HARGRAVE and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION - [2009] WASAT 176

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)

CITATION: HARGRAVE and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2009] WASAT 176

MEMBER: MR M ALLEN (SENIOR MEMBER)
MS F CHILD (MEMBER)

HEARD: 5 DECEMBER 2008

DELIVERED : 14 SEPTEMBER 2009

FILE NO/S: VR 170 of 2008

BETWEEN: JOHN OMER HARGRAVE
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent

Catchwords:

Working with Children (Criminal Record Checking) Act 2004 (WA) - Nonconviction charge - Charge of indecent dealing with a child under 13 by the coordinator of a vacation camp for children - Acquittal after jury trial - Allegations of inappropriate relationship with and behaviour towards a child - Whether negative notice required because of particular circumstances of the case - Whether unacceptable risk that the applicant might in future cause harm to children

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 320(4)
State Administrative Tribunal Act 2004 (WA), s 27
Working With Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6(1)(a)(i), s 7(2), s 12, s 24, s 26

Result:

Decision to issue negative notice affirmed

Category: B

Representation:

Counsel:

Applicant: Mr P Bevilacqua and Mr H Chew
Respondent: Mr P Dixon

Solicitors:

Applicant: Success Legal
Respondent: Department for Child Protection

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28
The Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant was issued with a negative notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) by reason of a non‑conviction charge of indecent dealing with a child under 13 and evidence of other conduct that was said to be 'grooming' behaviour directed to that child and other children. He sought a review of that decision by the Tribunal.
The Tribunal examined the circumstances surrounding the charge and the history of the charge in the criminal justice system, which resulted in the applicant being acquitted after a trial before a jury, as well as other information concerning the applicant's circumstances.
The Tribunal concluded that there were reasonable grounds to consider that the applicant represented an unacceptable risk to children if granted an assessment notice. The Tribunal came to this conclusion having regard to its concerns about several aspects of the applicant's evidence regarding the alleged offence, the applicant's inappropriate conduct with the complainant, and the applicant's inability to recognise the inappropriateness of his conduct and where appropriate boundaries should be drawn in any dealings between young children and adults in responsibility.
Accordingly, the decision to issue a negative notice was affirmed.

Background and statutory framework

The applicant was born in 1968 and was, at the time of the hearing, 40 years of age. He has a son aged 4 years. At the time of the hearing of the proceeding the applicant was working as a bus driver.
The applicant says he has worked for more than 20 years in the childcare industry - usually in after-school-care activities, having started to assist his mother at her workplace after school when he was 15 years of age. He said that, at the time of the review hearing, he had conducted over 70 school holiday programmes and 12 vacation camps. He obtained a Diploma in Out of School Hours Care in October 2005. Prior to working full-time in the childcare industry, he worked at a casino for eight years.
In 2002, when he was the senior officer at an out-of-school childcare[f1] service, the applicant was charged with indecent dealing with a child under 13 years contrary to s 320(4) of the Criminal Code Act Compilation Act 1913 (WA). The particulars of the charge were that the applicant had, in January 2002, allegedly touched an 11year-old girl's vagina with his hand whilst at a vacation camp.
In January 2003 the applicant was acquitted of that charge after a jury trial in the District Court by a unanimous decision of the jury. The applicant has no other criminal convictions.
In 2004 the applicant applied for a licence to operate an Out of School Hours Care Service at a community centre and for that purpose underwent a 'child protection record check' conducted by the then Department of Community Services. This entity, under this and other names by which it was subsequently known, will be referred to in these reasons as the Department. The check revealed that the applicant had been charged with but acquitted of the indecent dealing charge referred to above. In February 2005 he was interviewed by departmental officers and later in 2005 the licence was granted.
The Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) was proclaimed on 1 January 2006 and from 1 January 2007 persons working in 'child-related employment' were required to apply for an 'assessment notice' under the provisions of that legislation. By virtue of s 24 of the WWC Act it is an offence to be engaged in child-related employment without having a current assessment notice.
Child-related employment includes child-related work carried out by an individual under a contract of employment. Child-related work includes work in which 'the usual duties of the work involve contact with a child in connection with a childcare service (s 6(1)(a)(i)) of the WWC Act.
Section 12 of the WWC Act relevantly provides that the respondent[f2] is to deal with applications for assessment notices by either issuing an assessment notice or by issuing a negative notice to the person who has applied. In certain circumstances the respondent must issue an assessment notice (s 12(3)) or must issue a negative notice (s 12(7)). Neither of those provisions is relevant in this case. Section 12, subsections (4), (5) and (6), deal with other situations, and provide as follows:
(4)If the CEO -
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a non‑conviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(5)If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6)If the CEO -
(a)is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;
(b)is aware of a Class 2 offence of which the applicant has been convicted; or
(c)is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
In February 2007, while working as the senior officer at the out of school childcare service, the applicant applied for an assessment notice as he was required to do under the WWC Act.
A charge of indecent dealing is a 'Class 2 offence' as that term is defined in the WWC Act, s 7(2). Section 4 of the WWC Act defines a 'non‑conviction charge' as' … a charge of an offence that has been disposed of by a court otherwise than by way of a conviction.' The acquittal of the applicant of the indecent dealing charge means that the applicant had a non-conviction charge for the purposes of the WWC Act. It was not in dispute in the proceeding that, because of the nonconviction charge and the fact that the applicant had not been convicted of any offence, the applicant's application for an assessment notice fell for consideration by the respondent under s 12(4) of the WWC Act.
The WWC Act at s 12(8), provides that if subsections (4), (5) or (6) of s 12 apply in respect of an offence the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to:
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
By letter dated 7 December 2007[f3] the applicant was advised by the respondent of a proposal to issue a negative notice and was invited to provide a submission as to his suitability for child-related work before a final decision was made.
Submissions were made by the applicant's employer and by the applicant in January 2008 and February 2008 respectively. On 10 September 2008 a delegate of the respondent made a decision to issue a negative notice to the applicant, setting out the reasons for doing so in a letter of that date.
Following the issue of the negative notice the applicant sought review of that decision by this Tribunal pursuant to the provisions of s 26 of the WWC Act. That review is by way of a hearing de novo and is not confined to matters that were before the original decision-maker. The purpose of the review is to produce the correct and preferable decision at the time of the Tribunal's decision upon the review: State Administrative Tribunal Act 2004 (WA), s 27.

The question before the Tribunal

The issues for the Tribunal to determine are whether the decision to issue the negative notice should be affirmed or whether that decision should be set aside and a decision substituted that an assessment notice should be issued to the applicant.

The approach to be adopted

As noted at [12] above, s 12 (4) of the WWC Act requires the respondent (and the Tribunal on review) to issue an assessment notice to the applicant unless satisfied that a negative notice should be issued '… because of the particular circumstances of the case …' In undertaking an assessment of the particular circumstances the decision-maker must have regard to the factors set out in s 12(8). In addition, s 3 of the WWC Act provides that in performing a function under the Act the respondent, or the Tribunal, is to regard the best interests of children as the paramount consideration.
The Court of Appeal has considered the legislative scheme of the WWC Act when s 12(4) is applicable. In Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 (Grindrod), Buss JA (with whom Wheeler JA agreed) observed at [69] and [70] that the respondent (and the Tribunal on review) is entitled and bound to take into account and give separate consideration to each of the criteria in paras (a) ‑ (f) of s 12(8) of the WWC Act; is not entitled to take into account any other factors; but each criterion is not of equal significance in the evaluative exercise because of the 'paramount consideration' of the best interests of children referred to in s 3. If, and to the extent that, in any case, a criterion in paras (b) ‑ (f) conflicts with the criterion in para (a), the relevant criterion in paras (b) ‑ (f) must yield. Whilst para (a) of s 12(8) will always be relevant and paramount, the other criteria in paras (b) ‑ (f) must always be taken into account, but the weight to be accorded to them will vary, depending on the facts and circumstances of the particular case.
The respondent provided a useful summary of the approach taken by the Court of Appeal in Grindrod, when deciding applications under s 12(4), with which the applicant agreed. The Tribunal adopts that summary in part, as follows:
•The legislative purpose of s 12(4) is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in childrelated employment who pose or may pose a potential threat, even though the civil rights of applicants issued with negative notices will be adversely affected, and in some cases, those applicants with nonconviction charges may suffer serious of irretrievable damage to their reputations or a significant diminution of their earning capacity (Grindrod at [76]).
•It is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO (and the Tribunal on review of the CEO's decision) is not 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 childrelated employment (Grindrod at [81]).
•The critical question for the Tribunal under s 12(4) is whether, on all the information and other material properly before the Tribunal there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment. The risk in question has to be unacceptable, not likely. (Grindrod at [85]).
•Even if the information and other material properly before the Tribunal does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function (Grindrod at [85]).
•The factors which bear upon risk include (but are not limited to):
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non‑conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and
(d)the likelihood of any such future risk materialising (Grindrod at [86]).
•The analysis and evaluation of risk must be based on all the information and material properly before the Tribunal. It will be necessary for the Tribunal to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions (Grindrod at [87]).
•The purpose of an assessment under s 12 of the WWC Act is not to re-try the applicant's non‑conviction charge. Neither the respondent nor the Tribunal is a court exercising criminal jurisdiction. It is not the function of the respondent or the Tribunal to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk and is not concerned with the proof of offences but with the prevention of potential future harm (Grindrod at [84]).

Evidence and material before the Tribunal

The applicant gave oral evidence at the hearing. No other witness was called by the applicant or the respondent.
The Tribunal also received a considerable quantity of documentary material, including the following:
•The applicant's written statement of evidence dated 4 December 2008, including attachments.
•Documents from the respondent, including the original application by the applicant for an assessment notice together with submissions made by the applicant and references from the management committee of his employer; and the document's showing the respondent's assessment of the application, including material available to the respondent such as the police investigation of the non-conviction charge and the trial of the applicant in the District Court.
•Documents and submissions from the respondent regarding the appraisal by the Probity Panel of the Department in 2005.
•Documents provided by the respondent regarding the investigation of a notification to the Department in March 2008 that a child may be at risk of harm. This material related to a notification to the Department by the mother of a 10-year-old girl with whom the applicant had had contact via internet messaging, which her mother considered inappropriate.
•[f4] An article entitled 'Sexual Grooming of Children: Review of Literature and Theoretical Considerations', by Craven, Brown and Gilchrist[f5] published in the Journal of Sexual Aggression, November 2006, Vol 12 No 3, page 287 to page 299.

The police investigation of the non-conviction charge

On 22 January 2002 a girl who was at the time 11 years of age (referred to in these reasons as C) made a statement to the police about her involvement with the applicant and, in particular, the events at a vacation camp that had taken place between Monday, 7 January 2002 and Friday, 11 January 2002 and the days following that camp. Some of the main points made in C's statement to police were:
•She met the applicant as a result of attending school holiday events at the centre operated by the applicant during about four school holidays in 2001. She became 'one of his favourites'. The applicant's favourites were asked to do special jobs and given gifts.
•At the time of the holidays in July 2001 she and the applicant 'became closer, like good friends' and talked about 'personal stuff'. He started to give her cards he made on his computer that said things like how special C was and how she was great to have around.
•In the school holidays starting in December 2001 she again went to the day care centre and she thought the applicant 'started to get more serious towards me. His attitude changed. I felt he was becoming more interested in me'. He again gave her cards saying how special she was, and also gave her a diary and a ceramic bear that said 'I need a hug'.
•C thought the applicant was 'getting a little bit too full on. I thought he was too old for me'.
•At first C did not intend going to the January 2002 camp but the applicant encouraged her to go and she agreed to do so, along with about 60 other children.
•C was allocated a dormitory room with other girls and the applicant set up his bed, which was made of mattresses on the floor, in the function room of the camp. A television was in the function room.
•On the Monday and Wednesday nights C slept in the dormitory. On Tuesday night she and some other girls slept on the applicant's bed in the function room. C was one of two girls on the bed and the applicant slept between them. Some other girls slept on the floor.
•On the Thursday night C again slept on the applicant's bed - with the applicant again in the middle and C and another girl on each side. They had gone to bed at about 3 am.
•C was wearing a pink nightie that came to just above her knees, pink boxer shorts, a singlet and knickers. She was in her sleeping bag that was zipped up at the side and she and the bag were under a doona.
•C remembered facing away from the applicant, who was facing towards her with his arm across her stomach and 'cuddling up' to her.
•C remembered dozing off, and thought she slept - but didn't know for how long. She woke up, still facing away from the applicant, but could feel his hand inside her boxer shorts and under her knickers. He was touching her pubic area, his hand coming from over her.
•The applicant's hand stayed in that position for about a minute then moved down and touched her on the outside of her vagina, underneath her clothes. He touched her in this way for about two or three minutes, without saying anything, and then he got up out of the bed and moved away.
•C realised that the sleeping bag was unzipped, so she zipped it up, held it tightly around her, and went back to sleep.
•The next morning the applicant invited her to return from the camp in his car rather than the bus, but she declined the invitation.
•She next went to the day care centre on Wednesday, 16 January 2002 and both she and the applicant acted as though nothing had happened. On the next day she again went to the centre and spoke to the applicant. He gave her his old mobile phone (a red and black Nokia) and she subsequently obtained a SIM card for the phone from her mother. C then notified the applicant of her new number, as he had requested. On that same day (17 January 2002) the applicant had sent her two picture messages on the mobile phone ‑ one of flowers and one of love hearts.
•She had not told anyone about the events at the camp immediately, but on Friday, 18 January 2002, her mother had questioned her about whether there was something wrong and she had told her mother about the touching incident. She had also written some personal things in her diary concerning the applicant but had subsequently torn the pages out and disposed of them after she heard that her father had read the pages.
•C had been confused and angry about the sexual touching because she had trusted the applicant and regarded him as a friend.

C's mother (in these reasons referred to as M) also made a statement to police, the main points of which were:
•After coming home from the camp C had surprised her by saying she did not want to go to a school camp in Albany.
•On 16 January 2002 C had come home from the day centre with a red Nokia phone. Both C and the applicant had asked M previously whether C could be given the phone, but she had not previously said whether she could or not.
•On 17 January 2002 M had bought a SIM card for the phone and noticed over the next few days that C was sending and receiving messages, often very late at night. C said the messaging was with the applicant.
•On 18 January 2002 she had seen one of the messages, which was to the effect that the applicant wanted to 'kidnap' C and take her away to an island. M had replied to this message as a joke, suggesting that the applicant take her rather than C.
•On the Saturday C had again gone to the day centre and was to bring home another phone, which the applicant had said he would give to M. While C was at the centre M spoke to her brother and C's father about the messaging between C and the applicant. Later the same day she told C that she would have to give the phone back to the applicant, which upset C. After C spoke to M's brother, she gave the phone to M and asked her to give the phone back to the applicant. Later, C's father (who is divorced from M) found other items in C's bedroom, including pages torn from the diary, and C's father and step-father then contacted police.
•On the Saturday evening M spoke to C about the applicant, but C denied anything had happened. Over the next couple of days M again tried to speak to C, but she remained angry about the telephone.
•Eventually (M thought on Monday, 21 January 2002) C had told M of the touching at the camp. C appeared reluctant to talk and M thought she was trying to protect the applicant.
C's father made a statement to police to similar effect as that of M. Statements made by police officers were to the effect that C's father contacted local police on 19 January 2002, and that enquiries commenced on Monday 21 January 2002, with a statement being taken from C on 22 January 2002.
The applicant was interviewed by police on 24 January 2002 with a video recording made of the interview. It appears that the applicant had no legal advice prior to the interview and had not previously been interviewed by police. C's allegation, as told to police, was put directly to the applicant. Relevantly, the main points in the interview of the applicant as revealed in the transcript of the interview are:
•The applicant denied on a number of occasions that he had touched C in the manner alleged.
•He remembered C was asleep in her sleeping bag on his bed. He had woken C up because '… it was sort of the last night of camp. We always get up to a bit of mischief on the last night … The only contact that I actually had with her was I might have - I held her hand, and I was … (indistinct) … feeling for her belly button …'
•In relation to waking C, the applicant said he was still lying down when he woke her up and that the waking up process was a long drawn out one.
•Later in the interview, when asked how the touching of C's belly button had come about, the applicant said he poked C's the belly button because '… I've got an infatuation with it. I like girls who've got belly rings so I asked her about it and just prodded her in the [belly button] … ', and also asked C when she was going to get a ring.
•He agreed that C's sleeping bag had been zipped up, but then said that it had only been zipped up to about C's waist. He said initially C had been lying with her back to him but then she lay on her back and that was when the belly button had become visible to him.
•He finds it easier to work with children than adults and prides himself on knowing where to draw the line with children and not going over that line. He thought he related to C 'really well'.
•He volunteered that he had inadvertently left on the phone he gave C an old picture message that he described as 'disgusting … and probably not suitable for a girl her age'. C had drawn it to his attention and he had asked her to delete it. We note at this point that at the hearing before the Tribunal the applicant identified the picture, '… from memory, as a computer generated image of a man's penis going into the mouth of someone'. He said that this image was sent to him on his mobile telephone a long time ago and he left it on the telephone and had forgotten about it. He said that he had initially thought that it was this matter that the police had wanted to interview him about.
•The applicant said he may at times have been over affectionate with children in his care and that he had perhaps been over affectionate with C. He agreed he had sent 'quite a few' text messages to C. He said they were 'Oh, they're sort of "missing you" messages … Probably a few of them went overboard talking about running away together but her mum was actually present when I was sending those messages'.
•He said C had sent him a message with eyes and a love heart picture with the message 'Mmm, [C] and I love you, from your secret admirer'.
•In response to questioning about the messaging the applicant said, 'Yeah, well, just you reading them out now I'm not proud of it now because obviously I've got myself in a bit of hot water over it. It's just things you do on the spur of the moment and maybe I've forgotten that she's only 11-years-old.'
•He agreed he had sent 'special' messages to C after the camp and when asked whether he had sent those messages to any other child he said he had not because they weren't 'appropriate'. When asked why it was appropriate to send such messages to C he responded: 'Well, I'm not saying it's appropriate, but it's, um, just something that maybe got out of hand.'
•He agreed he had sent cards to C, including one saying 'I'm just sitting here feeling sad because you're not here … here are some songs that remind me of you - "Don't want to let you go" … "Angel" … "I want to be with you" … "Friends Forever" … "Depend on Me" … "Can't get you out of my head" … Thanks again for the wonderful card and keep smiling because I think you are just wonderful and extremely talented. Whenever I see your gorgeous face I can't help but feel all happy inside.' The applicant acknowledged that the card 'was something that would be sent to someone more [his] own age.'
•He agreed he had given C another card which read; 'For just being you. But what can I say about you--? You are just so lovely, pretty, cute, intelligent and so much fun to be around. I do however always tell you these things but I can tell that it is - that it embarrasses you a lot. I wonder what you are doing when you are not here and I know I'm gonna miss you - miss having you around during the school term. I'm sorry for the teasing but it is sometimes the only way I can get you to smile. Thanks for the lovely card, it almost made me cry because you said such lovely things. Things like that make working here great. Thanks again for being so perfect. Good luck in year 7 this year. Feel free to drop in whenever you want because I'm almost always here. You are the best,[C]. Your best mate John.'
•When the text of the card was read to him during the police interview he said '… obviously I've gone way over the top with this and probably said some things in there that's … but I make her feel good and maybe makes her feel a bit threatened or whatever … once you sort of get an inch you sort of take a mile and a few things that I said maybe, you know, she was sending messages back. I know she's only 11 but ... (indistinct) ... encourage and sent more stuff and that sort of thing.'
•He agreed he had videotaped the children at the camp early in the morning, including in their beds, going 'straight into their rooms to catch them unaware with the video camera'.
•The applicant said he had given C a mobile telephone which he said he no longer had any use for. He denied that it was of any significant value. He agreed he had sent the complainant text messages including one with the words 'I'd like to kidnap and take you away to an island' on the telephone.

The District Court trial of the non-conviction charge

C's evidence in chief was substantially the same as her statement to police referred to above. During cross-examination C said that she already had a Motorola mobile phone before the applicant gave her one and that she had not 'pestered' him to give her one. She said she had used the SIM card from her old phone, rather than getting another one from her mother. C denied that there had been any discussion with the applicant about belly button rings on the Thursday night. C agreed that she had been very upset about her mother taking the mobile phone away from her.
Evidence was also given to the District Court by M regarding the circumstances of the disclosure made by C and the sequence of events leading up to the complaint being made to the police. C's father had first approached police regarding the messages on the mobile phone prior to the disclosure by C to her mother about the touching. M said that C did not have a Motorola phone and had been very keen to get the mobile from the applicant. M agreed that she had attempted to telephone and text the applicant following the charge being laid even after the applicant's solicitor had advised her that contact would be in breach of the applicant's bail conditions. The content of the contact between M and the applicant was suggestive of a desire by M to have some sort of relationship with the applicant.
It appears that at the trial only an edited copy of the video record of interview conducted with the applicant by police was played at his trial, apparently as a result of an agreement between the prosecuting and defence counsel. Precisely what was edited from the record of the interview is not known to the Tribunal.
The applicant's evidence was that on the Thursday night of the camp he had gone to the main function room where his mattress was after packing up equipment and the children in the hall were asleep. He said he had tried to wake C by calling her name and shaking her shoulder so that they could get up to some mischief on the last night of camp. By mischief he meant doing something funny or playing practical jokes. He said when he had woken C up she had turned around and her belly button had been exposed to him. He said he asked when she was getting a belly button piercing and prodded her in the belly button.
He said that he assumed that he had turned the lights off when he went to bed but he could see C's belly button because he had a torch and between the torch and a 'bug zapper' there was enough light. He later said he wasn't sure if the lights had been turned off. He said he lay down on the bed between C and the other girl with his arms crossed. He denied that he cuddled up to C or went to sleep with his arm across or around her.
The applicant said that, following the camp, C came to the centre and collected the mobile phone from him, which he gave her because he had no use for it. They later sent text messages to each other. He agreed that he had exchanged texts and cards with C but said he had also given cards to other children.
Evidence was also given by several other persons, one being a woman who had also worked with the applicant at the camp and who confirmed that at various times children often slept other than in their allotted dormitories. She saw nothing inappropriate about the sleeping arrangements in the room in which the applicant and C slept on the Thursday night. Another witness, who is the mother of another girl who slept in the same bed as the applicant and C, said that she had asked the applicant how the camp had gone and he said that' ... it would have been good if he'd got some sleep'. He then told her about her daughter sleeping in his bed and she thought there was nothing untoward about those arrangements.
In his direction to the jury the trial judge drew their attention to the possibility of C's evidence being unreliable, pointing out the conflicts in the evidence regarding whether C already had a Motorola mobile phone; that C was said to have been upset and confused about the touching but had nevertheless contacted the applicant after the camp to obtain two mobile phones; and the possibility that C's disclosure to her mother may have been 'pressed' out of her after her father contacted police regarding the messages and cards.
In the event, the jury found the applicant not guilty of the charge after deliberating for a little over four hours.

The Probity Panel examination

It appears from material filed with the Tribunal by the respondent that after the applicant was charged with indecent dealing the Department examined the allegations and, on the strength of the police statements, determined that the applicant was a 'person believed responsible' for abuse of a child and notified the applicant accordingly. However, the Department considered that it had no role to play in taking any action because the childcare centre was funded by the Commonwealth government.
In 2004 the activities of the applicant's centre became subject to State licensing requirements and the applicant applied to be the responsible officer. His circumstances were referred to a Departmental Probity Panel, which again reviewed the circumstances of the indecent dealing charge in light of the applicant's acquittal. The Panel recommended that the applicant's status as a 'person believed responsible' be reviewed and, subsequently, in April 2005, the applicant was approved by the Department to be the responsible officer of the childcare centre.

Events in 2008

On 29 March 2008 the Department was contacted by the mother of a 10-year-old girl who had previously attended the childcare centre operated by the applicant until its closure in early 2008. The mother thought that it was inappropriate that the child was maintaining contact with the applicant by way of internet messaging, although the mother did not think that the content of the messages was necessarily inappropriate. The Department responded to that contact quickly, in light of the applicant's history, but agreed that the content of the messaging was not inappropriate and that no action was required because the parents of the child had put in place arrangements that meant that no issue of harm to the child arose.
The applicant provided to the Tribunal documents that he said showed a 'thread' of messages between himself and the child between 20 March 2008 and 24 April 2008, at various times up to 9.40 pm. On their face, the messages do not seem out of the ordinary, but we note one from the child of 27 March 2008: 'I saw you driving past the school today at recess', and one from the applicant to the same child of 24 April 2008: 'came to visit you at school mate but u were not there - "sigh"'.
Other documents produced by the applicant show emails or Facebook messages made by other children and addressed to the applicant, some of which occurred only a few days prior to the Tribunal hearing and two of which appear to have been sent after midnight.[f6]
We note that in these messages the applicant's email address is 'redjox012' and his message name is 'Red Back Spider'.

The Tribunal hearing

The applicant was the only person to give evidence at the hearing. He said that he was passionate about working with children and he believed that he had been a positive influence on the children that he had worked with. He said that since the non-conviction charge was laid against him he has altered his behaviour to ensure he was not alone with a child or in a position where his actions could be misinterpreted. He denied that he had ever engaged in any abusive conduct towards children ‑ C or any other child.
The applicant said that his conduct was 'taken out of context', had 'got him into hot water', and that it had 'create[d] incorrect perceptions'. He agreed that it was inappropriate to sleep in the same bed as young girls, explaining that it was inappropriate, '[b]ecause you can be perceived to be having other motives'.
He said that he could earn more money in other occupations, but he wanted to return to child care because of his passion for the work.
The applicant said that he maintained contact through MSN and Facebook with no more than four children from the childcare centre where he previously worked. He denied any suggestion that being available to the children and communicating with them was part of conduct that could be labelled as 'grooming'. He said, 'I see no issue with the level, degree or nature of the communication I have had with these children'.
The applicant also produced a bundle of personal references and letters of appreciation from parents and children that he had come into contact with over the years of working with children. Some were dated and others undated. Some were from persons who were clearly aware of the 2002 allegations and in some cases it was not clear whether the writers were so aware. All spoke in very favourable terms of the applicant's dedication to and skill in working with children, often expressing great confidence in the safety of children in his care.

Consideration of the WWC Act s 12 factors

We turn now to consider the specific matters referred to in s 12(8) of the WWC Act in the light of all the information and evidence set out above. In accordance with the principles that have emerged from the authorities, the paramount consideration is that set out in s 12(8)(a), namely the best interests of children. It is convenient to consider first the factors in s 12(8)(b) to (f) before considering the paramount consideration required by s 12(8)(a) and s 3.

Section 12(8)(b): When the offence is alleged to have been committed

The non-conviction charge was alleged to have occurred in January 2002, at which time the applicant had worked with children for many years. He continued to work with children until early 2008. There has been no suggestion that he had ever been accused of any similar conduct, before or after the alleged offence. The absence of other allegations over a history of more than 20 years in child-related work is, we think, a factor that weighs significantly in the applicant's favour.

Section 12(8)(c): The applicant's age when the offence is alleged to have been committed

At the time of the non-conviction charge, the applicant was 33 and he is now 41. At the time of the alleged offence, C was 11-years-old and the applicant was the camp coordinator with overall responsibility for her care and was clearly in a position of trust. The alleged offence is a serious one. This is not a case where, if the alleged conduct had occurred, the applicant's age could be said to in any way mitigate the seriousness of the conduct.

Section 12(8)(d): Nature of the alleged offence and relevance to child‑related work

The alleged offence of indecent dealing with a child under the age of 13 at an overnight vacation camp where the applicant was the camp coordinator is obviously highly relevant to child-related work. The applicant was responsible for the children attending the camp, some of whom were very young, and was, necessarily, placed in close physical proximity to them. Any abuse of such a position of trust would be a factor that would count heavily against the applicant.

Section 12(8)(e): Information given by the applicant in relation to the application

Section12 (8)(f): Anything else reasonably relevant to the decision

We have described in some detail above the major events and circumstances that relate to the alleged offence and the applicant's position generally since the time of the alleged offence. All of those events and circumstances, and all the material provided by the applicant and the respondent are, we consider, relevant to the determination that we must make in the proceeding.

As noted above, it appears that part of the transcript and video of the applicant's interview with police in 2002 was not placed before the jury at the trial, although we are not aware of the extent of that editing. In addition, Counsel for the respondent submitted that this material was also not before the Probity Panel. Whether or not that was the case, we have the full transcript of the interview and we consider that we are entitled and bound to have regard to it.

Section 3 and s 12(8)(a): Best interests of children as the paramount consideration

As we have observed above, the critical question for the Tribunal is whether on all the information available to us there is an unacceptable risk of future harm to children if the applicant were to engage in child-related work. Some of the factors that bear upon that risk, as identified by the Court of Appeal in Grindrod, have been set out in [22] above. McLure J observed in The Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 (Scott) at [10] that the primary harm contemplated by the types of offences classified as Class 1 or Class 2 offences is sexual or physical harm, but her Honour did not want to '… foreclose the possibility that other types of harm are relevant'. We address first the risk of sexual or physical harm to children if the applicant were to be granted an assessment notice, then consider a further type of risk.
In deciding to take the indecent dealing charge to trial in the District Court, the Director of Public Prosecutions must have considered that a prima facie case existed and that there was a reasonable prospect of conviction.
It seems to us that there were both strengths and weaknesses in the case. At the trial C maintained her version of the events on the Thursday night, although other aspects of her evidence about events after the alleged offence differed from that of her mother. The applicant maintained his denial of the events occurring as alleged by C and provided an explanation of his dealings with her and the communications with her that he said cast an innocent light on the relationship rather than a sinister one.
The evidence of M, under cross-examination, of her attempts to contact the applicant after the police had charged him with the offence and the content of the messages she sent to him may have also undermined the credibility of the prosecution case, raising the possibility of another motive for the complaint being made to the police.
As he was bound to do, the trial judge directed the jury as to the inconsistencies in C's evidence and the prosecution case, and told the jury that they really had three alternatives: if they believed C's evidence as being honest, reliable and accurate then they could be satisfied beyond reasonable doubt of the applicant's guilt; if they believed the applicant's evidence then they could not convict him; and, as a third alternative, if they found that they didn't know which of C or the applicant to believe, then they would be left in a reasonable doubt and they would have to find the applicant not guilty.
Obviously, the jury must have found themselves in the position of His Honour's second or third alternatives - but we are in no position to know which of the two applied. It is not our task to attempt to determine the applicant's guilt or innocence and the fact of the acquittal must count as a substantial factor in the applicant's favour.
Nevertheless, we note several factors about the event the subject of the charge.
•By his own admission the applicant allowed young girls to sleep on his bed - although there is some uncertainty whether C was under the same doona. By doing so, he placed himself in very close physical proximity to them ‑ when they were asleep and not wearing normal 'day' clothes. The fact that other children may have been sleeping in the same room nearby does not reduce the obvious possibility of physical contact.
•We find very difficult to understand or to accept the applicant's evidence that he tried to wake C up for the purpose of 'having fun' - given that it was very late, all the other children appear to have been asleep, and that it seems probable that the room was at least darkened. Had the applicant tried to wake all the children in the room it might have been different, but to try to wake only C in the situation that existed at that time for the purpose of having harmless fun seems, to us, unlikely.
•We found the applicant's descriptions of how he was able to see C's belly button, given the uncertainty about whether the lights were on and whether her sleeping bag was fully (as he first said) or only half zipped up (as he later said), quite unconvincing.
•By his own admission, the applicant's hand must have been deliberately at least partly in C's sleeping bag. In his first version of events given to police he said that he held C's hand and that he was 'feeling' for C's belly button. This, to us, raises a considerable suspicion that C's sleeping bag was all or mostly zipped up; that her belly button was not exposed; and that the applicant partly unzipped her bag and placed his hand in the vicinity of at least her belly button and perhaps also her pubic area. C's version of events, in this respect, was not moved in cross-examination.
In the light of the above concerns, we are left with a very real suspicion that the events of the Thursday night may well have occurred in the way that C alleged.
In addition to the above, and apart from the details of the touching incident, there are a number of aspects of the applicant's dealings with C that we think are unusual and which are pertinent to how that relationship should be characterised and which, we consider, cannot be overlooked in placing the events of the Thursday night in a proper context.
It is quite apparent from all the material that the various communications between the applicant and C, and the special treatment she received from him, demonstrated a relationship that, as the trial judge observed, could reasonably be described as affectionate in nature. Some of the communications to C, including the card and the text messages were flirtatious at least and in the nature of courtship communications. Whether there was anything sinister or untoward about that relationship is an important question for our purposes.
By the applicant's own admission, and we agree, many of the communications were quite inappropriate between an 11-year-old girl and a 33-year-old man in a position of responsibility and trust. It seems to us that there can be few explanations for this type of communication. One possibility is that the applicant did forget that C was only 11 and was intent on communicating with her as if she was much older. Another is that he was always mindful of her age but did not recognise the inappropriateness of his communications with a child of that age. A third possibility is that he was aware of her age but was deliberately communicating with her in a way that was designed to foster a relationship that was inappropriate and to encourage C to respond to that relationship in a way that was beyond her age and understanding.
The applicant conceded in the police interview that some of his conduct would have been more suitable if it had been directed at someone closer to his own age and that he may have 'forgotten' C 'was only 11'. He agreed that he had gone 'overboard' and appeared to have developed a particularly close relationship with C, whom he identified in the police interview as a vulnerable child. Even on the applicant's version, giving a child a phone with an obscene picture on it demonstrates gross carelessness at best.
In our view, the applicant, who was always dealing with children as part of his daily work, must have been at all times conscious of C's age and we do not accept that he could have in some way overlooked that important fact. That means that the second or third of our explanations is likely. In either case that, in our opinion, reflects very adversely on the applicant's suitability to work with children.
The respondent submitted that the applicant's conduct towards C and the child with whom he communicated in 2008 should be characterised as 'grooming' - which is said to be defined in the literature in various ways but which we understood the respondent to mean behaviour that is designed to gain a child's confidence and trust, in order to gain access to a child and to get the child to acquiesce in abusive activity.
In the end, we don't know exactly what the applicant's motives were in relation to C or the 10-year-old child in 2008. The applicant was at pains to say in relation to the 2002 charge, and subsequently, that he knew the importance of having proper boundaries in his dealing with children and not going beyond those boundaries. The applicant's position is that he did nothing wrong in respect of his conduct with C. It seems clear to us that, at the very least, the applicant did not know in 2002 what the appropriate boundaries should be - or, if he did know, chose to exceed them. The latter would be of equal or greater concern to us as the former.
We have avoided trying to 're-try' the charge against the applicant, but any assessment of the acceptability of future risk to children requires an examination of factors that relate to the circumstances of the charge and how it evolved through the criminal justice system. For the reasons we have set out above, we believe that we are entitled to hold a reasonable suspicion that the events relating to the allegations of indecent dealing in 2002 did not occur in the innocent way that the applicant argues. We hold a reasonable suspicion about those events that, in our opinion, requires us to conclude that the applicant represents a serious and unacceptable risk of future harm to children, even though we have not been able to form any firm view about how likely it is that such a risk might eventuate in future. As the Court of Appeal has pointed out, what is important is that the risk must be unacceptable, not that it be likely.
We have not overlooked the factors that we have identified above that support the applicant's claim to an assessment notice, particularly the lack of any other allegations of harm to children despite a long history of working with children. Nor have we overlooked that a considerable number of people have spoken in complimentary terms of the applicant's commitment to working with children and of the high esteem with which he is apparently held. Similarly, we have not overlooked that in 2005 the relevant government agency, with knowledge of the non-conviction charge but in a somewhat different statutory context, decided to grant the required authority to the applicant to continue to work with children. That must be a factor that supports the applicant's case.
In the end, we have identified a number of factors that point towards the applicant being granted an assessment notice - but we have concluded that there is an unacceptable risk of physical or sexual harm to children if that were to occur. As the Court of Appeal has pointed out, the factors in s 12(8) are not of equal significance in the evaluative exercise. This is a case where the positive factors in s 12(8)(b) to s 12(8) (f) must yield to the paramount consideration prescribed by s 12(8)(a) and s 3.
The conclusion that we have reached above, would, in our opinion, require us to conclude that in the particular circumstances of this case a negative notice should be issued to the applicant.
However, in addition to the specific touching allegation that was the subject of the non-conviction charge, we consider that we are entitled to have regard to an additional type of potential harm to children that the applicant may represent. In 2002 the applicant fostered a relationship with an 11-year-old child that was quite inappropriate. He failed in a substantial way to recognise or avoid behaviour and communications that were not suitable for a child of that age. Regardless of the applicant's motives, it was not really disputed that C regarded the applicant as a friend and someone who could be trusted, and was upset and angry when her parents intervened - as it was inevitable that they would at some stage once they became aware of the nature of the contact.
We have not placed much weight on the contact in 2008 between the applicant and the young girls referred to at para [40] to para [43], but we believe the significance in the contact is that the applicant has again demonstrated that he may not recognise where the appropriate boundaries for an adult/child relationship should be drawn. By way of illustration of that point, we refer to the message of 24 April 2008 referred to in para [41] in which the applicant refers to coming to the 10-year-olds' school 'to see her' and 'sighs' that he did not see her. Such a communication is reminiscent of the communications between C and the applicant.
It seems to us that emotional harm to a child by the development - and then the collapse - of an inappropriate relationship with an adult is also a type of harm that the WWC Act intended to prevent and which McLure J in Scott contemplated. In that additional way, we consider that the applicant poses an unacceptable risk to children. However, in case we are wrong about whether this type of harm can be properly taken into account for the purposes of the WWC Act, we emphasise that it is an additional form of harm and that we have, for the reasons above, concluded that a negative notice should be issued to the applicant based on the risk of physical or sexual harm to children arising out of the applicant's non‑conviction charge and his admitted conduct, which we have concluded amounted to an inappropriate relationship with C.

Conclusions and Orders

The object of the WWC Act is the protection of children. 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.
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 that in the particular circumstances of the case a negative notice should be issued. The conclusions we have reached above lead to the finding that we are satisfied that it would not be in the interests of children for an assessment notice to be issued to the applicant and we are satisfied that a negative notice is appropriate.
We order that:
1.The decision of the respondent made on 10 September 2008 to issue a negative notice to the applicant is affirmed.

I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M ALLEN, SENIOR MEMBER

[f1]

[f2]need to use the same language or clarify uise of respondent CEO , the dept etc

[f3]Check these dates as the letter came dec 2007

[f4]check this

[f5]Need the proper citation -journal article etc

[f6]check this