Grindrod v Chief Executive Officer, Department for Community Development
[2008] WASAT 289
•9 DECEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: GRINDROD and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2008] WASAT 289
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 20 AUGUST 2008
DELIVERED : 9 DECEMBER 2008
FILE NO/S: VR 195 of 2006
BETWEEN: NIGEL WAYNE GRINDROD
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent
Catchwords:
Working With Children (Criminal Record Checking) Act 2004 (WA) - Issue of negative notice Non-conviction charge Whether unacceptable risk to children
Legislation:
State Administrative Tribunal Act 2004 (WA), s 29, s 62(1)(c)
Working With Children (Criminal Record Checking) Act 2004 (WA), s 4, s 12(4), s 12(5), s 12(8), s 24, s 39
Result:
Application dismissed
Decision to issue a negative notice confirmed
Category: B
Representation:
Counsel:
Applicant: Mr G Yin
Respondent: Mr P Dixon
Solicitors:
Applicant: DG Price & Co
Respondent: Department for Community Development
Case(s) referred to in decision(s):
C and Chief Executive Officer, Department of Community Development [2007] WASAT 116
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mr Nigel Grindrod applied for a review of a decision to issue him with a negative notice under the Working With Children (Criminal Record Checking) Act 2004 (WA). The notice had been issued as a result of two 'non-conviction charges' against Mr Grindrod.
Mr Grindrod had initially been convicted of two offences of indecent dealing with a six-year-old girl. The convictions were overturned on appeal on technical legal grounds. A retrial did not occur in order to protect the complainant from having to give evidence a second time.
The Tribunal examined the circumstances surrounding the offences and the information and character references submitted by Mr Grindrod. It concluded that there was a basis for a reasonable suspicion that the offences may have been committed. It concluded that, notwithstanding character evidence in his favour, the issue of a notice permitting Mr Grindrod to work with children would give rise to an unacceptable risk of harm to children, and the decision to issue the negative notice should be affirmed.
The proceedings
On 17 October 2006, Mr Nigel Wayne Grindrod applied to the Tribunal for a review of a decision by the Chief Executive Officer, Department for Child Protection (CEO) to issue a negative notice to Mr Grindrod under the Working With Children (Criminal Record Checking) Act 2004 (WA). It is that application for review which now falls for determination.
Mr Grindrod's application was heard before the President of the Tribunal in March 2007. In May 2007, the President delivered reasons for decision and made orders allowing the application, setting aside the decision of the CEO and directing that an assessment notice be issued under s 12(4) of the WWC Act - see C and Chief Executive Officer, Department of Community Development [2007] WASAT 116 (the original decision). An order was also made at that time that the applicant's name not be published.
The CEO then brought an appeal to the Court of Appeal. That appeal was heard in September 2007, and a decision delivered on 15 February 2008 - see Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 (the Court of Appeal decision) . By a majority, the appeal was allowed, and the matter was remitted to the Tribunal, differently constituted, to be determined in accordance with the reasons of the Court of Appeal. The Court of Appeal, also by a majority, declined to suppress publication of Mr Grindrod's name. It did not, however, set aside the non‑publication orders made by the President. The fact of Mr Grindrod's name having been published in the appeal proceedings makes it unnecessary to continue the non-publication orders. That is a matter which we will deal with later in these reasons.
In accordance with the orders of the Court of Appeal, the Tribunal was reconstituted to consider the application in the light of the Court of Appeal's reasons. At the hearing before the President, the parties had relied upon the written materials filed by them, supplemented by oral submissions. At the hearing before the newly constituted Tribunal, the parties relied on those materials. In addition, at the CEO's request, the authors of a number of character references which had been provided in the documents filed by Mr Grindrod were made available for cross-examination. Each party also filed additional written submissions.
The relevant provisions of the WWC Act
In the Court of Appeal decision, Buss JA, with whom Wheeler JA agreed, set out fully the relevant provisions of the WWC Act (at [5]-[16]). Given that that analysis identified and discussed the provisions relevant to this particular matter, it is convenient for us to adopt that analysis which is set out as follows.
According to the long title, the WWC Act, relevantly:
(a)provides for procedures for checking the criminal record of people who carry out, or propose to carry out, 'child‑related work'; and
(b)prohibits people who have been charged with or convicted of certain offences from carrying out that work.
Section 4 defines various terms and expressions used in the Act. Relevantly, for present purposes, s 4 provides that in the Act, unless the contrary intention appears:
'approved' means approved by the CEO;
'assessment notice' means a written notice issued by the CEO under section 12(1)(a);
'CEO' means the chief executive officer of the Department;
'charge' means a non-conviction charge or a pending charge;
'child' means a person who is under 18 years of age;
'child care service' has the meaning given in the Child Care Services Act 2007 section 3;
'child-related business' means child-related work carried out by an individual for gain or reward otherwise than in the course of child-related employment;
'child-related employment' means -
(a)child-related work carried out by an individual under a contract of employment or apprenticeship (whether written or unwritten);
(b)child-related work carried out on a voluntary basis by an individual under an agreement (whether written or unwritten) with another person; or
(c)child-related work carried out by an individual as a minister of religion or in any other capacity for the purposes of a religious organisation;
'child-related work' has the meaning given to that term in section 6;
'Class 1 offence' has the meaning given to that term in section 7(1);
'Class 2 offence' has the meaning given to that term in section 7(2);
…
'contact' includes -
(a)any form of physical contact;
(b)any form of oral communication, whether face to face, by telephone or otherwise; and
(c)any form of electronic communication,
but does not include contact in the normal course of duties between an employer and an employee or between employees of the same employer;
'conviction' has the meaning given to that term in section 8;
'criminal record', in relation to a person, means -
(a)every conviction of the person of an offence, in Western Australia or another jurisdiction; and
(b)every charge made against the person for an offence, in Western Australia or another jurisdiction;
'criminal record check' means the procedures set out in section 34 to enable the CEO to determine whether a person has a criminal record and, if so, to obtain details of that criminal record;
'Department' means the department of the Public Service principally assisting the Minister in the administration of this Act;
…
'interim negative notice' means a written notice issued by the CEO under section 13;
'negative notice' means a written notice issued by the CEO under section 12(1)(b);
'non-conviction charge' means a charge of an offence that has been disposed of by a court otherwise than by way of a conviction;
…
'pending charge' means a charge of an offence that has not yet been disposed of by a court;
'specified', in relation to a notice, means specified in the notice;
Section 3 states that, in performing a function under the Act, the CEO or the Tribunal is to regard the best interests of children as the paramount consideration.
Section 6 defines the term 'child-related work'. The term includes, relevantly for present purposes, work if the usual duties of the work involve, or are likely to involve, contact with a child in connection with a coaching or private tuition service of any kind (but not including an informal arrangement entered into for private or domestic purposes) and a club, association or movement (including of a cultural, recreational or sporting nature and whether incorporated or not) with a significant membership or involvement of children (but not including an informal arrangement entered into for private or domestic purposes).
Section 7 defines the meaning of 'Class 1 offence' and 'Class 2 offence'. It provides:
(1)A 'Class 1 offence' is -
(a)an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 1 offence;
(d) an offence that, at the time it was committed -
(i)was a Class 1 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
(2)A 'Class 2 offence' is -
(a)an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 2 offence;
(d)an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this subsection or subsection (1);
(e) an offence that, at the time it was committed -
(i)was a Class 2 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
It is unnecessary to reproduce the offences described in each of Sch 1 and Sch 2. The offences in Sch 1 relate, in general, to sex offences against children under the age of 13 years. The offences in Sch 2 include various sex offences against children and also offences which do not necessarily involve children but would ordinarily be regarded as rendering a person who has committed them (or, probably, has been charged with them) unsuitable to carry out work involving, or likely to involve, contact with children. I note, for present purposes, that the 'Class 2 offences' include the offence of indecently dealing with a child under the age of 13, contrary to s 320(4) of the Criminal Code 1913 (WA).
By s 9(1), a person who is, or is proposed to be, employed in child-related employment by another person (the employer) may apply to the CEO for an assessment notice. On receiving the application, the CEO is empowered, by s 9(4), to ask the applicant to provide any further information or documents that the CEO reasonably needs to establish the applicant's identity or for a proper consideration of the application.
Section 12, which is concerned with the CEO's decision on an application for an assessment notice, is of central importance in the present case. It provides, relevantly:
(1)The CEO is to decide an application under section 9 … in accordance with this section -
(a) by issuing an assessment notice to the applicant; or
(b) by issuing a negative notice to the applicant.
(2)The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3)If the CEO is not aware of -
(a) any offence of which the applicant has been convicted; or
(b)any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged,
the CEO is to issue an assessment notice to the applicant.
(4)If the CEO -
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(5)If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6)If the CEO -
(a)is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;
(b)is aware of a Class 2 offence of which the applicant has been convicted; or
(c)is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7)If the CEO is aware of a Class 1 offence (other than a Class 1 offence committed by the applicant when a child) of which the applicant has been convicted, the CEO is to issue a negative notice to the applicant.
(8)If subsection (4), (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to -
(a) the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
(9)On deciding the application -
(a)the CEO is to issue the assessment notice or the negative notice, as the case requires, to the applicant; and
(b)if the CEO is aware that that applicant is, or is proposed to be, employed in child-related employment by another person - the CEO is to give a copy of the notice to the other person.
(10)When a negative notice is issued to an applicant, the CEO is to provide with it a written notice that -
(a)states the reasons for the CEO's decision on the application;
(b)states that the applicant may apply to the State Administrative Tribunal, within 28 days after the date of the negative notice, to have the decision reviewed; and
(c) explains how the application for the review is made.
By s 13(1)(a), if the CEO proposes or is required to decide an application under s 12 by issuing a negative notice to the applicant, the CEO is to give the applicant a written notice that informs the applicant of the proposal or requirement, states the information about the applicant's criminal record of which the CEO is aware, and invites the applicant to make a submission to the CEO, in writing or in another form approved by the CEO, within a specified time about the information and about the applicant's suitability to be issued with an assessment notice. Section 13(7) provides that, before deciding the application, the CEO is to consider any submission made by the applicant within the specified time.
By s 14(1), an assessment notice has effect for 3 years unless sooner cancelled under the Act. Section 14(2) provides that a negative notice continues to have effect unless it is cancelled under the Act.
Section 19 is concerned with applications for cancellation of negative notices.
By s 24, a person who does not have a current assessment notice must not be employed in child-related employment or carry on a child-related business. The penalty for a breach of s 24 is a fine of $60,000 and imprisonment for 5 years.
Section 26(2) provides, relevantly, that within 28 days after the date of a negative notice issued by the CEO to a person, the person may apply to the Tribunal for a review of the decision to issue the negative notice.
Reason for seeking an assessment notice
Mr Grindrod has had a long history of involvement with children. He has worked from time to time in a community child care centre, as a nanny through a commercial nanny service and in various private child care capacities. He has had a long association with the Scout Association as a Cub Scout leader, a long association with the Western Australian Tee-Ball Association as a coach, and has provided voluntary assistance over a long period to graduations and fashion parades run by Dene Selby Finishing Productions. When he made his application for an assessment notice, Mr Grindrod had been employed for approximately three months as a coach driver. His duties included driving international students, most of whom are 18 years or older, but are occasionally as young as 12 years of age, between the airport and their homes or occasionally between their homes and universities.
All of the activities mentioned above come within the definition of child‑related business, or child‑related employment, and accordingly require the issue of an assessment notice in order to avoid the penalty prescribed by s 24 of the WWC Act.
Mr Grindrod's non‑conviction charges
As set out above, s 4 of the WWC Act defines a non‑conviction charge as meaning 'a charge of an offence that has been disposed of by a court otherwise than by way of conviction'.
Section 12(4) specifies that where the CEO is aware of a non‑conviction charge in respect of a class 1 offence or a class 2 offence, the CEO is to issue an assessment notice to the applicant unless he is satisfied that, because of the particular circumstances of the case, a negative notice should be issued.
Mr Grindrod has two non‑conviction charges. The non‑conviction charges were that on two occasions between 21 February 1997 and 23 February 1997, at Mr Grindrod's home, he indecently dealt with a child under the age of thirteen by kissing her. The alleged element of indecency was putting his tongue into the complainant's mouth as he kissed her. Buss JA described the circumstances surrounding those charges. Those circumstances were not in issue in these proceedings, and it is convenient to reproduce and adopt Buss JA's account of those circumstances, which is as follows:
On 1 April 1997, the respondent was charged, on indictment, with four counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. Three of the counts concerned complainant A, who was a girl then aged 6 years. The other count concerned complainant B, who was complainant A's twin sister.
When the complainants' evidence was pre-recorded, complainant A gave evidence about only two incidents of indecent dealing, and complainant B did not give any evidence about the count in the indictment concerning her. A new indictment was then presented which alleged only two counts of indecent dealing in relation to complainant A. The second indictment alleged that the indecent dealing was constituted, in each case, by the respondent having kissed complainant A. It was accepted, however, at the trial that the indecency in question comprised the respondent having allegedly kissed complainant A on the mouth and, in the course of doing so, putting his tongue in her mouth.
The negative notice issued in respect of the respondent under the WWC Act related to the two counts in the second indictment.
The respondent was tried in the District Court before a judge and jury on the two counts in the second indictment. The jury, by a majority verdict, found him guilty on both counts. The trial judge sentenced the respondent to a community based order for a term of 18 months and required him to perform 100 hours of community work.
The respondent appealed against his convictions and, on 8 June 1999, the Court of Criminal Appeal allowed his appeal, and ordered a retrial. The appeal was allowed on the ground that the trial judge had made an inadequate inquiry under s 106B of the Evidence Act 1906 (WA) as to whether complainant A understood that the giving of evidence was a serious matter and that she had an obligation to tell the truth over and above the ordinary duty to be truthful.
On 15 September 1999, the Crown entered a certificate of nolle prosequi, declining to proceed further on the two counts in question. The reasons for entering the nolle prosequi were that it was not in the public interest to proceed with the retrial in that it was necessary to call complainant A to give evidence, she was then aged only 9 years and a significant period had elapsed since the commission of the alleged offences.
Complainant A was born on 31 May 1990. The alleged offences occurred on 22 February 1997. Complainant A made a complaint to her mother on 25 February 1997. The respondent was interviewed by police on 28 March 1997 at his home, and later that day in a video-recorded interview.
When the respondent was interviewed by police at his home, he told them, relevantly:
(a)He had kissed complainant A and her twin sister, complainant B, on the mouth, but he did not put his tongue in their mouths.
(b)Each complainant had slept with him in his bed.
(c)Each complainant wore a T-shirt to bed.
(d)He wore boxer shorts and nothing else to bed.
(e)He kissed each complainant in his bed, while she was lying next to him.
(f)He also kissed complainant A on her mouth while she sat on his knee watching football.
A caution was not administered to the respondent before he made those statements. They were, in consequence, not led in evidence at his trial.
When the respondent was interviewed by police in the video-recorded interview, he was cautioned. He then told the police that he did not wish to answer any questions.
The complainants' mother gave evidence at the trial, relevantly, as follows:
(a)In 1994, she and her family were living in Newman. Her children comprised complainant A, complainant B and a son, Matthew. She hired the respondent as a nanny on two occasions to care for her children. On both occasions, the respondent cared for the children at their home.
(b)In 1996, she separated from her husband, and moved to Perth with the children. She hired the respondent to care for her children on the weekend of 22 - 23 February 1997. The respondent suggested to her that he care for the children at his house in Beckenham. On Friday, 21 February 1997, the respondent collected the children and took them to his house.
(c)The respondent returned the children to their mother on Sunday afternoon, 23 February 1997.
(d)The following night, her son, Matthew, told her that it was not fair that the respondent had permitted his sisters to stay up later than him, and that the children who were permitted to sleep in the respondent's bed were permitted to stay up late. Matthew said that complainant A had slept in the respondent's bed on one night of the weekend, and complainant B had slept in his bed on the other night.
(e)The next night, Tuesday, 25 February 1997, she spoke to complainant A, who told her that she had slept in the respondent's bed on the weekend and he had kissed her, put his tongue in her mouth, and tickled and rubbed her. When this conduct occurred she was wearing a nightie without underpants.
Complainant A gave evidence at the trial (which, as I have mentioned, was pre-recorded), relevantly, that:
(a)On the first night in question, she slept in a room with the other children.
(b)On the second night, the respondent permitted her to stay up after the other children went to bed. She wore one of the respondent's T-shirts and nothing else. The respondent wore boxer shorts.
(c)She sat on the respondent's lap, he kissed her on the lips and he put his tongue in her mouth.
(d)After this conduct, she went with the respondent to his bed. The respondent tickled her under the arms and on the stomach. He again kissed her on the lips and put his tongue in her mouth.
The respondent gave evidence at the trial, relevantly, that:
(a)He looked after the children at his house on the weekend in question.
(b)At night, each of the complainants did not 'settle'. They repeatedly got out of bed and hid from him.
(c)On the first night, he separated the complainants by placing complainant B in his bed.
(d)On the second night, complainant A repeatedly got out of bed. She watched football with him. He placed her in his bed and spoke with her for a while. He must have fallen asleep. When he awoke, a few hours later, he placed her in another room. He then returned to his bed.
(e)He kissed the children goodnight, but did not kiss complainant A with an open mouth, and he did not put his tongue in her mouth.
(f)At the material time, he usually wore boxer shorts to bed with a matching shirt or singlet. On the weekend in question he definitely wore boxer shorts, but he could not recall what top he was wearing.
(g)He usually kisses children on the cheek, but sometimes they move their heads and, as a result, kisses could connect with their mouths.
(h)Complainant A could have worn a T-shirt on the relevant night. Her underpants were being laundered.
(i)When he placed complainant A in his bed, he did not intentionally kiss her on the mouth, but his kiss may have inadvertently connected with her mouth.
The Tribunal's task
Section 12(4) of the WWC Act requires that, in light of the non‑conviction charges for two class 2 offences, an assessment notice be issued to Mr Grindrod unless the Tribunal is satisfied that, because of the particular circumstances of the case, a negative notice should be issued.
In the Court of Appeal decision, Buss JA (with whom Wheeler JA agreed) said (at [81]):
In my opinion, it is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.
The 'unacceptable risk' test was repeated by Buss JA in Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171 (Scott). In that case, Newnes AJA agreed at [158] that, for the purposes of s 12(5) (and therefore s 12(4) in which the relevant words are identical), the question is whether there is an 'unacceptable risk' that the applicant might cause harm to children.
In relation to non‑conviction charges, Buss JA observed that it is not the Tribunal's function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non‑conviction charge in question. Rather, the relevant function involves an analysis and evaluation of risk, and the prevention of potential future harm (at [84]). The risk in question has to be unacceptable, not likely (at [85]). Buss JA also observed that it will be necessary for the Tribunal, in deciding whether there is an unacceptable risk, to rely partly on facts and partly on reasonable suspicions.
At [86] of the Court of Appeal decision, Buss JA said:
The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non-conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and
(d)the likelihood of any such future risk materialising.
Bearing in mind that the best interests of children is the paramount consideration, it is necessary to consider the factors set out in par (b) - (f) of s 12(8) of the WWC Act, having regard to the factors identified in [86] of the Court of Appeal decision.
Section 12(8)(b) – when the offences alleged to have been committed
The alleged conduct giving rise to the charges is said to have occurred on the weekend of 21 February 1997 in excess of 11 years ago. In the original decision, Barker J concluded that the ten years which had elapsed when he considered the matter was not a consideration that on its own determines the application (at [98]). We agree with that conclusion, but consider that the passage of over 11 years since the allegations were made without complaint, is relevant to the consideration of the likelihood of any future risk materialising, although not determinative of that consideration.
Section 12(8)(c) – age of the applicant when the offence is alleged to have been committed
At [100] – [103] of the original decision, Barker J said:
The applicant was born on 19 February 1963. Thus, at the time of the conduct alleged against him, he had just turned 34 years of age - indeed just two or three days earlier. He is now 44 years of age.
The age of a person at the time an offence was committed or was alleged to have been committed may reasonably be considered relevant on the basis that, amongst other things, if the applicant were relatively young at the time, he or she may have outgrown a certain immaturity they then had and may possibly be considered, taking into account other factors, unlikely to engage in such conduct again.
In this case, at the time, the applicant was a person who was no longer "young" - he was 34 years of age. However, maturity does not always sit comfortably on the shoulders of 34-year-olds. The applicant has produced a number of references to support his personal and professional character, which suggest that, at least in recent years, a range of people appear to consider him to be mature enough to work with children.
What perhaps can be said is that there is some difference between a 44‑year-old man - who is properly to be referred to as approaching "middle age" - and a 34-year-old man, who is still gaining experience in life, even if no longer "young and immature". This is a factor, but not one that on its own determines the application.
While those observations were not challenged on appeal, and no criticism was made of them by the Court of Appeal, we do not entirely accept those conclusions.
Barker J's observations were, in part, based upon written character references submitted by the applicant. Four of those referees appeared and were cross‑examined at the re‑hearing before us but had not given oral evidence before Barker J. Their evidence will be dealt with later in these reasons. Because all four referees have known or worked with Mr Grindrod since before 1997 and because none made any distinction as to the way Mr Grindrod has related to children before or since the alleged incident, we are unable to find from those referees any basis for a conclusion that he now takes a more mature approach to working with children than he formerly did. We are not inclined to place weight on the proposition that there is some difference between a man approaching middle age and a 34‑year‑old man still gaining experience in life.
Mr Grindrod did not give evidence before the Tribunal. We have no basis to assess his maturity now relative to his maturity at age 34. We are concerned that at no stage has there been any clear acknowledgement by Mr Grindrod of the extent to which he crossed acceptable boundaries in his conduct with complainant A even if he did not commit the offences with which he was charged.
Section 12(8)(d) – the nature of the alleged offence and its relevance to child‑related work
It is not in issue that the nature of the alleged offences are highly relevant to child‑related work. As Barker J observed (at [50]) in the original decision, the charges against the respondent were highly relevant to child‑related work in that they:
•occurred in the course of child-related work (babysitting or child minding service referred to in s 6(1)(a)(xiv));
•involved allegations of indecently dealing with a six-year-old girl;
•involved a substantial age difference between the applicant and complainant (34 years and six years respectively, at the time);
•involved an alleged breach of trust by the applicant by, at the very least, acting in an overly familiar way with the child; and
•occurred in a situation where no other adults were present [105].
We agree with those observations, and with Barker J's conclusion that Mr Grindrod's admitted conduct of letting a young girl (dressed only with a t‑shirt) accompany him to his bed, and kissing her on the mouth (even if unintentionally) is completely inappropriate and unacceptable conduct on the part of a male babysitter, albeit conduct not attracting a criminal sanction. We agree with Barker J's observations at [112] of the original decision when he said:
In these circumstances, the explanations given by the applicant in his initial interview with the police and also at his trial, if one takes them at face value, suggest he acted without any intended breach of trust, immaturely perhaps, but not criminally. He was responsible for caring for complainant A and three of her siblings on the weekend in question, as well as another young, unrelated child. Complainants A and B obviously did not settle after being put to bed. According to the applicant, his way of dealing with their behaviour ultimately was to put them into his bed. However, even with this explanation, his conduct would raise doubts about his maturity and judgment and suitability to work with children, if it were to happen today.
Ms Brenda Wand, who has worked as a domestic violence support worker for some 16 years, gave character evidence on Mr Grindrod's behalf. She was the manager of the nanny service at which Mr Grindrod was, for a time, employed. She gave evidence that, in the early nineties, she was not aware of any policies in place in relation to placing children in bed with a nanny if a child was upset. She indicated that standards and policies had changed markedly since those days.
Ms Wand agreed, however, that, even in 1991, a male nanny, dressed only in boxer shorts, placing a six-year-old girl wearing only a t‑shirt, in bed with him, was clearly inappropriate. When asked about that she said 'Who's saying that?' It is clear to us that she did not understand that Mr Grindrod had acted in that way. Nor does it appear to us that any of the other character witnesses had that understanding.
While Ms Wand's evidence gives some context to the admitted events surrounding the alleged offences, those events demonstrate, at the very least, a serious error of judgment, and are material to the consideration as to the likelihood of any future risk to children materialising.
Section 12(8)(e) – information given by the applicant in relation to the application
In the proceedings before us, the applicant relied upon the submissions and materials considered by Barker J when the matter was first dealt with. In the original decision, Barker J conveniently summarised the points made by the applicant in the following way:
•The applicant has not only the knowledge and experience but he also has a flair for working with children, and therefore it is in the best interests of children that he be allowed to continue his "child‑related work".
•As early as 1989, the applicant worked with children in a child care centre for a period of six months. In 1989 the director described the applicant as having "an excellent rapport with children of all ages".
•In 1994 the applicant worked for a mother of two children aged two-and-a-half and four years as a full-time caregiver. In 1994 she described him as having "proved himself to be very capable and professional, and he showed commitment in his work with children as well as enjoyment".
•The applicant has worked with the Scout Association as a Cub Scout Leader alongside a woman who has known him for 14 years both personally and professionally. In August 2006, she described the applicant as showing "the utmost care and consideration for the children".
•The applicant has assisted in running the graduation for a modelling school twice a year for the past 10 years. In 1994 the principal described the applicant as having "a wonderful rapport with children" and in August 2006 she crystallised her praise for him by describing him as "a gem who should be working with children".
•The applicant has worked in Dial a Nanny for over 10 years as a nanny who has worked with children from two to 12 years of age. In August 2006 the manager described the applicant as having a "natural flair and disposition in dealing with children".
•In the tee-ball season prior to August 2006, the applicant joined a club [as] a coach of the under 13s mixed tee-ball team. In August 2006 the President, whose own granddaughter participated in the team, and who had known the applicant for about 10 years, acknowledged his knowledge of and accreditation regarding tee‑ball.
•The applicant is a member of the Tee-Ball Association of Western Australia and currently holds a coaching position, and his duties include not just training coaches but also coaching children. In September 2006 an official described him as a "friendly and obliging member" of the committee.
•The applicant's sister, who has known him for 42 years, and left her children from eight-weeks-old to 12-years-old in his care, in August 2006 described her brother as "highly respected by children of all ages" and as having "a wonderful nature, caring, and has a very good relationship with [her] children".
•The applicant was employed as a coach driver and had been for the three months before September 2006. His duties included driving international students who were mostly 18 years of age or older but were occasionally as young as 12 years of age, from the airport to their homes and at times from their homes to university and back.
•The character references demonstrate the applicant's trustworthiness and talent in working with children.
•The applicant has a long history of reliably and responsibly caring for and working with children and deserves to continue his child‑related work in which he clearly excels.
•It would be both unjust and harsh to deprive the applicant of his livelihood as well as to deny him the opportunity to continue contributing to the wellbeing of children.
•The applicant may be subjected to a high degree of financial difficulty if he was issued with a negative notice as it would place his current employment in jeopardy.
•If the applicant is not issued an assessment notice he would be permanently barred from returning to his previous employment in childcare, in which he has more than 20 years' experience.
•The applicant would be disadvantaged in retraining for re‑employment in the workforce and would suffer an onerous diminution in his earning capacity.
Subject to certain observations necessary in the light of the Court of Appeal decision, the decision in Scott and the examination of character witnesses before us, those matters constitute relevant considerations in considering whether the particular circumstances of the case suggest that a negative notice should be issued to the applicant and in particular, the degree of any future risk to children if the applicant were to be engaged in child‑related employment.
The first observation to be made is, in relation to the first dot point, any benefit which might be thought to flow to children by having access to the applicant's knowledge, experience of flair in working with children is of no relevance if there exists an unacceptable risk to children from future contact. If an unacceptable risk exists, a negative notice should be issued. The fact that some benefits may flow to some children through continued contact with an applicant does not militate against the issue of a negative notice, if an unacceptable risk from future contacts exists.
The second observation is that questions of hardship or prejudice to the applicant are not relevant considerations - see McLure JA in Scott at [23]. The third observation which can be made is that four of the character referees were cross‑examined before us. It was apparent that each of them refused to accept that Mr Grindrod had done the acts alleged against him in the criminal proceedings. Each of the four referees has had extensive experience working with children, and one was a support worker for victims of domestic violence. Having heard and seen the witnesses in cross‑examination, we are satisfied that they hold genuine opinions, based on their observations of Mr Grindrod, that he does not pose a risk to children. It is apparent, however, that each of those witnesses rejects the possibility that Mr Grindrod did the acts of which he was accused. It is also unclear as to the extent that they appreciated the full details of Mr Grindrod's admitted conduct on the occasion in question.
Section 12(8)(f) – other matters relevant to the decision
As we have observed, the task confronting the Tribunal is to determine whether there is an unacceptable risk that the applicant might cause harm to children. In relation to non‑conviction charges, the factors identified by Buss JA (at [86] of the Court of Appeal decision which are set out above) need to be considered. In the context of this case, Buss JA identified certain matters which the Tribunal is bound to consider in assessing those matters. At [100], his Honour identified those matters in the following terms:
(a)the complaint which complainant A made immediately to her mother;
(b)the recent complaint evidence which the mother gave by way of deposition and at trial;
(c)the coherence of complainant A's evidence at trial, to the extent that this could be ascertained reliably from the transcript;
(d)the consistency between complainant A's evidence and her mother's evidence, and the extent to which complainant A's evidence differed from the respondent's evidence;
(e)at least 10 members of the jury accepted that complainant A's evidence was truthful and reliable at the trial, in that the jury returned majority verdicts of guilty on two counts of indecent dealing;
(f)the respondent did not allege, in his appeal, that the verdict was unreasonable or not supported by the evidence;
(g)the trial miscarried because the trial judge failed to comply with a statutory requirement concerning the oath sworn by complainant A, but otherwise there was no attack on the quality or probative value of her evidence;
(h)in allowing the appeal and quashing the convictions, the Court of Criminal Appeal did not enter a verdict of acquittal, but ordered a retrial, thereby accepting there was sufficient evidence that was capable of sustaining a conviction; and
(i)the retrial did not proceed because the Director of Public Prosecutions entered a nolle prosequi on the grounds that it was necessary to call complainant A to give evidence, she was then aged only 9 years and a significant delay had elapsed since the commission of the alleged offences.
With respect to (a) and (b), complainant A's mother's evidence was that complainant A first told her that Mr Grindrod put his tongue in her mouth two days after the weekend in question. Complainant A did so in response to questions from her mother about the weekend. The mother had learnt of the fact that complainant A had slept in Mr Grindrod's bed from her son the day before. In her statement to the Police, complainant A's mother said that the questioning had occurred on the Monday night, rather than the Tuesday night as she subsequently said in her evidence at the preliminary hearing and at trial. She maintained that the allegation that Mr Grindrod kissed complainant A with his tongue in her mouth was raised by complainant A, and was not suggested in the questions asked by the mother.
As to (c), complainant A gave evidence that the applicant kissed her on the two occasions referred to in the indictment and that on each occasion he put his tongue in her mouth, and that she volunteered that information to her mother after being dropped home on the Sunday in response to a question from her mother, 'Did anything bad happen?' In response to a suggestion in cross‑examination that her mother had asked her a leading question about the applicant putting his tongue in her mouth, she responded, 'She didn't ask me. I just told her.' To the extent that it can be determined from the transcript, complaint A's evidence at trial to the effect that the applicant placed his tongue in her mouth appears consistent and cogent.
As to (d), save for inconsistency as to when the conversations between complainant A and her mother occurred, their evidence was substantially consistent. Mr Grindrod's evidence was that he did give complainant A a kiss in the lounge room and kissed her goodnight when she was in his bed. In that sense, his evidence was consistent with the evidence of complainant A. He denied, however, that he kissed her with an open mouth, or that he placed his tongue in her mouth. He maintained that the kisses he gave were merely goodnight kisses which were not aimed at the mouth, but could have 'landed on the mouth' if the child moved her head as he attempted to kiss her on the cheek.
With respect to (e), (f), (g) and (h), it is clear that there was evidence which, if accepted by the jury, was capable of sustaining the charges against Mr Grindrod. That evidence was clearly accepted by at least ten members of the jury as truthful and reliable, given that verdicts of guilty were returned by a majority. The appeal against those verdicts succeeded not on the basis that the verdicts were not open on the evidence, but rather that the verdicts were unreliable having regard to the trial judge's inadequate enquiry under s 106B of the Evidence Act 1906 (WA) as to whether complainant A understood the seriousness and the obligation attendant upon giving evidence at a trial. As well as determining that the ground of appeal based on s 106B of the Evidence Act1906 (WA) was made out, the Court of Criminal Appeal also found that the trial judge erred in leaving open to the jury the proposition that certain other evidence given by complainant A's mother and complainant A was capable of supporting the prosecution case. That evidence was that Mr Grindrod gave complainant A and her sister a soft toy at the end of the weekend of babysitting, and that he did not charge for his services on that occasion. Those matters were explained by Mr Grindrod in his evidence at trial, and those explanations were not challenged by the prosecution in cross‑examination of him. Because of its conclusion on the s 106B point, the court did not find it necessary to determine whether the misdirection by the trial judge led to a substantial miscarriage of justice. Although we have not had the benefit of argument on that point, having read Ipp J's reasoning on the point (with which the other members of the court agreed), there would appear a reasonably good argument that the appeal would have succeeded on that ground, if it had not succeeded on the s 106B point. In those circumstances, some caution is required in considering the weight to be given to the conclusion drawn by those jurors in the majority.
As to (i), it is the case that the retrial did not proceed because the prosecutor determined that it was not in the public interest to proceed with a retrial given the necessity of calling the young complainant to give evidence after a long period had elapsed from the alleged offences.
Is there an unacceptable risk of future harm to children?
The consistency of complainant A's evidence, her complaint to her mother, the circumstances of Mr Grindrod placing complainant A in his bed with him, together provide a basis for holding a reasonable suspicion that on the occasions referred to, Mr Grindrod indecently dealt with complainant A, being a child under the age of thirteen years, by putting his tongue into her mouth whilst kissing her. Even having regard to the trial judge's misdirection, the conclusion as to guilt reached by at least ten jurors provides support for that suspicion. Having reached that conclusion, the question becomes whether the existence of that reasonable suspicion is a basis for concluding that there is an unacceptable risk that Mr Grindrod might, in the future, cause sexual or physical harm to children in the course of carrying our child‑related employment.
The existence of a future risk of physical or sexual harm is assumed by the WWC Act to exist by reason of convictions of harmful conduct in the past. As McLure JA pointed out in Scott at [19]:
The legislature regards a conviction of a criminal offence as rendering that person actually (Class 1 offence), prima facie (Class 2 offence) or possibly (any other offence) unsuitable to work with children. That can only be because the applicant, solely by reason of one or more convictions, poses a risk of repeating the type of criminal conduct in which they have previously engaged.
Non-conviction charges in respect of class 1 or class 2 offences are treated under s 12(4) of the WWC Act on the same basis as convictions to which s 12(5) applies, for offences not being class 1 or class 2 offences. They are treated as analogous to convictions that may possibly render a person unsuitable to work with children.
It must be taken, for the purposes of the Act, that where there is a reasonable suspicion that a person has committed the offences the subject of the non‑conviction charges, where those offences are highly relevant to working with children, a risk of repetition of the conduct the subject of the charge is assumed. It is necessary to look at all of the circumstances to determine whether that assumed risk is an unacceptable risk that the applicant might cause physical or sexual harm to a child in future. As Buss JA noted, factors which bear upon the risk include the seriousness of the risk of harm and the likelihood of the risk materialising. In our view, the relevant considerations are:
•The admitted circumstances in which the allegations arose, were if it is accepted that Mr Grindrod did not put his tongue in complainant A's mouth, are such as to raise doubts as to his suitability to work with children. Although, at that time, there were no clear guidelines concerning placing children in bed with a nanny if the child was upset or not settling to sleep, doing so with a six-year-old girl wearing only a t‑shirt, and tickling and kissing her is so obviously beyond proper behaviour that formal guidelines are unnecessary.
•The suspicion as to the conduct relates to a class 1, not a class 2 offence. Although the two alleged offences fall at the lower end of the range of offences of indecent dealing, they are serious matters. There is no question in our minds that, had Mr Grindrod been convicted of the offences, there could be no circumstances of which we are aware that would defeat the presumption that a negative notice should issue.
•The character witnesses called on behalf of Mr Grindrod, all of whom have substantial involvement in child‑related work, expressed strong views, based on their own observations of Mr Grindrod's conduct with children, that he does not pose a risk to children. We are, however, concerned as to the extent to which those witnesses fully appreciated the extent to which Mr Grindrod's admitted conduct extended beyond the boundaries of acceptable dealing with children.
•Although Mr Grindrod is now 11 years older than he was when the events out of which the complaints arose took place, there is no evidence that Mr Grindrod now accepts that his admitted conduct was inappropriate even if it did not amount to indecent dealing. We are not satisfied that he now possesses greater maturity or insight than he had as a 34‑year‑old.
In our view, having regard to all of the circumstances in this case, we consider that the risk assumed by reason of the non‑conviction charges is unacceptable. The interest of protecting children from that risk must take precedence. It follows that, in our view, a negative notice should be issued.
Publication of the applicant's name
As earlier observed, Barker J in the original decision made an order that the applicant's name not be published. That order was made pursuant s 62(1)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). His Honour concluded that, in the circumstances of the case, there is a greater public interest in not publicising the applicant's name than there is in publishing it. At [147], his Honour said:
In a case, such as the present case, where an applicant is successful in their review application, to publish their name can only have the consequence that persons not otherwise familiar with them and having no real reason to deal with them would be apprised of personal events in their past to which they would not otherwise be privy or easily able to discover. Because the Tribunal's decisions are ordinarily published to the internet on the Tribunal's website, the publication is very wide and very far. When successful in their review application, an applicant should be entitled to some consideration so far as their earlier conduct is concerned, especially where, as in the case of this applicant, they have never actually been convicted of a criminal offence for the conduct alleged against them. They should at least be accorded the right to live a useful life free from the burden of the public scrutiny they might otherwise receive. These considerations would appear to underlie the practice in Victoria and New South Wales not to publish an applicant's name in similar proceedings.
The non-publication order was not challenged on appeal. The majority considered, however, that the principle of open justice should prevail over the respondent's private interests, especially where the facts or other history of the respondent's 'non-conviction charges' are a matter of public record - see [117] of the Court of Appeal decision. Accordingly, the majority considered that Mr Grindrod's name should not be suppressed in the reasons of the court, or in the formal orders made in the appeal. Murray JA dissented, and would have suppressed Mr Grindrod's name for the reasons expressed by Barker J at first instance.
The issue also arose in Scott. Buss JA, with whom McLure JA agreed, adopted the approach taken in the Court of Appeal decision and they declined to suppress Mr Scott's name in their reasons for decision and final orders, notwithstanding that the appeal against the issue of the assessment notice to Mr Scott was dismissed, and the appellant had not sought to challenge the Tribunal's order for suppression for the name. Newnes JA dissented on that point, noting that s 39 of the WWC Act protects the confidentiality of information obtained for the purposes of the Act, and makes it an offence to disclose that information.
In light of the decision by the Court of Appeal to publish Mr Grindrod's name in its reasons and orders, no purpose would now be served by continuing the suppression of the applicant's name. By reason of the publication of Mr Grindrod's name in the Court of Appeal decision, the consequences which concerned Barker J no longer flow from further publication of the applicant's name by the Tribunal. Accordingly, we have not suppressed Mr Grindrod's name in these reasons nor in the formal orders which will flow from them.
The Court of Appeal has made a clear decision that the public interest in open justice prevails over the respondent's private interests in the context of proceedings in the Court of Appeal. The principles of open justice are clearly applicable to proceedings before the Tribunal. The Tribunal is, however, an administrative tribunal, not a court. In exercising its powers on review, the Tribunal exercises the functions and discretions corresponding to the exercisable by the original decision-maker - SAT Act, s 29. Whether that distinction, having regard to the confidentiality requirements imposed upon the original decision‑maker by s 39 of the WWC Act, might lead to a different outcome in relation to suppression in any given case, is not necessary to determine in the present circumstances.
Orders
1.The application for review is dismissed.
2.The decision by the Chief Executive Officer, Department of Child Protection to issue a negative notice to Nigel Wayne Grindrod is affirmed.
I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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