CEO is to decide the application in accordance with
(a)if any one condition applies, the applicable provision opposite that condition; or
(b)if more than one condition applies, the applicable provision opposite the condition that has the higher or highest item number in the Table.
Table
Item
Condition
Applicable provision
1.
The CEO is not aware of
(a) any offence of which the applicant has been convicted; or
(b) any charge of an offence against the applicant.
s. 12(4)
2.
The CEO is aware that the applicant has a nonconviction charge in respect of a Class 3 offence.
s. 12(4)
3.
The CEO is aware, not as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence.
s. 12(4)
4.
The CEO is aware, as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence.
s. 12(5)
5.
The CEO is aware of a Class 3 offence of which the applicant has been convicted.
s. 12(5)
6.
The CEO is aware that the applicant has a nonconviction charge in respect of a Class 1 offence or a Class 2 offence.
s. 12(5)
7.
The CEO
(a) is aware of a Class 3 offence of which the applicant has been convicted; and
(b) reasonably believes that in the course of committing the offence the applicant performed an indecent act.
s. 12(6)
8.
The CEO is aware of a pending charge against the applicant in respect of a Class 1 offence or a Class 2 offence.
s. 12(6)
9.
The CEO is aware of a Class 2 offence of which the applicant has been convicted.
s. 12(6)
10.
The CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted.
s. 12(6)
11.
The CEO is aware of a Class 1 offence (that was not committed by the applicant when a child) of which the applicant has been convicted.
s. 12(7)
(4)If this subsection applies, the CEO is to issue an assessment notice to the applicant.
(5)If this subsection applies, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6)If this subsection applies, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7)If this subsection applies, the CEO is to issue a negative notice to the applicant.
(8)If subsection (5) or (6) applies in respect of an offence, the 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 child‑related work;
(e)the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of
(i)any offence committed by the applicant; or
(ii)any charge against the applicant;
(f)any information given by the applicant in, or in relation to, the application;
(g)anything else that the CEO reasonably considers relevant to the decision.
The class of an offence is defined in s 7(2) of the WWC Act by reference to Sch 2 of the WWC Act. The Schedule includes s 329(2) and s 329(4) of the Criminal Code. The charges against G were Class 1 (s 329(2)) and Class 2 offences (s 329(4)).
In determining the application, the critical issue is whether 'particular circumstances' exist such that a negative notice should be issued to G.
The relevant authorities
In Chief Executive Officer, Department for Child Protection vGrindrod [No 2] [2008] WASCA 28 (Grindrod) Buss JA, Wheeler JA agreeing at [59] [81], detailed the proper construction of the relevant provisions of the Working With Children (Criminal Record Checking) Act 2004 as passed (WWC Act as passed) and the CEO's function.
Grindrod was determined before a number of amendments were made to the WWC Act.
Section 12(4) of the WWC Act as passed provided:
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 non conviction 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.
Section 12(5) of the WWC Act as passed provided:
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.
Buss JA's references to the then s 12(4) of the WWC Act as passed apply equally to s 12(5) of the WWC Act.
Buss JA stated:
61In the present case, the respondent had two 'non-conviction charges' in respect of a Class 2 offence. Section 12(4) applies if the CEO is not aware of any offence of which the applicant has been convicted and is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence [Now s 12(3), Item 6, s 12(5)]. Section 12(8) provides, relevantly, that if s 12(4) [s 12(5)] applies 'in respect of an offence', the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case having regard to the criteria in pars (a) (f) of s 12(8). Plainly, the reference in s 12(8) to s 12(4) [s 12(5)] applying 'in respect of an offence' is, relevantly, to a Class 1 offence or a Class 2 offence in respect of which the applicant has a non-conviction charge.
62By s 12(4) [s 12(5)], read with s 12(8), the CEO was obliged to issue an assessment notice to the respondent 'unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to [him]'. Three aspects of s 12(4) [s 12(5)] should be noted. First, the provision is concerned with the CEO's state of mind; that is, his or her satisfaction. Secondly, the requisite satisfaction must be attained because of the particular circumstances of the case; that is, the particular circumstances of the applicant's application by reference to the criteria in pars (a) (f) of s 12(8). Thirdly, the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that a negative notice should be issued.
63What is the significance of the words, 'the CEO is satisfied', in s 12(4) [s 12(5)]?
64As Gummow J explained in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, in the context of s 65 of the Migration Act 1958 (Cth), which entitled the respondent in that case to the grant of a visa only if the Minister were 'satisfied' that the respondent answered the description in s 36(2) of that Act:
The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp [(1919) 26 CLR 385 at 403], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker (651) [130].
65In my opinion, s 12(4) [s 12(5)] imposes on the CEO an obligation, relevantly, to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice. Compare Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, 302 - 303 (Dawson, Gaudron, McHugh, Gummow and Kirby JJ); Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78, 90 - 91 [38] - [43].
66I turn next to examine the meaning of the expression 'because of the particular circumstances of the case', in s 12(4) [12(5)].
67Each of s 12(4) [s 12(5)] and s 12(5) refers to 'the particular circumstances of the case'. Those subsections are to be compared to and contrasted with s 12(6), which refers to 'the exceptional circumstances of the case'.
68The criteria in pars (a) - (f) of s 12(8) to which the CEO must have regard are:
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
69It is apparent from the language of s 12(8) (in particular, the command that the CEO 'is to decide whether he or she is satisfied in relation to the particular … circumstances of the case having regard to' pars (a) - (f), and the breadth of the criterion in par (f), namely, 'anything else that the CEO reasonably considers relevant to the decision'), that the criteria in pars (a) (f) constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction. In other words, the CEO is bound to take into account each of the criteria in pars (a) - (f), and is not entitled to take into account any other factors.
70Although the CEO must give separate consideration to each of the criteria in pars (a) - (f) of s 12(8), each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform. Section 3 states, relevantly, that in performing a function under the Act, the CEO (or the Tribunal) is to regard the best interests of children as 'the paramount consideration'. It follows from s 3 that the CEO, in performing the function conferred on him or her by s 12(4) [s 12(5)] and (8), must regard the criterion in par (a) of s 12(8), namely, the best interests of children, as the paramount consideration. If and to the extent that, in any case, a criterion in pars (b) - (f) conflicts with the criterion in par (a), the relevant criterion in pars (b) - (f) must yield.
71The criterion in par (a) of s 12(8) will always be relevant and paramount. The other criteria in pars (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. In some cases, for example, some of the criteria in pars (b) - (f) may be of little practical significance, when compared with the paramount consideration of the best interests of children.
72I turn now to examine the requirement, in s 12(4) [s 12(5)], that the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that a negative notice should be issued.
73Section 12(4) [s 12(5)] is to be compared to and contrasted with s 12(5), (6) and (7). For example, s 12(6) provides that if the CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted, or is aware of a Class 2 offence of which the applicant has been convicted, or 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' (as distinct from the 'particular circumstances') of the case, an assessment notice should be issued to the applicant.
74In my opinion, if s 12(4) [s 12(5)] applies, the question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction then a negative notice must be issued. Otherwise, the CEO must issue an assessment notice. It is unnecessary and, in my opinion, potentially conducive to error, to gloss that description of the statutory task by asserting that the CEO bears an onus or burden of proof, or that the CEO must show cause why an assessment notice should not be issued. Compare the observations of the Tribunal at [41] and the comments of the Honourable Ms S M McHale, the Minister for Community Development, Women's Interests, Seniors and Youth, in her second reading speech (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947).
75Although s 12(8) specifies the factors which the CEO is entitled and bound to take into account in deciding whether he or she is satisfied, for the purposes of s 12(4) [s 12(5)], that, because of the particular circumstances of the case, a negative notice should be issued to the applicant, neither of those subsections expressly states what finding, if any, the CEO must make in order to reach that satisfaction. What finding then, if any, must the CEO make in order to attain the requisite satisfaction?
76The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who work in childrelated employment and have been convicted of, or charged with, (including charged with and acquitted of) specified criminal offences. The evident legislative purpose is to protect children 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. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with nonconviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity.
77In my opinion, the Parliament has adopted a precautionary approach, relevantly, to the issue of a negative notice to an applicant who has not been convicted of a Class 1 offence or a Class 2 offence, but has a non-conviction charge in respect of such an offence. The adoption of this approach is discernible from the following:
(a)the CEO in performing, relevantly, the function under s 12(4) [s 12(5)] and (8), is to regard the best interests of children as 'the paramount consideration';
(b)whether or not a negative notice is to be issued under s 12(4) [s 12(5)] depends upon the CEO's 'satisfaction' (that is, his or her state of mind) in relation to the particular circumstances of the case, rather than upon the existence of an objective 'fact', as ordinarily understood; and
(c)the CEO may decide an application under s 12 by issuing a negative notice to the applicant after, relevantly, inviting the applicant to make a submission to the CEO about information concerning the applicant's criminal record of which the CEO is aware and about the applicant's suitability to be issued with an assessment notice (s 13(1)(a)), without any provision for or contemplation of a hearing for the purpose of determining facts or any other question.
78The existence of a precautionary approach generally in relation to protecting children from the risk of sexual or physical harm is also apparent from the Minister's second reading speech:
The Working with Children (Criminal Record Checking) Bill 2004 will mean that persons employed, or who volunteer to work with children, or who are in business, must have extensive checks of any criminal records. If they have certain convictions or charges assessed as putting children at risk of sexual or physical harm they will be barred from starting or continuing to work with children.
The working with children Bill is part of a suite of complementary legislation by this Government to protect children: the Children and Community Services Bill, which is twenty-first century legislation to promote the wellbeing, including the protection, of children; the Acts Amendment (Family and Domestic Violence) Bill 2004, which will afford greater protection to victims of family and domestic violence, with a particular focus on the needs and protection of children; the Community Protection (Offender Reporting) Bill, which is currently before the House and will enable the whereabouts and circumstances of child sex offenders to be monitored and conditions to be placed on aspects of their lives that bring them in contact with children; and this Bill, which will deter and prevent people who have particular types of criminal history from seeking work or volunteering in situations in which harm can be done to our children.
In developing this legislation we have assessed the strongest elements of schemes in Queensland and New South Wales. We have also consulted with the Criminal Records Bureau in the United Kingdom. The chief and deputy chief executives of the CRB shared with me their expertise particularly in the light of the Bichard inquiry into the sexual assault and murder of two schoolgirls by Ian Huntley, a caretaker in their school. This Bill is more far reaching than the legislation in Queensland or New South Wales.
The intention of the Bill is to introduce a high standard of criminal record screening into areas of child-related work. The legislation aims to protect children from harm by: deterring people from applying to work with children if they have criminal records that indicate they may harm children, preventing people with such criminal records who do apply from gaining positions of trust in certain paid and unpaid employment, establishing consistent standards for criminal record screening for working with children and the ethical use of such information; and contributing to awareness that keeping children safe is a whole-of-community responsibility. [emphasis added]
(Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6946.) Also see the Minister's comments in relation to cl 7(4) of the Bill which, upon enactment, became s 12(4) [s 12(5)] of the WWC Act:
The Bill provides that certain charges are to be checked. Not all offences against children result in convictions. Therefore, the Government has resolved that charges will be assessed also. We will not tolerate paedophiles who have escaped conviction for various reasons working with our children.
Charges related to class 1 and 2 offences will be assessed. These include those charges that did not result in a court conviction - known as non-conviction charges - and pending charges yet to be decided by a court. This will enable consideration to be given to sexual and violent offences that have been dismissed on a technicality or have not proceeded because of the impact on the victim - particularly children - and the reliability of the evidence. It includes also cases that are awaiting a decision, during which time the risk is too high to allow persons to work with children. Queensland, New South Wales and the United Kingdom also assess charges for child-related work.
...
81In my opinion, it is implicit in s 12(4) [s 12(5)] and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) [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 pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.
...
87The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.
The criteria in paragraphs (b) - (f) are never excluded by the criterion in paragraph (a); they are merely subordinated: Chief Executive Officer, Department for Child Protection v Scott[No 2] (2008) 38 WAR 125; [2008] WASCA 171 at [106] (Scott).
The purpose of the WWC Act is as stated by Buss JA at [109] in Scott:
The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who are involved in child-related work and have been convicted of, or charged with (including charged with and acquitted of), specified criminal offences. The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.
In Grindrod Buss JA set out the CEO's and the Tribunal's function as follows:
84It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the nonconviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.
85The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. Compare M v M (76 - 78); Re H and ors (minors) [1996] AC 563, 572 - 573 (Lord Browne-Wilkinson, dissenting) and 576 - 577 (Lord Lloyd of Berwick, dissenting); Murphy [243] [305] (Carmody J).
86The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non-conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and
(d)the likelihood of any such future risk materialising.
In Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 (T) at [64], Murphy JA explained that:
The 'particular facts' to which reference is made in Grindrod [No 2] [87] would include both primary facts, and inferences of fact drawn from the primary facts. The term 'reasonable suspicions' is used in contradistinction to 'facts' and connotes a reasonable apprehension of matters for which there is nevertheless insufficient warrant to make a positive finding of fact.
In T, Pullin JA (Newnes JA agreeing) at [36] stated:
In Hardingham, Heenan J correctly directed himself about points decided in Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 and Grindrod [No 2], namely that:
(a)the critical question for the decision-maker under s 12(5) was whether, on all the information and material properly before the decision-maker, he or she was satisfied there was an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related work [144];
(b)that the risk in question had to be 'unacceptable' and not 'likely', but that the existence of an unacceptable risk had to be based on facts or reasonable suspicions and not, in the words of Heenan J, on 'imagination or surmise' [152], [157].
The reasons why a person is acquitted may be relevant to the assessment of the probative value of facts or suspicions which the CEO has to consider: T at [49].
In Hardingham 2 at [59], the Court of Appeal stated:
This conclusion is consistent with the decision of Heenan J in remitting the matter to the tribunal (Hardingham v Chief Executive Officer, Department for Child Protection). At [123] - [127] his Honour expressly upheld the correctness of the tribunal taking into account 'disreputable conduct not amounting to a conviction for a class 1 or class 2 offence or the subject of any such non-conviction charge' including conduct which does not disclose the commission of an offence:
If it constitutes some kind of deplorable conduct which either alone or in combination with other proved or alleged conduct may give rise to reasonable grounds for suspicion that the applicant may constitute an unacceptable risk of harm to children, then it must be taken into account [127].
Examples of conduct that, whilst not necessarily criminal, are nevertheless relevant, are to be found in the judgment of Hall J in Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153 (Hardingham 3) at [159].
Consideration of whether to cancel a negative notice does not require a finding that the applicant would commit or re-commit a sexual or other offence in the future; the focus is on the exposure of children to risk of harm whether intended or not. Hall J in Hardingham 3 said at [161]:
I note that the question is whether children would be exposed to an unacceptable risk of sexual or physical harm, not whether the applicant would commit a sexual offence. In these circumstances, it is relevant to take into account that harm may occur inadvertently because a person misunderstands or fails to appreciate social norms and interpersonal boundaries. Harm may occur to children in such circumstances even though the perpetrator did not intend to commit an offence. …
The prediction of future risk is not limited to the conduct that was the subject of the charges: Hardingham 3 at [39].
What are the 'particular circumstances'?
G submitted that the 'examples given in the second reading speech where it could be more readily established if the circumstances of the particular case are such that an assessment notice has not been issued' (T:57; 24.10.17). G also referred to 'where the complainant has passed away or the complainant has moved overseas and can no longer be located and the charges are withdrawn on the basis or because of an illness of the complainant, he or she is unable to give evidence at a trial' (T:58; 24.10.17).
In Grindrod, Buss JA's statement of relevant factors was inclusive rather than exclusive. However, having regard to the Minister's second reading speech, it is arguable that the 'particular circumstances' relate to cases where there has been a technical issue or because of the impact on the complainant or the reliability of the evidence the case has not proceeded. If there has been a non-conviction for any of these reasons then it becomes necessary to look to the strengths and weaknesses of this case against the applicant.
It is arguable that if a case proceeds to trial and the applicant is acquitted, for reasons other than the examples given, 'particular circumstances' do not arise. However, having regard to the purpose of the WWC Act, that would be to draw too narrow an interpretation of 'particular circumstances'. 'Particular circumstances' must depend on the facts of the particular case.
The evidence
The documentary evidence before the Tribunal comprised four volumes, Part A, Volumes 1 and 2 (Exhibit L) and Part B Protected Matter, Volume 1 and 2 (Exhibit M).
As the CEO's submissions noted, the following interviews and examinations took place:
57.Following the allegations coming to the attention of relevant authorities in June of 2003, C was interviewed in relation to them on several occasions as follows:
16 June 2003 – C (now 13 years) was interviewed by CPFS (CCS Act) officers (First Interview) (Exhibit M: 55 – 58).
20 June 2003 – C executed a witness statement (Witness statement) (Exhibit L: 47 – 60).
18 July 2003 – C was interviewed by a CPFS (CCS Act) officer and a WA Police officer in relation to a specific incident which was alleged to have occurred in the applicant's car (Second Interview) (Exhibit L p69Exhibit M: 26 31).
10 December 2004 – C (now 14 ½ years) was examined, cross-examined and re-examined (pre-recorded evidence) for the purpose of the criminal trial (Exhibit L: 89 143) [before Macknay DCJ].
58.S (now 10) was also interviewed (S's interview) on 20 June 2003 (Exhibit M: 32 36) by CPFS (CCS Act) officers (Exhibit M: 50).
59.C was medically examined on 1 July 2003 for assessment of alleged sexual abuse (Exhibit L: 70 72). No evidence either confirming or refuting the allegations of abuse was found (Exhibit L: 363 – 364).
60.C was also interviewed by a psychiatrist on 19 January 2004 who produced a report dated 21 January 2004 (2004 psychiatrist report) for the purpose of the care and protection proceedings under the CCS Act (Exhibit M: 68 71). The 2004 psychiatrist report also indicates that S, M and F were interviewed in relation to that report.
The CEO also relied on various interviews and statements with other family members.
In assessing the weight of the different sources of evidence it is important to bear in mind that the only evidence of C that was tested was the evidence given in C's prerecording for the criminal trial. G also gave evidence in the criminal trial. Statements made other than in a court context, although clearly relevant, do not necessarily have equal weight to evidence given in court proceedings.
Before the Tribunal witness statements were provided by:
1)G Exhibit A;
2)D1 - Exhibit B;
3)M Exhibit C and D
4)S1 Exhibit E
5)S Exhibit F;
5)G's previous wife Exhibit G
7)Rosemary Lillian Cant, an expert witness Exhibit N
G, M, S1 and Ms Cant gave oral evidence.
The CEO provided detailed and extensive written submissions of 63 pages (CEO's WS). The Tribunal thanks the CEO for such detailed submissions which were evidently the subject of much work.
G's submissions
G's primary submission was that the particular circumstances of this case did not override the prima facie position that an assessment notice be issued.
G cited from Pullin J's judgment in T at [44]:
The reason why a person is acquitted may be relevant to the assessment of the probative value of facts or suspicions which the CEO or Tribunal has to consider.
(T:3; 23.10.17)
G denied that the allegations were true.
G submitted that C had a history of lying and that she had a motive to lie in that she wanted to live with her father. G submitted that the allegations were part of a plan by C to make allegations against G so that C could move to her father's place (T:3-4; 23.10.17).
G further submitted that the evidence 'raised a significant doubt as to whether the first six of the eight counts could have happened at the time she alleged.' G further alleged that it was physically impossible that the incident as described in count eight could have occurred (T:45; 23.10.17).
G submitted that it was of particular significance under s 12(8)(b) of the WWC Act that the alleged incidents occurred in 2002-2003 and the application was made in 2016 without any intervening incidents (T:56; 23.10.17)
The family structure
G and M began a relationship in approximately October 2000 (Exhibit L page 416). They married on 7 December 2002 (Exhibit L page 182).
G had two daughters from a previous relationship (D1 and D2).
M had four daughters, two children from a previous marriage (S1 and S2) and two children (C and S) from her de facto relationship with F.
C and S had significant contact with their maternal grandmother and grandfather during the relevant period. Charges 1 to 3 on the indictment, as set out below, are alleged to have occurred in the swimming pool at the grandparents' home.
The indictment
The indictment alleged eight offences.
Charges 1 to 3 relate to essentially a series of incidents in a pool on the one day. Charge 4-6 relates to a later incident in a car on the same day (see counsel's opening, Exhibit L page 337). Charge 7 relates to a separate incident on another day. Charge 8 relates to a separate incident on another day.
G was alleged to have committed the offences between May 2002 and June 2003. C was approximately 12 13 years old and G was approximately 48 49 years old.
| Charges | |
| Code Sec 329(4), 329(10)(a) | (1) On a date unknown between 3 May 2002 and 1 December 2002 at X [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her breasts |
| AND THAT [C] was a child under the age of 16 years | |
| Code Sec 329(4), 329(10)(a) | (2) AND FURTHER THAT on the same unknown date and at the same place [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her vagina |
| AND THAT [C] was a child under the age of 16 years | |
| Code Sec 329(2), 329(9)(a) | (3) AND FURTHER THAT on the same unknown date and at the same place [G] sexually penetrated [C], a child who he then knew to be his defacto child, by penetrating her vagina with his finger |
| AND THAT [C] was a child under the age of 16 years | |
| Code Sec 329(2), 329(9)(a) | (4) AND FURTHER THAT on the same unknown date in the State of Western Australia [G] sexually penetrated [C], a child who he then knew to be his defacto child, by penetrating her vagina with his finger |
| AND THAT [C] was a child under the age of 16 years | |
| Code Sec 329(4), 329(10)(a) | (5) AND FURTHER THAT on the same unknown date in the State of Western Australia [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her breast |
| AND THAT [C] was a child under the age of 16 years | |
| Code Sec 329(4), 329(10)(a) | (6) AND FURTHER THAT on the same unknown date in the State of Western Australia [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her vagina |
| AND THAT [C] was a child under the age of 16 years | |
| Code Sec 329(2), 329(9)(a) | (7) AND FURTHER THAT on another date unknown between 3 May 2002 and 1 February 2003 2002 at Y [G] sexually penetrated [C], a child who he then knew to be his defacto child, by penetrating her vagina with his finger |
| AND THAT [C] was a child under the age of 16 years | |
| (8) AND FURTHER THAT on 4 June 2003 at Z [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her breast | |
| AND THAT [C] was a child under the age of 16 years |
Disclosure
The CEO made the following submissions in relation to disclosure:
86.There was no evidence before the jury in the applicant's criminal trial in relation to disclosures made by C or how the matter came indirectly to the attention of relevant authorities (2: 464).
87.In his charge to the jury the Trial Judge stated 'In this case [C] is not specifically asked why she never told anybody.' His Honour was careful to ensure that the jury were informed that delay in complaint was not indicative of a false account (2: 464).
88.This is consistent with the scientific literature in relation to disclosure of abuse by children. That literature also indicates that abused children:
•commonly delay disclosure;
•may deny or retract statements disclosing abuse even where other evidence exists;
•may not report all the details of the abuse at once, or may minimise or withhold information;
•may provide information in an earlier informal statement that is not repeated in a formal interview: (Bench book at p8).
89.Researchers have also suggested a number of explanations for the prevalence of delayed and absent reporting of sexual abuse by children (Bench book p10 – 11) including:
•Fearing the consequences for the family;
•Fearing the consequences for themselves;
•Shame, embarrassment and privacy reasons;
•Not understanding that the abusive behaviour is wrong or abnormal;
•Being concerned that their family will be angry with them and/or force them out of home;
•Doubting they will be believed or thinking they will be blamed;
•Learned helplessness;
•Responding to family pressures and/or a desire to protect the abuser;
•The abuse stops;
•Not have the language skills to describe what has happened;
•Complex family dysfunction.
The CEO made the following submissions in relation to the process of abuse what is commonly referred to as 'grooming':
91.It is widely recognised that child sexual abuse is typically planned and often part of a process. That process can begin well before an actual indecent dealing or sexual assault and may continue following it.
92.Perpetrators of child sexual abuse can and do go undetected for many years and are sometimes never identified during their lifetime. It is now widely recognised that the deliberate tactics employed by perpetrators in that process over a period of weeks, months or years contribute to limiting disclosure of abuse.
93.These tactics include the perpetrator inserting themselves into the lives of children to not only establish the trust of those children but also that of the adults that surround them.
94.Vulnerable or receptive families are identified, often single parents. The perpetrator becomes 'indispensable' to the significant adults in the child's life, often engaging in tasks those adults have little time for. Friends and relatives are often astounded when they discover abuse has occurred.
95.Once established known tactics include those designed to test a child's response to sexual overtures, desensitise the child to sexual touching, implicate the child in the offender's behaviour, and mask the behaviour in order to limit disclosure.
96.This can include the gradual desensitising of a child to sexual touch and violation of boundaries by (among other things) 'accidental' sexual touching during tickling, wrestling or being rough toward the child as a sign of affection. If the child does not stop the abuse the behaviour progresses to increasingly intimate acts.
97.Ultimately, such tactics function to increase the likelihood of future sexual abuse and decrease its disclosure.
98.While many tactics referred to above may also be consistent with innocent conduct, such a conclusion must be carefully drawn when the conduct occurs in the context of allegations of sexual offending. As many recent inquiries have demonstrated serious assessment of the same is key to identification of risk of sexual abuse and stopping it before it occurs.
These paragraphs of the CEO's WS are extremely generalised. The example given of a person grooming vulnerable or receptive single parent families (paragraph 94) bears no resemblance to the facts of this case. Nevertheless, the signs of potential grooming are warning signs to which the Tribunal must pay particular attention as the CEO submits.
The CEO made the following submissions in relation to the effects of abuse:
99.The process engaged in by perpetrators can develop over time.
100.The nature of the 'process' in addition to issues relating to cognitive development, memory and language skills can affect disclosures or descriptions of alleged conduct and precise details or particulars of the specific conduct which authorities identify as an offence for the purposes of the criminal justice system (see for example Bench book pp 24 – 78).
101.Studies have shown that significant numbers of jurors and lay people hold misconceptions about child sexual abuse which include (among others):
•A victim of sexual abuse will avoid the abuser
•A child who returns to or spends time with an alleged offender is unlikely to have been abused
•Children who are abused will display strong emotional reactions
•Children who show no sign of distress have not been abused
•An abused child will typically cry for help and try to escape
•Children who retract their reports of sexual abuse were probably lying in the first place
•Inconsistencies between statements pre-trial and in court indicate that the allegation is false
•Sexual abuse can be detected by medical examination
102.Empirical studies indicate that jurors are likely to be influenced by such misconceptions (see for example Bench book pp26 - 29).
103.Acceptance that common misperceptions may affect trial outcomes has driven change to legislation within the criminal justice system, see for example 2008 amendments to the Evidence Act 1906 (WA) and s 36BE which provides that expert evidence on child development and behaviour is admissible in child sexual abuse trials. The explanatory memorandum to the amendment that inserted the provisions states:
It is well established that the behaviour of a child in response to sexual assault is generally different to that of an adult and that the capacity for the jury to evaluate that behaviour is impeded by a lack of understanding about child responses. This clause inserts a new section 36BE which will allow expert opinion evidence on the subject of child behaviours, development and reactions to sexual abuse to be admitted in criminal proceedings against a person charged with sexual offences against a child. This opinion evidence will be admissible, even if it relates to a fact in issue or to an ultimate issue in the proceedings, is a matter of common knowledge, or is relevant only to the credibility of the complainant. In this way, the new section overcomes the common law rules of ultimate issue and common knowledge in relation to expert opinion evidence on the behaviour of a child.
Criminal law and Evidence Amendment Bill 2006 Explanatory Memorandum at [41].
It is not the role of the Tribunal to seek to determine why the jury reached a particular verdict. The sole relevance of the jury verdict is whether it results in a conviction or a non-conviction.
The CEO's submission about disclosure, the process of abuse and the effects of abuse are, again, generalised. Nevertheless, it is important that the Tribunal bear such matters in mind to avoid the misconceptions identified above in determining whether there is an unacceptable risk.
G accepted the CEO's submissions on these aspects but denied that they applied to his particular circumstances.
Evidence of potential grooming before the alleged incidents
There is evidence of what was identified as 'rough housing' between G and C and/or S prior to the alleged incidents.
In crossexamination during her pre-recording C stated 'before the swimming pool one it didn't happen out of the blue. It happened in small things but I just thought they were accidents' (Exhibit L page 132). In reexamination C said:
Well like, when we were rough-housing in the pool he would just like touch my breasts and everything and I thought that that would just be accidents and stuff.
(Exhibit L p137; see also Exhibit M page 56)
The CEO correctly submitted:
128.C indicated that she and the applicant initially used to 'rough house' in the swimming pool and he used to tickle her. 'I thought he didn't know where he was touching and stuff' (Exhibit M 56). He used to wrap his legs around her under water and she could not get to the surface unless she surrendered and he would 'tickle my top half' (Exhibit M 56).
S also gave evidence of rough housing between G, C and S (e.g. Exhibit M page 34). S went on to say that she felt safest with M, G and F (Exhibit M page35). Professor Lipton's report noted that S 'talked about playing rough and tumble games' with the applicant (Exhibit M page72).
These actions are potentially evidence of grooming. However, as the following exchange in crossexamination of Ms Cant shows, actions that may constitute grooming may also be consistent with innocent behaviour:
So there is consistency with the literature on grooming in terms of the roughhousing. That's a very common aspect of grooming in the literature. But, as I say, I think I would want to be a little cautious because of the relatively limited information.
…
Mr Urquhart: But equally, for example, play fighting in a pool, without anything more, is not necessarily conclusive evidence of grooming, now, is it? No, it isn't. It isn't conclusive. And that's one of the issues with grooming, that much grooming behaviour can also be dismissed as being quite innocent. So it is really, I guess, a matter of appropriateness of the behaviour in the particular context, and also the sequelae of the behaviour. So given that the allegations, in this case, the roughhousing, is associated with touching, then I think if the allegations are true, then - then I think it is reasonable that one would consider the behaviour related to grooming. So that's what it all comes down to though. It's based on the actual allegations of inappropriate conduct being true? That is an element of it, yes.
Yes. Because otherwise you could have numerous examples of where such roughhousing, play fighting, is entirely innocent? Yes, that's true.
(T:14 and 15; 24.10.17)
Undoubtedly, grooming occurs. No one doubts that. However, the problem with relying on Ms Cant's evidence is that it is circular. If the allegations are accepted then the actions said to constitute grooming are grooming. If the allegations are not accepted then the actions are not grooming. This makes it difficult to rely on grooming evidence as evidence of the truth of the allegations. Evidence of grooming is likely to be more relevant to penalty if a person is convicted.
The history of disclosure
In her statement of 20 June 2003, C asserted that, before her mother and G got married (that is, before 7 December 2002), she told her halfsister S2 that G 'had been touching me down my bather bottoms'. This disclosure must only refer to the pool incident because of the reference to 'bather bottoms'. S2 then began crying and told her mother (see also CEO's WS at paragraph 63). Her mother then asked C if she could have been mistaken to which she replied 'no'. C asserts that her mother said that someone would come out to see her but no one did (Exhibit L pages 5960, paragraphs 110-115; see also CEO's WS paragraph 64).
The Tribunal notes that C's evidence as to when she told her sister S1 (that is, before the wedding) is inconsistent with the evidence of M, G and F that the disclosure took place in late February 2003 (that is, after the wedding) (see below).
The Tribunal notes that C's evidence that M said that someone would come out to see her but no one did is inconsistent with the evidence of M, G and F below (that is, that M arranged for C to see a school psychologist and that C refused to see the psychologist) (see below).
In the course of an interview with C by the Department on Monday 16 June 2003, C was asked when she told her mother of the bathers/pool incident. The following exchange took place:
Int:How old were you when you told her
C12 ... at the very end of last year or the beginning of this year -
Int:Tell me, did the first time happen before Christmas
CYes
Int:During school holidays or school time
CI think during school time.
Int:Which term
CI don't know....I am trying hard to forget it
...
(see also Exhibit B page 80 which records the event as 'Oct/Nov 2002')
A report from Professor Lipton, a psychiatrist, dated 21 January 2004, prepared for the predecessor of the Department, notes that C told him that she had first told her half-sister S1 (Exhibit B page 69; see also F's statement Exhibit B page 92 at paragraph 41; see also Exhibit M page 29; see also CEO's WS at paragraph 66).
In her statement of evidence, Exhibit C, M stated:
72Around 24 February 2003 whilst I was at work and just before I left to go to my home in [my suburb] I called home to see if everybody was alright.
73Someone who was at home told me that [S2] was at home crying. I do not now recall but it would have been with my mother and father who were at my home babysitting the children.
74.When I got home I went to see [S2] in her bedroom. I asked her what was the matter as she was quite clearly upset over something.
75.[S2] did not want to say anything to me at all but did say [C] had told her something. She would not tell me what it was.
76I then left [S2] in her bedroom and I went into [C'] bedroom. [C] was in her bedroom. She did not appear to me to be upset.
77[C] said to me after I asked her why [S2] was upset and crying. [C] told me that [G] had touched her but she did not say specifically where or how [G] had touched her. She was vague about the details of what had happened.
78I asked [C] for more information and all she told me was that [G] had touched her on the bottom[.]
(Exhibit C pages 12 13; see also T:43-44 and 46; 23.10.17)
G's evidence before the Tribunal was that on 27 February 2003, he arrived home and found S2 upset and crying in the bathroom. She told G that she was ok. Not long after M arrived home she spoke to S2 who told her, in effect, that C had told her that G had indecently dealt with her. G denied any such incident. G's evidence is that whilst S2 was still sobbing that evening at dinner, C was unconcerned (Exhibit A pages 6-8 at paragraphs 43-61; see also Exhibit C page14 at paragraph 86; see also T:19; 23.10.17).
The Tribunal notes that G was aware of the pool incident allegations from no later than late February 2003.
Following the disclosure by C, M, G and C's maternal grandparents had a family meeting. M's evidence was that G wanted to go to the police but that she did not because she wanted to go to the school and she did not believe C (Exhibit C page 15 paragraphs 88-92). M was not challenged in crossexamination before the Tribunal on G's wish to go to the police. It seems unlikely that if G had committed the offenses he would have wanted to go to the Police.
M saw the school principal and arranged for C to see the school psychologist, which C refused to do (Exhibit C page17 paragraphs 101105). The CEO submitted that 'the correspondence indicates that M went to C's school following the disclosure and saw a psychologist in relation to it (CEO's WS paragraphs 65 and 67). G's evidence is that M told him that C has threatened to run away if she was made to see the psychologist (Exhibit A pages 8-9 at paragraphs 68-72).
F's original evidence was that he was made aware by M, in about January 2003, of C's allegation of G's conduct in the swimming pool, which C alleged had occurred 'in or about October 2002'. F later amended his evidence as to the date when he was told by M from January 2003 to February 2003 (Exhibit L page 159 at paragraph 14; see also CEO's WS paragraph 70). M told F that she had arranged for C to see the school psychologist. A couple of days later, F was advised by M that it had all been resolved. F's evidence is that in June 2003, C told him that she had refused to see the psychologist because 'she did not want to cause the problems that would flow from that for the family' and that she 'threatened M that she would run away if she was made to see the school psychologist' (Exhibit M page 83 paragraph 8; CEO's WS paragraphs 6869, 72 and 73).
The CEO submitted:
74.While the dates are unclear the information before the Tribunal supports a reasonable suspicion that C reported an allegation of abuse to her sister, following an occasion when in the pool with the applicant at her grandparent's home. That sister brought the allegation to the attention of M.
75.It is reasonable to suspect on all of the information before the Tribunal as a whole that M did not believe the allegation and did not report it to investigating authorities such as WAPol or CPFS (CCS Act). Following C's reluctance to see a psychologist, nothing further in relation to the allegation occurred until allegations later came to the attention of investigating authorities.
Although the CEO is correct to submit that C reported the allegation of abuse to S2 'following' the alleged incidents in the pool, C did not report the allegation to S2 immediately following the alleged incidents. The probability is, based on the evidence of G, M and F, that the allegation of abuse was not reported by C to S2 until February 2003. The Tribunal accepts paragraph 75 of the CEO's WS. However, the Tribunal notes that M did not ignore C; she contacted the school and arranged for C to see the school psychologist.
In crossexamination of G before the Tribunal, a letter from C's grandmother was put to G by counsel for the CEO, Exhibit M pages 3-4, which stated:
The following week [C] told [S2] [that] [G] had sexually assaulted her while they were at my house one afternoon that week. [C, S and G] were in the pool [C's grandfather] was in the house and [M] and I were doing a jigsaw in the sunroom that overlooks the pool. There was lots of laughing, splashing and shrieking but we were not watching as [G] was there and they are both good swimmers. This time [M] went to the school and saw the psychologist. [C] would not tell me what had happened.
The CEO relied on the grandmother's letter to submit that the pool allegations (and, therefore, although not submitted by the CEO, the car allegations), could have happened between October 2002 and February 2003 (CEO WS paragraph 160). As counsel for G submitted about the grandmother's letter, she 'may well have got the sequence of events out of order because she's relying on a third-hand account that has been given to her by somebody else in relation to what C said to her sister S' (T:27; 23.10.17). One element in the grandmother's account that is incorrect is that S was in the pool at the time of the incidents. C's evidence is that S was not in the pool is an example of how accounts can be communicated incorrectly.
In terms of the relative weight of the evidence, the grandmother's letter is of very little weight.
The probability is that C reported the incident in late February 2003. Counsel for the CEO put to G that the grandmother was saying that C had been assaulted in the pool 'the week before'; that is, in February 2003 (T:2028; 23.10.17). The Tribunal is satisfied that the CEO's submissions relied on a mistaken interpretation of the grandmother's letter for the reasons explained in the discussion with counsel appearing in the transcript. In short, C had always alleged that the pool incident took place before the wedding; that is, before 7 December 2002. C never suggested that the assault was after that date, and at no time did she suggest that the assault occurred in February 2003. The CEO did not call the grandmother and the grandmother's evidence is of little weight for the reasons explained above. In any event, the evidence of M, G and F is that the disclosure was made in February 2003; not that any sexual assault took place in 2003.
The CEO submitted at paragraph 160:
In any event the information establishes that between October 2002 and February 2003 there was an occasion as described in the undated correspondence where [G] was in the pool with C in circumstances similar to that described by her in relation to the swimming pool incident.
In closing submissions, the CEO submitted that the 'core allegations' remained the same irrespective of the evidence about when the incident occurred and, therefore, the conduct could have occurred as late as February 2003.
The Tribunal does not accept these submissions. For the reasons stated above, if the alleged incident occurred, it occurred in early to midOctober 2002 and no later than 19 October when the grandparents went to England.
The Tribunal does not attach any significance to the delay in C reporting the allegations for the reasons set out in the CEO's WS at paragraphs 8689.
In her statement of 20 June 2003, C stated that, in around April 2003, she told her friend that G had been touching her (Exhibit L page 48 at paragraph 11).
In her statement of 20 June 2003, C continued, saying that she was crying on the bus on Monday 2 June 2003 and another friend asked what was wrong. C told her that G had been touching her (Exhibit L page 48 at paragraphs 1213).
C's friend confirms this (Exhibit L pages 155-156).
The friend then told C's other friends and most of the students in C's year found out. At lunchtime C and her friend saw a teacher. The teacher stated:
7.I can't remember her exact words, but [C] told me that her stepfather had been touching her and her sister and her mum doesn't believe her.
8.[C] told me that her mum thinks she is lying.
9.After our conversation [C] and [her friend] would have gone back to class and that's when I went and told [the student services coordinator] , who told the school principal[.]
(Exhibit L page 73)
The student services teacher made an appointment for C to see the school psychologist. C saw the school psychologist and told her what she alleged had happened. The psychologist's evidence is:
[C] disclosed an incident that happened with her stepfather last October in a swimming pool and in the car when they moved house to [the country property].
(Exhibit L page 75 at paragraph 8)
This is the first recorded reference to the incident in the car by C.
The psychologist contacted the Department (Exhibit L pages 48-49 at paragraphs 16-19).
The indictment alleges an indecent assault on 4 June 2003; that is, the day before C saw the school psychologist.
On Friday 6 June 2003, the psychologist faxed her concerns about C to the Department (Exhibit M page 54):
The following was reported to me on [Thursday] June 5th at … SHS.
[C] reported that her mother's boyfriend touched her in a sexual way. Throughout an afternoon the man behaved inappropriately touching her on the breast in a swimming pool at her grandmother's home. The touching could have been seen as accidental.
Later in the day when they were going home, the man leaned across whilst driving and put his hand up [C's] skirt and touched her in a sexual way.
[C] was clear she did not want this. She cried.
[C] later told her sister who passed the information on to her mother. The mother did not believe that the incident occurred and has neither mentioned it to [C] nor done anything about it.
The school psychologist saw C again on 6 June 2003 (Exhibit L page 75 at paragraph 7).
Given that the alleged indecent assault occurred on 4 June 2003, it is difficult to understand why C did not refer to this in her disclosure to the teacher or to the school psychologist the following day (5 June 2003) or to the school psychologist when C saw her again on 6 June 2003. The Tribunal accepts that abused children may not report all of the details of the abuse at once. However, this is not a case of not reporting all the details of the abuse at once, but of not reporting an act of abuse that had allegedly occurred the day before in the context of reporting other incidents.
In C's interview of 16 June 2003, she described G's alleged sexual assault in some detail. Professor Lipton did not suggest that C did not have adequate knowledge to conclude that C could not have made up the details of the assault.
At paragraphs 430-432 the CEO submitted:
430.It is not the function of the decision-maker under the Act or the Tribunal on review to determine or re-determine the applicant's guilt or innocence: Grindrod at [84]; Hardingham 2 at [59]; T at [59]; Hardingham 3 at [39].
431.Relevantly a finding that an allegation of abuse has occurred is not required before the decision-maker may be satisfied that the applicant represents an unacceptable risk of harm to children in the course of child-related work: Grindrod at [84] [85]; see also T at [44] [46].
432.For the reasons set out above it is contended that, on the all of the information as a whole, the Tribunal cannot be satisfied that the applicant did not sexually abuse C: refer Grindrod [82] – [85].
The test as submitted by the CEO is that the Tribunal cannot be satisfied that the applicant did not sexually abuse C. That is not the test set out in Grindrod.
Section 12(8) factors
Paragraphs 433 to 436 of the CEO's submissions set out principles from the authorities as set out above.
The best interests of children
Paragraph 475 of the CEO's submissions stated:
475.The risk of sexual harm to a child from a person in a position of trust and authority over them is an unacceptable risk and the best interests of children would not be served by exposure to that risk.
The fact that a person is in a position of trust and authority is not of itself sufficient to justify the issue of a negative notice.
When the offence was committed or is alleged to have been committed – s 12(8)(b)
G submitted that s 12(8)(b) of the WWC Act was of particular significance in G's case, it being about 14 years between the last alleged offence and the date of hearing (T:5-6; 23.10.17).
The CEO submitted:
438.The applicant's non-conviction charges related to eight counts of alleged sexual abuse of a child that occurred in 2002 and 2003.
439.To the respondent's knowledge, the applicant has not been the subject of further allegations prior to or after the time the allegations the subject of his non- conviction charges was said to have occurred.
440.In this regard any weight to lack of such information must be considered in the proper context and tempered by it.
441.It is well understood that only a small proportion of child sexual abuse will come to the attention of the criminal justice system due in the main to the dynamics of sex offending against children as previously described which can be used to test and identify susceptible children and limit disclosures of abuse.
442.Many child victims of sexual crimes will never disclose those crimes against them and delay in complaint is common when they do (see for example Bench book: 6 - 21).
443.The success of treatment of offenders is likely to be contingent on avoidance of high risk situations like child-related work.
444.In Bohan at [125] – [126] the Tribunal stated that section 12(8)(e) must also be regarded when considering time without offending and referred to the legislature when it introduced the sub-section:
The second reading of the Bill that inserted the provision shows that the legislature sought to distinguish the assessment of weight to be given to evidence under the Act from assumptions and considerations that inform the weight traditionally applied to factors in other contexts, such as sentencing and parole of offenders: Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary).
By inserting the amendment the Government intended that even when an offence against a young person took place many years ago, the passage of time without further charges or convictions will not be sufficient to issue an Assessment Notice if a repetition of the type of behaviour would result in significant harm to a child (see Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010, p 2473b – 2477a). [Emphasis added]
445.It is contended, that a recognition of the dynamics of sexual offending against children, including lack of such conduct coming to attention of authorities and high attrition rates and difficulties relating to successful treatment of offenders (among other things) inform the legislature's 'precautionary approach' (as identified in Grindrod and Scott) under the Act and in this regard.
446.That no further similar allegation has come to the attention of authorities or the respondent before or after the alleged offending is not logically probative of mitigation of the risk of sexual harm identified in the alleged offending conduct of the applicant.
In oral submissions, the CEO submitted that the Tribunal should proceed on the basis that the Tribunal could not exclude that there had not been further incidents even though there had been no reports in the ensuring years (T:45; 24.10.15). That cannot be a basis on which to determine such an application. To do so would be to engage in 'imagination or surmise'. That proposition is inconsistent with the authorities. The CEO's submission is very different to the proposition that the absence of offending cannot of itself be sufficient to issue a working with children card.
The long interval between when the offences are alleged to have taken place and the date of hearing favour the grant of an assessment notice to G but the long interval is not of itself sufficient to justify the grant.
The age of the applicant when the offence was committed or is alleged to have been committed - s 12(8)(c)
G was born in December 1953. As noted above he would have been approximately 48-49 years old in 2002-2003. C would have been approximately 1213 years of age during that period. The age difference is approximately 36 years. The ages of G and C during the relevant period is not a factor that would reduce any risk that might otherwise be identified.
The nature of the offence and any relevance it has to child-related work - s 12(8)(d)
The nature of the offences alleged against G involving sexual penetration of a child under 13 (a Class 1 offence under the WWC Act) and indecent dealing with a child is (a Class 2 offence under the WWC Act) are such that it is selfevident they are highly relevant to child-related work. Such offences are to be contrasted with, for example, crimes of violence against an adult where it may be necessary to establish a link. The link might be that the assault occurred in front of a child.
The effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of: (i) any offence committed by the applicant; or (ii) any charge against the applicant s 12(8)(e)
Harm imposed by sexual penetration and indecent dealing is, of itself, serious. If future conduct by G were the same or similar to the alleged conduct it would adversely affect a child.
In Bohan and Department for Child Protection and Family Support [2014] WASAT 138 the Tribunal stated:
125Section 12(8)(e) of the Act must also be regarded when considering the time since offending: Lu and Chief Executive Officer, Department for Child Protection [2013] WASAT 69 at [36]. The section was inserted into the Act commencing 6 October 2010. The second reading of the Bill that inserted the provision shows that the legislature sought to distinguish the assessment of the weight to be given to evidence under the Act from the assumptions and considerations that inform the weight traditionally applied to factors in other contexts, such as sentencing and parole of offenders: Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary).
126By inserting this amendment, the Government intended that, even when an offence against a young person took place many years ago, the passage of time without further charges or convictions will not be sufficient to issue an Assessment Notice if a repetition of that type of behaviour would result in significant harm to a child (see Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010, p 24736b 2477a).
Any information given by the applicant in, or in relation to, the application s 12(8)(f)
Submissions on the law provided by an applicant do not constitute information within the meaning of the WWC Act. It is unnecessary to deal with the CEO's submissions at paragraphs 457- 464 which respond to G's legal submissions to the CEO.
G's character references
The CEO submitted in relation to the character references tendered at trial that:
465.He also provided three character references. Two of those references speak to the applicant's employment abilities and strengths (Exhibit L: 27, 28). Neither referee states that they were aware of the details of past allegations against the applicant, nor that he has faced a criminal trial in respect of them.
466.The third reference is from a past work colleague and personal friend of many years (K). K states he is aware of the charges and the acquittal, however he does not advise exactly the information of which he is aware. He states that the non- conviction charges have not changed his view of the applicant and he has no hesitation in recommending him for any employment involving children (Exhibit L: 26).
467.The scientific literature is very clear when it comes to issues of character. A person's good character, community achievements or pleasant demeanour are not reliable indicators on which to gauge whether a person has or will sexually abuse a child.
468.Many perpetrators have exhibited qualities of good character, were seen as caring and dedicated, highly respected and popular prior to their abuses having been discovered. These are part of the dynamics that contribute to the difficulty of discovering sexual abuse of children and securing convictions once that abuse has been disclosed.
469.In this context, factors such as good character are not logically probative of a conclusion that a person is unlikely or likely to have acted as alleged, or does or does not represent a risk of sexual harm to children.
470.Equally evidence of “good character” is not logically probative of the mitigation of any risk of sexual harm identified.
471.In A and Chief Executive Officer, Department for Children Protection and Family Support [2016] WASAT 74 at [156] the Tribunal (Justice Curthoys) stated:
The premise that a person with 'good character' is unlikely to harm a child is unfounded. An evaluation of A's character by others is ill-suited to reliably mitigate any identified risk in A's behaviours and conduct.”
The Tribunal accepts the CEO's submissions as to the character references. The Tribunal also notes that G did not seek to rely on those references in the hearing before the Tribunal.
CEO's concluding submissions
In conclusion the CEO submitted:
476.It is the decision-maker's satisfaction that enlivens the power to issue a negative notice under s 12(5) of the Act: Grindrod at [65].
477.The requisite satisfaction must be reached from an accumulation of factors which together raise issues of concern relating to harm to children.
478.The significance accorded to specific items of information, the weighing of probative value relative to the critical issue, must occur with regard to all relevant information obtained relating to the application: Grindrod at [87], Scott at [127] – [128].
479.Assessment is not limited to the context of a specific criminal case or allegation to which it may be related, but the circumstances as a whole: Hardingham 2 at [47] – [48], [52] – [53].
480.The level of satisfaction required by section 12(5) is, in essence, a value judgment drawn from facts and reasonable suspicions: T per Murphy J at [63] – [64].
The Tribunal accepts the CEO's statements of principle set out in paragraphs 476 to 480.
The CEO further submitted:
481.It is contended on the information before the Tribunal and for the reasons set out above particular circumstances have been identified in this case sufficient to refuse the application to set aside the original decision.
482.In summary those circumstances include:
•C's account of the applicant's alleged conduct was credible and plausible, and they cannot be characterised as inherently unlikely.
•C gave authentic description of the allegations consistent with tactics perpetrators are known to employ in order to build trust and desensitise and prepare children for sexual abuse;
•It is not reasonable to suspect that C had sophisticated knowledge of perpetrator conduct to inform and give plausibility to a fabricated account in this regard;
•No motive for such a fabrication has been established and C maintained the allegations for 2 years under considerable pressure to withdraw those allegations;
•While the applicant adamantly denied the allegations, important aspects of his evidence at trial has been undermined by information obtained outside of those proceedings.
483.The Tribunal cannot be satisfied on the information as a whole that the applicant did not sexually abuse C.
484.Where the information identifies risk of potential harm that is serious (such as sexual abuse), even a minimal risk that it might occur will be sufficient to regard the risk as an unacceptable one.
485.When all the circumstances as a whole are considered, it is contended that particular circumstances as required by section 12(5) of the Act have been identified in this case sufficient to satisfy the Tribunal that the applicant would expose children to an unacceptable risk of harm in the course of child-related work.
486.Where the Tribunal is so satisfied it may affirm the decision of the respondent to issue the applicant with a negative notice prohibiting him from engaging in child- related work: s29(3)(a) of the State Administration Act.
The CEO's submissions have been dealt with above.
Conclusion
When dealing with a non-conviction the Tribunal's task is more difficult than if there is a conviction. When such allegations are made the Tribunal will always be concerned that there is a risk, even if there is a non-conviction. However, the standard is not whether there is a risk, but whether that risk is unacceptable.
In determining of whether there is an unacceptable risk the Tribunal must have regard to all the s 12(8) factors identified in the WWC Act, although the paramount factor must be the best interests of children. The Tribunal has considered each of the factors as set out above. The Tribunal is not satisfied that there is an unacceptable risk to a child materialising if an assessment notice is issued to G.
The Tribunal is not satisfied affirmatively on all the information and other material properly before it that in there is an unacceptable risk that G might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment.
Accordingly, the Tribunal is not satisfied affirmatively that a negative notice should be issued to G. The CEO must issue an assessment notice.
Orders
1. The Tribunal orders that the decision by the Chief Executive Officer, Department for Child Protection and Family Support to issue a negative notice to the applicant be set aside and that the Chief Executive Officer issue an assessment notice to the applicant under s 12(1)(a) of the Working With Children (Criminal Record Checking) Act 2004 (WA).
I certify that this and the preceding [291] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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