G and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT - [2019] WASAT 93

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION:   G and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2019] WASAT 93
MEMBER:   MS L EDDY, SENIOR MEMBER
HEARD:   5 JULY 2019
DELIVERED          :   21 OCTOBER 2019
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 an assessment notice - Negative notice issued - Inconsistencies in child's evidence - Whether Tribunal able to make a positive finding allegations did or did not happen - Whether no positive finding can be made one way or another - Whether unacceptable risk of harm - Whether s 12(8)(d) applies to nonconviction offences - Negative notice issued.

Legislation:

Criminal Code (WA), 329(2), s 329(4), s 329(9)(a), s 329(10)(a)
Working With Children (Criminal Record Checking) Act 2004 (WA), s 10, s12(1)(a)
Working With Children (Criminal Record Checking) Amendment Bill 2009 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr P Urquhart
Respondent	:	Ms L Mobilia

Solicitors:

Applicant	:	Bowen Buchbinder Vilensky
Respondent	:	Department for Child Protection and Family Support

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

Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
Chief Executive Officer, Department for Child Protection v Grinrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3
M and Department for Child Protection and Family Support [2013] WASAT 122

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, G is a Director of a security business which provides a variety of security services, including crowd security. This work occasionally brings him into contact with people under 18 years of age when the business is hired for school security or providing security for private functions. He also has roles from time to time with school boards and boards of not for profit organisations that may also bring him into contact with children (Applicant's written submissions, para 7). For this reason, in or around 2015, the applicant, G, applied to the Chief Executive Officer of the Department for Child Protection and Family Support (CEO or respondent) for an assessment notice under s 10 of the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) by lodging a 'Working with Children Check' (Exhibit 1, pages 1 - 4).
In 2004 the applicant had been charged, on indictment, with:
1)Five offences of indecently dealing with a child, under the age of 16, who he then knew to be his de facto child, contrary to s 329(4) and s 329(10)(a) of the Criminal Code (WA) (Criminal Code); and
2)Three offences of sexually penetrating a child, under the age of 16, who he then know to be his defacto child, contrary to s 329(2) and s 329(9)(a) of the Criminal Code.
(Exhibit 1, pages 80 - 81)
Following a trial before a jury in the District Court in 2006, G was acquitted of all of the charges.
By letter dated 15 September 2016, G was advised that it had been decided that a Negative Notice would be issued to G, and a Negative Notice was attached to that letter (Exhibit 1, pages 29 - 32).
In October 2016, G applied to the Tribunal for a review of the respondent's decision to issue a Negative Notice. Following a hearing in October 2017, in January 2018 the Tribunal ordered that the CEO's decision be set aside and required the CEO to issue an assessment notice to G under s 12(1)(a) of the WWC Act: G and Chief Executive Officer, Department for Child Protection and Family Support [2018] WASAT 3 (G and CEO). The CEO sought leave to appeal the Tribunal's decision in the Court of Appeal (WA). The Court of Appeal granted leave to appeal, allowed the appeal and ordered that the matter be remitted to the Tribunal, differently constituted, to be dealt with according to the law: Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 (IGR).

Background

For convenience, the Tribunal will use the same pseudonyms as the previous Tribunal used: G and CEO, at [7]:
Gthe applicant, C's stepfather;
Cthe complainant in G's criminal trial
MG's wife, C's mother
FC's father
SC's younger full sister
S1C's half sister
S2C's half sister
D1G's older daughter;
D2G's younger daughter
Again, for convenience, I reproduce the noncontentious background facts as summarised by the previous Tribunal: G and CEO, at [47] [53] (references to exhibits have been changed to refer to current exhibits)
The family structure
47G and M began a relationship in approximately October 2000 [Exhibit 2 page 416]. They married on 7 December 2002 [Exhibit 1 page 182].
48G had two daughters from a previous relationship (D1 and D2).
49M had four daughters, two children from a previous marriage (S1 and S2) and two children (C and S) from her de facto relationship with F.
50C and S had significant contact with their maternal grandmother and grandfather during the relevant period. Charges 1 to 3 on the indictment, as set out below, are alleged to have occurred in the swimming pool at the grandparents' home.
The indictment
51The indictment alleged eight offences.
52Charges 1 to 3 relate to essentially a series of incidents in a pool on the one day. Charge 4-6 relates to a later incident in a car on the same day [see counsel's opening, Exhibit 2 page 337]. Charge 7 relates to a separate incident on another day. Charge 8 relates to a separate incident on another day.
53G was alleged to have committed the offences between May 2002 and June 2003. C was approximately 12 13 years old and G was approximately 48 49 years old.

Charges
Code Sec 329(4), 329(10)(a)	(1) On a date unknown between 3 May 2002 and 1 December 2002 at X [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her breasts
AND THAT [C] was a child under the age of 16 years
Code Sec 329(4), 329(10)(a)	(2) AND FURTHER THAT on the same unknown date and at the same place [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her vagina
AND THAT [C] was a child under the age of 16 years
Code Sec 329(2), 329(9)(a)	(3) AND FURTHER THAT on the same unknown date and at the same place [G] sexually penetrated [C], a child who he then knew to be his defacto child, by penetrating her vagina with his finger
AND THAT [C] was a child under the age of 16 years
Code Sec 329(2), 329(9)(a)	(4) AND FURTHER THAT on the same unknown date in the State of Western Australia [G] sexually penetrated [C], a child who he then knew to be his defacto child, by penetrating her vagina with his finger
AND THAT [C] was a child under the age of 16 years
Code Sec 329(4), 329(10)(a)	(5) AND FURTHER THAT on the same unknown date in the State of Western Australia [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her breast
AND THAT [C] was a child under the age of 16 years
Code Sec 329(4), 329(10)(a)	(6) AND FURTHER THAT on the same unknown date in the State of Western Australia [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her vagina
AND THAT [C] was a child under the age of 16 years
Code Sec 329(2), 329(9)(a)	(7) AND FURTHER THAT on another date unknown between 3 May 2002 and 1 February 2003 2002 at Y [G] sexually penetrated [C], a child who he then knew to be his defacto child, by penetrating her vagina with his finger
AND THAT [C] was a child under the age of 16 years
(8) AND FURTHER THAT on 4 June 2003 at Z [G] indecently dealt with [C], a child who he then knew to be his defacto child, by touching her breast
AND THAT [C] was a child under the age of 16 years

Statutory provision and legal principles

The relevant legislation and the applicable legal principles are summarised in G and CEO, at [9] [31] and in IGR, at [6] [17].
As G has been charged, but not convicted, of Class 1 and Class 2 offences, the Tribunal must reach one of three conclusions (IGR, at [121]):
(1)a positive finding, applying Briginshaw, 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.
As explained in IGR, at [122] [123], if the Tribunal makes a positive finding that the alleged conduct occurred, or did not occur, it will be likely to have a significant, in some cases decisive, impact on the decision. If the Tribunal does not make a positive finding, it must proceed to analyse and evaluate whether the relevant unacceptable risk has been established.

Evidence

The Tribunal has the following evidence before it:
1)Part A Book 1 (Exhibit 1);
2)Part A Book 2 (Exhibit 2);
3)Part A Book 3 (Exhibit 3);
4)Part B: Protected Matter (Exhibit 4); and
5)Book of Relevant Material, excluding pages 92 128 (Exhibit 5)
6)Photograph (Exhibit 6)
The Tribunal also had access to the exhibits tendered with the Tribunal at the hearing in October 2017 (which are the same as the exhibits tendered this time, but some are clearer copies).
The transcript of the hearing in the Tribunal in October 2017 is reproduced in Exhibit 3, at pages 602 722.

Submissions

The applicant submits that the Tribunal should make a positive finding that the alleged conduct did not occur. The applicant relies on (Applicant's Witten Submissions, at paras 19 20) (footnotes omitted):
19.…
(a)The number of inconsistencies in relation to the complainant's evidence at the trial.
(b)The doubt as to whether the pool incident occurred, arising from the complainant's evidence and evidence about when the complainant first complained.
(c)The significant improbabilities in the complainant's evidence in relation to charges one to six.
(d)There was evidence that the complainant had, on occasions, behaved in a manner that was inconsistent with having been the victim of sexual abuse by the Applicant.
(e)There were matters that cast doubt on whether the car incident occurred.
(f)It was difficult to see how count eight could physically occurred given the dimensions of the corridor where it was said to have happened in the respective sizes of the complainant and the Applicant plus the fact that as the Applicant was already aware that the complainant was accusing him of sexual abuse made it 'less likely' that he would have engaged in the conduct as alleged in this count.
(g)The complainant had a history of lying and had stolen $50 from her father's wallet.
(h)The complainant's own family did not believe her allegations were true. There was evidence that supported the Applicant's assertion that the complainant was motivated to fabricate and maintain the allegations. There was uncontroverted evidence of the complainant, who was living with her mother and the Applicant at the time she made the allegations, wanted to live with her father. The evidence before the Tribunal is that her father was not prepared to have her live with him in the something extremely serious or dramatic was to happen.
(i)There is evidence consistent with the complainant having access to information upon which to base her allegations.
(j)There was no evidence of apprehension about, or inappropriateness of, the Applicant from any other female family member.
(k)Professor Lipton, a child psychiatrist, had the considerable advantage of interviewing the complainant and other members of the family (with the exception of the Applicant, who declined, on legal advice) before reaching his conclusions in which he expressed the view that he was professionally inclined to favour the possibility that the complainant developed the belief she had expressed in imagination or fantasy or that the alleged episodes were a fabrication.
20.The findings made by Professor Lipton ought to carry significant weight by the Tribunal in its determination of this matter. As stated by Curthoys P in P and Chief Executive Officer, Department or Communities [2018] WASAT 99 at [41]:
If there is evidence from a psychologist or psychiatrist to interview the child, or members of the child's family, that will carry significant weight. The psychologist or psychiatrist has expertise in sexual assaults on children that will be of more significance than the evidence of persons lacking that expertise.
In the alternative, if no positive finding can be made one way or the other, the applicant submits that the material before the Tribunal does not establish the relevant unacceptable risk.
The respondent's written submissions are lengthy. In essence, the respondent submits that the Tribunal cannot make a positive finding that the alleged conduct did not occur; rather it should find that no positive finding can be made one way or the other. The respondent submits that the Tribunal should find that there is an unacceptable risk that the applicant might, in future, cause sexual or physical harm to children in the course of carrying out childrelated work.

Can the Tribunal make a positive finding that the alleged conduct did or did not occur?

C's evidence

The first witness statement that C gave is dated 20 June 2003 (Exhibit 1, pages 47 to 60). In that C makes the following allegations about G's conduct.
C said G began touching her when she was 12; it was near the end of the year and it was hot. M and G were not married yet. C reports M and G as being married in October or November 2002. The touching started at C's grandma's swimming pool when G and C were 'roughhousing'. C reports that S, G and C would 'play roughhousing'. On this occasion C was in the pool at the deep end wearing a blue and white two-piece bathing costume, called a tankini, which was S2's bathing costume. G was behind C and holding her underwater. G had his legs wrapped around C's waist. C felt G's hand go down the top of her bathers and G's hand touched both of her breasts. This was the subject of count one of the indictment. I will refer to this as the alleged Pool Incident 1.
Then C felt G's other hand touch her stomach and go down her bather bottoms and touch her on her vagina. She describes G's hand was in between her legs and he was moving his fingers around her vagina area. She said this stopped when they had to come up for a breath; G unwrapped his legs from around her waist and swam off. This was the subject of count two of the indictment. I will refer to this as the alleged Pool Incident 2.
At para 38 (Exhibit 1, page 51) C says:
While he was doing this I thought, does he know what he is doing and I thought, it is pretty hard not to [sic] go around feeling in between somebody's legs and not know.
C said she heard S calling her from the sunroom and she swam up to the side of the pool and rested her arms on the pool side. S asked if C wanted a Weight Watchers fruit bar. When C swam up to the side of the pool, G came up beside her and was next to her. G put his leg out and put his knee into C's back. One of G's arms was resting on the side of the pool and the other was in C's bather bottoms. G put his hand in between her legs and she could feel his fingers moving around have vagina area; then she felt a finger go into her vagina. This was the subject of count three of the indictment. I will refer to this as the alleged Pool Incident 3. Collectively alleged Pool Incident 1, alleged Pool Incident 2 and alleged Pool Incident 3 will be referred to as the alleged pool incidents.
S came out with the fruit bar for C and G pulled his hand out of C's bather bottoms. C then got out of the pool, grabbed her towel and went inside to watch television. She thinks she was watching Angry Beavers, on channel 2. That was the show S was watching. C says that this was a day when Grandma and Grandad were home and M was there as well having cups of tea with them.
Later on the same day the family went to Serpentine. C changed out of her bathers and put on a bra, a pair of knickers, a short denim ra-ra skirt and a pink check shirt that had press studs down the front. C said that they went to Serpentine to move some of their stuff down there, maybe it was books and toys. C and G travelled in one car and M and S travelled in a separate car. G and C were in a silver/grey twodoor Mercedes-Benz. C was sitting in the front passenger seat and G was driving. When they were on the freeway, G put his left hand on C's thigh and moved her skirt up to her stomach. G's hand went down her knickers and he touched her vagina. C closed her legs, but G pushed her legs apart and slid his hand further down. C felt something go into her vagina; she thinks it was G's fingers. This was the subject of count four of the indictment. I will refer to this as the alleged Car Incident 1.
G then removed his hand and began touching her breasts. C describes G's hand going into her shirt and two of the press studs popping open. G's hand went under C's bra and touched her right breast. This was the subject of count five of the indictment. I will refer to this as the alleged Car Incident 2.
C describes them coming up to a curve in the road and G removed his hands from her breast and put both hands on the steering wheel. When the car left the curve, G put his hand on C's vagina under her knickers. This was the subject of count six of the indictment. I will refer to this as the alleged Car Incident 3. Collectively, alleged Car Incident 1, alleged Car Incident 2 and alleged Car Incident 3 will be referred to as the alleged car incidents.
C began crying and said 'don't you love mum'. G replied 'yeah, I love you, mum and [S]'. G removed his hand from C's vagina and said 'don't tell mum we will put this down to roughhousing'. When they arrived at the house, G went to feed his horse and C is not sure what she did. A short while later M and S arrived and the family made tea. C said she did not tell anybody what G had done to her that day.
Another time in 2002, before M and G got married, G took S and C to the beach at 'Eagle Bay. I think Eagle Bay is in Rockingham'. M didn't come with them because she was working; at that time M was a nurse. G, S and C were roughhousing on the beach. G and S grabbed on to a leg each and dragged C into the ocean. S stayed in the shallow end and G swam out to deeper water. C decided to put some sand in his hair. She swam out to G, grabbed a handful of sand and slapped the sand in the middle of G's head. At that point, C was behind G. G turned around and grabbed C's legs and arms and swam them both out further into the deeper water. G was standing in the water and had a hold of C. G pulled one of his legs up and put C on his knee. He was standing on one leg. G held C by putting one arm around her stomach and he put his other hand down her bather bottoms and touched her vagina. C felt his finger go into her vagina. This was the subject of count seven of the indictment. I will refer to this as the alleged Beach Incident.
A wave came over them and G let C go. C swam away and went back to shore to S. C played with S for the rest of the day on the beach, she says because she felt safe around her. C did not tell anybody about what G had done as she 'did not want to break the family up'.

On 4 June 2003 G touched her again. C does not indicate in her statement which house this happened in, however earlier in her statement she identifies that the family moved to Serpentine in around March 2003.
C arrived home from school and nobody was home. About five minutes later S came home from school. G arrived home about 15 minutes later. G told C to get changed out of her uniform so she changed into jeans and a white singlet. She was also wearing a bra and a pair of knickers. S also got changed. C and S had separate bedrooms. G came to check to see how clean the rooms were and then G, S and C began 'roughhousing'. They were all on the ground roughhousing when G stood up. S grabbed one of G's legs and wrapped herself around his leg. C grabbed G's other leg. At this point, S and C were looking at each other. G moved and S and C swung to the inside of G's legs and they could not see each other because their backs were together. G bent over and tried to put his hand down C's shirt but she pushed him away. In the statement C says 'you know how you play tennis against a wall and no matter how many times you hit the ball it comes right back? That is what it was like'. G touched C's breast inside her clothing but she pushed him away. This was the subject of count eight of the indictment. I will refer to this as the alleged House Incident.
G then tried to put his hands down C's pants while he was still bending down, but C was wearing jeans and she was pushing him away so he couldn't do it. C describes S as facing the other way so that she couldn't see what G was doing to C. S asked G to walk around so he walked out of the bedroom door and down the hallway at which point S and C gave up and let go of G. She does not specify how far down the hallway they travelled.
C says she reported G's conduct on three occasions. The first time was a time before M and G got married when S2 and C were 'bitching' about G: Exhibit 1, page 59. C told S2 that G had been touching her down her bather bottoms. C says S2 began crying and told M what C had said. M spoke to C and asked if she could have been mistaken. C said 'no'. According to C, M then spoke to someone, after which she told C that somebody would be coming to speak with her; but this never happened. C identifies in her statement that she told S2 'before mum and [G] got married'; Exhibit 1, page 59.
The second time, was when C told a friend that G had been touching her. This was in 2003 in the first term, around April.
The third time was on Monday, 2 June 2003. C was crying on the bus on the way to school and a girl who was on the bus with C asked her what was wrong. C told the girl that G had been touching her. The girl told other children at school and C says 'most of the year 8 students of [the school] found out what C had said. On that same day C went with a friend to see a teacher. The friend told the teacher that G had been touching C. The teacher made an appointment for C to see the psychologist, and C told the school psychologist what had happened.
On Wednesday 11 June 2003, C got a phone call from her father, F. F told C that M had called him and said that 'DCD' had been in touch about G. On Thursday, M collected C from school and told C that G was not allowed to come near C because of what C had told the school psychologist. M told C that she was moving out and going to live with F. From C's perspective, this was when M kicked her out of the home. C went to live with F. C says in her statement that she was 'kicked out' on Thursday, 12 June 2003.
On 16 June 2003, C was interviewed by employees of the respondent. The following exchange took place (Exhibit 4, page 56):
QSo, you're with Dad now. Why is that
AMum kicked me out
QTell me about that
AI think mum is a cow now. Mum and I were supposed to see each other at the Dome, and [G] was not supposed to be there but he came anyway. It was supposed to be me and Mum. She kicked me out. I didn't do anything wrong, but she kicked me out … last time I said it I retracted it … I wouldn't cooperate
QI am confused about what you are talking about now ... what do you mean by retracted
AWell, I didn't retract it, DCD were supposed to come and interview me but I didn't want to talk. I didn't want to break up the family. DCD didn't come and it faded away
…
Q… Do you remember what happened the first time
AI can't remember which one was first … we were at grandma's pool
QWhen was this
ADon't know. We used to rough house at grandma's pool … tickle and rough housing and he I thought he didn't know where he was touching and stuff
…
AHe used to wrap his legs around me under water and I could not get back up to the surface unless I surrendered and then he would tickly my top half … and then we didn't go to grandmas for a while and then we did go back …[.]
C goes on to talk about her mum not believing her. She says she first told her mum when she was 12 years old at the 'very end of last year or the beginning of this year' (Exhibit 4, page 56). When asked when the first time happened, C identified it as being before Christmas, she thinks during school time not holidays
On 18 July 2003, C was interviewed by an Officer of the Child Abuse Investigation Unit together with a Social Worker employed by the then Department for Community Development: Exhibit 4, pages 22 – 31. In that interview, C was asked further questions. First, she was asked about the incidents that had been described in C's statement that occurred while she was in the car with G. C confirmed that only C and G were in the car. She said that the family were going to Serpentine in two cars because they were 'taking stuff down to Serpentine we were either moving stuff up or down. I can't remember which'. When asked how often she was alone with G in the car, C said that she was with him in the car every day; that he picked her up from school Monday to Friday. When asked 'was [this] the first time he did this to you?', C did not answer. When asked what sort of driver G is, C said 'a fast driver, he changes lanes to keep going fast'. C described leaving from her grandma's place late and that it was dark when they got to Serpentine. She said (Exhibit 4, at page 28):
… When we got home from Nan's, I went and got changed into blue rara skirt and pink, white checked studded shirt. We were outside the front, me, [G], [S] and mum and then we just got in the car. I don't know how we ended up in like how we decided who got in what car.
C was asked about why she did not tell M about what had happened in the car, and the following exchange occurred (Exhibit 4, page 29):
Q45Did you want to tell her about what had happened?
ANo.
Q46Why?
ACoz my mum is a selfish, horrible cow.
Q47Are you angry with mum.
ANo she just never believed me.
Q48Why?
ACoz, I lied to her [really] bad in the past but my sister did too.
Q 49How do you know she hasn't changed?
ACoz she tells dad, when can you believe her, trust her, she's a cheat, liar.
At the end of the interview, C says 'You keep asking me the same question. I'm just concerned about [S]' (Exhibit 4, page 31).
In this interview, C again says she told S1 about what had been happening, but she does not identify when that occurred (Exhibit 4, pages 29 - 30).
C's evidence was pre-recorded on 10 December 2004 Exhibit 1, pages 86 148.
When giving evidence, C stated that 'rough-housing' in the pool at her grandmothers happened before G and M got married (Exhibit 1, page 93). She identified the marriage as occurring in November of 2002 (Exhibit 1, page 92. When asked how long before the marriage she was in the pool rough-housing, C said it was December or November (Exhibit 1, page 93). She thought it was December or November 'because it was hot and we were swimming at [grandma's] house a lot' (Exhibit 1, page 93). C identified the time of day as early evening, 4 o'clock. She then described alleged Pool Incident 1 and alleged Pool Incident 2 in similar terms as in her statement (Exhibit 1, page 94). In evidence, C said alleged Pool Incident 1 and alleged Pool Incident 2 occurred at the same time (Exhibit 1, page 95), whereas in her statement she does not say whether alleged Pool Incident 1 and alleged Pool Incident 2 happened at the same time or one after the other (Exhibit 1, pages 50 51).
C went on to describe alleged Pool Incident 3 in similar terms as she had in her statement. She stated that S asked her if she wanted a snack and that S was standing in the door of the sunroom, about two meters away (Exhibit 1, pages 96 - 98). C describes going home while it is still daylight and getting changed and then leaving for Serpentine at 'dusk, around 6 o'clock' (Exhibit 1, pages 98 - 99). C gives the reason for going to Serpentine as to move her stuff down, 'books and toys and stuff' (Exhibit 1, page 100). When asked if they were moving house, she answers 'yep' (Exhibit 1, page 100). Again, C describes what happens in the car in similar terms to how she described alleged Car Incident 1 and alleged Car Incident 2 as in her statement (Exhibit 1, pages 101 - 103). When describing alleged Car Incident 2, C describes G putting his hand in her shirt where a press stud was undone (Exhibit 1, page102-103), rather than two press studs popping open as she described in her statement (Exhibit 1, page 54). C does not mention the curve, or G putting both hands on the steering wheel in evidence; she says 'when we got past the kerb he put his hand back down my underwear' (Exhibit 1, page 104).
C next describes the alleged Beach Incident. She says this occurred before M and G were married; she thinks in December or early January (Exhibit 1, page 107). C says the place they went to was 'Golden Bay', not 'Eagle Bay' as described in her statement. C otherwise describes the Beach Incident in similar terms to in her statement (Exhibit 1, pages 107 110).
When asked about another incident with G, C recalled something happening in 2003, some months after the alleged Beach Incident (Exhibit 1, page 110). She thinks it was in June. Again, C described the House Incident in similar terms to in her statement (Exhibit 1, pages 111 - 113).
When cross-examined, C did not resile from her evidence at all. She admitted that when she was younger she used to tell lies and that when she was little she and S used to steal. When it was put to C that she made up the allegations about G, she said 'do you really think I'd put an innocent person in gaol?' (Exhibit 1, page 45).

G's evidence

G gave evidence in his defence during the trial in August 2006 (Exhibit 2, pages 369-430). G said he moved in with M (as well as C and S) in late September 2002. He denied all of the alleged conduct.
In relation to the incidents in the pool, G said that M's parents were away from 19 October until 1 December. He produced their passports, which confirmed entry into Perth Airport on 1 December 2002 (Exhibit 2, page 284). G also produced an invoice addressed to M's father that bore words suggesting work had been carried out installing pool equipment on 3 and 9 December 2002. G also stated that he and M got married on 7 December 2002. G gave evidence that between May 2002 and 7 December 2002 he never went into the pool at M's parent's house (Exhibit 1, page 391). Later he said 'yes, there could have been a couple of times I would have been in the pool before the wedding', which he then clarified (Exhibit 2, page 398):
COUNSEL:When would that have been?
G:probably late 2001 but certainly not in the time zone that you outlined.
COUNSEL:Not between May and December of 2002?
G:Correct.
COUNSEL:Can you be sure you were not in the pool during those periods of time with [C]?
G:Yes, I can be.
G also said that C did not own a tankini. One of her sisters did but G said he had never seen C in a tankini.
G described his car as having a console between the front driver's seat and the front passenger seat. He also explained that there is a retractable arm that comes out just over the shoulder that carries the seat belt. When asked about the alleged incidents in the car, G said 'It's just an extraordinary load of rubbish that didn't happen and could never have happened' (Exhibit 2, pages 396-397). G said that C's room was not completed until March 2003, but they did decorate it and take things there. When asked if he went with C in his car and M and S in another car before the wedding, G said he had no recollection of any trip like that. He said that trips to Serpentine was not a common thing.
G says that M changed jobs in February of 2003 and it was at that time, when the new job required M to travel to Rockingham, that they decided to move to Serpentine. G says 'so we made a decision to renovate and move to Serpentine and those decisions were made in about February 2003' (Exhibit 2, page 397). G was asked could he have been going with C in his car before December 7, 2002 to drop of books and toys for C, to which he replied (Exhibit 2, page 398):
No, because the house was totally on the inside structure of the time frame home, all the gyprock was off and the building company didn't come in until the end of February and it took a couple of weeks for them to actually put the walls back in place.
G produced photos of the Serpentine house that he said were taken in late February 2003. The Tribunal does not have those photographs before it.
In crossexamination, G said there were four horses at the Serpentine property. When asked how often G would have to attend the property to look after the horses he said (Exhibit 2, page 422) 'just at different times, a couple of times a week, sometimes daily. I still had my office intact in Serpentine'. Then the following exchange took place (Exhibit 2, page 425):
COUNSEL:What would the girls do when they were there?
G:They'd do their homework or go for walks, whatever they were doing at the time.
COUNSEL:They would have taken a few of their belongings to the place, to your home, to have there when they visited to play with on occasions?
G:Not that I can specifically recall, no.
COUNSEL:But that's reasonable? Possible?
G:It might be possible.
COUNSEL:Because you don't recall that having happened?
G:No.
COUNSEL:Do you recall the girls asking if they could take items to your property to play with while they were there while you were tending your horses?
G:No, nothing.
In relation to the car, G says it is light green, not silver.
In relation to the alleged House Incident, G was asked if he recalled an occasion when C and S sat on his feet, he said (Exhibit 2, page 406):
There was only one incident of that and it was in the passageway coming past their bedrooms. They sort of ambushed me if you like. They were sitting on my feet and the whole thing was a five or 10 second blocking of the passageway.
G went on to say (Exhibit 2, page 407):
What [C] has described there is a total nonsense. I mean, she is nearly the same size as me and to have two people back to back inside, its just all that happened was as I was walking down the passageway, I was punched on and had one on each sitting on the front of each one of my legs but there was no chance of, like, moving or walking anywhere. I mean, [C] must weigh in at, you know, 60-something kilos.
G described the passageway where he said this occurred as being just under a metre wide, and a photograph of the passageway was produced. The Tribunal has a copy of that photograph at Exhibit 3, page 601.
G says he did go to Golden Bay with just C and S on one occasion (Exhibit 2, page 409). He says this occurred in January 2003. G's recollection is that all three of them were in the very shallow water all of the time. When C's allegations about the Beach Incident were put to him, G said (Exhibit 2, page 410):
G:I'm just amazed at that description. It never happened.
COUNSEL:Why are you amazed at it?
G:It's just-the whole description is of an event that I have no recollection of but [C] is almost the same size as me, so her sitting on my knee standing on one foot in the water, it's all a bit much.
The Tribunal has in evidence a photograph of G and C (Exhibit 6) in which C is standing just underneath G's arm, which is around her shoulder. She is approximately a head shorter than G and is otherwise reasonable similar in size at least from the appearance of this photograph.
G says he has never used the term 'rough-housing' (Exhibit 2, page 410).
A manager from the ABC gave evidence that the show Angry Beavers was last broadcast in November 2011, and it was not aired between May 2002 and December 2002 (Exhibit 2, pages 434 - 435).
G provided a witness statement to the Tribunal dated 12 October 2017: Exhibit 3, pages 574-590. In that, G refers to an incident on 11 June 2003. On that date he spoke to an employee of the respondent but was told only that they wanted to speak to M: Exhibit 3, page 586. On that day C and S 'jumped out at me from their bedrooms, one on each leg'. He says M said to stop mucking about and to get out of the way. The next day M spoke to an employee of the respondent and was advised of the disclosures C had made.
In October 2017, G gave evidence to the Tribunal, differently constituted, and the Tribunal now has the transcript of that evidence: Exhibit 3, pages 616 - 648.
G was asked about having said during his trial that he had never been in the pool, yet M's mother had said in a letter to the respondent that he had been: Exhibit 3, page 620 and following. However, the question ultimately did not get answered, on the basis that it was assumed that the grandmother was referring to a time in February 2003 when G and C were in the pool.
In relation to the alleged car incidents, G said at the Tribunal hearing that there was always an opportunity to take possessions backwards and forwards between the two properties from September 2002. He agreed that the renovations did not commence on the Serpentine properties until later. In response to a question from the Tribunal, G said the renovations started with demolition 'probably six months before' they moved in: Exhibit 3, page 632.
G gave quite precise evidence about dates in his witness statement for these proceedings. There was an exchange between G and counsel for the respondent as follows: Exhibit 3, pages 633 - 635:
COUNSEL:…
In your recent statement you say:
Although I have no specific recollection of it, it may be that we drove two cars down to Serpentine and we all came back in one car.
G:That's correct.
COUNSEL:And you concede that:
I have no specific recollection, but it may be that [C] drove down in the car with me.
G:Correct.
COUNSEL:So that's your evidence now, and do you accept that it's different from the evidence that you gave in the criminal tria?
G:Not my recollection of it, no.
COUNSEL:Now, moving onto the Golden Bay incident. You mention in your current statement that you have a diary - you keep a diary; is that right?
G:Yes, back in those days I did.
COUNSELDo you still have the diary?
G:No, I don't have the diary, unfortunately.
COUNSEL:Well, what you say in your current statement is:
From perusing my diary and looking at my other commitments, I am able to say that I took the girls and [S] and [C] to the Golden Bay beach on 7 January 2003.
So you do have the diary, do you?
G:No.
COUNSEL:All right. Why do you say 'From perusing my diary' then?
G:My diary is now electronic.
COUNSEL:Well, yet, then, you have a diary, electronic or hard copy. Do you have the diary in - about events in 2003?
G:No.
COUNSEL:On the information I've read, I don't see that you've ever mentioned having a diary before. Do you recall mentioning a diary before this statement
G:Not off the top of my head, no. Sorry.
HIS HONOUR:         [Counsel], what happens when you don't give a paragraph number or a page number is I'm flicking through the statement to find your paragraphs.
HIS HONOUR:You might think it more useful to your case if I'm fully concentrating on the crossexamination.
COUNSEL:Yes, your Honour. I suppose I'm - because I can get - I'm sorry. I will give you the - it's paragraph 27 on page 4 of 12 October statement, your Honour.
HIS HONOUR:          Thank you.
COUNSEL: I'm sorry about that.
HIS HONOUR:         It's all right. It's easy to forget I'm here (indistinct) this morning, but often. When you say 'a diary', do you mean an appointment diary or do you mean a Dear Diary diary?
COUNEL:Just an appointment diary.
HIS HONOUR:          Right. So what has happened between 12 October and today that you haven't got the diary
G:I - I haven't got the 2003 diary.
HIS HONOUR:          So the question still applies: what has happened? You had it on 12 October?
G:I think in my evidence statement there I've referred to the previous evidence statements that I've given.
HIS HONOUR:          So you're saying you're looking for transcript to find that you looked at your diary to find the date; is that right?
G:  Correct.
HIS HONOUR:          All right.
COUNSEL:So, Mr - all of this detailed evidence that you have in this current statement comes from where?
G:My recollection of it.
COUNSEL:So you can say - you can remember - you're saying at October 2012 you can remember that you left Duncraig at 1 pm in [M]'s car?
G:Are you asking me can I recall that now or did I refer to notes?
COUNSEL:Well, I - you're saying to me - you just gave me an answer that you made this statement from your memory.
G:Well - well, I had made that on my recollection - memory of my evidence, my trial, all those things.
HIS HONOUR:You have to listen to the question. The question that's being asked, paragraph 27 of your statement says:
From perusing my diary and looking at my other commitments, I'm able to say that - I assume - I took the girls [S] and [C] to Golden Bay Beach on 7 January 2003.
Now, that's from looking at your diary?
G:Yes.
HIS HONOUR:          Do you still have the diary?
G:No, I - - -
HIS HONOUR:          The statement is 12 October.
G:No, I do not.
HIS HONOUR:         So where does this statement come from then:
From perusing my diary
G:That will be a direct statement from my previous statement.
COUNSEL:Where is your previous statement? You didn't make a previous statement, did you? You didn't make a statement. You were advised not to make a statement to the police when a complaint was made?
G:Correct.
COUNSEL:That's the case. So where did this information come from?
G:I'm unsure at the moment.

M's evidence

M, C's mother made a statement dated 11 October 2017. She says she never observed any conduct by G towards any of the children which was offensive, inappropriate or caused any concern. She says at no time did any of the girls come to her with any indication that they were uncomfortable or unhappy with how G was treating them and she did not detect any signs form the girls that this might be the case. She apparently did not consider what S2 told her about what C had told S1 to be any such sign.
M says that in February 2003 when she came home S2 was crying. S2 told her she was upset because of something C had told her. M went to talk to C. C told M that G had touched her, but was vague about the details. C did not appear upset to M. When M asked for more information C told her that G had touched her on the bottom. M telephoned her mother and told her what C had said. M also told F what C had said. When G came home that evening M told him what C had said and G strongly denied the allegation. When the family sat down to dinner, S1 was still visibly upset but C showed no sign of being upset or concerned.
The following day, G, M and M's parents discussed the allegations. G said he wanted to go to the police but M felt it was more appropriate to approach C's school first. She wanted to do this because she did not believe C's allegations. This was because in her view C had a long history of being untruthful and causing difficulties for the other girls.
M spoke to the Deputy Principal at C's school and told her she did not believe the allegations but that C needed to talk to someone about it. The Deputy Principal made an appointment for C to see the school psychologist, however C refused to meet with him. She told M that if she was made to go she would run away.
M told an employee of the respondent on 12 June 2003 that C had alleged G touched her in 'Oct/Nov 2002': Exhibit 3, page 80. M said she became aware of C's claim that G had touched her in about November 2002: Exhibit 4, page 49.

S's evidence

C's sister, S gave a statement to police in June 2003 when she was 10 years old. In this statement S says (Exhibit 1, page 63):
[G] has been swimming in the pool with [C and S]. He has only swam in the pool about twice with us. When we play in the pool, we make faces at one another under the water and take pictures with an underwater camera.
I also climb onto [G]'s shoulders and jump off into the water.
[C] and I 'roughhouse' with [G]. Roughhousing is a name that my dad uses for play fighting.
S says she has not seen C and G roughhouse in the pool. But she has seen G pull C along in the water by her ankles.
S remembers only one time that the family travelled to Serpentine in two cars; on that occasion S went with G and C travelled with M. S describes G's car as 'goldish grey' in colour.
S recalls going to the beach with G and C in the summer time. M did not come that time. At the beach C swam into the deep water and 'was diving and pretending to be a mermaid': Exhibit 1, page 63. S stayed in the shallow water. G helped S when the really big waves came. S says that C and G did not really play together in the water.
S recalls a time when she and C were at home when G arrived. She says S and C went into C's bedroom and 'her and I stated to roughhouse with [G]'. She says C jumped onto his ankle and S grabbed hold of the other ankle. G tried to walk with them hanging on and dragged them along the ground. S does not say which way the girls were facing when doing this. S does not say whether or not they left the bedroom and went into the passageway.
In an interview with an employee of the respondent, S said 'sometimes [G], [C] and I roughhouse when mum is at work. S denied G ever touching her in a bad way and said that she feels safe around G.

Other evidence

There is a statement from a person (I'll call her T) who was employed at the high school were C went after the family moved to Serpentine. That statement was made in November 2003. T says that in early June 2003 on a school day she noticed that C was distressed. It looked like the other children were teasing her. When T asked C what was wrong C became more distressed. C told T that her stepfather had been touching her and her sister and her mum do not believe her. C told T that her mum thinks C is lying. T told another teacher, who in turn told the school principal what had occurred.
A psychologist employed at the school (I will call her P) was told about C's disclosure on Thursday 5 June 2003. P saw C that same day. She also saw C on 6 June 2003. C told P that an incident had happened with her stepfather 'last October in the swimming pool and in the car when they moved house to Serpentine' (Exhibit 1, page 75).
A family meeting was held with M, G, F, M's father and mother and a number of staff from the then Department of Communities on 1 July 2003 (Exhibit 4, page 1).
M and M's mother described C as having problems from 8 years of age, which encompassed stealing from family members, shop lifting, problems at school such as bullying other children and difficulties making friends and in general not telling the truth when openly confronted.
G said that in the two years G had been involved with the family he had noted incidents where C had between confronted and failed to tell the truth or take ownership or accept responsibility for her actions. G said he felt the allegations against him are aimed at ending his marriage with M as C's greatest wish is for her parents to reunite. Apparently all family members agreed with this last point.
F advised that C had 'blossomed' in his care and that F and his wife would like C to reside with them if she is unable to return to her mother's care.
M's mother wrote a letter to an employee of the then Department of Communities, which is undated. She describes a number of incidents in which C was involved.
S2 provided a 'proof of evidence' in 2017 in which she says G never did anything inappropriate or offensive to her. She also says she never saw or heard him doing anything inappropriate or offensive. There is no reference to C's disclosure to S2 in the document. S2 was asked about C's disclosure during the previous Tribunal hearing: Exhibit 3, pages 655 - 656. S2 was in her bedroom and C came in to see her. S2 did not recall exactly what C told her but says if made her confused. She says 'I just remember feeling that it was something that wasn't in my hands, so I just told mum and asked her to sort of sort it out': Exhibit 3 at page 656. She does not remember when it was, but recalls it was quite sunny. Interestingly, she did not think she was upset, when asked if she was she says 'I would say confused, certainly'. Yet M and G report that she was visibly upset and still crying at dinner time.
F says C told him on 12 June 2003 about what G had done to her (Exhibit 4, pages 83 - 84):
C confirmed that there was an incident in the swimming pool in or about October 2002. She also then said that there had been further incidents: one when the family was moving down to Serpentine; and another shortly before she had been dropped at F's place on 12 June 2003. C alleged that another incident had occurred at the beach, which Chad told the Police was at 'Eagle Bay" but which she later identified to F as having been Golden Bay.
G's daughter D1 says there has never been any occasion where she saw or heard G do anything inappropriate or offensive. She did see G playing games and play fighting with C and S.
G's daughter D2 noticed that after the move to Serpentine, C became more 'moody, more selfish and generally became a brat': Exhibit 3, page 559. She never noticed any inappropriate language or conduct by G.
G's ex-wife, W never observed G behave in any offensive or inappropriate way with their children.

The inconsistencies

The applicant relies on a number of inconsistencies in C's evidence in support of his submission that the Tribunal should make a positive finding that the alleged incidents did not occur. Those inconsistencies are summarised in CEO and G at [67] - [164]. They include the timing of C's disclosure to S2, when the alleged incidents are said to have occurred and the reason why the family were going to the Serpentine house.

First disclosure

C told the respondent's employees on 16 June 2003 that the first disclosure to S2, was at the end of 2002 or the beginning of the 2003. In her witness statement to the police made on 26 June 2003, C says that the first disclosure occurred before G and M were married.
M says in her 2017 witness statement that the disclosure to S2 occurred in February 2003: Exhibit 3, page 548. In June 2003, M does not say when the disclosure to S2 occurred, but she says she told the Deputy Principal of C's school: Exhibit 4, page 80. The Deputy Principal of C's school says M came and saw her on 28 February 2003: Exhibit 4, page 81. In her statement, M says the incident in the park was a couple of weeks prior to C's disclosure to S2: Exhibit 3, page 551. M told Professor Lipton in January 2004 that C had told S2 that G had touched her 'about a year ago': Exhibit 4, page 74. The statement of an employee of the respondent made in January 2004 states that M said she was aware of concerns raised by C in or about November 2002: Exhibit 4, page 49.
According to M's mother, it was the week after C had claimed that a man in the park 'sexually assaulted' her that C told S2 that G had 'sexually assaulted' her while they were at the grandmother's house one afternoon that week: Exhibit 4, page 4.
Unfortunately, there is no indication as to when the incident in the park is alleged to have occurred.
G says he found out about C's allegation he had 'indecently dealt' with her at the swimming pool on 27 February 2003: Exhibit 4, page 579. However, he does not say how he knows this date with such precision. Earlier, in relation to the trip to Golden Bay, G says 'from perusing my diary and looking at my other commitments' he could say what date that occurred: Exhibit 3, page 577. Yet at the hearing in the Tribunal he seems to suggest that he didn't have the diary any longer when he made the statement but he may have relied upon his statement. Apparently, he made a statement to assist his defence council: Exhibit 3, page 642. No such statement has been produced to the Tribunal.
In a phone call from F to an employee of the respondent in June 2003, F says he is aware of an incident 'last year', which would be in 2002: Exhibit 4, page 80. In January 2004, F says he was told in January 2003 of an allegation made by C: Exhibit 4, page 82. In January 2004, F told Professor Linton that he was told about a problem 'about a year ago': Exhibit 4, page 66. In 2005, F says M told him about C's complaint in February 2003: Exhibit 1, page 159.
The only time S2 seems to have been asked when this occurred, in 2017, she could not remember anything other than that it was sunny.
The Tribunal is simply unable to form any reliable conclusion as to when C made allegations to S2. The evidence indicates it could have occurred anytime between October 2002 and late February 2003. No one disputes that C made this disclosure. C is no more inconsistent about when this occurred than the other witnesses.

When alleged incidents occurred

On 5 or 6 June 2003, C told P the first incident was in October. In her interview with employees of the respondent, on 16 June 2003, C identifies the first time G touched her as being at the very end of 2002 or the beginning of 2003. C also said it was before Christmas, she thinks during school time. She talks about going swimming at grandma's, then not going for a while and then going back.
The Tribunal notes that the only evidence about when the grandparents went away is what G said at the trial. The passports tendered into evidence seem to have confirmed only when they arrived back in Perth on 1 December 2002.
The invoice for repair of the pool indicate repair works were carried out in December 2002. The Tribunal does not have any evidence from the person who carried out the work as to what the work involved or what state the pool was in prior to the work being carried out.
In her police statement C identified the first incident as occurring near the end of the year, when it was hot. She also links it to being before the wedding.
C told Professor Lipton, during an interview in January 2004, that the first time 'it' happened was about a year ago': Exhibit 4, page 69.
By December 2004, at the pre-recording, C identified the alleged pool incidents as occurring in December or November. She thought it was that time based on the weather. At that time she identified the marriage as occurring in November.
In January 2004, F says that he was aware of an incident that occurred in or about October 2002: Exhibit 4, page 82.
In June 2003, M advised one of the respondent's employees that C had complained about being touched inappropriately by G in 'Oct/Nov 2002': Exhibit 4, page 80.
G says he took C and S to the beach on his own in January 2003. He says he knows this because he perused his diary but he did not produce any diary in these proceedings. He also identified the event as occurring in January 2003 during his trial.
In the first interview with the respondent's employees, C does not refer to the Beach Incident. In her police statement C identifies the Beach Incident as occurring before G and C got married. At the prerecording, she said it was in December or early January.

The reason for going to Serpentine

In the first interview C did not say why they were going to Serpentine. In the police statement C says they were moving some stuff down to Serpentine, books and toys. In the July interview C says they were moving stuff up or down. She told F something happened when they were moving down to Serpentine. At the pre-recording C said they were moving stuff down; books and toys. The Tribunal finds that C was quite consistent about why the family was going to Serpentine.
G said that they did not move to Serpentine until March 2003, and that prior to that the house was being renovated. At first G said that they did not commonly go to Serpentine, however in crossexamination he admitted that they had to feed horses kept there and that his office was still intact at the Serpentine house. In his witness statement G talks about going to Serpentine on the day they went to the beach in order to check the property and water the garden: Exhibit 3, page 578. He also says that although he has no specific recollection of it, they may have driven two cars down to Serpentine.

Other matters

C and G became aware of the first disclosure shortly after it occurred, sometime between October 2002 and February 2003. G says he was told in late February 2003 that an allegation had been made about a pool incident but he was not given any further details: Exhibit 3, page 621. In his witness statement, G says that after C made allegations about him in February 2003, he was very careful around C: Exhibit 3, page 582. Yet in June 2003 he still engages in 'rough housing' type behaviour.
G insists that he was never in the pool with C in the period May to December 2002. He does not say how he is so sure.
M's mother says C, S and G were in the pool while she and M were in the sunroom doing a jigsaw: Exhibit 4, page 4. The grandmother says '[t]here was lots of laughing, splashing and shrieking but we were not watching as [G] was there and they are both good swimmers' Exhibit 4, page 4. Depending on when the disclosure to S2 occurred, this could have been between October 2002 and February 2003. S also says she was in the pool but she does not say when.
In June 2003, C described originally thinking that G was accidentally touching her: Exhibit 4, page 56. At the trial she said (ts 49, 10 December 2004):
Well, you know, before the swimming pool one it didn't happen out of the blue. It happened in small things but I just thought they were accidents.
C was 'pretty sure' she watched the television show 'Angry Beavers' on the day of the alleged incidents in the pool. In one statement she said it was on channel two. Evidence was produced at the trial to establish that that show was not broadcast at the relevant time. However, no one was asked about whether or not M's parents had a video player at their house.
G denied using the term 'roughhousing', yet both C and S use that term in their statements. There is no evidence from anyone other than G as to whether or not G uses the term.
G points to the improbability of the alleged House Incident, because of the narrow passageway. He also says given the size of C compared to him what she claims is incredible. The Tribunal does not have measurements of the passageway or of the width of G, C or S. G says the passageway is about one metre in width. C describes the alleged House Incident as happening in her bedroom, although she does say that at the end they went into the passageway. S describes the incident as occurring in C's bedroom. It is only G who says the incident occurred entirely in the passageway.
G relies on the improbability of his being able to carry out the behaviour alleged by C when they were in the car because of the width of the car, the fact he was wearing a seatbelt, and the fact that he only has vision in one eye. The Tribunal has no evidence as to how far the distance between G and C was, or might have been, if they in the car together. G accepted that the seatbelt did not prevent his forward movement during the Tribunal hearing.
G also says the alleged Beach Incident is improbable given that he is said to be standing on one leg with C on his lap, yet C is, at that time, was almost the same size as G. C alleges that this occurred when they were quite deep in the water. The Tribunal cannot know what effect the buoyancy of water may or may not have had on the possibility for G to be behaving as alleged by C.

The history of lies

C told M one afternoon that she had been approached by a man when she was in the park near their house in Duncraig. C said the man had approached her and she got scared and ran away. When M questioned C about the incident, C said it could have been a year 6 boy from school. Later in the evening she said he was on a bike. M says the story kept changing. M' mother also considered this story to be a lie, based on C's behaviour at the relevant time.
C's grandmother relates the story of C being approached by a man in the park in the following way: C phoned a friend's mother and said she'd been sexually assaulted on the way home. Yet when the grandmother had left, C had not been upset, and had not said anything about the incident to her. The grandmother asked C about the incident the next day and C said a boy pushing a bike had sexually assaulted her. She became upset when the grandmother said she would come to school and sort it out.
At the pre-recording, C said that she did not make up a story; she said 'there was a guy that asked me for sex when I was walking home from [my friend's] house': Exhibit 1, page 116
M says that one year, C stole S1 and S2's Christmas presents and Easter eggs.
M also recalls C using make up to fake a bruise in order to get out of school.
M says that in 2002 she found pornographic material in C's school bag. Two black and white photocopies page, one showing an erect penis penetrating a vagina, the other showing an erect penis.
D1 says that there were many occasions when C told lies about things in her presence.
G found a diary where C had written of friends going to a river. M asked C about it and M says C gave several different explanations; all lies.
M's mother gave examples of C shoplifting, stealing money from F, stealing Easter eggs and presents in Christmas stockings. She says C once said she would tell M that her grandmother had been illtreating her.
F does not consider that C had a particular problem with lying.

As stated above, at the pre-recording, C accepted that she had told lies when she was little. However she maintained that she was not lying about the allegations. In addition, F says that he gave her many opportunities to retract the allegations before the prerecording occurred, yet C did not retract them.

The reason for making up allegations

M says, in her 2017 statement, that F told her that it would take something 'extremely serious or dramatic' before he would be prepared to have C or S come and live with him on an ongoing basis because his new partner did not want them to: Exhibit 3, page 547. M says he said this because C had asked if she could leave Serpentine and go and live with F. Yet apparently, M told Professor Lipton in January 2004 that the children had unfettered access to their father while residing with their mother: Exhibit 4 page 76.
F says he cannot think of any reason why C should make up the allegations: Exhibit 4, page 85. He says there would have been no reason for C to make up allegations if she wanted to live with F. He says the children living with him had never come up. He also says C would know that even if M would not let her live with F, she could run away to his house: Exhibit 4, page 86. By January 2004, F had given C many opportunities to retract the allegations against G. F made it clear to C that it would not affect his love for her or her being able to stay with him if she wanted to retract the allegations. F then said: 'it is difficult for me to understand why [C] would continue to expose herself to interrogation and assessment in relation to this matter if she was lying': Exhibit 4, page 87.
F's witness statement does not accord with M's evidence, rather it is to the contrary. His evidence indicates that C would have been able to come and live with him at any time and C knew that. In any event, well before the pre-recording took place, C was living happily with F. If she had been lying in order to be able to live with F, she had achieved this well before she gave evidence at the pre-recording. If that had been a reason to make up allegations, why did she need to give evidence on oath in criminal proceedings?
The reason proffered by G and M for C lying does not provide any reason for her to continue to lie, and to do so under oath in the context of a criminal trial. That C knew giving evidence at a criminal trial was an important matter is apparent from her answers in response to the suggestion that she was lying, as mentioned above. G says that when M took C to her father's house in June 2003 that C was unhappy and that she was begging her mother not to take her to her father's: Exhibit 3, page 588. This also does not support the theory that C was making up allegations in order to live with her father.
G, and the rest of the family members originally said that C was making up allegations in order to end G and M's relationship: Exhibit 4, page 1. Professor Lipton said C described G in a 'very neutral way' and that C said 'despite what he has done she does not really hate him nor does she like him': Exhibit 4 page 69.
When it was put to C that she had manipulated the situation, to try to get back to her own dad, C said: Exhibit 1, page 129:
I didn't spend that much time with my own mother and I wold never manipulate anybody. I put up with [G] for two years because that's the way everybody liked it.
It was put to C that: Exhibit 1, page 133
Nothing happened at all to you, [C]. I suggest to you you have made this story up to get back to your own dad because you love him and you want to be with him and you don't want to be with your mother. That's the truth isn't it? --- Absolutely not.
The Tribunal is not persuaded that it is in fact established that C had any reason to make up allegations against G.

Expert evidence

Professor Lipton interviewed C, S, M and F. He did not interview G or S2. Apparently S2 refused to be interviewed: Exhibit 4, page 75.
Professor Lipton found some of C's communications quite immature for a 13 year old but 'by and large she was age appropriate in her discussion and ideas': Exhibit 4, page 68. C told Professor Lipton that she had told a number of lies when she was younger and that she usually did this when she knew she would get in trouble and she tried to get out of trouble by denying she had done things: Exhibit 4, page 70. C told the Professor that if her lawyer wanted her to speak at court she would do so but she feels quite anxious about the possibility: Exhibit 4, page 71. Professor Lipton stated that when C discussed the allegations about G she said that she had been distressed, but Professor Lipton did not see any congruent affective changes when she was speaking about this: Exhibit 4, page 71.
In making his conclusions, Professor Lipton stated that 'the truth can be very difficult to determine when it is based on the testimony of a minor and there is no corroboration by another person': Exhibit 4, page 76. Professor Lipton notes that '[i]t is of interest that when [C] informed [S2] she burst into tears': Exhibit 4, page 76.
It seems Professor Lipton was influenced by the fact that C showed little to no feelings of anger or distress in discussing her relationship with G or the allegations. He notes that G has 'held fast' to her account of the alleged incidents and says 'it is possible that her account has become fixed and reproducible in her mind whether or not interference occurred': Exhibit 4, page 77. Professor Lipton outlines three possibilities and concludes that he cannot refute the possibility that the 'molestation' occurred. He says it is very difficult to take a clear view on the probability of whether the alleged incidents occurred or not. Ultimately, Professor Lipton concluded that C evinced positive feelings for G and gave no evidence of feeling unsafe with him or of being abused.
Ms Rosemary Lillian Cant provided an expert statement to the Tribunal. She had not had the benefit of interviewing C or anyone else in the family. She made a number of statements based on research she has reviewed.
Ms Cant said that there is no support in the literature from the proposition that delayed disclosure, unwillingness to repeat allegations to authorities, minimising or withholding details or failing to disclose full details at one sitting are unusual or indications that an account is fabricated or unlikely: Exhibit 3, page 499. She also says that the literature indicates that the theory that inconsistences in eyewitness accounts and in children's memories are indicative of inaccuracy and is not supported empirically. Minor inconsistencies about core actions and features of an event are not uncommon in reliable memory reports.
Ms Cant says the belief that a strong emotional reaction necessarily accompanies disclosure of sexual abuse is also not supported empirically. She says that the literature does not support the proposition that children commonly fabricate sexual allegations.
Ms Cant says that it is a misconception that children will take active steps to avoid a person who has abused them and that many children continue to like/love their abuser or are not afraid of him. She says that Professor Lipton's apparent reliance on C's lack of anger or distress in forming his conclusions is inconsistent with the literature.
Ms Cant says that alleged conduct occurring in a context where there is a high risk of being observed does not preclude the behaviour occurring, as a high proportion of offenders who reported molesting a child when another person is present is quite high. In addition, there being periods of time when no offending occurs is not unusual.
Ms Cant says that Professor Lipton's comment that 'men who undertake paedophilic behaviour are likely to have a history of that behaviour' is not supported by the evidence.
In evidence in the Tribunal hearing in 2017, Ms Cant said that it is normal for children to tell lies: Exhibit 3, page 658.
Ms Cant did not agree with the proposition that the opportunity for a psychologist to interview a complainant would assist the psychologist to make an assessment of the veracity of an account. She said, Exhibit 3, page 659:
Not necessarily. The evidence is really that people are not very good in in identifying whether or not somebody is telling the truth. So no, I wouldn't necessarily agree with that proposition.

Determination

The Tribunal is satisfied that C did tell a number of lies prior to making the allegations in relation to G. C accepted as much. The Tribunal is not persuaded that this necessarily means that C's allegations about G are lies.
C maintained her allegations, gave evidence at the pre-recording which described the alleged conduct in substantially the same terms as she had previously reported and could not be shaken in crossexamination.
There is some inconsistency about when the conduct is alleged to have happened. The Tribunal accepts Ms Cant's evidence that the literature does not support any conclusion that inconsistencies are indicative of inaccuracy. The example of the various inconsistencies in a number of witnesses as to when C first reported to S2 that G had touched her is just such an example of this occurring. The inconsistencies about when it happened do not in that case mean that it did not happen. All concerned agree that it did, that is, although there are inconsistencies about when it occurred, everyone concerned agrees that C did tell S2 that G had touched her.
F's evidence, and Professor Lipton's report as to what he was told by F and M, is not consistent with M's statement, made in 2017, about F not allowing C to come and live with him unless something extraordinary happened. G's evidence that C was unhappy to be taken to F's is also inconsistent with the theory as to why C was fabricating allegations. In any event, from June 2003 C was living with F. If that was her motive for fabricating allegations, why did she maintain them after that date?
The Tribunal accepts Ms Cant's evidence that Professor Lipton's reliance on C's lack of distress when talking about the allegations is inconsistent with the literature about how children may view people who abuse them and what emotions they may be likely to show when revealing abuse. The Tribunal otherwise accepts Professor Linton's conclusion that there are three possibilities open. Taking this, together with Ms Cant's evidence, the fact that C admitted she had lied in the past but maintained that her allegations were not fabricated, C described the behaviour she alleged occurred reasonably consistently, and she was not shaken in crossexamination, the Tribunal cannot be satisfied that the alleged conduct did not occur.
Both the applicant and the respondent submit that the Tribunal cannot be satisfied that the alleged conduct did occur, and the Tribunal agrees with that proposition.

Section 12(8) factors

As the applicant has nonconviction charges for Class 1 and Class 2 offences, pursuant to s 12(5) of the WWC Act, an assessment notice is to be issued unless the Tribunal is satisfied that, because of the particular circumstances of the case, a negative notice should be issued. In deciding whether the Tribunal is satisfied in relation to the particular circumstances of the case having regard to the matters specified in s 12(8)(a) to (g) of the WWC Act. The criterion in s 12(8)(a) of the WWC Act is paramount.
The question is whether, on all the information and other material properly before the Tribunal, 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 employment: Chief Executive Officer, Department for Child Protection v Grinrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39, at [75]
I will deal with each of the factors in turn, but will deal with s 12(8)(a) of the WWC Act last.

When the offence was alleged to have been committed

The applicant submits that this factor is of particular significance in this matter. The offences were alleged to have been committed 16 or more years ago. There are no further allegations or any suggestion of inappropriate behaviour towards children. There is evidence before the Tribunal from others who were raised by the applicant as children stating that they saw no inappropriate behaviour towards them or any child then or in the intervening years.
The respondent submits that the lack of further allegation, charge or conviction must be considered in the appropriate context and tempered by it. The research indicates that only a small proportion of child sexual abuse will come to the attention of authorities or the criminal justice system.
The offences are alleged to have been committed in 2002 and/or 2003. There have been no allegations, charges or convictions against the applicant since that time.
The Tribunal accepts that M, S2 and G's two daughters and exwife all say that they never saw or heard G behave inappropriately or offensively towards any child.
The Tribunal also accepts Ms Cant's evidence that underdetection, underreporting, delayed reporting and nondisclosure of child sexual abuse is widely acknowledged in the literature.
The Tribunal repeats what the Tribunal said in M and Department for Child Protection and Family Support [2013] WASAT 122, at [47]:
However, the second reading speech in relation to the Working with Children (Criminal Record Checking) Amendment Bill 2009 (WA) states, relevantly, as follows:
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 the type of behaviour would result in significant harm to a child[.]
(Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary) at page 2475).
Having regard to all of these things, the Tribunal considers that some weight should be given to the length of time since the alleged conduct is said to have occurred, but it is not as significant as submitted by the applicant.

The age of the applicant when the alleged offences is said to have been committed

The applicant submits that this would have been a relevant factor if the applicant had been very young at the time of the alleged offending. However, he was approximately 50 years of age, which makes the factor not particularly relevant.
The respondent says the age of the applicant when the offences were alleged to have been committed is not a factor that would reduce risk of sexual harm. The respondent submits the age difference between the applicant and C at the time of the alleged offending is the critical issue and is of significant concern.
The Tribunal does not consider the applicant's age at the time the offences are alleged to have been committed to be of any particular significance in this case.

The nature of the offence and relevance to child related work

The applicant submits that this factor is irrelevant as it refers only to the offence and not to any alleged offence. However, he says that if the subsection applies, he concedes that the alleged offences are very relevant to childrelated work.
The Tribunal is not persuaded by the submission that s 12(8)(d) of the WWC Act does not relate to alleged offences. In context, s 12 uses the word 'offences' consistently; it does not use the term 'alleged offences'. Rather if a person has a nonconviction charge for a Class 1 offence or Class 2 offence, s12(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 nonconviction 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.
The reference to both 'offence' and 'charge' in paragraph (e), or the reference to 'alleged' in paragraphs (b) and (c) do not lead to any different conclusion. The changed language is necessary in these paragraphs because there is reference to when the offence was committed. In the case of the non-conviction charge for an offence, this must also include when the offence was alleged to have been committed.
The Tribunal is satisfied that to read s 12(8)(d) of the WWC Act as not applying in circumstances where a person has a nonconviction charge for a Class 1 or Class 2 offence would be inconsistent with the purpose of the legislation. The Tribunal is satisfied that s 12(8)(d) of the WWC Act applies to alleged offences.
The Tribunal finds that the nature of the offences for which the applicant has non-conviction charges involves alleged indecent dealing and sexual penetration in relation to a child of 12 and/or 13 years of age, by a person in a positon of trust, which is highly relevant to childrelated work.

The effect of same or similar future conduct

The alleged conduct the subject of the nonconviction charges involves indecent dealing and sexual penetration of a child who is 12 and/or 13 years of age at the time of the conduct by a person who is her stepfather.
The applicant concedes that 'as with any class 1 or class 2 offence under the Act involving a child, the effect of a similar or same conduct as alleged if it was to occur in the future upon a child, it would be significant'.
The respondent submits that '[i]t is not controversial that harm imposed on a child by sexual penetration and indecent dealing of itself is serious and the offences are scheduled as Class 1 and Class 2 under the Act for that reason'.
The Tribunal agrees with the parties.

Any information given by the applicant

The applicant submits that he has provided motive by the complainant to fabricate the allegations. As indicated above, the Tribunal is not persuaded that this is necessarily the case.
The applicant also submits that C had a long history of disobedience and dishonesty. The Tribunal accepts that C told some lies and that she admitted to telling those lies. However, C denied that one of the matters pointed to, the approach by the man in the park, was fabricated. The Tribunal is unable to determine whether or not it was fabricated. The Tribunal is not persuaded that the matters pointed to be G, M and M's mother amount to a 'long history of disobedience and dishonesty' or is not normal behaviour for a child (based on Ms Cant's evidence). The Tribunal is not satisfied that the fact that C had a history of telling some lies necessarily means that she lied about the alleged conduct of G.
The applicant submits there is objective information casting doubt in relation to the allegations in the first six charges on the indictment.
He points to the fact that the grandparents were overseas from midOctober to 1 December 2002 and the fact that the pool was unfit for use until 9 December 2002. The Tribunal is satisfied that it is possible that the alleged incidents in the pool occurred prior to midOctober 2002, and therefore these facts, if correct, do not necessarily mean that the alleged conduct could not have occurred.
In addition, as stated above, the only evidence as to when the grandparents left comes from the evidence of G. The only evidence as to what was wrong with the pool and how long, if at all, it was out of action comes from an invoice, to which no person was called to speak to, and from the evidence of G. The Tribunal cannot know whether or not G is telling the truth about these things.
The evidence in relation to the Angry Beavers broadcast establishes only that C and S could not have been watching that show as a live broadcast. It is possible that they may have been watching a recorded version of it, or C may have been mistaken about what they were watching. The Tribunal is not persuaded that this is objective evidence that establishes that the alleged pool incidents could not have occurred.

The applicant submits that the taking of belongings to the Serpentine house could not have occurred when C says. Despite this submission, G later accepted that it could have been possible.
The evidence established that, despite G's initial claims, there were a number of reasons for travelling to the Serpentine house during the relevant period, and G, and the rest of the family was in fact doing so on a reasonably frequent basis.
G says that they would not have been taking things to the Serpentine house because it was being renovated and was not ready to be moved into. This does not objectively establish that the family would not have been taking things to the house prior to when it was finished. The office remained 'intact' apparently. The Tribunal does not know if there were any outbuildings or other places where things could be kept while the renovations were occurring. In addition, the only evidence as to when the renovation work commenced comes from G and some photographs that he identified as to the date taken and what is depicted. There is no objective evidence about the timing of the work.
The Tribunal does have evidence from M, G's ex-wife, S2, and G's two daughters D1 and D2 to the effect that they have never observed him behaving inappropriately or offensively.
The Tribunal also has before it character references in support of G. Two of those references do not say that the writer is aware of the nonconviction charges. The third reference says the writer is aware of the charges and the acquittal but does not specify what he knows, so the Tribunal cannot be certain that he knows the detail of the nonconviction charges.
Ms Cant's evidence is that a person's perceived good character does not preclude or limit the potential for a person to expose a child to harm. She says that: Exhibit 3, pages 505-506:
Grooming the environment and the potential victims' significant others may mean the abusers ingratiating themselves with their community to enable them to get closer to children and to project an image of a 'good person' who would not harm a child and thus deflect any possible allegations of misconduct.
S and C describe 'rough housing' and G admits to play fighting, at least on one occasion. D1 observed play fighting between G and S and C.

Anything else the decisionmaker considers relevant

C says that the alleged Pool Incident 1 was not the first time that G had touched her during 'rough housing'. Initially she thought he was accidentally touching, or tickling her in inappropriate places but during the alleged pool incidents she realised the touching was deliberate. If this is true, Ms Cant's evidence is that such behaviour is 'inappropriate behaviour by an adult male towards his partner's 12 year old daughter': Exhibit 3 page 507.
In her evidence before the Tribunal in 2017, Ms Cant suggests C's comments about the earlier apparently accidental touching is consistent with grooming, as is the alleged request by G not to tell M after the alleged incidents in the car: Exhibit 3 page 667. However, she says she would be a little cautious because of the limited information. Ms Cant accepts that play fighting in a pool is not necessarily conclusive evidence of grooming. However, she goes on to say: Exhibit 3, at page 668:
And that's one of the issues with grooming, that much grooming behaviour can also be dismissed as being quite innocent. So it is really, I guess, a matter of appropriateness of the behaviour in the particular context, and also the sequelae of the behaviour. So given that the allegations, in this case, the roughhousing, is associated with touching, then I think if the allegations are true, then then I think it is reasonable that one would consider the behaviour related to grooming.
In this case, the Tribunal is not positively persuaded that the alleged conduct did not occur. Neither is it positively persuaded that the alleged conduct did occur.

The best interests of children

The applicant submits that this is the paramount consideration, but nonetheless the remaining criteria must always be taken into account and the weight accorded to them will vary, depending on the facts and circumstances of the particular case.
The Tribunal understands that this is the paramount consideration and also accepts that the remaining criteria must also be taken into account to the extent they are relevant.
In this case, the Tribunal is not satisfied that it can make a positive finding that the conduct the subject of the non-conviction charges did not occur.
If there is an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out childrelated work, the best interests of children weights significantly towards the issue of a negative notice.

Conclusion

Weighing all of the factors, and taking into account all of the information before the Tribunal, the Tribunal finds that there is an unacceptable risk in the particular circumstances that the applicant may, in the future, cause sexual harm to children in the course of carrying out child-related work. Those circumstances include all of the evidence and findings summarised in the reasons above. In particular, the Tribunal is not persuaded that C was necessarily lying about G's alleged conduct. The Tribunal accepts that there are inconsistencies in C's evidence, however the central parts of her allegations remained reasonably consistent with each telling. The Tribunal is not persuaded that there is an established reason why C would make up allegations about G. The Tribunal is satisfied that C might have been telling the truth. The Tribunal is not persuaded that the so-called objective evidence that proves the alleged conduct could not have happened in fact establishes anything. Much of that 'objective' evidence relies on G's uncorroborated testimony. The Tribunal finds that G did 'rough house' or play-fight with C and S in 2002 and 2003. Given C's age at this time, G's age and the fact that he is unrelated to C, that behaviour could potentially be consistent with grooming behaviour, although it also may not have been. D1 describes G's relationship with C and S as being different to his relationship with his daughters. S2's reaction to C's disclosures was never explained, and based on M's and G's descriptions, it was quite a strong reaction. Professor Lipton thought that worth mentioning, however he was not able to interview S2, so was not able to be satisfied as to why she had that reaction. Professor Lipton could not exclude the possibility that C was telling the truth. Ms Cant's evidence was to the effect that there is nothing about C's evidence or behaviour that is inconsistent with her being truthful about the allegations. When considering all these things, while the Tribunal does have evidence that none of M, S2, D1 and D2 ever saw G behave inappropriately towards anyone, the Tribunal is nonetheless persuaded that C's allegations might be true. On this basis, there is an unacceptable risk that G may cause sexual harm to children in the course of carrying out child related work.
The Tribunal is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.

Orders

The Tribunal orders:
1.The decision of the respondent, communicated by way of letter dated 15 September 2016, to issue G with a negative notice, is affirmed.
2.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
21 OCTOBER 2019