Hardingham v Chief Executive Officer, Department for Child Protection
[2011] WASC 86
•31 MARCH 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: HARDINGHAM -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2011] WASC 86
CORAM: EM HEENAN J
HEARD: 7 DECEMBER 2010
DELIVERED : 31 MARCH 2011
FILE NO/S: GDA 14 of 2010
MATTER :The Working with Children (Criminal Record Checking) Act 2004 (WA)
AND
Case Number VR 7 of 2009 in the State Administrative Tribunal of Western Australia at Perth
BETWEEN: ALLAN WILLIAM HARDINGHAM
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR MURRAY ALLEN (SENIOR MEMBER)
MS FELICITY CHILD (MEMBER)
Citation :HARDINGHAM and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2010] WASAT 112
File No :VR 7 of 2009
Catchwords:
Administrative law - Application for leave to appeal from SAT - Working with Children (Criminal Record Checking) Act 2004 (WA) - Non‑conviction charges - Negative notice - Judicial review - Statutory condition for satisfaction - Significance of acquittals and of abandonment of prosecution before trial - Uncharged acts - Significance of all the circumstances - Questions of law - Jurisdictional facts - Reasonable suspicion - s 12(4) - Need to be 'satisfied' by 'the particular circumstances of the case' before negative notice
Legislation:
Criminal Appeals Amendment Act (No 2) 2008 (WA)
State Administrative Tribunal Act 2004 (WA)
Working with Children (Criminal Record Checking) Act 2004 (WA)
Result:
Leave to appeal granted on each of the proposed grounds
Appeal allowed
Decisions of SAT of 4 August 2010 and of respondent dated 19 December 2008 set aside
Matter remitted to SAT for further consideration in accordance with directions in the reasons
Category: A
Representation:
Counsel:
Applicant: Mr R E Lindsay & Mr A Shuli
Respondent: Mr P Dixon
Solicitors:
Applicant: iLaw
Respondent: Paul Dixon
Case(s) referred to in judgment(s):
A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500
Attorney‑General (NSW) v Quin (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bradshaw v Waterlow & Sons Ltd [1915] 3 KB 527
Bushell v Repatriation Commission (1992) 175 CLR 408
Chief Executive Officer of Customs v AMI Toyota Ltd (2000) 102 FCR 578
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125
Church of Scientology Inc v Woodward (1982) 154 CLR 25
Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019
Craig v South Australia (1995) 184 CLR 163
Donnellan v Public Trustee [2007] WASC 213
Federation Insurance Ltd v Wasson (1987) 163 CLR 303
Garrett v The Queen (1977) 139 CLR 437
Goose v Wilson Sandford & Co [1998] EWCA Civ 245
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462
Lancee v Willert [2008] WASCA 120
M and Chief Executive Officer of Department for Community Development [2009] WASAT 6
Mills v Barber (1836) 1 M&W 425
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Mitchell v John Heine & Sons Ltd (1938) 38 SR (NSW) 466
Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470
Nicholls v Young [1992] 2 VR 209
Paridis v Settlement Agents Board [2007] WASCA 97; (2007) 33 WAR 361
Perth Mint v Mickelberg (No 2) (1985) WAR 117
R (Hoverspeed Ltd) v Customs and Excise Commissioners [2002] EWCA Civ 1804; [2003] 2 WLR 950
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
R v Storey (1978) 140 CLR 364
R v Z [2002] 2 AC 483
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Robins v National Trust Co Ltd [1927] AC 515 (PC)
Rogers v The Queen (1994) 181 CLR 251
Shaaban Bin Hussein v Chong Fook Kam [1969] 3 All ER 1626
Waterford v The Commonwealth (1987) 163 CLR 54
EM HEENAN J: On 24 April 2008 the Department for Child Protection issued a negative notice to the applicant under s 12(9) of the Working with Children (Criminal Record Checking) Act 2004 (WA) (the WWC Act). This negative notice was issued by the respondent, not as a result of any application by Mr Hardingham under s 9 or s 10 of the Act but, rather, on the initiative of the Chief Executive Officer under s 12(4)(b) on the basis that the CEO was by then aware that the applicant had three non‑conviction charges in respect of a class 1 offence or a class 2 offence.
In 1993 the appellant had been charged with two offences of indecent dealing which were alleged to have been committed in April 1990. He pleaded not guilty to those charges but was convicted in the District Court after a trial by jury in November 1993 and was sentenced to a period of imprisonment. He appealed from those convictions and they were quashed by the Court of Criminal Appeal in March 1994 and judgments of acquittal were entered. Following that episode, he was reinstated as a teacher in 1994.
In April 2008 the appellant was charged with an offence of indecent dealing which was alleged to have occurred in or about February or March 2007. The appellant denied the charge and, before the matter had proceeded to the committal stage, the prosecution announced it would not proceed further and it was dismissed under s 25 of the Criminal Procedure Act 2004 (WA). It was this third 'non‑conviction charge' which led the respondent to issue the negative notice pursuant to s 12(4) on 24 April 2008 as mentioned.
The appellant then made an application to the respondent under s 19 of the WWC Act for the negative notice to be cancelled and supported that application with a series of written materials and references. On 19 December 2008 the respondent refused the application to cancel the negative notice under s 19(10) or, in the language employed by the respondent, 'affirmed the negative notice' and provided reasons.
From the refusal of the application to cancel the negative notice the appellant applied on 14 January 2009 to the State Administrative Tribunal (SAT) pursuant to s 26(2)(b) of the WWC Act and s 17 of the State Administrative Tribunal Act2004 (WA) for the decision to be reviewed.
The application for the review of the decision was heard by the SAT (before senior member Mr M Allen and member Ms F Child) on 10 and 11 June 2009 and the decision was then reserved. The SAT's decision on the review was not delivered until 4 August 2010 and on that day the SAT ordered that the decision made by the respondent on 19 December 2008 not to cancel the negative notice issued on 24 April 2008 should be affirmed. By the same order, the SAT directed that a previous order suppressing publication of the name of the applicant should be revoked.
The delay by the SAT in delivering its decision on the review had caused the solicitors for the applicant to write to the President of the SAT on 8 July 2010 expressing their client's concern about its effect upon him. The President, by his associate, replied to that inquiry on 13 July 2010 conveying the Tribunal's apologies for the delay and explaining that the matter had not been dealt with earlier because of the pressure of the work of the stream within which the members concerned were working but advising that the President had spoken to the tribunal members concerned and that it was then anticipated that the decision would be made available not later than 30 July 2010. This length of time in the delivery of the decision of the SAT features in the proposed grounds of appeal.
The applicant thereupon filed a notice of appeal from the decision of the SAT in this court on 25 August 2010 seeking leave to appeal pursuant to s 105(1) of the SAT Act. This notice appended six proposed grounds of appeal, since amended. Because of their length, I will set out the proposed amended grounds of appeal at a later, more appropriate, point in these reasons. In the submission of the applicant each of those proposed grounds as amended alleges an error or errors of law by the tribunal but issue is taken with that submission by the respondent in respect of five of the proposed grounds.
By his appeal notice the applicant sought the following orders, namely:
(1)leave be granted for the hearing of the appeal on the specified grounds;
(2)that the order of the tribunal affirming the decision for the respondent be set aside;
(3)an order that an assessment notice issue under s 12(4) of the Working with Children (Criminal Record Checking) Act 2004 (WA);
(4)leave to amend the grounds of appeal as required once a transcript of the hearing before the tribunal becomes available;
(5)such further or other orders as the court sees fit; and
(6)costs.
On 20 September 2010 Jenkins J, acting pursuant to RSC O 65 r 4 made a series of orders and directions in relation to the application based on the papers. Her Honour's orders and directions included an order that the application for leave to appeal be heard at the same time as any appeal. Her Honour then proceeded to give a series of procedural directions dealing with the material to be filed in this court, the setting of a date for hearing and the filing of written submissions.
Amended proposed grounds of appeal
Following the supply to the applicant's solicitors of a transcript of the hearing before the SAT as they had requested after the decision of 4 August 2010 and after the institution of this application, the solicitors for the applicant filed on 2 December 2010 a set of amended proposed grounds of appeal which, together with an outline of the orders sought, ran to 11 pages. The amendments proposed by this notice to the grounds of appeal as originally filed were relatively minor, being confined to par 2.2(b) and par 5.7.
Later still, on 3 December 2010, further amendments to the proposed grounds of appeal were disclosed by the solicitors for the applicant by electronic transmission to the court and to the solicitors for the respondent. Again these were relatively minor amendments to proposed ground 2.2(a), 2.2(b), 5.3 and 5.7. There were no objections made on behalf of the respondent to any of these proposed amendments and the application in this court, therefore, proceeded on the basis of the proposed amended grounds of appeal of 3 December 2010.
Review by the SAT
The applicant's proceedings before the SAT engaged the review jurisdiction of that tribunal ‑ s 17(1) of the SAT Act and s 26 of the WWC Act. As a consequence, the SAT's review of the respondent's decision was required to be conducted by way of a hearing de novo ‑ s 27(1) of the SAT Act. By s 29(1) of that Act, it is provided that:
The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.
See Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28, [36] (Buss JA); (2008) 36 WAR 39, 49; and Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 [66] (Buss JA); (2008) 38 WAR 125, 140.
The material provisions of the WWC Act, and in particular the certain types of convictions or non‑conviction charges and the significance which may be attached to them are comprehensively explained in the reasons for decision of Buss JA in those two cases; namely Grindrod [No 2] and Scott [No 2]. There is little advantage in repeating those observations in full here and I shall, therefore, accept and adopt those descriptions of the legislative provisions and the scheme of the Act as applying in the circumstances of this case.
Applicant's background
This summary of the material events and the background of the applicant is taken from the reasons for decision of the SAT at [2010] WASAT 112 and was not in any way questioned or challenged in the course of this application for leave to appeal.
Allan William Hardingham was born in 1961 and was aged 48 years at the time of the hearing of his application to the SAT. Mr Hardingham had qualified as a primary school teacher and had begun teaching in this State in 1983 and had thereafter taught at various primary schools in regional and metropolitan areas. In 1990, when the first two of the alleged offences later charged against him were said to have occurred, he was teaching at a metropolitan primary school. Those charges were preferred against him in August 1992, whereupon he was suspended without pay. This suspension continued until 1994, when he was reinstated after his convictions were quashed by the Court of Criminal Appeal.
In 2008, at the time when the subsequent offence later charged against him was preferred, the applicant was employed as the deputy principal at a country primary school. That charge was preferred against him on 4 April 2008. In June 2008 he was advised by the Department of Education and Training that, because a negative notice had been issued against him by the respondent on 24 April 2008, his employment with the department was terminated.
Charges relating to alleged conduct in 1990
As noted, charges were laid against the applicant in August 1992. There were two separate charges and each specified that on a date unknown, in or about April 1990, the applicant had unlawfully and indecently dealt with a person under the age of 13 years, being the same person in each charge, who was 12 years of age at the time of the alleged offences. The victim of these alleged offences was a young boy. The first charge related to an offence alleged to have occurred at the applicant's home in metropolitan Perth and the second charge related to an offence alleged to have occurred at the applicant's cabin or shack near a coastal country town.
In its reasons for decision the SAT stated at [29] that at the 1993 trial, the case against the applicant, as spelled out by the prosecutor in his opening address to the jury, was that the two specific charges were alleged to have occurred in April 1990, but that these were not isolated incidents and were the beginning of a course of conduct involving the applicant and the young boy. This was part of a case in which the prosecution introduced 'similar fact' evidence of other alleged, but uncharged, offences as part of its case attempting to establish the commission of the two charges actually being tried. Ultimately, the Court of Criminal Appeal concluded that this 'similar fact' evidence should not have been admitted at the trial, and that the jury had not been directed properly as to the limited use which could be made of it. The wrongful introduction of the 'similar fact' evidence and the use made of it by the prosecution were some, but not all, of the reasons leading to the convictions later being quashed.
There was, of course, no finding by the jury that any of the other uncharged alleged offences had been committed nor any admissions to that effect by the applicant. Nevertheless, in their reasons for decision the members of the SAT did conclude that they had a reasonable suspicion that the applicant had indecently dealt with the alleged victim in the latter part of 1990.
The propriety of this line of reasoning, both in relation to the significance of the uncharged allegations referred to by the prosecutor in opening the trial in 1993, and more generally, are both matters which require closer consideration later in these reasons.
The appeal by the applicant from his two convictions came before the Court of Criminal Appeal in February 1994. By its decision of 3 March 1994 the court unanimously quashed the conviction on the second count in the indictment and, by a majority, also quashed the conviction on the first count in the indictment. The court was unanimous in deciding that there should be no retrial of the applicant upon the second count in the indictment and the majority determined the decision on the first count. Rowland and Franklyn JJ both directed that there should be no retrial on that charge. The consequence, therefore, was that the applicant is to be regarded as having been acquitted of both charges.
The Department of Education inquiry
As described by SAT, the applicant sought reinstatement to a teaching position after his convictions had been quashed in March 1994. A district superintendent was directed to complete an investigation under s 7C of the Education Act 1928 (WA) and for that purpose reviewed the evidence given at the trial and the judgments of the Court of Criminal Appeal. Subsequently, an officer of the Department provided a report dated 17 May 1994, which made a number of points about the applicant's position, including:
•It was considered that action could not be taken against the applicant on the charges for which he had not been convicted. Any action would require the Department to undertake an investigation and cover all the same factual circumstances that had been dealt with in the court.
•The applicant's evidence at trial, unrelated to the conduct concerning the alleged offences, did breach the Department's expectations of a teacher. Providing alcohol to minors, swearing in front of students and allowing students to swear were '… not desirable attributes of a teacher'. These actions were relatively trivial and in the past had resulted in a teacher being reprimanded and/or fined.
Accordingly, the departmental officer recommended that the applicant be officially reprimanded and fined $50, that his pay should be reinstated for the period of his suspension and that he be placed in employment in a school. He was subsequently advised by the director‑general of the Department that he was officially reprimanded, fined $200, his salary for the period of his suspension was to be paid, and the period of his suspension would be considered as good service for the accrual of all entitlements.
The alleged 2008 offence and charge
On 4 April 2008 Mr Hardingham was charged with the offence of indecently dealing with a child aged 14 years, contrary to s 321(4) of the Criminal Code Act Compilation Act 1913 (WA). The SAT found, and there is no controversy about this, that this charge was based principally upon the statement of another young man, then aged 18 years, who had been staying with the applicant, the alleged victim and others in the vicinity of the applicant's country property in April 2008 and who claimed to have witnessed the applicant indecently interfering with the alleged victim on that occasion. This offence was alleged to have occurred at the same cabin or shack owned by the applicant as was involved in the second of the 1990 alleged offences. This is a cabin on a parcel of land located close to cabins owned by others. It was common for the various owners and their family members and guests to holiday at this beachside area from time to time and to have meals at each other's cabins and at times to sleep in the cabins of others.
The charge was that between 1 March 2007 and 1 April 2008 the applicant had indecently dealt with the 14‑year‑old alleged victim, another young boy. The allegation was that the offence had occurred in the early part of 2007, although the applicant was not charged until April 2008 as a result of a statement made to the police by the witness already mentioned only shortly beforehand. This was a charge for a 'class 2 offence' under the WWC Act.
On 23 July 2008, before there had been a hearing in the Magistrates Court for the purpose of the applicant being committed for trial on the 2008 charge, counsel for the State informed the presiding magistrate that the State had formed the view, in relation to the 2008 charge, that '… despite the existence of a prima face case there are no reasonable prospects of conviction'. The State offered no evidence in relation to the charge, whereupon it was dismissed for want of prosecution pursuant to s 25 of the Criminal Procedure Act 2004 (WA). For the purposes of the WWC Act that charge became a 'non‑conviction charge' within the meaning of s 4.
It emerged that investigations by the police in relation to the alleged offence had uncovered no evidence from the alleged victim which would have supported the charge. The position of the alleged victim was that he had been intoxicated on the evening in question and had no recollection or knowledge of the alleged indecent dealing. The applicant had been interviewed about the allegations but had denied any indecent assault or dealing with the alleged victim, although he did confirm that the boy had been at his cabin, with others, at the beach resort in April 2007 and had become intoxicated and that he had attempted to assist him while he was in that state. More detail was given by the applicant in his statement to the police about this incident which was regarded as material and significant by the SAT.
Procedures leading to the April 2008 negative notice
In accordance with s 17 of the WWC Act a representative of the Commissioner of Police notified the respondent on 7 April 2008 that the applicant had been charged with the alleged 2008 offence. On 9 April a representative of the respondent notified the applicant under s 17(3) of the Act requiring him to make an application for an assessment notice under the Act. Such a notification can be given by the respondent if he is satisfied that there are reasonable grounds for believing that a person carries out child‑related work and has been charged with or convicted of a class 1 or class 2 offence.
Although the notice under s 17(3) was sent to the applicant by post on 9 April, he did not receive it until 29 May 2008. In the meantime, because no application had been made by the applicant in response to that notice as required, the respondent issued the negative notice on 24 April. That negative notice came to the attention of the applicant in early June 2008.
As already noted, the applicant then lodged with the respondent on 24 July 2008 an application seeking the cancellation of the negative notice and that application came to be dealt with under s 19(8) and s 12(2) to s 12(8).
In this respect, the material provisions of the Act are contained in s 12(4) which provides:
12(4)If the CEO ‑
(a)is not aware 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.
In making the decision the CEO is required by s 12(8) to decide whether or not he or she is satisfied in relation to the particular circumstances of the case having regard to:
(a)the best interests of children;
(b)when the offence is 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.
The notification by the respondent to the applicant of the decision to refuse his application to cancel the negative notice was by letter dated 19 December 2008 (4AB 786 ‑ 788). It included a statement of the reasons for the decision of the respondent as follows:
Your application to cancel the Negative Notice has been unsuccessful for the following reasons:
•The seriousness of the non‑conviction charges.
•The position of authority and trust you held at the time of the alleged commission of each of the offences and the breach of that trust ‑ on each of the occasions with respect to the alleged offences in 1990, you were alone with the complainant, and the complainant was asleep when the alleged offences were occurring, and as to the alleged offences in 2007/2008, the complainant was heavily intoxicated and trusted you when he was in that state.
•The similarity in the allegations ‑ engaging in sexual behaviour with young boys who were under your care and supervision where there was little prospect of collusion between the complainants.
•The significant differences in ages between yourself and the complainants.
•The similarities in the nature of the two sets of non‑conviction charges, being the building of a strong relationship with the complainants, giving them alcohol, enabling them to do what they like where their parents would not necessarily approve and encouraging their attendance at your accommodation to stay the night.
•The 'grooming' type behaviour demonstrated in the circumstances of the alleged offences.
•The circumstances which culminated in the 1990 offence being disposed of otherwise than by way of conviction ‑ there was only a majority judgment as to the quashing of the first count on the indictment.
•The admitted circumstances in which the alleged offences in 1990 arose which are such as to raise doubts as to your suitability to work with children. Allowing children from the school at which you taught to come and stay at your home, giving them alcohol, videotaping them, giving them gifts and money raises concerns as to the drawing of appropriate boundaries.
•The fact that relationships seem to be predominantly maintained with young teenagers when there is a considerable age difference. On each occasion, children have been encouraged to spend the night at your accommodation with you.
•A reasonable suspicion that you may have behaved in the way indicated towards the complainant of the alleged offences in 1990, at the very least with respect to count 1 on the indictment, and there is therefore an unacceptable risk to the safety of children.
The provisions of s 12(4) were examined in some detail in Grindrod [No 2] where Buss JA said of them at [65]:
In my opinion, s 12(4) imposes on the CEO an obligation, relevantly, to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice. Compare Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297, 302 ‑ 303 (Dawson, Gaudron, McHugh, Gummow & Kirby JJ); Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78, 90 ‑ 91, [38] ‑ [43].
and later at [74]:
In my opinion, if s 12(4) applies, the question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) ‑ (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction then a negative notice must be issued. Otherwise, the CEO must issue an assessment notice.
and later still at [81]:
In my opinion, it is implicit in s 12(4) and (8), in the context of s 3 of 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.
In undertaking a similar analysis of the provisions of the WWC Act Murray ACJ said:
[165] A similar approach is to be taken if subsection (4) or (5) [sic of s 12] applies and, as has been seen, it was s 12(4) which applied to this case. In these cases, the Act leans towards the issue of an assessment notice, but not so strongly as it leans towards the issue of a negative notice in a case to which s 12(6) applies. In a case to which subsection (4) or (5) applies, an assessment notice is to be issued unless the CEO is satisfied that a negative notice should be issued, 'because of the particular circumstances of the case'. Again, however, it seems to me to be clear that an inquiry is to be made into the circumstances.
[166] In this case, the inquiry was to be made into the circumstances which illuminated the significance of the non‑conviction charges in respect of the decision whether, as in the ordinary case, an assessment notice should issue, or whether there were particular circumstances which, having regard to the matters listed in s 12(8), dictated that a negative notice was required. It would be rare indeed, I think, that the mere fact of the existence of a non‑conviction charge could have any bearing upon the decision of the case beyond determining the general statutory framework in which, under s 12, the decision was to be made.
The decision of the SAT of 4 August 2010
In their reasons for decision the SAT described the background to the events which led to the issue of the negative notice, the details of the allegations made in the course of the prosecutions in 1993 and the ensuing appeal relating to the 1990 alleged offences, the 2008 charge and its outcome. The Tribunal then summarised the evidence which had been adduced at the hearing before it and addressed in succession each of the considerations prescribed by s 12(8) of the WWC Act, concluding in relation to each of those factors as follows:
(a)With respect to s 12(8)(b) at [85]:
The 1990 charges relate to conduct quite some time ago, whereas the 2008 charge relates to recent conduct … In the present case there is considerable similarity between the alleged offences, an issue which we discuss further below. Those similarities, if the offending or similar conduct was thought to have occurred, might be suggestive of a pattern of abuse, or at least a failure to learn from the first experience.
(b)With respect to s 12(8)(c) at [87]:
There was, therefore, a significant age difference between the applicant and the alleged victims of the offences. At the time of the first alleged offence, the applicant had been a teacher for about seven years. At the time of the alleged 2008 charge, he was a teacher of many years' experience. In relation to the 1990 charges, the applicant was the teacher of BC and therefore in a position of great trust. In relation to the 2008 charge, DE was well known to the applicant by virtue of the applicant's friendship with DE's family. We do not consider there is anything in the material before us that would mitigate the seriousness of the circumstances of either of the alleged offences.
(c)With respect to s 12(8)(d) at [89] ‑ [90]:
We agree with the respondent's contention that there are a number of similarities in the type of conduct alleged to have constituted the two offences, including an involvement by the applicant with young boys or adolescents, permitting them to sleep at his house or cabin, providing alcohol to them to the extent that they were intoxicated, and placing his hand in the pants of the alleged victim and masturbating them whilst they were intoxicated.
There is nothing in the material before us that would indicate or suggest that the alleged victims were in any way concerned, or that FG ‑ who made the allegations in relation to the 2008 charge ‑ was aware of the earlier charges against the applicant. There is no reason to believe that any of the persons concerned in the second charge had any knowledge of the earlier ones and therefore would be in a position to in some way collude with others or make allegations of a similar type of offending because of knowledge of the allegations made in the first alleged offences.
(d)With respect to s 12(8)(e) and (f) at [91]:
We regard all of the other information set out above in these reasons relating to the applicant, the circumstances of the alleged offences and the various statements made by the persons involved, as well as information regarding the consideration of the applicant's position by the Department to be relevant to our consideration of the ultimate question to be determined ‑ whether there exists an unacceptable risk to children if the applicant were to be granted an assessment notice under the WWC Act.
The Tribunal then addressed itself to its task under s 3 and s 12(8)(a) of the WWC Act by noting that the best interests of children is the paramount consideration. The Tribunal noted that it must rely partly on facts and partly on reasonable suspicions, bearing in mind the apparent probative value of them, but must not attempt to adjudicate upon whether the applicant is, in fact or law, guilty or not guilty of the non‑conviction charges. The Tribunal noted that it must be concerned with the prevention of potential future harm. Having done so, the Tribunal then addressed its essential task in [93] ‑ [103] of its reasons as follows:
[93]In deciding to take the 1990 charge to trial, the Director of Public Prosecutions must have considered that a prima facie case existed and that there was a reasonable prospect of conviction. However, it soon became apparent that there were a number of weaknesses in the prosecution case relating to the timing of particular events, and important details of what occurred at the times of the alleged offences. The trial occurred in November 1993, that is approximately three and a half years after the alleged offences were said to have occurred, so it might be understandable that memories of details might have diminished in that time. In addition, BC made no complaint about the offences until 1992, although he said that he had written to the applicant in 1991 about the offences but the applicant had denied everything at that time.
[94]Although, as noted, there were considerable deficiencies in the prosecution case, the main ground for setting aside the convictions was the fact that the direction of the trial judge did not adequately instruct the jury how it should deal with similar fact evidence and the fact that the charge in count 2, as left to the jury, turned out to be different to the one that had been identified at the opening of the trial. What was clear was that BC had spent a number of nights at the applicant's house in Perth and had visited the cabin at least three times ‑ although the weight of the evidence suggested that those visits must have been in the second half of the year, rather than commencing in April. We believe that it is also relevant to note that Anderson J considered that the trial had not miscarried in relation to count 1 and, to that extent, it can be said that the jury should be taken to have accepted at least some of the evidence given by BC and other witnesses.
[95]What was not in dispute at the time or before us was that the applicant had in 1990 encouraged children to spend long periods of time at his house, that he provided them with money on a regular basis (although there was dispute as to how much and for what reasons), provided them with alcohol (although there was dispute about how much), and permitted them to stay overnight at his house or cabin in circumstances where, we consider, there is evidence of the children being affected by alcohol to some degree. In addition, there is evidence that the applicant encouraged the children to swear and, on one occasion, to tell their parents that they had been at another place when they had, in fact, been at the applicant's house until well after midnight.
[96]We are in no doubt that the applicant, during 1990, developed a relationship with BC that was beyond what might be expected between a teacher and pupil. Despite the weaknesses that emerged in relation to the details and timing of the alleged 1990 offences, we are left with a reasonable suspicion that, at some time during the second half of 1990, the applicant dealt with BC indecently on one or more occasions, generally in the way described by BC.
[97]When we turn to the circumstances surrounding the 2008 charge, it is apparent that the prosecution decided that there was no reasonable prospect of conviction had the matter gone to trial. There were obvious weaknesses in the case against the applicant, including the failure of the alleged victim to complain, the fact that the principal witness to the alleged offence was, to some extent, affected by alcohol, and that the other possible witness did not see anything untoward occur.
[98]However, we consider that we are entitled to hold a reasonable suspicion that the applicant did deal indecently with DE. In arriving at that conclusion, we have been influenced by the following matters:
a)According to JK, FG asked JK on the morning after the alleged 2007 offence whether he had seen the offence occur, suggesting that FG at least believed that he had seen the event that he later described.
b)We have considerable reservations about the applicant's denials that nothing happened on the night in 2007. The applicant said consistently that he was quite affected by alcohol on both occasions in 2007 and 2008 and, at least initially, professed to have a poor recollection of what he did or did not do. It was only when he was asked specifically that he said he thought that he had probably gone out to comfort DE but later accepted that he had done so. Nevertheless, he was able to say with absolute certainty that he had not touched DE inappropriately on the night in 2007.
c)In relation to the events that occurred at Easter 2008 (which were not the subject of any charge), we found the applicant's explanation for what happened that night and how he and DE ended up in bed together quite unconvincing. By the applicant's account, it must have been DE who arranged candles beside the bed, despite being significantly intoxicated, in a cabin where it would have been difficult to find things in the dark. There were other inconsistencies in the applicant's version of events. For example, the applicant told HI that he had turned on the fan to dry the bedding, but later told police he had not done so. Also, DE told police that when the power failed during the night the applicant had not got up to switch it back on and so they lit candles. However, the applicant told police he had got up to turn on the power and that he had not lit the candles. Given that there was no dispute that candles were burning in the morning it seems to us that DE's version is to be preferred.
[99]We remind ourselves that it is not our function to attempt to determine guilt or innocence of the applicant of the charges against him. However, we believe that the above factors justify us in holding a reasonable suspicion that the applicant has, on two occasions at least (once in 1990 and once in 2007), indecently dealt with a child or adolescent. That conclusion must weigh very heavily against the applicant in our assessment of the potential risk to children if the applicant were to engage in child‑related work. Relevant to our assessment to that risk are the other factors of similarity between the two alleged offences, including allowing children or adolescents to sleep in his cabin or home, providing the young people with alcohol ‑ and, we reasonably suspect, encouraging them to drink.
[100]We have not overlooked that in relation to the 2007 and 2008 events at the cabin, it appears that the youths were not prevented from drinking alcohol by their parents and that they slept at the applicant's cabin with parental approval due to the somewhat unusual set up of the cabins at that location. We have also not overlooked that the applicant has a long history as a successful school teacher and is thought highly of by colleagues and friends, notwithstanding their knowledge of the various charges that he has faced. We are also conscious of the fact that the issuing of a negative notice will have a significantly detrimental effect on the applicant's ability to work in his chosen profession in the future, although it seems that decisions to be made by others would equally determine that. In particular we note the evidence of Mr O'Connor that the ability of the applicant to work as a teacher would require not only registration by the College of Teachers but also, as an entirely separate matter, acceptance by the Department that the applicant is a suitable person to be employed as a teacher.
[101]…
[102]The object of the WWC Act is the protection of children. As has been observed in other matters before the Tribunal involving this legislation, the capacity to issue a negative notice where no criminal convictions exist leaves open the possibility that a person may be prevented from working with children even though they have not been convicted of any offence. It has been recognised that the civil rights of persons issued with negative notices will be adversely affected and that persons with non‑conviction charges may suffer serious damage to repute and earning capacity.
[103]On review in this Tribunal, a person with a non‑conviction charge and no other convictions is entitled to an assessment notice unless the Tribunal is satisfied from all the material that in the particular circumstances of the case a negative notice should be issued. We have concluded in this case that, although we have identified some factors that point towards the applicant being granted an assessment notice, there is an unacceptable risk of sexual harm to children if that were to occur. The factors in s 12(8) of the WWC Act are not of equal significance in the evaluative exercise that we have had to undertake. This is a case, we consider, where the arguably positive factors that have been identified relating to the applicant's good employment history as a teacher, the high regard in which he is held by friends and colleagues, and the reasons for the failure of the charges laid against him, must yield to the paramount consideration prescribed by s 12(8)(a) and s 3 of the WWC Act. Our conclusion is that, in the particular circumstances of this case, there would be an unacceptable risk in the future to children if the applicant were to be granted an assessment notice.
Despite its repeated self‑administered admonitions that the Tribunal should not attempt to adjudicate upon whether the applicant is in fact or law guilty or not guilty of the non‑conviction charges, these reasons demonstrate that that is very close to what the SAT effectively did. At [99] of its reasons (see above) the SAT reached the conclusion that it had a reasonable suspicion that the applicant had, on two occasions at least, once in 1990 and once in 2007, indecently dealt with a child or adolescent. However, the SAT concluded that the 1990 incident occurred in the latter part of that year rather than in about April as charged, meaning that it was referring to a third distinct incident. That conclusion adopts the approach to the similar fact evidence adopted by Anderson J in dissent. It also adopts the evidence of one of the witnesses for the 2008 charge where there was no evidence from the alleged victim (this witness having made a statement some 12 months later) that an indecent dealing had occurred. The Tribunal's finding that there was reasonable suspicion that an offence had been committed in 1990 was reached notwithstanding that, by a decision of the Court of Criminal Appeal, the applicant's earlier convictions on the 1990 charges had been quashed and no retrial had been ordered.
Although the members of the SAT also added a series of other circumstances arising from the events associated with the alleged offences in 1990 and 2007 as constituting courses of unsuitable conduct by the applicant having regard to his position as a teacher and the type of relationship which he should be expected to maintain with his students, and other improprieties such as having the boys sleep at his cabin, supplying them with liquor and allowing them to swear and himself swearing in their presence, as reflecting adversely upon his character and supporting the conclusions that there were reasonable grounds to suspect that he had, on two occasions at least, indecently dealt with a child or adolescent, that latter conclusion, based on the non‑conviction charges, is plainly the central, significant and weighty factor in the ultimate decision of the SAT to refuse to cancel the negative notice. Of all the findings and conclusions of the SAT, this must be regarded as the most damning. If no such conclusion had been drawn, it would not be possible to conclude that the outcome of the review before the SAT, that is, the decision to refuse to cancel the negative notice, would have been inevitable or, having regard to the long time which had elapsed between the alleged offences in 1990 and the alleged episode in 2007 without any other complaint or adverse incident, that the significance of the non‑conviction charge in 2008, where the prosecution did not even take the case to trial, could have led to the same result. These considerations, therefore, focus attention upon the extent to which such a finding as contained in the reasons of the SAT at [99] can or should be reached in the event of the quashing of a conviction on an appeal without any retrial, and the abandonment of a prosecution by the State without offering any evidence against the alleged offender. In this instance, the only conclusion which could be reached for the abandonment of the prosecution in 2008 is that the prosecution case was extremely weak and had no reasonable prospects of success. This prompts the question of whether or not, in such circumstances, it is open to the SAT to reach a reasonable suspicion that the alleged offence had, nevertheless, been committed.
These considerations direct attention towards the provisions of the Act and the test which is to be applied when a non‑conviction charge has failed, not merely lapsed.
The significance of a non‑conviction charge
The WWC Act is not solely conviction based. As its long title recites, it is an Act which, among other things, is to prohibit people who have been charged with or convicted of certain offences from carrying out child‑related work. This is because it is presumed that, in certain such cases, such persons may represent a risk of harm to children.
Why should it be presumed that a person who has been charged, but not convicted, of a relevant offence would constitute a risk of harm to children if working with them? Surely, no such presumption should arise if the charged person was completely innocent of any wrongdoing. So, in cases where a person is charged but not convicted because it turns out that it was case of mistaken identity; or that the charge was groundless and had been the result of a malicious complaint; or that it could not possibly have been committed because the person charged had an irrefutable alibi establishing that he or she was somewhere else at the time of the alleged offence, or in other similar cases, there should be no adverse inference or lingering suspicion associated with the charge which has been laid, but which is later withdrawn, lapses or results in an acquittal or dismissal.
However, what of other cases where a charge is brought but no conviction ensues for reasons which do not establish or imply that the charge was false? These may include a case where the only evidence, or a vital component of the evidence, against the person charged comes from a person who subsequently dies before trial, or who disappears, or for any other reason is unable or unwilling to give evidence and cannot be compelled to give evidence. Then there may be cases where a charge is brought and proceeds to trial but the prosecution fails because of some technicality or extraordinary omission ‑ for example, some egregious error such as the prosecution failing to establish the victim's age or that he or she at the time of the offence was younger than some critical age, but where it could have been established that the victim was in fact less than the critical age. It is also possible to envisage a case which proceeds to trial resulting in an acquittal because of some critical evidence on a material point which turns out subsequently to have been perjured evidence. The false witness may be prosecuted and convicted of perjury but under the existing law that will not be a ground to challenge the earlier acquittal or lead to a retrial ‑ Criminal Code s 17 and Rogers v The Queen (1994) 181 CLR 251 and R v Carroll [2002] HCA 55; (2002) 213 CLR 635.
Impeaching a verdict of acquittal
An earlier acquittal cannot be relitigated in subsequent criminal proceedings ‑ R v Storey (1978) 140 CLR 364 and an attempt to do so will constitute an abuse of process and should result in an order staying the subsequent proceedings: R v Carroll. The reasons for these principles were explained by Gleeson CJ and Hayne J in R v Carroll [35] ‑ [40]. This unimpeachability of verdicts of acquittal is, however, confined to subsequent criminal proceedings against the person acquitted for the same or a related offence. As described by McHugh J in R v Carroll [118], the principle is:
It is an abuse of process for the Crown to charge a person with an offence of perjury when the proof of the charge necessarily contradicts or tends to undermine an acquittal of the accused in respect of another criminal charge. A perjury charge that has that effect is an abuse of process even if the evidence supporting the charge is different from the evidence that supported the prosecution case in respect of the charge on which the accused was acquitted. The long established policy of the law is that an acquittal is not to be contradicted or undermined by a subsequent charge that raises the same ultimate issue or issues as was or were involved in the acquittal. That is so even though the evidence proving perjury is unanswerable.
See also Garrett v The Queen (1977) 139 CLR 437, 445 (Barwick CJ).
The inviobility of a verdict of acquittal has been diluted to some degree in this State by legislation introduced after the decision in R v Carroll ‑ notably the Criminal Appeals Amendment Act (No 2) 2008 (WA) which introduced a limited right of appeal for the prosecution from a judgment of acquittal after a jury's verdict of not guilty but only on certain charges and only on grounds that the trial judge made an error of fact or law in relation to the charge. In the absence of such an error of fact or law a verdict of acquittal resulting from perjured evidence, undiscovered at the time, would not be susceptible to appeal.
There may also be cases where, although there is evidence to support the charge and which is led at the trial, an acquittal ensues or a conviction is subsequently set aside on appeal because of the absence or inadequacy of a corroboration warning thought in the circumstances to have been necessary or because a jury was not properly directed about the risks of relying solely upon the evidence of a young child who may not fully appreciate the significance and obligation of giving evidence on oath or under affirmation.
In these latter cases, if there has been a conviction after trial but the conviction is set aside on appeal for the reasons stated, it will usually be the case that the appellate court will have assessed the overall strength of the prosecution case and ordered a retrial in order to redress the injustice of the trial being resolved on an erroneous basis when the error or defect is capable of correction. If there is a decision not to order a retrial, it may often be the case that that is because the appeal court considers that there is not sufficient justification for a retrial on the merits.
Of course, such an opportunity for correction of 'technical errors' in the conduct of the trial by the remedy of ordering a retrial available to an appeal court will not exist where there has been an acquittal at the trial itself. Then there may be instances where there has been a strong case for the prosecution but not strong enough to establish the charge beyond reasonable doubt, leading to an acquittal at the trial. That same evidence may, however, be considered sufficient to establish the commission of the alleged assault or impropriety according to the civil standard of proof rather than at the higher criminal standard.
No doubt other examples could be given to demonstrate how, in a particular case, a verdict of acquittal after trial, or a directed verdict of acquittal after a successful appeal from a conviction, may demonstrate that the original charge was quite groundless or, on the other hand, that despite the absence of conviction there are, nevertheless, strong, cogent grounds for suspicion that the alleged offence had occurred or, alternatively, that it could be accepted to have occurred if the lower civil standard of proof were applicable.
A prominent feature of cases where an acquittal or dismissal of the charge occurs after trial or appeal is that the course of proceedings and the reasons leading to that result are matters of record and, therefore, are examinable. The examination may allow a conclusion to be reached whether or not the conviction or dismissal of the charge was, or was tantamount to, the establishment of innocence or whether it failed to dispel a case giving rise to a suspicion on reasonable grounds that the person charged had, in fact, committed the offence.
However, that is unlikely to be the case when a person is charged with a designated offence but the charge simply does not proceed because it is abandoned by the prosecution. Sometimes the reasons for the abandonment may be significant as, for example, in a case of the death or disappearance of a crucial witness. Otherwise, the abandonment of a prosecution may be found to be because of the realisation that there is either no case which could be established against the person charged or that the case is so weak that it is pointless for it to be pursued. In those cases, it is difficult to see how the laying of the charge, later abandoned, could give rise to a reasonably based suspicion that the person charged had actually committed the alleged offence or that he or she should be regarded, for that reason, as representing a risk of harm to children if working with them.
All this reflects the long known fact that a conviction of a person for an alleged offence, unless set aside, can be regarded as evidence that that person did commit that offence ‑ see Perth Mint v Mickelberg (No 2) (1985) WAR 117 and Donnellan v Public Trustee [2007] WASC 213, [27] ‑ [55], but that an acquittal or dismissal of the charge or its abandonment does not prove anything ‑ Lancee v Willert [2008] WASCA 120 [55], [66].
The policy underlying the provisions of the WWC Act, and in particular s 12(4), appears to reflect a deep seated belief in the fallibility of the criminal law system, at least insofar as it may be relied upon to lead to the due conviction of offenders charged with having committed child sex offences. That attitude is clearly evidenced by the Minister's second reading speech in the Legislative Assembly, Western Australia, Parliamentary Debates, 20 October 2004, 6947 (Ms S McHale, Minister for Community Development, Women's Interests, Seniors and Youth) where, with respect to the provision in the Bill then being introduced to the Parliament, which ultimately became s 12(4) of the Act, the Minister said:
The Bill provides that certain charges are to be checked. Not all offences against children result in convictions. Therefore, the Government has resolved the charges will be assessed also. We will not tolerate paedophiles who have escaped conviction for various reasons working with our children.
Charges related to class 1 and 2 offences will be assessed. These include those charges that did not result in court conviction ‑ known as non‑conviction charges ‑ and pending charges yet to be decided by a court. This will enable consideration to be given to sexual and violent offences that have been dismissed on a technicality or have not proceeded because of the impact on the victim ‑ particularly children ‑ and the reliability of the evidence. It includes also cases that are awaiting a decision, during which time the risk is too high to allow persons to work with children. Queensland, New South Wales and the United Kingdom also assess charges of child‑related work.
Great care needs to be taken with provisions such as s 12(4) and arguments along the lines reflected in the Minister's speech. The Honourable Minister's illustration proceeds on the assumption that the person charged with the offence was actually guilty of it but escaped trial or conviction fortuitously notwithstanding his or her actual guilt. If such a postulate can be demonstrated or is established by the available evidence then one would unhesitatingly join with the Minister in agreeing that such a person may well represent a risk of harm if working with children and for that reason, notwithstanding that the charge against him or her resulted in no conviction, that there may well be justification for a negative notice to issue. However, if that initial postulate cannot be justified and there is no cogent reason to conclude that the person charged actually committed the offence, then to reason from the mere laying of the charge to a conclusion that the offence had been committed is entirely unjustified and prejudicial. The 'no smoke without fire' approach when considering the significance of a fact that a charge has been laid cannot be accepted not only because of its pernicious tendencies, but because it is a reversal of the most fundamental of all rules of evidence, namely that the onus of proving any fact alleged, whether in the criminal or in the civil sphere, must rest upon the person asserting it ‑ see Phipson On Evidence (17th ed, 2010) par 6‑02, and Cross On Evidence (8th Australian ed, 2010) at [7010] and [7015], and Mills v Barber (1836) 1 M&W 425 and Robins v National Trust Co Ltd [1927] AC 515 (PC).
This accounts for the provisions in s 12(4) to the effect that where an applicant for an assessment notice 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. It is that provision which led Buss JA in Grindrod [No 2] [81] to conclude 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 same conclusion was reached by Murray AJA at [166] in the passage from his Honour's reasons which has already been cited. In other words, in cases to which s 12(4) applies there must be material to establish one or more of the factors mentioned in s 12(8) which produces in the mind of the CEO a satisfaction that there is a risk of unacceptable harm being done to a child before a negative notice may be issued and that such information arises from 'the particular circumstances of the case', namely the case involving the non‑conviction charge.
Proposed amended grounds of appeal
The proposed grounds of appeal as amended slightly by counsel for the applicant at the commencement of this hearing are quite lengthy, nevertheless, it is necessary to set them out in full.
Ground One
1.1The Tribunal erred in law:
(a)In paragraph 94 of its reasons it said 'the main ground for setting aside the convictions (for the 1990 charges) was that the direction of the Trial Judge did not adequately instruct the jury how it should deal with similar fact evidence' and that the charge in count two differed with that identified in the crown's opening address.
Conversely, the Court of Criminal Appeal (the Appeal Court) did not allow the appeal mainly because of misdirection on similar fact evidence. Franklyn J stated that the complainant's evidence led to support count one was 'confused and contradictory'; that the relevant evidence was of the complainant alone; that the complainant agreed that allegations in his police statement of 'similar acts' were untrue as were other statements, that he was not 'firm' in cross examination; and further that there was 'no evidence' to support count two (page 6 of reasons).
Rowland J agreed with Franklyn J stating the evidence against the appellant (hereinafter referred to as the applicant) depended upon the credit of the complainant when there were serious discrepancies between his sworn evidence and that of his Police statement, and that the other evidence was not probative. His Honour had doubts about the admissibility of other evidence as it did not show a relevant sexual relationship and could be consistent with an innocent association;
(b)In paragraph 94 of its reasons the Tribunal said: '……….it is also relevant to note that Anderson J considered that the Trial had not miscarried in relation to count one and, to that extent, it can be said that the jury should be taken to have accepted at least some of the evidence given by BC [name omitted]* and other witnesses'.
Conversely, the judgment (and ratio) of the Appeal Court was that of Rowland and Franklyn JJ, who quashed both counts, and declined to order a re‑trial. Anderson J's view on count one was not the decision of the Court.
1.2As to paragraph 1.1(a), in misconstruing the legal basis upon which the Appeal Court allowed the appeal against the 1990 convictions, and in further failing to take into consideration adequately or at all the comments made by the Appeal Court as to the lack of credibility of BC [name omitted]*, the Tribunal erred in law.
1.3As to paragraph 1.1(b), in placing reliance upon the dissenting comments of Anderson J, and further in drawing inferences from his Honour's remarks that therefore some acceptance be given to what the jury determined in relation to the evidence of BC [name omitted]* and others, the Tribunal misdirected itself and further took into account irrelevant material and thereby erred in law.
Ground Two
2.1In concluding that there was a 'reasonable suspicion' that the applicant may have indecently dealt with children (Reasons paragraph 3) the Tribunal relied upon 'considerable similarity between the alleged offences' [85].
2.2In considering section 12(8)(d) of the Working with Children (Criminal Record Checking) Act 2004 (WA) (the Act) the Tribunal:
(a)referred to breaches of alleged similarity in the allegations being the applicant's involvement with young children or adolescents; permitting them to sleep at his house or cabin; providing alcohol to the point of intoxication; and in placing his hands in the pants of the alleged victims(s) and masturbating them whilst they were intoxicated (Reasons paragraph 89).
At the 1990 Trial the applicant's evidence was that he had not given drink to minors except on very limited occasions (volume 2: TP 308.4); that the 2008 charge (which did not relate to children at the applicant's school) did not involve the applicant inviting the alleged victim to sleep at his cabin; that he did not himself provide alcohol to the alleged victim; and that the alleged victim did not allege any act of masturbation;
(b)The Tribunal said 'there is no reason to believe that any of the persons concerned in the second charge had any knowledge of the earlier ones and therefore would be in a position to……….collude……….or make allegations of a similar type……….' (Reasons paragraph 90).
The applicant's evidence was that he believed that the father of FG [name omitted]*, witness to the alleged 2008 offence (who was not the alleged victim), knew of the 1990 charges and therefore there was reason to believe FG [name omitted]* may also have known.
2.3The Tribunal omitted to address relevant material adduced by the applicant set out in paragraph 2.2(a) and (b) above (and further adjudicate upon its weight) and thereby the Tribunal committed jurisdictional error constituting an error of law in that:
(a)it thereby ignored and overlooked relevant material before it;
(b)it failed to address critical material relevant to the indicia under section 12(8)(d) of the Act that determines if an assessment notice should issue under section 12(4) of the Act;
(c)it was material for the Tribunal to give consideration to such evidence which was relevant to its decision under section 12(4) of the Act.
Ground Three
3.1That there was no credible evidence or other material to support the Tribunal's finding of 'reasonable suspicion' that during the second half of 1990 the applicant dealt with BC [name omitted*] indecently, on one or more occasions, in the way described by BC (Reasons: paragraph 96).
3.2The record of the 1990 proceedings showed:
(a)The findings of Rowland and Franklyn JJ commented adversely upon BC's credit. The honours held that there were serious discrepancies in his sworn evidence; that the evidence on count one was confused and contradictory and that there was no evidence upon count two; that there was no evidence of recent complaint; and that BC agreed that statements of 'similar acts' were untrue; and that the jury verdict was fundamentally flawed by reason of the deficiencies in the legal directions;
(b)The Appeal Court's decision in all the circumstances was that it would be inappropriate to order a re‑trial;
(c)The two counts alleged at the 1990 trial were around April 1990 and the decision of the Court was that evidence alleged of similar acts later in 1990 were not properly admissible as relationship or similar fact evidence;
(d)The respondent did not call any witness in support of a contention that the applicant may have indecently dealt with BC (or anyone else). Conversely, the applicant gave uncontroverted oral evidence that he did not;
(e)Following the Appeal Court's decision; the Department of Education and the Crown Law Department carried out investigation of the applicant and re‑instated the applicant as a teacher with all entitlements for the suspended period and with the status of good standing.
3.3That the Tribunal erred in law in finding that there was 'reasonable suspicion' in that:
(a)It ignored material relevant to section 12(8) of the Act as set out in 3.2(a) to (e) above;
(b)it legally misconstrued the effect of the Appeal Court's decision as set out in paragraphs 3.2(a), (b), and (c);
(c)it placed reliance upon discredited evidence (of BC) and thereby the finding was not based on evidence and its decision was irrational, illogical and not based upon reasonable inferences.
Ground Four
4.1The Tribunal (at paragraphs 30, 31 and 32) said that following the quashing of the applicant's convictions in March 1994 the applicant was reprimanded, fined, and re‑instated. The Tribunal then, at paragraphs 79 to 82, address the evidence of Mr Paul O'Connor who was the only witness called by the respondent.
4.2The Tribunal ignored relevant material in that:
(a)The applicant tendered three letters which showed that the Department of Education carried out an investigation under section 7C of the Education Act and that the Crown Law Department was consulted, and that following this inquiry the applicant was re‑instated as a teacher with all entitlements for the suspended period and with the status of good standing;
(b)Mr O'Connor, though criticising the course taken by the Department, admitted that he had not read the detailed history or informed himself of the court transcript relating to the applicant's conduct;
(c)It omitted to consider the applicant's argument that since those who investigated the applicant following the 1990 charges recommended after investigation that he be re‑instated an assessment notice should now issue, pursuant to section 12(4) of the Act, unless the respondent were able to show that 'the particular circumstances of the case' relating to the 2008 charge were such that a negative notice should issue and that the evidence relating to the 2008 charge did not establish such circumstances.
4.3In ignoring relevant material in paragraph 4.2(1) and (b) and in failing to direct itself to the issue referred to in paragraph 4.2(c) the Tribunal erred in law.
Ground Five
5.1As to the 2008 charge, the Tribunal considered it was entitled to hold a 'reasonable suspicion' that the applicant dealt with DE [name omitted]* because it was 'influenced' by JK's [name omitted]* statement that FG [name omitted]* asked JK 'whether he had seen the offence occur' suggesting FG believed that he had seen the event FG described (Reasons: paragraph 98(a)).
5.2The prosecution did not present any statement from JK [name omitted]* to the Court, and the Tribunal relied upon the untested and unsigned police deposition of FG [name omitted]* that he spoke to JK 'about what I had seen, but [JK] couldn't remember …'.
The applicant obtained a signed statement from JK in which JK said he had been asked by FG whether he had seen the applicant touch DE [name omitted]* and JK told FG that he had 'only seen the applicant consoling DE by putting his arm across his shoulder, nothing more' and that a year later JK had told the Police the same thing.
The applicant's solicitor then obtained a subpoena against the Western Australian Police Commissioner which revealed that the police had indeed taken an undisclosed statement (unsigned) from JK in which he said he had not seen any misconduct by the applicant.
5.3The Tribunal placed reliance upon FG's [name omitted]* belief in an unsigned and untested police deposition that he had seen the event but not JK's signed statement produced by the applicant that his reply was that he had seen nothing wrong and had told JK that this was so. The Tribunal did not allude to the absence of JK's unsigned statement from the prosecution brief at the time the 2008 charge was dismissed.
5.4The Tribunal said it had 'considerable reservations' about the applicant's denial that anything had happened on the night in 2007, and it said initially his recollection was poor and it was only when he was specifically asked that he had thought he had probably gone out to comfort DE (Reasons: para 98(b)).
5.5Contrary to the Tribunal's finding in paragraph 5.4, the applicant's evidence to the Police was consistent in that he said that he was drinking; that he slept through the evening; and probably did go out during the night to comfort DE though this was subsequent to DE's vomiting. There was therefore no inconsistency in the applicant's account.
5.6The offence is alleged to have occurred in 2007, but in concluding that the applicant may have indecently dealt with DE the Tribunal placed importance on alleged inconsistencies between DE and the applicant's account of events in 2008 (reasons: paragraph 98(c)) relating to how DE came to sleep on the applicant's bed and relating to the placement of candles even though it was not alleged by the prosecution that any unlawful incident occurred in 2008.
The applicant said it must have been DE who arranged candles beside the bed and not himself. The applicant said to the Police that DE knew his cabin extremely well (TS 27.6). DE does not contest in his statement as to how he came to sleep there and further said 'we lit candles' when the lights went out. DE's statement does not deny (or comment upon) whether it was DE himself who arranged candles beside the bed (as the applicant contended). The applicant's evidence was not materially inconsistent with the statement given by DE.
5.7The Tribunal erred in law in that in paragraphs 5.1, 5.2, 5.3, 5.5 and 5.6 it misconstrued the evidence; failed to have regard to material relevant to Section 12(8) of the Act; took into account irrelevant material; and misdirected itself as to the test of satisfaction in Section 12(4) and 12(8) of the Act and further as to the proper inferences to be drawn.
Ground Six
6.1The Tribunal failed to discharge properly its statutory duty in that:
(a)on 24 April 2008 a negative notice was issued to the applicant;
(b)on 24 July 2008 the applicant applied to the respondent for an assessment notice;
(c)on 19 December 2008 the negative notice was affirmed by the respondent;
(d)on 14 January 2009 the applicant applied to the Tribunal;
(e)the hearing occurred on 10 and 11 June 2009;
(f)when over a year had elapsed and the applicant's representatives had not been notified of an extension granted to the Tribunal by the President under section 76 of the State Administrative Tribunal Act, 2004 (the Act) the applicant's solicitor wrote to the President of the State Administrative Tribunal on 8 July 2010;
(g)the associate to the President responded by letter dated the 13th July 2010 and said that it is anticipated that the Tribunal would deliver its reasons by 30 July 2010;
(h)on 4 August 2010 the Tribunal gave its reasons.
6.2It has now been twenty five months since the application for an assessment notice by the Applicant. There has been a delay of approximately fourteen months between the hearing and the judgment, delivery of which only occurred after complaint had been made by letter of the applicant's solicitor to the President. The time that has passed since the application for an assessment notice was made; and the delay in the delivery of judgment gives rise to a strong inference that by reason of the protracted delay the Tribunal failed to address the principal arguments of the applicant; failed to have regard to relevant material under Section 12(8) of the Act; and misconstrued both the evidence adduced at trial and important findings of the Appeal Court relating to the 1990 proceedings.
6.3Further, that the applicant has been prejudiced by the delay in that until a decision is made the applicant is unable to work as a teacher or pursue any appeal process.
The Tribunal maintained that their decision and reasons have not changed from that held 'soon after the hearing' (reasons paragraph 22). There is therefore no cogent basis for delaying delivery of reasons for this length of time.
6.4By reason of the matters referred to in paragraph 6.2 the tribunal committed errors of law and the applicant has suffered procedural unfairness by reason of the prejudice referred to in paragraph 6.3 since the applicant has been disadvantaged in availing himself of prompt redress through the appeal process.
(* At each of these places the name of the witness or alleged victim has been inserted in the notice of appeal but, in this reproduction of these grounds of appeal all the names of the alleged victims or witnesses have been removed for the usual reasons.)
Leave to appeal - errors of law
The respondent submits that, despite being pleaded as alleged errors of law, grounds 2, 3, 4 and 5 of the applicant's proposed grounds of appeal advance only arguable errors of fact, not of law, and that consequently none can be made the subject of a grant of leave to appeal ‑ SAT Act s 105(2). Counsel for the respondent relies on a passage in the reasons of Buss JA in Paridis v Settlement Agents Board [2007] WASCA 97 [53]; (2007) 33 WAR 361, 382 where his Honour says:
If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law
in support of the attack upon the legitimacy of these proposed grounds of appeal. However, the proposed grounds of appeal for which the applicant seeks the grant of leave to appeal involve alleged errors of law of a particular kind. Reduced to essentials, the proposed grounds are designed to contend that in reaching its ultimate decision the tribunal misapplied the correct test to be applied; failed to address essential steps in a reasoning process necessary to be applied in order to undertake and determine the critical test, and disregarded information (evidence) which must have been taken into account in order properly to address and apply that test.
The applicant also desires to contend that the tribunal erred in law in attaching significance to the reasons for decision of the learned judge of the Court of Criminal Appeal who dissented in relation to the disposition of the appeal from the first of the convictions in 1993. Another alleged error of law is that the SAT concluded that there were reasonable grounds for suspecting that the applicant had committed a sexual offence with the alleged victim in the latter part of 1990 when no such offence had ever been charged.
It will be seen, therefore, that those proposed grounds of appeal which advance or involve the issues just mentioned challenge the process of fact finding by the tribunal but in a way which asserts that that process has involved errors of law because of alleged failures to consider issues essential in the particular case for the application and determination of the final test. They also allege legal error in attaching significance to particular facts or findings when it was wrong to do so as a matter of law, or when those particular facts or findings could not support a proper process of reasoning which could lead to the decision ultimately reached by the tribunal. In this way, and advanced as they have been in the written and oral submissions, these contentions raise a number of important issues about the extent to which errors or omissions in fact finding or errors or omissions in addressing particular issues of fact may involve, or lead to, errors of law in the process by which a tribunal reaches its ultimate decision or in the manner in which it approaches and applies the crucial test for determination of the issue before it.
Again citing from the judgment of Buss JA in Paridis, counsel for the respondent advanced the following propositions, all of which were accepted, namely:
•a question of mixed law and fact is not a question of law
•a ground of appeal which asserts that the decision is against the evidence and the weight of the evidence does not raise a question of law
•a tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis
•a ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law
•a ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account alleges an error of law, but it is not sufficient if the consideration is merely one that may properly be taken into account or that many persons may have taken into account
•there is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence on the other.
However, as the authorities now to be reviewed demonstrate, it will be an error of law to fail to take into account a fact or circumstance which is necessary for the consideration and determination of some essential step in the analysis and determination of the statutory test which is to be applied by a tribunal or, correspondingly, to give impermissible significance to a fact or circumstance on the material before the tribunal which results in a misapplication of the determination of the ultimate test.
In the present case, for reasons already canvassed, it is clear that the decision to be made by the respondent, when Mr Hardingham sought to have the negative notice cancelled, and by the SAT on the review which it conducted, was whether under s 12(4) because the applicant has three non‑conviction charges, the CEO is nevertheless to issue an assessment notice unless satisfied that because of the particular circumstances of the case a negative notice should be issued. The particular decision to be made in that respect under s 12(8) was whether or not the CEO, and then the SAT, was satisfied in relation to the particular circumstances of the case having regard to the six specified statutory criteria. Self‑evidently this task required that the decision maker should be satisfied, because of the particular circumstances of the case, that a negative notice should be issued. Unless so satisfied, an assessment notice should issue in accordance with s 12(4).
Consequently, the process of the determination of facts, circumstances or suspicions and the processes of reasoning towards those findings, and from them, and in determining the inferences which should be drawn, constituted a course which the SAT was required to follow on this review. That is not to suggest that every step, choice or inference taken in that process is examinable on an appeal to this court because it may contribute in one way or another to the ultimate decision, but it does mean that if a wrong test is applied, or a step essential for the proper determination of the process is omitted, or significance is given to some fact or circumstance which in law it cannot support, then that error will involve an error of law in the ultimate process and justify intervention of this court in the exercise of its appellate jurisdiction. Support for these conclusions can be found in many authorities, some of which I now mention.
In Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24, 39 ‑ 40, Mason J said:
The failure of a decision‑maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action… Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a)The ground of failure to take into account a relevant consideration can only be made out if a decision‑maker fails to take into account a consideration which he is bound to take into account in making that decision…
(b)What factors a decision‑maker is bound to consider in making a decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors ‑ and in this context I use this expression to refer to the factors which the decision‑maker is bound to consider ‑ are not expressly stated, they must be determined by implication from the subject‑matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard…
(c)Not every consideration that a decision‑maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re‑exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision…
(d)The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising the discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned…
And there is the well‑known passage in the judgment of Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54, 77 that:
A finding by the AAT on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law… The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact…
In the present case the applicant submits that errors of law which it contends were made by the SAT both arose on the facts as the SAT found them to be (the significance given to the decision of the Court of Criminal Appeal to quash the convictions in 1994 ‑ the finding that there was a reasonable suspicion that the applicant had indecently assaulted the alleged victim in the latter part of 1990 when no such offence had ever been charged) and that the alleged errors vitiated the findings made by the SAT or caused the Tribunal to omit to make a finding it was legally required to make (to consider what reduction or diminution in the significance of the reasonable suspicions arising from the evidence gathered against the applicant in relation to the charges should occur because none of those charges resulted in a conviction ‑ in other words, in failing to consider expressly the probative value of the suspicions to which those materials had once given rise).
The intricate way in which the fact finding process and the inferences which can be drawn from facts found may affect questions of law in addressing and determining an ultimate decision of a tribunal was addressed by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 ‑ 356 where the learned Chief Justice said:
The question whether there is any evidence of a particular fact is a question of law: … Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law:… This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: … So in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law: …
But it is said that 'there is no error of law simply in making a wrong finding of fact'…
Thus, at common law, according to the Australian authorities want of logic is not synonymous with error of law. So long as there is some basis for an inference ‑ in other words, the particular inference is reasonably open ‑ even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. (references to authorities omitted)
In the passages immediately following Mason CJ went on to identify and acknowledge a difference in view between Australian authorities and English cases about whether or not findings which could not reasonably have been reached on the evidence or inferences which could not reasonably have been drawn from the primary facts amounted to reviewable errors of law and then identified 'several decisions in which it has been suggested that findings of fact which are unreasonable or arbitrary may be reviewed under provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) if they amounted to a 'decision' within that legislation (359 ‑ 369) or a finding which was an essential preliminary to the making of the ultimate decision required of the tribunal.
In the same case Deane J, who otherwise agreed with the reasons of the Chief Justice and in the ultimate decision, said at 367:
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of 'proportionality' … When the process of decision‑making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision‑making is disclosed, there will be a discernible breach of duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
The caution and reserve with which a court undertaking a review of a decision of an administrative body, whether under a statutory power such as the ADJR Act, the SAT Act or on applications for prerogative relief exists because the court must be careful to observe the limits on judicial review and avoid usurping the role committed to the administrative body to make decisions within the limits of its powers. This is why great care is exercised to ensure that, when reviewing such decisions on grounds which involve any scrutiny of the facts, the role of judicial review does not become a 'merits review' but, rather, stays within the confines of the supervisory jurisdiction to ensure that the statutory or executive powers have been exercised according to law. These reasons prompted Brennan J to say in Church of Scientology Inc v Woodward (1982) 154 CLR 25, 70:
Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.
Brennan J expanded on this principle in Attorney‑General (NSW) v Quin (1990) 170 CLR 1, 35 ‑ 36. His Honour's observations were adopted and applied in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 as follows:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and the enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; for the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
This reasoning has led to the employment of the phrase 'jurisdictional error' which will justify a court exercising a review of administrative action to intervene on the grounds that there has been an error of law ‑ Craig v South Australia (1995) 184 CLR 163, 179 but which recognises (177 ‑ 180) the difficulty of distinguishing between jurisdictional and non‑jurisdictional errors while maintaining the distinction. As the court said in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 141 [163]:
The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision‑maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision‑maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
That certain errors in this process of fact finding can amount to errors of law is established. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ recognised the breadth of the potential area for such errors of law saying, at [82]:
It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision‑maker making such an error. As was said in Craig v South Australia (1995) 185 CLR 163 at 179, if an administrative tribunal (like the Tribunal)
'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'
'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passages cited from Craig, is not exhaustive (cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute…
These principles apply to the process by which a tribunal might reach some necessary state of mind about the existence or otherwise of a criterion essential for the decision which it is entrusted to make such as, in the present case, whether or not the CEO, or the SAT, or now this court, should be satisfied that because of the particular circumstances of the case under s 12(4) of the WWC Act a negative notice should be issued. Gummow ACJ and Kiefel J addressed the question of how the process of reaching such a state of mind by the statutory decision‑maker might amount to an error of law and a jurisdictional error in Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611, 620 at [23] where their Honours said:
In Australia, as Basten JA recently observed (Commissioner of Police v Ryan (2007) 70 NSWLR 73, 85), the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms 'arbitrary, capricious, irrational' as well as 'not bona fide' to stigmatise the formation of an opinion upon which a statutory power was enlivened ‑ (1944) 69 CLR 407 at 432. Subsequently, for the Supreme Court of Canada, Icoubucci J spoke of decision‑making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open ‑ Canada (Director of Investigations and Research) v Southam Inc [1977] 1 SCR 748 at 776 ‑ 777.
In Nicholls v Young [1992] 2 VR 209, 214 ‑ 215 Smith J had occasion to examine the requirements for the existence of reasonable suspicion that a person was in possession of stolen goods and, in the course of doing so, observed at 215:
It was common ground that several elements of the concept of reasonable suspicion are well established by authority. First, the reasonable suspicion had to be entertained at the time the persons were in possession of the property in question: eg Rowe v Galvin [1984] VR 350 and McDonald v Webster [1913] VLR 506. Secondly, the reasonable suspicion must attach to the property and not merely to the person in possession: O'Sullivan v Tregaskis and Yeo v Capper [1964] SASR 1. Thirdly, the suspicion must be entertained upon reasonable grounds: Wallace v Hansberry [1959] SASR 20; George v Rockett (1990) 170 CLR 104; Nicholas v Fleming [1959] Tas SR 165; and Deudney v PAlston (1940) 57 WN (NSW). Fourthly, the mere fact that a man makes an untrue statement as to how he came into possession of goods when questioned is not in itself a ground for believing them to be stolen: McDonald vWebster.
It is this content of the term 'reasonable suspicion' carrying with it the need for the suspicion to be reasonably based upon plausible information or facts, but not necessarily material amounting to prima facie proof or admissible evidence ‑ Shaaban Bin Hussein v Chong Fook Kam [1969] 3 All ER 1626, 1630 (Lord Devlin PC) to which I consider Buss JA and the other judges in Grindrod and Scott were referring rather than to 'imagination or surmise'. Accordingly, there must be some established basis for the existence of the alleged reasonable suspicion which will allow scrutiny of its probative value, as Buss JA intended should occur. Were there no basis advanced for the existence of the alleged suspicion, then not only would it be unreasonable but scrutiny of its probative value would not be possible.
Need for evaluation of probative value of suspicion
This is a significant and material omission of an essential step in the process of reasoning towards the statutory test contained in s 12(4) of the WWC Act.
What has not occurred in the analysis and evaluation undertaken by the tribunal is a consideration of the apparent probative value of the suspicions entertained. This is evident from the final conclusions of the Tribunal at [103] in the following passage:
… we have concluded in this case that, although we have identified some factors that point towards the applicant being granted an assessment notice, there is an unacceptable risk of sexual harm to children if that were to occur. The factors in s 12(8) of the WWC Act are not of equal significance in the evaluative exercise that we have had to undertake. This is a case, we consider, where the arguably positive factors that have been identified relating to the applicant's good employment history as a teacher, the high regard in which he is held by friends and colleagues, and the reasons for the failure of the charges laid against him, must yield to the paramount consideration prescribed by s 12(8)(a) and s 3 of the WWC Act. Our conclusion is that, in the particular circumstances of this case, there would be an unacceptable risk in the future to children if the applicant were to be granted an assessment notice.
One curiosity which emerges from this conclusion is the reference by the tribunal to the reasons for the failure of the charges laid against the applicant being arguably positive factors. This can only suggest that the SAT did not consider that this was a case where the reasons for the failure of the prosecutions arising from the alleged 1990 incidents or the abandonment of the prosecution in 2008, failed to diminish or detract from the initial apparent strength of the respective prosecution cases. That being so, it is difficult to understand how the conclusion could be reached that the facts and circumstances associated with those non-conviction charges could lead to a reasonable suspicion that the applicant had indeed committed one or more of those offences or, more significantly, an offence in the latter part of 1990 with which he was never charged.
Furthermore, to approach the matter of whether or not an assessment notice should be issued as an open and evenly weighted question under s 12(8) in the circumstances of this case is to ignore the directive in s 12(4) that in the case of non‑conviction charges an assessment notice is to issue unless the CEO is satisfied that because of the particular circumstances of the case, a negative notice should be issued. As Murray AJA said in Grindrod [No 2] , the exercise begins with the legislation leaning slightly towards the issue of an assessment notice unless the particular circumstances of the case require otherwise. In this instance, the exercise of the evaluative approach by the SAT has miscarried because the existence of a reasonable suspicion has been treated as determinative, or at least as largely determinative, of the question of whether or not there is an unacceptable risk of harm to children and, further, because having regard to the failure of the prosecution of the charges arising from the alleged incidents in 1990 and the abandonment of the 2008 prosecution, there has been no attempt by the Tribunal to evaluate the probative value of such suspicions in establishing or contributing to the establishment of satisfaction in the ultimate test.
Unacceptable risk
In Scott [No 2] McLure P was not persuaded that the term 'unacceptable risk' is consistent with the statutory scheme [22]. Her Honour took the view that the WWA Act identified any risk of harm to children as calling into question whether or not an assessment notice should be granted or refused, saying that the Act does not expressly or impliedly impose a minimum risk threshold [24]. However, on this particular issue the learned President expressed a view which was not endorsed by the majority of the court. Buss JA expressly decided to the contrary, namely that the critical question for the decision maker under s 12(5) is whether on all the information and material properly before him there is an 'unacceptable risk' that the applicant might in the future cause sexual or physical harm to children in the course of carrying out child‑related work. His Honour held that the risk in question has to be unacceptable, not likely, and that it was implicit in the Act that the decision maker is not entitled to issue a negative notice unless satisfied that there is an 'unacceptable risk' of harm to children ‑ see Scott [No 2] [123], [127] and [158] ‑ [159]. On this issue Newnes AJA agreed with Buss JA ‑ see [158]. Reference to the need for an 'unacceptable risk' had previously been made by Buss JA in Grindrod [No 2] at [85] ‑ [87] and Wheeler JA agreed at [1]. I am, therefore, bound to follow the decisions of the majority in both Grindrod [No 2] and in Scott[No 2] that the question for consideration is whether or not there is an 'unacceptable risk' of harm to children if an assessment notice were to issue.
In the present case, however, there is no real controversy or divergence of view about different degrees of magnitude of the risk posed to children if the applicant were to be granted an assessment notice. Rather, the question is whether, in the light of the non‑conviction charges, the issue of an assessment notice should be refused because of the particular circumstances of the case. Inevitably, however, the evaluation of the particular circumstances of the case will give rise, as Buss JA said in both Grindrod [No 2] and Scott [No 2], to an evaluation of whether or not the information before the Tribunal gives rise to an unacceptable risk of harm to children, and that is the ultimate test which the Tribunal adopted in its reasons at [103]. However, on its route to that destination the process of assessment and evaluation miscarried for the reasons already given.
Delay by the SAT in giving a decision
The hearing before the SAT took place on 10 and 11 June 2009 but the reasons and decision of the Tribunal were not given until 4 August 2010, nearly 14 months later. In the interim the applicant's solicitor had written to the President of the SAT on 8 July 2010 expressing concern over the delay (1AB 39). The Tribunal acknowledged the length of time which had elapsed with regret and offered apologies and an explanation which appears at [22] as follows:
We note, with regret, the time that has elapsed from the hearing of this proceeding and the production of these written reasons and decision and we sincerely apologise to the parties for any inconvenience or difficulty that this delay has caused. We are satisfied that our decision and our reasons for it have not changed in the period since soon after the hearing of the application and the delivery of these reasons.
The SAT Act requires the Tribunal to act as speedily as practicable ‑ s 9(b) and s 76 requires an extension to be obtained from the President after 90 days if the judgment is not ready. There has been no indication that any such extension was sought or granted. A failure to comply with s 76 does not, however, affect the validity of the decision ‑ s 81.
The basis upon which a Court of Appeal should act when faced with a ground of appeal that there has been undue delay in delivering a decision and reasons by the court or tribunal concerned was comprehensively addressed by the Full Court in Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] ‑ [40]. I adopt, with respect, the approach undertaken in that case but mention that, on this particular occasion, the delay was considerably shorter and that detailed reasons for decision addressing many, but not all, of the submissions raised by the applicant at the hearing before the SAT were given.
The applicant advances this ground of appeal on the basis that it constitutes procedural unfairness and as such amounts to jurisdictional error and relies upon NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 in support of that contention. In that case Gleeson CJ, Kirby, Callinan and Heydon JJ (Gummow and Hayne JJ dissenting) held that a delay by the Refugee Review Tribunal (RRT) of five years and about four months in giving its decision to affirm a refusal to grant protection visas created a real and substantial risk that the Tribunal's capacity to assess the applicants' evidence and evaluate their claims was impaired so that they were denied a fair hearing, and that this amounted to a jurisdictional error. As Gleeson CJ said at [10]:
If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellant should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.
In written submissions for the applicant, his counsel also relied upon Goose v Wilson Sandford & Co [1998] EWCA Civ 245. That case was referred to with evident approval by Callinan and Heydon JJ in NAIS v MIMIA [166] where their Honours went on to observe that they agreed that delay of itself may undermine the basis for a judgment that requires the weighing of claims and facts, and that in the case before the RRT the delay of more than five years was a highly relevant consideration in determining whether the process before the Tribunal had been fairly conducted. In Goose v Wilson Sandford & Co the English Court of Appeal took the view that a decision involving disputed questions of fact reserved for 20 months could not stand. Callinan and Heydon JJ also referred to Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729 with evident approval of the approach taken by the NSW Court of Appeal to factual findings of a trial judge where there had been a significant delay in giving a judgment appealed from ‑ in that case the decision with reasons was given more than 17 months after judgment had been reserved 'and there was every indication that it had been written in haste and under pressure'. Hunt AJA outlined nine propositions in support of the approach to be taken by an appeal court in such circumstances (at [43] pages 742 ‑ 743). With reference to those propositions Giles JA said at [3] that the thrust of the approach is that extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge's findings or whether the trial judge's findings are adequate. It seems that one could conclude that extensive delay may weaken the confidence which would otherwise be placed in findings of fact contained in a long delayed decision if the delay is left unexplained or the findings do not appear to be well supported by the evidence.
The applicant's submissions include contentions that the reasons for decision of the SAT failed to analyse the reliability of the evidence of the witness for the respondent, the departmental documentation, in particular, the meaning to be given to the term 'satisfied' under s 12(4), and the absence from the 2008 prosecution case of a statement by another witness when the police were aware that his evidence supported the applicant. In Mount Lawley v WAPC at [40] the court explained why, in that instance, it did not consider it necessary to determine the appeal on the basis of delay but observed that the delay ground had been relevant to assessment of the strength of other grounds, as had occurred in Laminex (Australia) Pty Ltd v Smeeth [1999] NSWCA 462 [9].
This was a case of considerable difficulty with a long history and one which I am satisfied at all stages should have called for anxious consideration. The materials, while not voluminous, nevertheless are large, and the determination of the case called for a decision on relatively recent legislation which had already been revealed by the decisions of the Court of Appeal in Grindrod [No 2] and Scott [No 2] to involve complexities and intricacies. I do not consider that in this case the delay which has occurred amounts to procedural unfairness or a jurisdictional error but it is, nevertheless, another factor to be taken into account in considering whether or not there has been jurisdictional error in the process of fact finding leading to the decision of the Tribunal on the crucial test required to be determined under s 12(4), namely whether or not the decision‑maker could be satisfied in the particular circumstances of the case that rather than issuing an assessment notice where there had been non‑conviction charges, a negative notice should issue. The delay which has occurred can only add to, rather than diminish, the inadequacies in the processes of reasoning which have been examined in relation to the manner in which and the grounds upon which the Tribunal reached its conclusion on that question.
Power of disposition by this court
Section 18 of the SAT Act provides that when exercising its review jurisdiction the tribunal is to deal with the matter in accordance with the SAT Act and the enabling Act which, in this case, is the WWC Act ‑ see s 3 of the SAT Act. By s 27(2) the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
On an appeal from a decision of the Tribunal to this court, in respect of which leave to appeal is given ‑ s 105(1) SAT Act- the court dealing with the appeal may, by s 105(9), (a) affirm, vary or set aside the decision of the Tribunal; (b) make any decision that the Tribunal could have made in the proceedings; or (c) send the matter back to the Tribunal for reconsideration either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate and, in any case, may make any order the court considers appropriate.
It follows, in the present case, where I am satisfied, as I am, that errors of law in the decision by the SAT have been established, that the court can now order that the appeal be allowed and the decision set aside, or that a different decision be substituted, or that the matter can be set back for reconsideration in the light of these reasons.
Conclusion
For the foregoing reasons I consider that the applicant has made good his submissions that:
(a)the SAT erred in law in relying upon the decision of the Court of Criminal Appeal to quash the appellant's convictions in 1994, and in particular upon the dissenting judgment of Anderson J, to support its conclusion that it had a reasonable suspicion that the applicant had indecently assaulted the alleged victim in the latter part of 1990 and its conclusion that Anderson J considered that the trial had not miscarried in relation to count 1 and, to that extent, it can be said that the jury should be taken to have accepted at least some of the evidence given by the alleged victim and other witnesses;
(b)there was no reasonable basis upon which the SAT could properly find that considerable similarity between the alleged offences supported a conclusion that there was a reasonable suspicion that the appellant had committed an offence of indecent dealing in 1990 or that he had committed an offence of indecent dealing as charged in 2007;
(c)the SAT erred in law in failing adequately or at all to analyse and have regard to the fact that following the quashing of the applicant's convictions in March 1994 and, after investigation by the Education Department, he was reinstated as a teacher with full entitlements, including salary for the period of his suspension, and thereafter worked continuously and without adverse further incident as a teacher until charged in April 2008;
(d)the SAT erred in law in failing to address a consideration essential to the determination of the issue before it, namely whether or not the quashing of the convictions in 1994 for the offences of which the applicant had been convicted in 1993, and the abandonment by the prosecution of the 2008 charge at an early stage removed or significantly diminished suspicions previously held that he may have committed any or all of the offences charged;
(e)the SAT erred in law in concluding that the evidence before it was capable of giving rise to a reasonable suspicion that the applicant had committed an offence of indecent dealing with the alleged victim in the latter part of 1990 or that he had indecently dealt with the alleged victim as charged in 2007;
(f)the SAT erred in law in failing adequately or at all to consider whether any reasonable suspicions which it entertained (wrongly) that the applicant had committed an offence with the alleged victim in the latter part of 1990, or with the alleged victim in 2007 as charged, were sufficient, in all the circumstances of the particular case, to establish an unacceptable risk that, if an assessment notice were to issue, the applicant would cause harm to children if permitted to work with or in conjunction with them.
These conclusions arise from upholding the substance of grounds 1, 2, 3 and 4 of the amended grounds of appeal. I do not consider that any part of ground 5 of the grounds of appeal has been established as this is directed to particular findings of fact which, upon close examination, are within the jurisdiction of fact finding by the Tribunal. Any such errors, even if established, could not therefore amount to errors of law.
With respect to the issue of delay and the giving of its decision as raised by ground 6 of the grounds of appeal, I do not consider that, in all the circumstances, the delay which occurred has amounted to a denial of procedural fairness and, consequently, it does not constitute an error of law upon which the applicant can independently succeed. Nevertheless, as set out earlier, the delay which has occurred contributes, in parallel, to the conclusions expressed about the findings made by the SAT in relation to jurisdictional facts to be addressed and considered by the Tribunal when approaching and undertaking its ultimate obligation of deciding whether it was satisfied, in the particular circumstances of this case, that a negative notice should be issued to the applicant under s 12(4) of the WWC Act rather than an assessment notice.
These conclusions must lead to a decision to allow this appeal and to set aside the decision of the SAT to affirm the decision of the respondent of 19 December 2008 not to cancel the negative notice issued on 24 April 2008. Because the decision of the respondent of 19 December 2008 which was under review before the SAT also relied substantially upon errors of law in the significance attached to the decision of the Court of Criminal Appeal to quash the applicant's convictions in 1994 and upon other evidence at the 1990 trial taken in association with the non‑conviction charge against the applicant in 2008 to reach that conclusion, it too should be set aside.
That then leaves the question of what ultimate disposition of the appeal should be ordered by this court. Some elements of the case relied upon by the respondent, and then by the SAT, for issuing the negative notice were alleged unsuitable relationships which the applicant as a teacher had established with his pupils in 1990, and his behaviour in swearing in front of them, offering them drink, and allowing them to become intoxicated as had been described in the evidence in the 1993 trial. Furthermore, although I am satisfied that the available evidence does not support in law any suspicion upon reasonable grounds that the appellant committed the offence charged against him in 2007, the material which was submitted to the respondent did establish that he was found in bed with a young boy on Easter morning 2008 in circumstances which gave rise to disquiet. He was never charged with an offence in relation to that incident and he gave an explanation which included a denial of any improper conduct. However, even though that incident could not be regarded as establishing the commission of a class 1 or class 2 offence and did not result in a non‑conviction charge, it nevertheless amounts to evidence which I am satisfied the respondent, and hence the SAT, could and should take into account in deciding whether or not it was satisfied, in the particular circumstances of the case, that a negative notice should issue.
No decision on those matters has been made by the respondent or by the SAT except in conjunction with what I have concluded to be wrongful reliance placed upon the effects of the decision of the Court of Criminal Appeal in 1994 and the suspicions, not justified by reasonable grounds, that in all the circumstances the applicant had indecently dealt with the alleged victim in the latter part of 1990 and had indecently dealt with the alleged victim in 2007. A decision as to the significance of the other matters, putting aside those which were erroneously taken into account and the failure by the SAT properly to address considerations essential to the determination of its task under s 12(4), requires an evaluation of those other circumstances to be undertaken without regard to the potential adverse significance of any of the non‑conviction charges but, as part of all the circumstances which the decision‑maker should take into account under s 12(8)(e) and (f) of the WWC Act. Such a decision requires the contaminating effect of the errors of law which I have found to have occurred to be excluded and the ultimate decision under s 12(4) to be made in the absence of prejudicial and erroneous reasoning.
While it is open for this court to make a decision which finally determines the matter upon its merits, none of the parties has invited me to do this upon the basis which I have now concluded the decision should be approached. More importantly, neither the applicant nor the respondent has directly addressed any of those facts or issues in the course of submissions in a manner which would allow them to be considered by excluding the wrongful interpretation of the significance of the other factors which I have identified. Under s 105(9) this court has the power to send a matter back to the Tribunal for reconsideration either with or without hearing further evidence, in accordance with any directions or recommendations that the court considers appropriate and, in any case, to make any order the court considers appropriate.
I have already concluded I should make an order allowing the appeal and setting aside the decisions of the SAT on 4 August 2010 and of the respondent of 19 December 2008, and those orders will be made. However, I consider that, because for the reasons given it is not possible finally to resolve the question of whether or not an assessment notice should issue in the ordinary course under s 12(4) due to these unresolved issues. I therefore remit the matter to the SAT for consideration of that question without regard to any adverse inferences or suspicions which may be thought to arise from the decision of the Court of Criminal Appeal in 1994 quashing the applicant's convictions for alleged offences in 1990 or to any suspicion or inference that the applicant may have committed the offence with which he was charged in 2008.
In view of the nature of the decision which still needs to be made and having regard to the views which have been expressed by the members of the SAT in the decision under appeal, I consider that the reconsideration by the SAT should be before a tribunal constituted by members other than those who heard and determined the review in 2009 ‑ 2010.
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