G and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2022] WASAT 48
•31 MAY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: G and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2022] WASAT 48
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
HEARD: 21 JUNE 2021
DELIVERED : 31 MAY 2022
FILE NO/S: VR 169 of 2016
BETWEEN: G
Applicant
AND
DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent
Catchwords:
Working with Children (Criminal Record Checking) Act 2004 (WA) Application for assessment notice Negative notice issued Application for review of decision to issue negative notice Whether Tribunal able to make positive finding that the alleged offending of which applicant had been acquitted did or did not happen Where no positive finding can be made Whether applicant poses unacceptable risk of harm Application of factors in s 12(8) of the Working with Children (Criminal Record Checking) Act 2004 (WA)
Legislation:
State Administrative Tribunal Act 2004, s 17(1), s 18, s 27(1), s 27(2), s 29(1), s 29(3)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 9, s 10, s 12, s 13A, s 22, s 23, s 24, s 26(1), s 26(2), s 26(3A), s 34
Result:
Negative notice to be set aside
Assessment notice to be issued to the applicant
Category: B
Representation:
Counsel:
| Applicant | : | Ms S J Oliver |
| Respondent | : | Mr J F Bennett |
Solicitors:
| Applicant | : | Bowen Buchbinder Vilensky |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
A and Chief Executive Officer, Department for Child Protection and Family Support [2016] WASAT 74
Brett v Sharyn O'Neill, Director General, Department of Education [2015] WASCA 66
Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262; (2011) 214 A Crim R 259
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206
G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3
G and Department for Child Protection and Family Support [2019] WASAT 93
L and Chief Executive Officer, Department for Child Protection [2010] WASAT 82
Mohammadi v Bethune [2018] WASCA 98
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In 2006, G was acquitted of sexual offences alleged to have been committed against his defacto daughter. The offending was said to have occurred on dates unknown between late 2002 and early 2003. The child involved, C, was 12 or 13 years of age at the time. G was about 48 or 49 years of age at the time.
In 2015, G applied for what is colloquially known as a working with children check,[1] which is properly referred to as an 'assessment notice' in the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act).[2]
[1] Part A, Documents Relevant to the Review, Vol 1 (Exhibit 1.1), pages 15.
[2] WWC Act, s 12(1)(a).
The application was refused by the respondent on 15 September 2016.[3] Under the WWC Act, the refusal is the issuing of a 'negative notice'.[4]
[3] Exhibit 1.1, pages 29-37.
[4] WWC Act, s 12(1)(b).
The only basis for issuing the negative notice stemmed from the allegations of sexual offending against C.
G has applied to the Tribunal for a review of the decision made by the respondent to issue the negative notice (Review Application).
Issue
The issue to be determined in the Review Application is whether the decision to issue the negative notice is the correct and preferable one as at the date of the decision upon the review.[5]
[5] State Administrative Tribunal Act 2004 (WA), s 27(2).
As will be seen below, the answer to that question turns on whether the Tribunal finds that there is an 'unacceptable risk' that the applicant might, in future, cause sexual or physical harm to children in the course of childrelated work.[6]
Outcome
[6] Chief Executive Officer, Department for Child Protection and Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 (Grindrod [No 2]) at [81].
For the reasons set out below, I have concluded that the correct and preferable decision as at the date of the decision upon the review is that the negative notice should be set aside and that an assessment notice be issued to the applicant.
Jurisdiction
It is not in dispute that the Tribunal has jurisdiction to hear and determine the Review Application. Section 26(1) and s 26(2) of the WWC Act provide that the decision to issue a negative notice is a reviewable decision, and an application to review the decision can be made to the Tribunal within 28 days of the issuing of the negative notice.[7]
[7] The right to seek review in the Tribunal is subject to s 26(3A) of the WWC Act, which provides that a person who did not make a submission to the respondent when invited to do so may not make an application to the Tribunal for review of the decision to issue the negative notice without leave of the Tribunal.
I heard the Review Application in 2021. This warrants some explanation in light of the timeframe within which applications for review can be made. G applied for review within 28 days of receipt of the decision to issue him a negative notice in September 2016. His review application has already been heard and determined twice in the Tribunal. On one occasion, the Tribunal (constituted by President Curthoys) determined that the correct and preferable decision was to issue an assessment notice to G.[8] On the other occasion, the Tribunal (constituted by Senior Member Eddy) determined that the correct and preferable decision was to affirm the decision to issue the negative notice.[9] On each occasion, the decision of the Tribunal was set aside following an appeal and the matter remitted to the Tribunal for reconsideration. That procedural history accounts for the time taken between the making of the Review Application and the determination of the current proceedings.
The Nature of the Review
[8] G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3.
[9] G and Department for Child Protection and Family Support [2019] WASAT 93.
These proceedings come within the Tribunal's review jurisdiction pursuant to s 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 18 of the SAT Act provides that when exercising review jurisdiction, the Tribunal is to deal with the matter in accordance with the SAT Act and the enabling Act, in this case, the WWC Act.
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.[10] Accordingly, the Tribunal is not concerned with identifying errors in the original decision.
[10] SAT Act, s 27(2); See Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 at [25], [34] and [69].
A review of a reviewable decision is a hearing de novo and is not confined to matters that were before the original decisionmaker. It may involve consideration of new material whether or not it existed at the time the decision was made.[11]
[11] SAT Act, s 27(1).
When dealing with a matter in the exercise of its review jurisdiction, the Tribunal has the functions and discretions corresponding to those exercisable by the decisionmaker in making the decisions the subject of the review application.[12] In doing so, s 29(3) of the SAT Act provides that the Tribunal may:
[12] SAT Act, s 29(1).
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and —
(i)substitute its own decision; or
(ii)send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order that the Tribunal considers appropriate.
Material before the Tribunal on review
I had before me the following materials on the review:
1.Application for Review dated 16 October 2016;
2.Part A – Documents Relevant to Review, volumes 1 3;[13]
3.Part B – Documents Relevant to Review, Protected Matter, volumes 1 and 2;[14]
4.Expert Report of Consultant Psychiatrist, Dr Jonathan Spear dated 22 March 2021;[15]
5.Expert Report of Forensic Psychologist, Ms Julie Hasson dated 9 April 2021;[16]
6.Joint Expert Report of Dr Jonathan Spear and Ms Julie Hasson dated 28 May 2021;[17]
7.Supplementary Report of Dr Jonathan Spear dated 26 August 2021;[18]
8.Supplementary Report of Ms Julie Hasson dated 8 September 2021;[19]
9.Joint Statement of Dr Jonathan Spear and Ms Julie Hasson dated 28 September 2021;[20]
10.G's criminal history compiled 16 June 2021;[21] and
11.Supplementary statement of G dated 16 June 2021.[22]
[13] Exhibits 1.1, 1.2 and 1.3 respectively.
[14] Exhibits 7.1 and 7.2 respectively.
[15] Expert Report of Dr Jonathan Spear dated 22 March 2021 (Exhibit 2).
[16] Expert Report of Ms Julie Hasson dated 9 April 2021 (Exhibit 3).
[17] Joint Expert Report of Ms Julie Hasson and Dr Jonathan Spear conferral date 28 May 2021 (Exhibit 4).
[18] Filed on 9 September 2021. Although not tendered as an exhibit, this report was relied upon by the respondent.
[19] Filed on 9 September 2021.
[20] Filed on 28 September 2021.
[21] Criminal History Compiled 16 June 2021 (Exhibit 5).
[22] Supplementary Statement of Evidence dated 16 June 2021 (Exhibit 6).
In addition, I heard oral evidence from Dr Spear and Ms Hasson.
I also had the benefit of very comprehensive oral and written submissions from both parties to the review, which were of great assistance in determining this matter.
The Legislative Scheme
The purpose of the WWC Act is to protect children[23] by reducing the risk that they may suffer harm as a result of contact with people engaged in child-related work[24] who pose, or may pose, a potential threat.
[23] The term 'child' is defined in s 4 of the WWC Act as a person who is under 18 years of age.
[24] The expression 'childrelated work' is defined in s 6 of the WWC Act.
The WWC Act achieves that purpose by requiring a person in childrelated work to hold a current assessment notice and by prohibiting people from being employed in child-related work unless they have a current assessment notice.[25] It also does so by prohibiting employers from employing persons who do not hold a current assessment notice to undertake child-related work.[26]
[25] WWC Act, s 24 and see Grindrod [No 2] at [2] cited with approval in Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 (IGR) at [8].
[26] WWC Act, s 22.
The WWC Act sets out procedures for checking the criminal records of people who carry out, or propose to carry out, child-related work.[27]
[27] WWC Act, s 34.
An applicant may apply for an assessment notice under s 9 or s 10 of the WWC Act.[28] Section 12(1) provides that the CEO is to decide an application in accordance with the section either by issuing an assessment notice[29] (which permits the applicant to engage in childrelated work) or by issuing a negative notice[30] (which prohibits the person from engaging in childrelated work).[31]
[28] Section 9 involves applications by persons who are or who propose to engage in childrelated work as an employee, while s 10 involves applications by persons who propose to carry on a childrelated business.
[29] WWC Act, s 12(1)(a).
[30] WWC Act, s 12(1)(b).
[31] WWC Act, s 12(1) and s 23; Brett v Sharyn O'Neill, Director General, Department of Education [2015] WASCA 66 at [7], cited with approval in IGR at [9].
Section 12(5) of the WWC Act imposes an obligation upon the CEO to issue an assessment notice to an applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant. G's submissions refer to the existence of a presumption that an applicant will be issued with an assessment notice.[32] In my view, that is not a correct statement of the position. Rather, the existence of the CEO's satisfaction enlivens the power to issue a negative notice.[33]
[32] See, for example, Applicant's Written Submissions dated 18 June 2021, page 3, para 9.
[33] Grindrod [No 2] at [65]; Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) WAR 125 (Scott [No 2]) at [101], cited with approval in IGR at [13].
In this case, G had been charged but acquitted of serious sexual offences involving a child victim. These alleged offences are ones which are categorised as Class 1 or Class 2 offences for the purposes of the WWC Act[34] and are referred to in the WWC Act as 'nonconviction charges'. Consequently, G's application is required to be determined in accordance with s 12(5) of the WWC Act.[35] That means that an assessment notice must be issued unless the CEO is satisfied that a negative notice should be issued because of the particular circumstances of the case. Section 12(8) of the WWC Act relevantly provides that if s 12(5) applies (as it does in this case), the CEO is to decide whether they are so satisfied, in relation to the particular circumstances of the case, having regard to —
[34] Class 1 offences (set out in Schedule 1 to the WWC Act) involve serious sexual offending of various kinds in relation to a child under the age of 13 years. Class 2 offences (set out in Schedule 2 to the WWC Act) involve other kinds of sexual offending against children under 13 years of age, other forms of sexual offending including production of and distribution of child exploitation material and facilitating sexual offences against children outside Western Australia and other serious but nonsexual offending such as murder, manslaughter and grievous bodily harm, sexual offences involving children over the age of 13 years and adults, grooming by use of a carriage service, and offences under the Children and Community Services Act 2004 (WA) including failing to protect a child from significant harm.
[35] See WWC Act, s 12(3), item 6.
(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 criteria in s 12(8) of the WWC Act constitute an exhaustive statement of the factors that the decision-maker is bound to take into account in deciding if the requisite satisfaction is attained. The decisionmaker may not take into account any other factors.[36]
[36] Grindrod [No 2] at [69].
Section 3 of the WWC Act provides that '[i]n performing a function under [the] Act, the CEO or the Tribunal is to regard the best interests of children as the paramount consideration'. The word 'paramount' is not, however, to be equated with 'sole'.[37] The considerations in s 12(8)(b) (g) of the WWC Act must all be taken into account. While the weight accorded to them will vary according to the circumstances of each particular case, they are subordinate to the consideration of the best interests of children.[38]
[37] Scott [No 2] at [106].
[38] Scott [No 2] at [106].
Section 13A of the WWC Act requires the CEO, among other things, to provide written notice of a negative assessment stating the reasons for the decision in relation to the application.
The proper construction of the relevant provisions of the WWC Act has been the subject of previous judicial consideration.[39] The following relevant principles can be taken from those cases:
[39] See, for example, Grindrod [No 2], Scott [No 2] and IGR.
1.Section 12(5) (formerly s 12(4)) of the WWC Act imposes on the CEO an obligation to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. The power to issue a negative notice is enlivened by the existence of the CEO's satisfaction.[40]
[40] Grindrod [No 2] at [65]; See also Scott [No 2] at [101]; IGR at [13].
2.The requisite state of satisfaction must be attained because of the particular circumstances of the applicant's application by reference to the criteria in paras (a) - (g) of s 12(8) of the WWC Act. The criteria in s 12(8) are exhaustive criteria of the matters that the CEO is entitled to and bound to take into account.[41]
[41] Grindrod [No 2] at [62] and [69]; Scott [No 2] at [98] and [104]; IGR at [13].
3.The CEO must give separate consideration to each matter in s 12(8) of the WWC Act, but the best interests of children, the criterion in s 12(8)(a), is the paramount consideration. If, and to the extent that, in any particular case, a criterion in s 12(8)(b) - (g) of the WWC Act conflicts with the criterion in para (a), the relevant criterion in s 12(8)(b) - (g) must yield.[42]
[42] Grindrod [No 2] at [70]; Scott [No 2] at [105]; IGR at [13].
4.The question for the CEO in every case is whether, on the material properly before the CEO and having regard to the criteria in s 12(8) of the WWC Act, the CEO is satisfied that a negative notice should be issued. If the CEO, having regard to the criteria in s 12(8), is satisfied affirmatively that a negative notice should be issued, then a negative notice must be issued. If the CEO is not so satisfied, then they must issue an assessment notice.[43]
[43] Grindrod [No 2] at [71]; Scott [No 2] at [106]; IGR at [13].
5.Parliament has adopted a precautionary approach in relation to protecting children from the risk of sexual and physical harm.[44]
[44] Grindrod [No 2] at [76] [78]; Scott [No 2] at [109] - [111]; IGR at [13].
6.The CEO may not issue a negative notice unless they find, on the basis of the material properly before the CEO and having regard to the criteria in s 12(8) of the WWC Act, there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children in the course of carrying out child-related work.[45]
[45] Grindrod [No 2] at [81] - [82]; Scott [No 2] at [127]; IGR at [14].
7.The WWC Act is not concerned with the proof of offences that the applicant may have previously committed but with the prevention of potential harm. Therefore, it is not the CEO's role to determine whether the applicant is, in fact and at law, guilty of the relevant non-conviction charges. The WWC Act is concerned with the analysis and evaluation of risk.[46]
[46] Grindrod [No 2] at [84]; IGR at [14].
9.Risk is to be assessed on all of the information and other material before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at trial. It will no doubt be necessary for the CEO to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts and reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts and suspicions.[47]
10.Reasonable suspicions may play a proper part in the evaluative process, but they are not to be treated as an element of the statutory test requiring their own separate construction and application.[48]
11.Factors that bear upon risk and which should be taken into account under s 12(8) of the Act have been held to include:[49]
a.The circumstances which culminated in the charge of an offence being disposed of by the Court otherwise than by way of conviction;
b.The apparent strength or weakness of the case against the applicant in relation to the non-conviction charge(s) 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.
Meaning of 'unacceptable risk'
[47] Grindrod [No 2] at [85] [87]; Scott [No 2] at [128]; IGR at [14].
[48] Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 at [59] and [62] cited with approval in IGR at [17]; Grindrod [No 2] at [87]; Scott [No 2] at [128].
[49] Grindrod [No 2] at [86]; IGR at [14].
It has been held that, in the context of the WWC Act, an appreciable or perceptible risk is 'an unacceptable risk'. In Grindrod[No 2], Buss JA explained the concept of an unacceptable risk as follows:[50]
'Unacceptable risk' is a familiar concept in the context of family law disputes in relation to parenting (custody or access) matters. In MvM (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshawv Briginshaw (1938) 60 CLR 336, 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm' (AvA [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (BvB (Access) [1986] FLC 91-758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk': In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Approach to be taken by the Tribunal
[50] Grindrod [No 2] at [83].
Where, as in this case, an applicant for an assessment notice has been charged but not convicted of a Class 1 or Class 2 offence, the Tribunal will reach one of three conclusions:[51]
(1)a positive finding, applying Briginshaw,[52] that the alleged conduct occurred;
(2)a positive finding that the alleged conduct did not occur; or
(3)that no positive finding, one way or the other, can or should be made.
[51] IGR at [121].
[52] Briginshawv Briginshaw (1938) 60 CLR 336.
A finding that the alleged conduct either did or did not occur will likely have a significant impact on the decision. In some cases, such a finding will determine the outcome of the application. Where the conclusion is that no finding can be made one way or the other, the Tribunal must proceed to analyse and evaluate whether the relevant unacceptable risk has been established.[53]
[53] IGR at [122] [125].
The parties differed in relation to the approach that should be taken in determining the Review Application.
The applicant submits that it will not be possible for me to be satisfied on the balance of probabilities (applying Briginshaw), that the alleged offending either did or did not occur, given that neither President Curthoys nor Senior Member Eddy were able to do so when this matter was before them for determination.[54] He also submits that it would not be possible to form any reasonable suspicion on the basis of the material before the Tribunal. The applicant submits that, in those circumstances, I should proceed to determine the question of risk having regard to the factors in s 12(8) of the WWC Act. The applicant submitted that the outcome of the consideration of those factors would be that I could not be satisfied that a negative notice should be issued.
[54] Applicant's Written Submissions dated 18 June 2021, page 9, para 18.
The respondent says that I should adopt the following three-step analysis. First, I should determine the findings I can make in relation to the nonconviction charges. Second, I should identify the relevant facts, and reasonable suspicions that will inform my analysis. Third, I must analyse and evaluate whether an unacceptable risk has been established by reference to the factors in s 12(8) of the WWC Act.[55]
[55] Respondent's Written Submissions dated 18 June 2021, page 9, para 41.
In my view, I must consider what findings I can make about the alleged conduct and then must consider whether or not I am able to reach a conclusion one way or another in relation to the allegations. While the Tribunal, differently constituted, was unable to make a finding one way or the other as to whether the alleged conduct occurred, I must not be influenced by what earlier decision-makers have concluded from the facts and must undertake the assessment process for myself.
Factual background
The indictment
G was charged on indictment with eight offences.
Charges 1 to 3 essentially related to a series of incidents which were alleged to have taken place in a pool on one day. Charges 4 to 6 related to a later incident in a car on the same day. Charge 7 related to a separate incident on another day. Charge 8 related to a separate incident on yet another day.
G was alleged to have committed the offences between May 2002 and June 2003. The indictment charged him as follows:
Charges
Code
Sec
329(4),329(10)(a)
Code
Sec
329(4),
329(10)(a)Code
Sec
329(2),
329(9)(a)Code
Sec
329(2),
329(9)(a)Code
Sec
329(4),
329(10)(a)Code
Sec
329(4),
329(10)(a)Code
Sec
329(2),
329(9)(a)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
(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
(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
(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
(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
(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
(7) AND FURTHER THAT on another date unknown between 3 May 2002 and 1 December 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
The family structure
G and M (G's wife and the alleged victim's mother) began a relationship in approximately October 2000. They married on 7 December 2002.
G had two daughters from a previous relationship.
M had four daughters, two children from a previous marriage and two children from her defacto relationship with C's father (being C and S).
C and her sisters had significant contact with their maternal grandmother and grandfather (GM and GF respectively) during the period leading up to and over the period during which the alleged offending was said to have taken place.
Findings that can be made about the alleged offending
Both the applicant and the respondent submit that I will not be able to make a positive finding as to whether the alleged offending occurred or did not occur.[56] The respondent submits that, having examined the material, I should make a finding that there is a reasonable suspicion that the allegations might be true.[57]
[56] Applicant's Written Submissions dated 18 June 2021, page 9, para 18; Respondent's Written Submissions dated 18 June 2021, page 10, para 46.
[57] Respondent's Written Submissions dated 18 June 2021, pages 10-12, paras 47-55.
I have carefully reviewed the transcript of G's trial and all of the other material contained in Parts A and B of the Documents Relevant to the Review[58] to determine whether I can be satisfied to the requisite standard that the conduct either did or did not occur. I note that I did not have the benefit of observing the witnesses give evidence at trial. I have taken that into account in determining G's application. Selfevidently, I also did not have the benefit of observing those persons who made statements but who did not give evidence at G's trial. Nor did they give evidence on oath. They were also not crossexamined about their statements. I bear those matters in mind in considering the content of the statements in the context of G's application.
[58] Exhibits 1.1, 1.2, 1.3, 7.1 and 7.2.
In order to make sense of the reasons which follow, it is useful to set out a summary of the evidence given by the witnesses at the trial and the other material about the alleged offending which is before the Tribunal which was not part of the evidence led in G's trial. That other material, including statements made by C's father (F), statements made by her sister (S) and information obtained from C's mother (M) and information provided by C's maternal grandmother (GM). What follows is a summary only. Its purpose is to set the scene so that the analysis which follows is able to be understood.
C's evidence
C gave a witness statement on 20 June 2003.[59] In it she said that G had touched her when she was 12 years of age, towards the end of the year. She recalled that G and M were not yet married. She said the first touching occurred in her grandmother's swimming pool while 'roughhousing' with G. C said she was wearing a two piece tankini. She said G was behind her and holding her underwater and had his legs wrapped around her waist. She said she felt his hand go down the top of her bathers and his hand touched both of her breasts (Count 1).[60] His other hand touched her stomach, went inside her bathers and touched her vagina. He moved his fingers around her vagina area (Count 2). She said G stopped when they had to come up for a breath and he swam away.[61]
[59] Exhibit 1.1, pages 4760.
[60] Exhibit 1.1, pages 5051, paras 2936.
[61] Exhibit 1.1, page 51, paras 3637.
A short time later she was in the pool resting her arms on the pool side when G came up beside her. G put his leg out and put his knee into C's back. One of his arms was on the edge of the pool and the other went into her bather bottoms. C could feel G's fingers moving around her vagina area and felt a finger go into her vagina (Count 3). She said he pulled his hand out when her sister came out with a fruit bar for her.[62]
[62] Exhibit 1.1, page 5152, paras 3945.
C's statement says that these incidents occurred on a day when her grandparents were home. Her mother was there too. She said that when the incident ended, she got out of the pool and went inside to watch television. She thinks she watched 'Angry Beavers' with her sister.[63]
[63] Exhibit 1.1, page 52, paras 4647.
C said that later that same day the family went to Serpentine. She said she and G travelled together in one car while her sister and her mother travelled in a separate car. She says that she was sitting in the front passenger seat. She said that while they were on the freeway, G put his left hand on her thigh and moved her skirt up to her stomach and put his hand down her knickers and touched her vagina. She said she closed her legs but he forced them apart. She felt something go into her vagina; she thought it was G's fingers (Count 4).[64]
[64] Exhibit 1.1, pages 5253, paras 4857.
C said that G then removed his finger from her vagina and began to touch her breasts. She said his hand went under her bra and touched her right breast (Count 5).[65] She recalled two of the press studs of her shirt popping open. When they came to a curve on the road, G removed his hand from her bra and put both hands on the steering wheel. After leaving the curve, C said G put his hand back under her knickers and began stroking the top of her vagina (Count 6).[66]
[65] Exhibit 1.1, page 54, paras 5860.
[66] Exhibit 1.1, page 54, paras 5963.
C said that she began to cry and said 'don't you love mum'. She said that G replied 'yeah I love you, mum and [S]'. He removed his hand and said 'don't tell mum we will put this down to roughhousing'.[67]
[67] Exhibit 1.1, page 54, paras 6466.
C said that on another occasion in 2002 before M and G were married, G took her and S to Eagle Bay, which she said she thought was in Rockingham. C said that M did not go because she was working. C said that she and S each grabbed one of G's legs and dragged him into the ocean. S stayed in the shallows and G swam out into deeper water. She said she decided to swim out to G and put sand in his hair. She recounted that G took hold of her and swam the two of them into deeper water.[68] He stood up and put C onto his knee. He was then standing on one leg and holding C on his knee with one arm around her stomach. He put his other hand down her bather bottoms and touched her vagina and then put his finger into her vagina (Count 7).[69] C said that she swam away when a wave came and G released her. She said she spent the rest of the day playing on the beach with her sister. She said she felt safe around her sister. She did not tell anyone what happened because she did not want to break up the family.[70]
[68] Exhibit 1.1, page 55, paras 7178.
[69] Exhibit 1.1, page 56, paras 7983.
[70] Exhibit 1.1, pages 5657, paras 8489.
C said that the family moved to Serpentine in March 2003.[71]
[71] Exhibit 1.1, page 47, para 10.
C said that on 4 June 2003 G touched her again. She said that she arrived home from school. She recalled that S arrived about 5 minutes later and G about 15 minutes later. C said that G instructed her to change out of her uniform so she changed into jeans and a white singlet. She recalled that her sister also changed her clothes and G came to see how tidy their bedrooms were.[72] C said that the three of them began roughhousing. She recounted that G was standing and that she and S took one of his legs each. She says that at that point they were facing each other. Then G moved, and S and C swung to the inside of his legs and their backs were then facing each other. C said that G bent down and tried to put his hand down her shirt. She said that she pushed him away but he repeatedly tried to put his hand down her shirt. She said that he touched her breast inside her clothing but she pushed him away (Count 8). C said that G then tried to put his hand down her pants but that he could not do so because she was wearing jeans. C said S was facing the other way and could not see what was being done by G.[73]
[72] Exhibit 1.1, pages 5758, paras 9098.
[73] Exhibit 1.1, pages 5859, paras 99105.
C had been interviewed by officers of the respondent on 16 June 2003, less than a week before making her witness statement. In that interview,[74] she told the officers that the first incident occurred in 'grandma's pool' but she was then unable to recall when the incident took place other than to say that it was before Christmas and during the school term. She said it took place in the course of 'roughhousing in the pool'.[75] In the course of the interview, C said that she had first informed her mother of G's behaviour when she as 12 years old but that her mother did not believe her.
[74] The transcript of the interview of 16 June 2003 is part of Exhibit 7.1, pages 55-58.
[75] ts 2, 16 June 2003 in Exhibit 7.1, page 56.
On 18 July 2003, C was interviewed by a police officer in the presence of an officer of the respondent.[76] In that interview, C explained that she and G were the only two people in the car at the time of the incident she said took place in the car, because the family travelled to Serpentine in two cars because they were moving stuff either to or from the home in Serpentine. She said she had changed into a ra-ra skirt and a pink and white checked studded short. She did not know how it was decided who would travel in each car. She explained that she did not tell her mother what had happened in the car because her mother never believed her because she had lied to her mother in the past.
[76] The transcript of the interview of 18 July 2003 is part of Exhibit 7.1, pages 26-31.
C's evidence was pre-recorded on 10 December 2004.[77] In her evidence C's accounts of the incidents were, for the most part, consistent with the previous accounts. There were some inconsistencies. In the evidence she said that in relation to the car incident, G put his hand down her shirt where the press stud was undone, whereas in the earlier account she referred to the press studs popping open. In relation to the beach incident, she said it occurred at Golden Bay rather than Eagle Bay.[78]
[77] The transcript of that pre-recorded evidence of 10 December 2004 is part of Exhibit 1.1, pages 86-148.
[78] ts 2427, 10 December 2004 in Exhibit 1.1, pages 107-110.
In cross-examination, C accepted that she has had told lies in the past and that she and S used to steal when they were little.[79] She did not resile from her account of the incidents.
G's evidence
[79] ts 31, 10 December 2004 in Exhibit 1.1, page 114.
G made a statement on 12 October 2017.[80] G gave evidence in his defence at trial.[81] He denied all of the alleged offending. His evidence at trial was generally consistent with his statement.
[80] Exhibit 1.3, pages 550566.
[81] The transcript of his evidence is Exhibit 1.2, pages 369430.
In relation to the offences which were alleged to have occurred in the pool, G gave evidence that he moved into a home with M, C and S in late September 2002. He said that he and M were married on 7 December 2002. He gave evidence that M's parents were away from 19 October until 1 December 2002. Their passports, which were adduced in evidence in his defence, were confirmatory of that evidence. An invoice was produced in evidence for works carried out on the pool between 3 and 9 December 2002. In evidence, G said initially that he had never been in the pool between May and 7 December 2002. He later accepted that there may have been a couple of occasions before the wedding that he was in the pool, but he said that would have been in late 2001 and not between May and December 2002. He gave evidence that he was sure of that. G denied that C had a tankini.
G said that the incidents which were alleged to have occurred in the car were 'an extraordinary load of rubbish that couldn't have happened and never happened'.[82] He gave evidence that the decision to move to Serpentine was made in February 2003. He said his car was light green, not silver, as C had said it was. He gave evidence that he could not recall an occasion when he travelled to Serpentine in a car with C while her mother and sister travelled in another car. He said he would not have travelled there with C to drop things off at the house before December 2002 because the inside structure of the house was not in place at that time.[83] G's evidence was that the horses and his office were on the property during that time and that he did attend the property to look after the horses 'a couple of times a week, sometimes daily'.[84] G agreed in evidence that it was possible that the girls may have taken some of their belongings to the house so that they had them there to play with when they visited, although he did not recall them doing so.[85]
[82] ts 298299, 22 August 2006 in Part A, Documents Relevant to the Review, Vol 2 (Exhibit 1.2), pages 396397.
[83] ts 300, 22 August 2006 in Exhibit 1.2, page 398.
[84] ts 324, 22 August 2006 in Exhibit 1.2, page 422.
[85] ts 327, 22 August 2006 in Exhibit 1.2, page 425.
G's evidence was that there was only one occasion when C and S sat on his feet. He said it occurred in the passageway coming past their bedrooms. He said the whole incident took five to ten seconds. His evidence was that the way C had described it was 'total nonsense'. The effect of his evidence was that C was too big for both girls to be back-to-back in the hallway as C had described and that it would have been impossible for him to walk anywhere with them on his feet because C was too heavy, weighing approximately 60 kilograms at the time.
G's evidence was that he did go to Golden Bay with C and S on one occasion in January 2003. He gave evidence that he recalled them all being in shallow water for the entire time. His evidence was that he was 'amazed' by C's description of the incident. When asked why, he said it was because he had no recollection of the event as C described it and that C would have been too big, being almost his size at the time, to sit on his knee as she described.[86]
[86] ts 312, 22 August 2006 in Exhibit 1.2, page 410.
G's evidence is that he has never used the term 'roughhousing'.[87]
M's statement
[87] ts 312, 22 August 2006 in Exhibit 1.2, page 410.
C's mother, M, did not give evidence at G's trial. She did, however, participate in discussions with officers of the respondent in the course of investigations which followed the making of the allegations, including at a family meeting on 1 July 2003.[88] The record of that discussion reveals that she described C as a child who had had problems from about 8 years of age. She said C had been involved in shoplifting, stealing and bullying, that C had problems making friends and described her as not telling the truth even when openly confronted. M said C wanted her to reconcile with C's father.
[88] A Departmental officer's notes of the family meeting are at Exhibit 7.1, pages 12.
M also made a statement dated 11 October 2017[89] and a supplementary statement on 20 October 2017.[90]
[89] Exhibit 1.3, pages 514530.
[90] Exhibit 1.3, pages 568569.
In the first statement, M said that C was reluctant to move to Serpentine with her and G, was known to tell lies, observed no inappropriate behaviour by G towards any of the girls and that none of the girls gave her any indication that G was making them uncomfortable until the night C claimed that G had touched her on the bottom. She said G denied the allegation. She also referred to occasions when she said C had acted dishonestly.
In the supplementary statement, M said that she had found pornography in C's school bag in 2002 showing an erect penis penetrating a vagina.
C's maternal grandmother
C's maternal grandmother, GM, participated in the family meeting on 1 July 2003. She also wrote to the Department expressing her views about her observations of C's personality, her involvement with the family and her views about the allegations.[91] She said C's problematic behaviour had commenced when she was about 8 years of age. She referred to C shoplifting, stealing from her father to use the money to buy friends, truanting from school and ringbarking G's favourite tree. She referred to an incident where pornography was found in C's schoolbag, lying about being assaulted in the park and threatening to make up a story about being illtreated by her grandmother in order to compel her mother to resume her relationship with her father. C's grandmother concludes her letter saying that C can be sweet and funny and is clever, but that she does not know what to do with her and is tired of all the drama. She said she did not believe anything happened with G.
S's statement
[91] Exhibit 7.1, pages 3-4.
S, C's sister, did not give evidence at G's trial. She did however make a statement to police.[92] At the time she did so, she was 10 years of age. Her statement was to the effect that:
a.G had swum in the pool with her and C but only about two times. One those occasions they took pictures of each other making faces with an underwater camera; she climbed onto G's shoulders and jumped off into the water. She said that she and C would roughhouse with G. She said it was the word her father used for play fighting. She said she had not seen C and G roughhousing in the pool but that she had seen G pull C along in the water by her ankles.
b.She recalled an occasion when she travelled to Serpentine with her mother in one car while C and G travelled in another car. She described the car as being 'goldish grey' in colour.
c.She recalled going to the beach with G and C on an occasion in summer. She recalled that C swam into deep water pretending to be a mermaid and that she herself stayed in the shallows. She said that G helped C when the big waves came and that C and G did not really play together in the water.
Other statements
[92] The statement is dated 26 June 2003; Exhibit 1.1, pages 61-68.
One of C's older sisters gave a statement on 11 September 2017,[93] although she did not give evidence at G's trial. In her evidence she said, among other things, that she had never seen G behave inappropriately towards her sisters. She acknowledged she did not live with him and that she had an active social life at the time and was not there to observe him with C and S regularly.
[93] Exhibit 1.3, pages 497500.
One of G's daughters also made a statement dated 11 October 2017.[94] It too states that she never observed her father behave inappropriately, although she did see him play fighting with C and S on occasions. She also stated that she had found C to be dishonest and someone with whom she did not get on well.
[94] Exhibit 1.3, pages 502530.
G's other daughter's statement is dated 11 October 2017.[95] In it she says she never saw her father behave inappropriately toward C or S on the occasions she visited her father while C and S were living with him. She referred to instances of lying by C.
[95] Exhibit 1.3, pages 533538.
G's former wife also made a statement[96] in which she said she had never observed G behaving inappropriately towards young girls during the course of their marriage.
[96] Exhibit 1.3, pages 540548.
Evidence was given by a manager from ABC that the 'Angry Beavers' television programme was last broadcast on the ABC in November 2001 and was not broadcast between May 2002 and December 2002.[97]
Doctor's evidence
[97] ts 335338, 22 August 2006 in Exhibit 1.2, pages 433436.
A doctor who worked with the Child Protection Unit and who examined C on 1 July 2003 for assessment of allegations of sexual abuse gave evidence at G's trial.[98] The evidence given was that C's genitalia appeared entirely normal. She said it neither confirmed nor refuted the allegations of sexual abuse.[99]
F's statements
[98] ts 265267, 21 August 2006 in Exhibit 1.2, pages 363365.
[99] ts 267, 21 August 2006 in Exhibit 1.2, page 365.
F made a statement on 23 January 2004.[100] He also gave a witness statement on 14 January 2005.[101] F did not give evidence at G's trial.
[100] Exhibit 7.2, pages 6777.
[101] Exhibit 1.1, pages 158-162.
In the statement of 23 January 2004, F said that C came to live with him after the allegations were made about G and that C had 'blossomed' in his care. He said she was a good student and was not a person who had a particular problem with lying. He referred to certain incidents of behaviour involving C about which he was aware, but said that they did not indicate to him that there was a general concern about C's behaviour.[102] He said that he was of the view that C and G had a reasonable relationship prior to the alleged incidents coming to light and that because he and C's mother had a good relationship at the time, he felt that there would not have been any reason for C to make up allegations against G in order to come to live with him.[103]
Analysis
[102] Exhibit 7.2, pages 72-74, paras 22-31.
[103] Exhibit 7.2, pages 7071, paras 17-19.
C was consistent about the key elements of her allegations even though she was inconsistent about some details surrounding the events, which could be described as going to peripheral matters. That said, there was evidence that suggested that she did have a motive for making up the allegations against G. She was unhappy about her mother's relationship with G and hoped her parents might ultimately reunite, she was unhappy with having to move homes and schools and, in crossexamination, C agreed that she wanted to get rid of G and had a plan to get herself out of the family situation and back to her father.[104] She also acknowledged that she had a history of lying. There were no witnesses to corroborate the offending, although that may be unsurprising as sexual offending frequently occurs in the absence of witnesses. Further, there was evidence that during some of the time period, as charged on the indictment, it was not possible for the events to have occurred.[105] While that evidence limited the window of time during which the alleged offences could have occurred, it did not make it impossible for the offending to have occurred at any time during that time period specified in the indictment.
[104] See ts 369, 23 August 2006 in Exhibit 1.2, page 467.
[105] For example, the evidence that the grandparents were away and the pool pump was broken for some of the relevant time period, therefore, meant the offences alleged to have occurred in the pool could not have occurred during those times.
G gave evidence in his defence. He denied all of the alleged conduct. There is really very little he could do beyond that to positively disprove the allegations (even though he had no obligation to prove anything at his trial) which were said to have occurred, essentially, in the absence of witnesses. Nor was there more he could do to disprove the allegations on this review.
G's character witness[106] gave evidence at G's trial to the effect that he considered G to be an honest, sincere and 'very prudish' person who had been present around the witness' own grandchildren without incident. The inference sought to be drawn from that evidence is that G is a person of good character who would not behave as alleged by C. While this is a matter that I have taken into account in evaluating the evidence given at trial, in my view, character evidence is not particularly probative of any fact in issue. It is well known that child sexual offending is generally committed in secret and is frequently committed by persons others regard as being of good character. An absence of prior convictions for such conduct and being perceived by others to be a person of good character does not exclude the possibility that the acts alleged occurred.
[106] ts 332334, 22 August 2006 in Exhibit 1.2, pages 430432.
Other family members who were present when the incidents in the pool were said to have occurred, had spoken of C not being an honest person and referring to her having a motive to lie. Those matters cast some doubt on C's allegations. The statements made in those materials are not sworn evidence. Nevertheless, I have had regard to their content and have not given their content less weight for that reason.
Having considered all the material before me, I am unable to be positively satisfied that the alleged offending occurred. However, I am also unable to be positively satisfied that the alleged offences did not occur.
As a consequence of those findings, I must consider what reasonable suspicions I hold in relation to the allegations.
In considering that question, I bear in mind that an acquittal does not disprove C's account. As the Court of Appeal said in Chief Executive Officer, Department for Child Protection v T [No 2]:[107]
The error … was to assume that the jury did not believe the complainants or preferred the evidence of the applicant. That was not correct because all that can be inferred from the verdict is that the jury was not satisfied beyond reasonable doubt that the charges had been proved. The jury might have preferred the evidence of the two complainants to the evidence of the respondent, and yet still have entertained a reasonable doubt about the respondent's guilt: see Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.
[107] Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 at [48].
G's submissions to the original decision-maker referred to him being entitled to the presumption of innocence and stated that '[i]n the absence of the other cogent evidence this presumption should not be displaced'.[108] That submission was not pressed in the review before me. The issuing of a negative notice under the WWC Act will not displace the presumption of innocence or his acquittal. G was presumed innocent at the commencement of his trial. The fact that G was found not guilty does not necessarily mean that G did not engage in the alleged conduct. An alternative possibility is that the jury was not satisfied of his guilt beyond reasonable doubt.
[108] Exhibit 1.1, page 21, para 12.
Considering all of the material before me and the matters raised by the parties in their submissions, I find that the evidence supports a reasonable suspicion that the allegations may be true. The following matters support such a finding:
1.The fact that C was consistent about the central elements of the allegations in her statement, her interview and the evidence given at trial notwithstanding that there were some inconsistencies between those accounts.
2.The fact that C acknowledged her prior poor conduct suggests she was an honest witness. It may also have detrimentally impacted the jury's assessment of her evidence.
3.Likewise, C's admissions to lying about unrelated matters might indicate honesty about the allegations and do not necessarily lead to a conclusion that the allegations are untrue.
4.The fact that C admitted to having seen some pornography does not necessarily lead to the conclusion that C had the capacity to invent the accounts of sexual abuse or that she had done so.
5.C's explanation that some of the 'roughhousing' involved touching that, at the time, she thought was accidental, or had an innocent explanation, is plausible.
6.Despite having a motive to lie, in that she had become unhappy in the household with her mother and G and wished to be reunited with her father, C had, under crossexamination, denied that she would put an innocent person in jail to achieve that end. That response is plausible.
7.The evidence that G led to cast doubt on the honesty, accuracy and reliability of C's evidence (for example, the pool pump being broken between 3 and 9 December and the fact that the maternal grandparents were overseas between 19 October and 1 December) does not inevitably lead to the conclusion that the allegations could not have occurred within the time period specified in the indictment.
8.The inability of a witness, particularly a child, to recall matters peripheral to the offending, such as the day and date on which specific incidents occurred and who else was present, is not unusual and does not of itself establish that the allegations cannot be believed.
9.The fact that others never observed G acting inappropriately towards any child does not necessarily lead to the conclusion that C's allegations were untrue.
10.The fact that others regarded G as someone of good character does not necessarily lead to a conclusion that the allegations were untrue.
Consideration of the factors in s 12(8)
Having been unable to make a finding that the alleged conduct either did or did not occur but having formed a reasonable suspicion that the allegations may be true, I turn then to consider the matters to which I must have regard under s 12(8) of the WWC Act. In doing so, I note that although each criterion is to be given separate consideration, the best interests of children, the criterion set out in s 12(8)(a), is the paramount consideration.
(a) The best interests of children
I will deal with this factor at the conclusion of my assessment of the factors in s 12(8).
(b) When the offence was committed or is alleged to have been committed
The allegations are allegations about conduct which is said to have occurred between late 2002 and early 2003, nearly 20 years ago. No further allegations of any criminal conduct at all, let alone of a sexual nature, have been made against G since that time.
In the Second Reading Speech for the Working with Children (Criminal Record Checking) Amendment Bill 2009 (WA), the then Parliamentary Secretary to the Minister for Child Protection stated:[109]
It is the government's intention 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.
[109] Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010 (AJ Simpson), page 2475.
In her expert report of 9 April 2021, Ms Hasson expressed the view that the length of time for which a person has been 'sex offence free in the community should be considered in the overall evaluation of risk'.[110] She notes that research indicates that for every five years that an offender is in the community without committing a new sex offence, their risk of recidivism roughly halves.[111]
[110] Exhibit 3, page 10.
[111] Exhibit 3, page 10.
The applicant submits that, using Ms Hasson's statistical analysis of risk, assuming G had committed the offence, his present risk of recidivism after this long without offending in the community would be less than 1%.[112] The applicant says this demonstrates that G effectively poses no risk to children.[113]
[112] Applicant's Written Submissions dated 18 June 2021, page 11, para 21(b).
[113] Applicant's Written Submissions dated 18 June 2021, page 11, para 21(b).
Given that the Tribunal is concerned with eliminating future risk, there is, in my view, significant weight to be given to the fact that the allegations concern behaviour which is alleged to have occurred 19 20 years ago, in circumstances where no further allegations of any criminal behaviour have been made in that lengthy intervening period and in circumstances where the uncontroverted expert evidence was that G presents very little risk of committing sexual offences against children in the future.
(c) The age of the applicant when the offence was committed or is alleged to have been committed
G was approximately 50 years of age when the alleged offences were said to have been committed. Therefore, this is not a case of a young person having committed or being alleged to have committed offences and who could be expected to have matured over time. To the contrary, G was a mature man at the relevant time.
G is now 68 years of age. No evidence was given that suggested that either he has, or that persons of his age more generally have, diminished sexual urges as a result of age that would be a factor to take into account in determining risk.
His maturity at the time of the alleged offending means that this factor weighs against G in the assessment of whether I am satisfied that because of the particular circumstances of the case, an assessment notice should be issued to him.
(d) The nature of the offence and any relevance it has to childrelated work
The applicant was charged, stood trial, and was acquitted of:
1.three (3) counts of sexual penetration of a child under the age of 16 years who he knew to be his defacto child; and
2.five (5) counts of indecently dealing with a child under the age of 16 years who he knew to be his defacto child.
Had the applicant been convicted of any of the offences of sexual penetration of a child under the age of 16 years, he would have been permanently barred from child-related work because offences of that kind are Class 1 offences for the purposes of the WWC Act.[114] The fact that Parliament has seen fit to permanently exclude persons convicted of such offences from child-related work indicates that Parliament formed the view that, irrespective of any other matters that may weigh in an applicant's favour (such as rehabilitation and the passage of time), it did not consider it appropriate to expose children to any risk of harm from a person with such a conviction on their record.
[114] WWC Act, s 12(7) and Sch 1.
The fact that Parliament would permanently exclude a person convicted of such an offence from child-related work shows how seriously it regards that kind of offending.
G accepted that the alleged offences were serious in nature but submitted that it was not necessarily the case that this factor applies where an applicant for a working with children's check has been charged and acquitted of offences. That is because s 12(8)(d) of the WWC Act refers only to the 'offence',[115] whereas both s 12(8)(b) and s 12(8)(c) expressly refer to offences committed or alleged to have been committed. The respondent points out that in G and Department for Child Protection and Family Support, Senior Member Eddy found that s 12(8)(d) of the WWC Act did concern itself with alleged offences.[116] That finding was not challenged by G in his appeal against that decision. While that may be so, I am not bound by a decision of a Senior Member of the Tribunal.
[115] Applicant's Written Submissions dated 18 June 2021, page 12, para 21(d).
[116] Respondent's Written Submissions dated 18 June 2021, page 16, para 68.
In relation to this issue, the learned Senior Member said: [117]
In context, s 12 used the word 'offences' consistently; it does not use the term 'alleged offences'. Rather if a person has a non-conviction charge for a Class 1 offence or Class 2 offence, s 12(5) of the WWC Act applies: item 5 in the Table following s 12(3)(b) of the WWC Act. Section 12(8) commences by stating '[i]f subsection (5) or (6) applies in respect of an offence'. Having regard to the Table following s 12(3)(b), subsection (5) may apply where there is a charge in respect of a Class 3 offence, a Class 3 offence of which the applicant has been convicted or the applicant has a non-conviction charge in respect of a Class 1 or Class 2 offence. The 'offence' referred to at the commencement of subsection (8) may therefore be one of which there is a pending charge, a conviction or a non-conviction charge.
[117] G and Department for Child Protection and Family Support [2019] WASAT 93 at [174].
With respect to the Senior Member, I would take a slightly different approach in determining the issue. Clearly, Item 6 of the Table in s 12(3), when read with s 12(3) itself, provides that where the CEO is aware that an applicant for an assessment notice has a non-conviction charge in respect to a Class 1 or Class 2 offence, the application is to be determined in accordance with the applicable provisions opposite that condition in the Table or, where two or more conditions apply, with the higher or highest item number in the Table: s 12(3) WWC Act. In this case, the Review Application is to be determined in accordance with s 12(5). As already stated, s 12(5) of the WWC Act provides that 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. Section 12(8) of the WWC Act then says that if s 12(5) applies in respect of an offence, the CEO is to decide whether they are satisfied in relation to the particular circumstances having regard to certain specified matters. The expression 'offence' in the introductory words of s 12(8) must, in my view, be read as 'offence or alleged offence'. If it were not, then the requirement to consider the factors set out in s 12(8)(a) (g) would not apply in the case of nonconviction charges falling within Class 1 or Class 2. In that case s 12 would not operate as is clearly intended by s 12(5).
Likewise, the requirement to consider the factors in s 12(8) in the case where an applicant has pending charges of a kind defined as a Class 1 or Class 2 offence would be rendered ineffective if the word 'offence' in the introductory words of s 12(8) is not read as encompassing alleged offences. This further supports the conclusion I have reached.
Section 12(8)(b) of the WWC Act refers to 'when the offence was committed or is alleged to have been committed'. Section 12(8)(c) similarly refers to the age of the applicant 'when the offence was committed or alleged to have been committed'. Section 12(8)(d) and s 12(8)(e) of the WWC Act are expressed differently. Section 12(8)(e) expressly refers to conduct similar to conduct the subject of 'any offence committed by the applicant' or 'any charge against the applicant' and thus encompasses alleged offending (my underlining). In contradistinction, s 12(8)(d) only uses the expression 'the offence' when it directs the decisionmaker's attention to the nature of the offence and any relevance it has to child-related work (my underlining). The use of these different words within the one section might be thought to suggest, as G submits, that a different meaning should be given to s 12(8)(d) so as to confine consideration of that factor to cases where there has been a conviction.
As the Court of Appeal said in Mohammadi v Bethune:[118]
[118] Mohammadi v Bethune [2018] WASCA 98 at [31] [34].
31.The principles of statutory construction are well known and do not require detailed exposition. Statutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context. Statutory construction, like any process of construction of an instrument, has regard to context. As Kiefel CJ, Nettle and Gordon JJ recently explained in SZTAL: (footnotes omitted)
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
32. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
33. The objective discernment of the statutory purpose is integral to contextual construction. The statutory purpose may be discerned from an express statement of purpose in the statute, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose must be discerned from what the legislation says, as distinct from any assumptions about the desired or desirable reach or operation of relevant provisions.
34.Discernment of statutory purpose is particularly significant in cases, commonly encountered, where the constructional choice presented is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural'. In such a case, the choice 'turns less on linguistic fit than on evaluation of the relevant coherence of the alternatives with identified statutory objects or policies'. (footnotes omitted)
The purpose of the WWC Act has already been identified at [19] of these reasons. While s 12(8)(d) and s 12(8)(e) of the WWC Act do not refer to alleged offences, the CEO is directed to consider the factors in s 12(8) when aware that an applicant has a non-conviction charge in respect of a Class 1 or Class 2 offence. It would, in my view, undermine the object of the WWC Act to exclude consideration of the matters in s 12(8)(d) and s 12(8)(e) where the applicant has been charged with, but not convicted of, these most serious offences. Therefore, I consider that s 12(8)(d) of the WWC Act requires the decision-maker, including the Tribunal on review, to give consideration to the nature of the alleged offence. For the same reason, I find that the decision-maker is required to consider the factor in s 12(8)(e) (the effect that conduct of the same or similar kind to that involved in the offending or the alleged offending would have on a child if committed by the applicant in the future) in situations where an applicant has nonconviction charges.
Additionally, the words of s 12(8)(e) of the WWC Act themselves support that interpretation. While s 12(8)(e) does not use the words 'alleged offence', it refers to both 'offence committed' (s 12(8)(e)(i)), meaning those for which the applicant has been convicted, and 'any charge against the applicant' (s 12(8)(e)(ii)). In my view, that term encompasses offending for which a person has been charged but not convicted.
G submits that, if the factor in s 12(8)(d) is to be considered in his case, the alleged offences involved a child with whom he was in a familial, domestic relationship, and consequently, the alleged offences are of limited relevance to child-related work because such a relationship will not arise in the context of child-related work.[119]
[119] Applicant's Written Submissions dated 18 June 2021, page 12, para 21(d).
Though it may be true that G's child-related work will not necessarily involve contact with a child with whom G is in a domestic, familial relationship, G's alleged offending can nevertheless be viewed as offending against a child in relation to whom G occupied a position of trust. Trust relationships frequently arise as a result of child-related work. For example, sports coaches and teachers often develop relationships with their students that place them in a special position vis-à-vis a particular child or children. Viewed in that light, the alleged offences are relevant to childrelated work.
G has informed the Tribunal that an assessment notice will enable him to perform aspects of his security business that involve contact with children. I accept that doing so is unlikely to result in the development of a long-term relationship with any child. However, G has also said that he wishes to be able to participate in his grandchildren's sporting activities.[120] He is, of course, not precluded from attending their sporting activities as a spectator and, therefore, I infer that reference to the desire to participate, in the context of his application for an assessment notice, means that he wishes to participate in a way that requires a notice, that is, in some form of coaching or umpiring role. If that is the case, then G will be in a position to develop a longerterm relationship of trust with the children concerned, notwithstanding that he does not have a familial and domestic relationship to any particular child or children. Further, an assessment notice will allow G to participate in any and all forms of child-related work should he choose to do so, and G will not be limited to childrelated work of a kind identified in his application and supplementary statement.[121]
[120] Applicant's Written Submissions dated 18 June 2021, page 2, para 3.
[121] The WWC Act does not permit the attachment of conditions to a granted assessment notice: See Grindrod[No 2]at [94], cited with approval in L v Chief Executive Officer, Department for Child Protection [2010] WASAT 82 at [83].
Having regard to those matters, I am unable to accept G's submission that the offending is of little relevance to child-related work. The nature of the conduct with which G was charged involves the alleged commission of serious sexual harm to a child of approximately 13 years of age by a person in a position of trust in relation to that child. Given the possibility of developing relationships with children through childrelated work, the non-conviction charges are, in my view, highly relevant 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 any offence committed by the applicant
G accepts that the effect of him behaving in the future in the same or a similar way with a child, as was alleged in the indictment, would be significant.[122]
[122] Applicant's Written Submissions dated 18 June 2021, pages 12-13, para 21(e).
It is not controversial that significant harm is done to children by sexual offending. That is especially likely to be the case where the offending involves a breach of trust.
The potential seriousness of the effect of such offending is recognised by the alleged offences being scheduled as Class 1 and Class 2 under the WWC Act.
This factor strongly favours a finding that there is an unacceptable risk in permitting G to engage in child-related work.
(f) Any information given by the applicant in, or in relation to the application
In his written submissions, under s 12(8)(f) of the WWC Act, G relies on the following material, which was provided by him in connection with the Review Application:[123]
1.the evidence as to the motive which C had to fabricate the allegations and as to the inconsistencies in the evidence in relation to the charges;
2.the evidence of his excellent antecedents;
3.the evidence as to his personal circumstances; and
4.the evidence from Dr Spear, which contains Dr Spear's assessment of any risk he may pose to children.
[123] Applicant's Written Submissions dated 18 June 2021, pages 1325.
G provided a statement of evidence dated 12 October 2017[124] and a supplementary statement of evidence dated 16 June 2021.[125] In those documents, G says:
[124] Exhibit 1.3, pages 550566.
[125] Exhibit 6.
1.G and his wife have been married for 19 years. They have six grandchildren.[126]
2.G takes an interest in his grandchildren's schooling, sporting and social activities and participates in these activities with them from time to time.[127]
3.He babysits his grandchildren from time to time. He usually does so together with his wife.[128]
4.He owns several properties in Western Australia.[129]
5.He has had a professional career spanning over 40 years, both in Australia and internationally.[130] He worked as a financial consultant to various public and private organisations and was previously involved in the rescue and recovery of financially distressed public and private companies.[131] He currently operates a security business. As part of his business, he has applied for, and obtained, a crowd controller licence, security officer licence and a dangerous goods security card.
6.He has held a firearms licence for the past 50 years.[132]
7.He holds a Passenger Transport Driver Licence, for which a police clearance is required.[133]
8.He has not been charged with, or convicted of, any criminal offences apart from those of which he was acquitted in 2006.
[126] Exhibit 6, para 7.
[127] Exhibit 6, para 9.
[128] Exhibit 6, para 10.
[129] Exhibit 6, paras 56.
[130] Exhibit 1.3, page 550, para 3.
[131] Exhibit 1.3, pages 550551, paras 48.
[132] Exhibit 6, para 13.
[133] Exhibit 6, para 11.
From those matters, G submits that I can find that:[134]
a.G has been in an intimate and supportive relationship for over 19 years and has the support of his extended family;
b.he has no mental health impairments or illnesses, cognitive difficulties, or personality disorders;
c.he has a strong employment history; and
d.there is no evidence of him having any sexual deviancy or sexual interest in children.
[134] Applicant's Written Submissions dated 18 June 2021, page 23.
It is submitted that it follows from those findings that I should then find that those matters establish that G has in place many protective factors relevant to the reduction of risk of sexual offending.[135] I accept that submission and so find.
[135] Applicant's Written Submissions dated 18 June 2021, page 23, para 23(c).
I also accept that G is a person who, apart from the alleged conduct in 2003, has good antecedents and is otherwise of good character.
As part of his submission in support of his application for the assessment notice, G provided three character references which were written in 2016.[136] Two of the referees refer to his professional abilities.[137] Neither of those referees state that they are aware of the charges or speak of their assessment of his character generally. In the circumstances, I find that they provide little assistance in assessing G's character. The third reference is written by a person who says that he has known G for 35 years in both a personal and professional capacity.[138] The referee states that he is aware of the charges and the outcome of them and that they have not changed his view of G. The referee says that he would have no hesitation in recommending G for any position where children are involved. Clearly, that reference is relevant to the matter at hand.
[136] Exhibit 1.1, pages 2628.
[137] See references in Exhibit 1.1, pages 27-28.
[138] Exhibit 1.1, page 26.
The respondent also submits that portions of the witness statements provided but not used or given in evidence in G's trial amount to character evidence.[139] I accept that submission.
[139] Respondent's Written Submissions dated 18 June 2021, page 18, para 78. For evidence given in G's trial, see Exhibits 1.1 and 1.2.
In A and Chief Executive Officer, Department for Child Protection and Family Support,[140] President Curthoys, as he then was, made the following statement about the use that character evidence plays in the assessment process:[141]
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.
[140] A and Chief Executive Officer, Department for Child Protection and Family Support [2016] WASAT 74.
[141] A and Chief Executive Officer, Department for Child Protection and Family Support [2016] WASAT 74 at [156].
The assessment of persons in the community who know the applicant and who regard him to be a person of good character is a matter to which I will have regard in determining the Review Application. However, it is not a matter that carries much weight. It is well understood that offending against children is often committed by persons of good character and that it is precisely that good character that allows them to come into contact with children in circumstances in which offending can occur. It is also the case that even people of prior good character can commit offences for the first time.
Accordingly, while relevant and weighing in favour of the grant of an assessment notice, G's prior good character and the views as to his character expressed by others are matters to which I do not attach significant weight in determining the Review Application.
(g) Anything else the decisionmaker reasonably considers relevant to the decision
G says that his business provides security services, including crowd security, which can occasionally bring him into contact with persons under the age of 18 years when his business is hired for school security or providing security at private functions. He also says that from time to time, his roles with school and not-for-profit boards may bring him into contact with children.[142] He says that he has an interest in being involved with his grandchildren's sporting and leisure activities.[143] It is not specifically said that the desired 'involvement' in their leisure activities would require G to hold an assessment notice; however, that should be inferred because there would be no need to mention it should that not be the case. No details of what the desired involvement would specifically entail have been provided by G. None is required to be provided.
[142] Applicant's Written Submissions dated 18 June 2021, page 2, para 2.
[143] Applicant's Written Submissions dated 18 June 2021, page 2, para 3.
It is apparent from the information that has been provided in support of his application that G does not require an assessment notice to continue to successfully run his security business or to provide corporate advisory services. It is clear from the information provided by G that he has done so without an assessment notice for many years. This is not a case where G's financial circumstances or employment prospects hinge upon the assessment notice being issued.
Nor is an assessment notice crucial to G realising his desire to be involved in his grandchildren's sport and leisure activities. He can be present as a spectator at both school and sporting events without an assessment notice, and it is clear from the witness statement(s) provided that G is actively involved in the lives of his grandchildren. G's children have continued to support him, and he says, allow him to babysit their children.[144]
[144] Applicant's Written Submissions dated 18 June 2018, page 2, para 3.
The application is not, however, to be resolved on the basis of an applicant's asserted need for an assessment notice. Nor do I consider that the benefits that might be derived (to an applicant or others) from the grant of an assessment notice is a relevant consideration in determining the application. These matters are not relevant to the assessment of whether the risk that the applicant might cause sexual or physical harm to children in the course of childrelated work is an 'unacceptable risk'.[145] In determining the Review Application, I have not had regard to those matters.
[145] See Scott [No 2] at [109] cited with approval in L and Chief Executive Officer, Department for Child Protection [2010] WASAT 82 at [79].
For convenience, I will deal with the opinions of two experts, Dr Spear and Ms Hasson, under this heading, although the reports of Dr Spear might also be dealt with under s 12(8)(f) because G provided those reports in support of his application.
Dr Jonathan Spear is a psychiatrist. He provided reports dated 22 March 2021 and 26 August 2021, which were filed by G for use in these proceedings.[146] Neither report was part of the material before either of the previous decision-makers.
[146] Exhibit 2 and Supplementary Report of Dr Jonathan Spear dated 26 August 2021.
Ms Hasson is a forensic psychologist. Her reports dated 9 April 2021 and 8 September 2021 were filed by the respondent.[147] Neither of those reports were before the other decision-makers.
[147] Exhibit 3 and Supplementary Report of Ms Julie Hasson dated 8 September 2021.
Together, Dr Spear and Ms Hasson have also prepared two joint expert reports which were produced after expert conferral. They are dated 28 May 2021 and 28 September 2021, respectively.[148] The expertise of the experts was not challenged.
[148] Exhibit 4 and Joint Statement of Dr Jonathan Spear and Ms Julie Hasson dated 28 September 2021.
The experts' disciplines and methodologies were different. Dr Spear interviewed G on 11 March 2021 for the purpose of providing his assessment of G's character and personality and risk of committing child sexual offences in the future. His opinion was based on his expertise in psychiatry and his personal knowledge and assessment of G. That is, he used his clinical judgment. Ms Hasson is a forensic psychologist who typically assesses the risk of further offending by persons convicted of offences. She used an actuarial approach in relation to G by using the STATIC99, a statistical risk analysis tool. In her supplementary report dated 8 September 2021, Ms Hasson accepted that a clinical interview would have been of assistance to her risk assessment. She indicated that she would have liked to have undertaken a Risk for Sexual Violence Protocol (RSVP), which, she said, informs risk management to a greater degree than the STATIC-99 tool but was unable to do so because it involves conducting a forensic psychological assessment interview, which G declined.[149]
[149] Supplementary Report of Ms Julie Hasson dated 8 September 2021, pages 23.
Both experts agreed that factors relevant to the assessment of the risk of sexual offending include, but were not limited to, the following matters: a history of sexual offending, a history of non-sexual violence, psychological adjustment difficulties, mental illness, antisocial personality disorder, a history of having been sexually abused as a child, substance abuse, antisocial personality disorder, the presence of sexual deviance, social adjustment difficulties, and problems in intimate and non-intimate relationships.[150]
[150] Exhibit 4, page 5.
The questions posed to each expert to opine upon in their reports were identical.
In her first report, Ms Hasson concluded that G 'poses a very low risk of sexually reoffending'.[151] She noted that in samples of individuals with the same assessment score as G, the recidivism rate is 0.9%. She said the margin of error is between 0.6% and 1.3%.[152]
[151] Exhibit 3, page 9.
[152] Exhibit 3, page 10.
Ms Hasson said she based that opinion on numerous factors. They include:[153]
[153] Exhibit 3, pages 9-10.
(i)G's age – with the research indicating that the rate of most crime, including sexual offending, decreases with age.
(ii)The fact that G has no criminal convictions recorded over his 67 years.
(iii)The fact that G had not been the subject of any allegations of sexual abuse of a child or grooming prior to the allegations of which he was acquitted.
(iv)The fact that G has not been the subject of any allegations since that time.
(v)Research indicating that men who offend only against family members recidivate at lower rates than men who offend against victims outside of their families.
(vi)Research indicating that offenders who offend against males reoffend at a greater rate than men with female victims.
(vii)Research indicating that older sex offenders are at lower risk of reoffending than younger sex offenders.
Ms Hasson stated that she was confident in providing an indication of G's risk of sexual reoffending in the future, although she was not able to state with any certainty G's likelihood of engaging in grooming behaviour with a child in the future.[154] This was because she had insufficient information about how he engages socially with others, the quality of his adult relationships, his level of emotional identification with children and the extent and context of contact with children since his arrest. Ms Hasson acknowledged that information in relation to those issues could be obtained from an interview.[155]
[154] Exhibit 3, page 10.
[155] Exhibit 3, pages 9-10.
Ms Hasson concluded her report by stating that offences are still committed by persons assessed as being at very low risk of reoffending.[156]
[156] Exhibit 3, page 11.
Dr Spear was critical of Ms Hasson's methodology. He does not support the use of rating scales to assess the risk of reoffending. He says that risk assessment tools do not guarantee effective risk management.[157] He says he recommends:[158]
[I]ndividualised risk management taking into consideration the documentation especially prior charges and convictions, a thorough mental health assessment (sexual history narrative, personality, employment history, educational history, and mental health history), a full mental state examination and relevant cognitive evaluation to assess and manage any risk of sexual conduct with a minor.
[157] Exhibit 2, page 12.
[158] Exhibit 2, page 12.
In his first report, Dr Spear concluded that G appeared to have a 'normal community risk' of engaging in sexual conduct with a minor.[159] By this he meant that G poses no greater risk than that posed by anyone else in the community. Dr Spear said the fact that G is partnered, has no criminal history, that there have been no allegations of subsequent criminal conduct, that he has a normal personality, is older, has a professional attitude and places a strong value on his family, is of high economic status, has had consistent employment in a responsible role, has no evidence of mental illness or cognitive impairment, acts in accordance with community norms, acts with consideration and treats others with respect are all factors to which he had regard in forming his opinion.[160] Dr Spear also expressed the view that '[G] appeared most unlikely to engage in any future grooming or sexual behaviour with a child in the future' and 'is unlikely to pose an increased risk to any child in the future'.[161] Dr Spear stated that while G was open to further education regarding parenting roles and child management, he appeared empathic and had a reasonable understanding of children's needs and parenting responsibilities.[162]
[159] Exhibit 2, page 13.
[160] Exhibit 2, page 13.
[161] Exhibit 2, page 13.
[162] Exhibit 2, page 13.
In their initial joint report, the experts agreed that G poses a low risk of sexual offending in the future based on his age, the absence of any further allegations of sexual offending, the absence of evidence that he has any sexual deviance, the absence of any criminal history, and the fact that he has no identified mental illness or cognitive impairment or personality disorder and has stable relationships.[163] They concluded that there was no evidence of any predatory behaviour on his part in the community; his alleged offending was said to have occurred in the family environment and, therefore, there was little to indicate that he would pose a risk to children in the community with whom he does not have a relationship.[164] I understood their evidence as to risk to be that they agreed that G presented no greater risk of opportunistic sexual offending against children than any other person in the community.[165]
[163] Exhibit 4, page 6.
[164] Exhibit 4, page 6.
[165] ts 3237, 21 June 2021.
The respondent submits that the conclusions of the experts in those initial reports do not support the granting of an assessment notice because the alleged offending was not opportunistic but was said to have occurred after C had been groomed through play, which was referred to by C in her evidence as 'roughhousing'.[166] The respondent submits that an assessment notice would provide G with the opportunity to form relationships with children who might be at risk of being groomed and offended against.[167]
[166] ts 8291, 21 June 2021.
[167] ts 86-87, 21 June 2021.
As the respondent submitted that the original expert reports and the original joint expert report did not address the risk of G engaging in sexual offending in the course of child-related employment, where relationships can be formed and grooming could occur, I sought further reports from the experts, including a joint report following conferral, that specifically addressed that risk.[168]
[168] Orders, Deputy President Judge Glancy dated 26 August 2021.
In his supplementary report, Dr Spear opined that G 'has no indication of any increased risk to children if he were to engage in childrelated employment'.[169] He did not specifically identify a comparator, a matter noted by the respondent as a reason to be cautious about this opinion. In my view, Dr Spear's conclusion can only be understood as either being an assessment of risk in comparison to his own view of the normal community risk of an individual committing those kinds of offences or a conclusion that G presented more risk of offending in child-related employment than he did of committing opportunistic offences against children more generally. In my view, he cannot have meant anything else, given the specific nature of the opinion sought and the context of the report as a whole.
[169] Supplementary Report of Dr Jonathan Spear dated 26 August 2021, page 3.
In her supplementary report, Ms Hasson expressed the opinion that G's statistical risk of committing sexual offences in the future remained 'very low' but that her assessment would be more 'robust and precise' if she were able to assess G in person and explore dynamic risk and protective factors as contained in the RSVP.[170] She concluded that, statistically, G's score on the risk assessment tool she used places him in the category of 'very low' risk of offending against a child. She stated that individuals with the same score were found to reoffend at very low rates. She said that he was no more likely to offend against a child than a 'non-sexual' offender or someone who has never been arrested, charged or convicted of a sexual offence.[171]
[170] Supplementary Report of Ms Julie Hasson dated 8 September 2021, page 2.
[171] Supplementary Report of Ms Julie Hasson dated 8 September 2021, page 3.
As to the possibility that he might engage in grooming behaviour, however, Ms Hasson expressly conceded that she was not able to express an opinion on the likelihood of G engaging in grooming behaviour were he to have access to a child.[172] Her first report concluded that G should take steps to ensure he is not alone with children, avoid activities that involve physical contact with children and ensure that there is adequate supervision of his interactions with children by other adults in order to protect both children, and himself from further allegations.[173]
[172] Exhibit 3, page 10.
[173] Exhibit 3, page 11.
The experts conferred after filing their supplementary reports. The joint statement written after conferral states that their opinions are consistent regarding risk of offending and recommendations regarding G.[174]
[174] Joint Statement of Dr Jonathan Spear and Ms Julie Hasson dated 28 September 2021.
Although they reached their opinions using different risk assessment methodologies, both experts came to the conclusion that G is no more likely to engage in opportunistic sexual offending against a child with whom he has no relationship than any other member of the community. They also agree that G presents a very low risk of sexually offending against a child with whom he may come into contact through child-related employment.[175] That is a factor that, in my view, weighs very strongly in G's favour.
[175] Supplementary Report of Ms Julie Hasson dated 8 September 2021, page 3; Supplementary Report of Dr Jonathan Spear dated 26 August 2021, page 3.
The best interests of children is the paramount consideration. To the extent that any of the criteria in s 12(8)(b) – s 12(8)(g) conflict with this criterion, the others must yield.[176]
[176] Grindrod [No 2] at [70]; Scott [No 2] at [105]; IGR at [13].
It is a trite proposition that the best interests of children are served by ensuring that they are not exposed to the risk of sexual or physical harm.
Overall Assessment
On the evidence, I have been unable to make a positive finding as to whether the alleged conduct did or did not occur. However, I have found that I have a reasonable suspicion that the alleged offending may have occurred.
If the offences were in fact committed, they were committed nearly 20 years ago, and no other offending of any kind, either prior to the alleged offending against C, or subsequent to that alleged offending against C, has come to light. Further, G has been assessed as someone with many protective factors in place that reduce any risk of reoffending. G is in stable employment, has stable relationships, has no problems with substance abuse and no mental ill-health. Most significantly, in my view, the two experts have concluded that G is at very low risk of committing sexual offences against children in the future, including children with whom he may come into contact through child-related work.
The WWC Act recognises that children cannot be protected from all harm. Parliament has recognised that in s 12(5) of the WWC Act, and the test is whether there is an 'unacceptable risk' of future physical or sexual harm being caused to children by a person engaging in childrelated work. In this case, the risk is a risk of sexual harm to a child by G's engagement in child-related work.
Even if the offending did occur as alleged by C, G has now been assessed as being at no more risk of opportunistic sexual offending against children than any other member of the community. Ms Hasson says he poses a 'very low risk', and Dr Spear says G has 'no indication of any increased risk', of sexual offending against children in the course of childrelated employment.[177] Taking all of these factors into account, the evidence does not support the conclusion that 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.
[177] Supplementary Report of Ms Julie Hasson dated 8 September 2021, page 3; Supplementary Report of Dr Jonathan Spear dated 26 August 2021, page 3.
I acknowledge the best interests of children is the paramount consideration. I have taken into account that the consequences of being wrong would be very serious. It would not be in the best interests of children to be wrong and for G to commit childrelated offences in the future.
However, because the evidence does not establish that G is an unacceptable risk, I do not consider the best interests of children warrants the conclusion that he should not be permitted to engage in childrelated work.
Proposed Order
Subject to hearing from the parties as to the form of orders, I would propose to make an order in the following terms:
The decision of the respondent to issue a negative notice to the applicant be set aside, and the respondent is to 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 the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MA
Associate to Judge Glancy
31 MAY 2022
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