J and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2016] WASAT 77
•30 JUNE 2016
J and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2016] WASAT 77
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 77 | |
| WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) | |||
| Case No: | VR:133/2015 | 26 MAY 2016 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 30/06/16 | |
| 31 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | J CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT |
Catchwords: | Negative notice issued Review of decision to refuse to cancel negative notice Factors considered pursuant to s 12(8) of Working With Children (Criminal Record Checking) Act 2004 (WA) Best interests of children Lack of understanding of proper boundaries |
Legislation: | Children and Community Services Act 2004 (WA) Criminal Code 1913 (WA), s 313(1)(a), s 317(1), s 325, s 326, s 333 State Administrative Tribunal Act 2004 (WA), s 27(2) Working With Children (Criminal Record Checking) Act 2004 (WA), s 4, s 5, s 7(2), s 12(5), s 12(8), Sch 2 |
Case References: | Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 Chief Executive Officer, Department for Child Protection v Scott [No 2] (2008) 38 WAR 125; [2008] WASCA 171 Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289 |
Orders | 1. The application for review is dismissed. |
Summary | The applicant, a teacher, filed an application in the Tribunal for a review of the Department for Child Protection's decision to refuse to cancel his negative notice issued under the Working With Children (Criminal Record Checking) Act 2004 (WA) as a result of his Class 2 and Class 3 nonconviction charges. The Tribunal concluded that the applicant demonstrated a complete lack of understanding of the proper boundaries of conduct towards a child as defined under the Act. The Tribunal took into consideration:,all of the evidence in the applicant's trial in the District Court regarding his conduct towards a 16yearold girl on 24 May 2005; ,the disciplinary findings in relation to his conduct towards a 17yearold female school student while working as a teacher in the Northern Territory on 27 April 2011; and,the evidence provided in relation to a charge of common assault on 28 February 2014.,Considering the precautionary approach of the Act and the paramount consideration of the best interests of children, the Tribunal determined that the information before it demonstrated that there is an unacceptable risk that the applicant might, in the future, cause physical and sexual harm to a child in the course of carrying out childrelated employment as a school teacher. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA) CITATION : J and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2016] WASAT 77 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : 26 MAY 2016 DELIVERED : 30 JUNE 2016 FILE NO/S : VR 133 of 2015 BETWEEN : J
- Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
Respondent
Catchwords:
Negative notice issued - Review of decision to refuse to cancel negative notice - Factors considered pursuant to s 12(8) of Working With Children (Criminal Record Checking) Act 2004 (WA) - Best interests of children - Lack of understanding of proper boundaries
Legislation:
Children and Community Services Act 2004 (WA)
Criminal Code 1913 (WA), s 313(1)(a), s 317(1), s 325, s 326, s 333
State Administrative Tribunal Act 2004 (WA), s 27(2)
Working With Children (Criminal Record Checking) Act 2004 (WA), s 4, s 5, s 7(2), s 12(5), s 12(8), Sch 2
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant, a teacher, filed an application in the Tribunal for a review of the Department for Child Protection's decision to refuse to cancel his negative notice issued under the Working With Children (Criminal Record Checking) Act 2004 (WA) as a result of his Class 2 and Class 3 nonconviction charges. The Tribunal concluded that the applicant demonstrated a complete lack of understanding of the proper boundaries of conduct towards a child as defined under the Act. The Tribunal took into consideration:
all of the evidence in the applicant's trial in the District Court regarding his conduct towards a 16yearold girl on 24 May 2005;
the disciplinary findings in relation to his conduct towards a 17yearold female school student while working as a teacher in the Northern Territory on 27 April 2011; and
the evidence provided in relation to a charge of common assault on 28 February 2014.
Considering the precautionary approach of the Act and the paramount consideration of the best interests of children, the Tribunal determined that the information before it demonstrated that there is an unacceptable risk that the applicant might, in the future, cause physical and sexual harm to a child in the course of carrying out childrelated employment as a school teacher.
Category: B
Representation:
Counsel:
Applicant : Mr C Cole
Respondent : Ms A Fox
Solicitors:
Applicant : Cleveland & Co Lawyers
Respondent : Department for Child Protection
Case(s) referred to in decision(s):
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262
Chief Executive Officer, Department for Child Protection v Scott [No 2] (2008) 38 WAR 125; [2008] WASCA 171
Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206
Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289
Introduction
1 On 20 June 2014, J applied for a working with children check under the Working With Children (Criminal Record Checking) Act 2004 (WA) (the Act) (Exhibit A pages 911).
2 On 15 April 2015, the Department for Child Protection (the Department) issued an interim negative notice to J (Exhibit A page 1415).
3 The covering letter of 15 April 2015 invited J to make submissions about the issue of a final negative notice.
4 On 7 July 2015, J was issued with a final negative notice (Exhibit A page 60).
5 On 23 July 2015, J filed an application in this Tribunal seeking a review of the decision to refuse to cancel the negative notice.
6 J's application was heard on 26 May 2016. J did not give evidence.
7 The Tribunal has substantially adopted the Chief Executive Officer's (CEO) outline of submissions in preparing these reasons.
Legislation and authorities
8 The focus of the review is to produce the correct and preferable decision by the remaking of the decision under review: s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act); Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 (Hardingham 2) at [25], [34] and [69].
9 The application is to be considered at the date of the Tribunal's decision (Hardingham 2 at [25] and [39]).
The legislation and authorities relevant to particular circumstances
10 Section 4 of the Act defines a 'child' as a person who is under 18 years of age.
11 A Class 2 offence is defined in s 7(2) of the Act by reference to Sch 2 of the Act. The Schedule includes s 325 and s 326 of the Criminal Code 1913 (WA) (Criminal Code)
12 Section 12(5) of the Act imposes an obligation on the CEO 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.
13 It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice (Grindrod and Chief Executive Officer, Department for Community Development [2008] WASAT 289 (Grindrod) at [65].
14 Section 12(8) of the Act provides:
If subsection (5) … applies in respect of an offence, the CEO is to decide whether 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 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 childrelated work;
(e) the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of
(i) any offence committed by the applicant; or
(ii) any charge against the applicant;
(f) any information given by the applicant in, or in relation to, the application;
(g) anything else that the CEO reasonably considers relevant to the decision.
- The criteria in s 12(8) constitute an exhaustive statement of the factors the decision-maker is bound to take into account in deciding if the requisite satisfaction is attained. The decision-maker is not entitled to take into account any other factors: Grindrod at [69].
15 The best interests of children is always relevant and always the paramount consideration: s 12(8)(a) s 12(8)(f) (Grindrod at [70]), s 3 of the Act).
16 The criteria in paragraphs (b) - (f) of s 12(8) are never excluded by the criterion in paragraph (a) of s 12(8) of the Act; they are merely subordinated: Chief Executive Officer, Department for Child Protection v Scott[No 2] (2008) 38 WAR 125; [2008] WASCA 171 at [106] (Scott).
17 The purpose of the Act is as stated by Buss JA at [109] in Scott:
The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who are involved in child-related work and have been convicted of, or charged with (including charged with and acquitted of), specified criminal offences. The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.
18 The CEO is to be satisfied 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: Grindrod [81]-[83].
19 The impact on the psychological health of the child arising from the consequences of the sexual or physical harm must be a relevant factor in assessing whether there is an unacceptable risk.
20 The risk has to be unacceptable, not likely, on the basis of all of the evidence. In Grindrod at [85] and [87], Buss JA explained that:
… Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, 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. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described …
…
The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether … s 12(4), there is an 'unacceptable risk', 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.
21 In Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206 (T) at [64], Murphy JA explained that:
The 'particular facts' to which reference is made in Grindrod [No 2] [87] would include both primary facts, and inferences of fact drawn from the primary facts. The term 'reasonable suspicions' is used in contradistinction to 'facts' and connotes a reasonable apprehension of matters for which there is nevertheless insufficient warrant to make a positive finding of fact.
22 In T, Pullin JA (Newnes JA agreeing) at [36] stated:
In Hardingham, Heenan J correctly directed himself about points decided in Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 and Grindrod [No 2], namely that:
(a) the critical question for the decision-maker under s 12(5) was whether, on all the information and material properly before the decision-maker, he or she was satisfied there was 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 [144];
(b) that the risk in question had to be 'unacceptable' and not 'likely', but that the existence of an unacceptable risk had to be based on facts or reasonable suspicions and not, in the words of Heenan J, on 'imagination or surmise' [152], [157].
23 The reasons why a person is acquitted may be relevant to the assessment of the probative value of facts or suspicions which the CEO has to consider: T at [49].
24 In Hardingham 2 at [59], the Court of Appeal stated:
This conclusion is consistent with the decision of Heenan J in remitting the matter to the tribunal (Hardingham v Chief Executive Officer, Department for Child Protection). At [123] - [127] his Honour expressly upheld the correctness of the tribunal taking into account 'disreputable conduct not amounting to a conviction for a class 1 or class 2 offence or the subject of any such non-conviction charge' including conduct which does not disclose the commission of an offence:
If it constitutes some kind of deplorable conduct which either alone or in combination with other proved or alleged conduct may give rise to reasonable grounds for suspicion that the applicant may constitute an unacceptable risk of harm to children, then it must be taken into account [127].
26 Consideration of whether to cancel a negative notice does not require a finding that the applicant would commit or re-commit a sexual or other offence in the future; the focus is on the exposure of children to risk of harm, whether intended or not. Hall J in Hardingham 3 said at [161]:
I note that the question is whether children would be exposed to an unacceptable risk of sexual or physical harm, not whether the applicant would commit a sexual offence. In these circumstances, it is relevant to take into account that harm may occur inadvertently because a person misunderstands or fails to appreciate social norms and interpersonal boundaries. Harm may occur to children in such circumstances even though the perpetrator did not intend to commit an offence …
27 The prediction of future risk is not limited to the conduct that was the subject of the charges: Hardingham 3 at [39].
J's brief history in Australia
28 J was born in Kenya (Exhibit A page 728).
29 J came to live Australia in 2003 (Exhibit A page 730).
30 After finishing his studies in Kenya in 1999, J commenced his teaching career in Botswana where he was the 'discipline teacher' - his work was 'to receive all the naughty kids' and 'beat them up' (Exhibit A page 729).
31 J came to Australia in 2002 for a short visit. He returned and started studies at Edith Cowan University in 2003 (Exhibit A page 730).
32 In 2004, J started working as a teacher in Port Hedland (Exhibit A page 730). He received an award for best teacher of the year by the Department of Indigenous Affairs in 2004 (Exhibit A page 732).
33 J was 30 years old as at 24 May 2005 (Exhibit A page 727), a qualified teacher, and doing a doctorate in Education at the University of Western Australia (Exhibit A pages 1 and 53). J also had a Master's Degree in Educational Psychology (Exhibit A page 50).
The Class 2 non-conviction charges
34 On 11 December 2006, J was indicted in the Perth District Court (1381 of 2005) on six serious charges in relation to an incident on 24 May 2005 (Exhibit A pages 363-364). The charges included three counts of aggravated sexual penetration without consent, contrary to s 326 of the Criminal Code. The circumstances of the aggravation were that he was armed with a plank of wood (Class 2 charge). There was one count of sexual penetration without consent, contrary to s 325 of the Criminal Code (Class 2 charge). The indictment also included associated charges of assault occasioning bodily harm and unlawful detention, under s 317(1) and s 333 of the Criminal Code, respectively (Class 3 charges). All the charges related to K, a 16year-old complainant, an Aboriginal girl. K was a child within the meaning of the Act at the relevant time.
35 After a trial by judge and jury in the Perth District Court in January 2007, J was acquitted of the Class 2 charges. The Department of Public Prosecutions discontinued the Class 3 charges on 16 January 2007, as the jury had been deadlocked in relation to those charges (Exhibit A pages 366, 918, and 949 and pages 950-959 and 959a-961).
36 Throughout her statements and evidence, K maintained that:
a) J had hit her hard with a plank of wood a number of times;
b) J had apprehended her and detained her in his car against her will; and
c) J had sexually penetrated her without her consent.
- Although J initially denied the allegations, by the time he gave evidence at trial, there was no dispute that he had hit K several times with a plank of wood and that he had sexually penetrated her. In relation to the sexual assault charges, the trial turned on the issue of consent.
37 K provided an interview on 25 May 2005, one day after the incident. She provided a second interview on 8 September 2006, aged 17 years (A2 132-211; 212-260). K gave evidence at the trial (Exhibit A pages 455-575).
38 K stated that she and a group of relatives and friends had gone to Northbridge on 24 May 2005 to celebrate her 16th birthday. The group of six missed the last train and were walking around Northbridge when four members of the group she was with, but not including her, got into J's car (Exhibit A page 140). When the group of four got out of J's car, they stole J's jumper and a bottle of wine (Exhibit A pages 140, 145, 150 and pages 155156).
39 K also said that some members of her group pretended to be prostitutes and ask J for money, which they then snatched when he showed them the money. The girls who took the money from J ran, and then told the rest of the group, including K, to run (Exhibit A pages 140, 141, and pages 156157). K said that the same members of the group tried the same ruse with a taxi driver, who also became involved in the incident (Exhibit A page 141).
40 J gave chase to the group of teenagers. K described seeing J with a plank of wood (Exhibit A page163). He found K hiding, hit her twice in the leg with the plank, and grabbed her by her jumper. The rest of the group ran away (Exhibit A page 141 and pages 163169).
41 It was not in issue at the trial that J used the plank of wood that was admitted into evidence as Exhibit 2.
42 J initially let K go and chased the other girls, yelling at them to give him his money. J then caught up with K again and hit her in the back and on her leg and arm with the plank. She described J hitting her numerous times and very hard, at the same time he was saying he was going to kill her (Exhibit A page 141 and pages 165168). K was screaming for help, but her friends went to J's car and started smashing the car windows. While J had hold of her, K said he had put his hand down her top and was grabbing her breast (Exhibit A page 141 and pages 166167).
43 K said that J, with the help of a taxi driver, put her into the back seat of J's car, threatening her with the plank of wood. He again hit her on the leg with the plank of wood, and then told her to get into the front, where she recalled getting cuts from the smashed window. K said she was locked in J's car, crying. J then got in the car, hit her on the knee, and said he was taking her to the police station (Exhibit A pages 141142, 168170 and pages 172175).
44 K's friends' statements largely corroborate K's account of J hitting her and forcing her into his car (Exhibit A pages 261278). K was reported as abducted by her friends (Incident Report 24050504008039 Exhibit A pages 325324 and page 344).
45 J drove K to Bayswater and parked near the Bayswater Rowing Club (Exhibit A page 176). K stated that he stopped the car and told her to come for a walk in the bushes. She said no and he grabbed the plank of wood and threatened her, so she got out of the car (Exhibit A page 1 and page 176).
46 K stated that J asked her to put a condom on his penis, and that she said no, so he put it on himself (Exhibit A pages 176177). K said that J sat on a tree stump and removed her shorts and underwear and made her sit on his penis, penetrating her vagina. She described this as going on for several minutes. She stated that J was kissing her and he put his hand up her top. She was crying and he was telling her to relax. K stated that he then stopped penetrating her, threw the condom away and sat her down on the tree stump and again sexually penetrated her. She was unsure if J ejaculated inside her (Exhibit A page 147 and pages 177-184).
47 K said they walked back to the car and he cleaned out the glass from the smashed window, and J received a cut from the glass. He told her to sit in the car and he forced her to give him fellatio. She said no, but J reached for the plank of wood, threatening to hit her, so she complied (Exhibit A pages 187191).
48 In her first interview with Police, K said that she had run away from J after she was sexually assaulted, and had been picked up by a lady and driven to her relatives' house in Bassendean (Exhibit A pages 142 and pages 192194).
49 In a second interview on 8 September 2006, K told Police that she lied in her first interview when she stated that she ran away from J. She said she was too scared to run and was worried about what would happen to her if she did run. She stated that after assaulting her, J drove her to her uncle's house in Bassendean. She told the interviewers that she thought that if she had said she was dropped home by J, she would get the blame for what happened and for not trying to get away (Exhibit A pages 218219, page 466 and pages 484485).
50 In her second interview, K said that before J dropped her off at the house, he stopped by a primary school and again sexually penetrated her by performing cunnilingus on her, without her consent (Exhibit A pages 227-248).
51 When K was dropped off, her uncle asked K why she was limping. She said that she had been 'bashed by an African' (Exhibit A page 219).
52 K said that she was not going to report the incident to Police because she said it was embarrassing to talk about her personal private parts and that she felt shame (Exhibit A pages 250251 and page 257).
53 K's evidence under crossexamination was largely consistent with the record of her two interviews.
54 The taxi driver, B, provided a sworn statement to Police on 24 May 2005 (Exhibit A pages 279-289), and gave evidence at trial (Exhibit A page 593). He described two girls stealing money from him, and then chasing them, and he identified one of the girls as being K. He said he heard screaming, and he saw 'a dark skinned man pulling a female by her left wrist', and that he 'could hear the girl screaming for the man to let her go'. He could see J hitting K (Exhibit A pages 283-284 and pages 597598).
55 B saw J hit K on the backside maybe three times, but he described the weapon as rolled up cardboard (Exhibit A page 284). However, he later maintained that he told Police it was a bat but sounded like cardboard and his statement was incorrect (Exhibit A page 608). He said he heard K say that J was hurting her (Exhibit A page 598).
56 B guessed K's age to be 14, but asked her age when she was in J's car, and she had told him she was 16. He said that he suggested to J that they call the Police, and J said 'nah, my car'. He described J still holding K's wrist, and K asking to be let go. He heard J say '[y]ou've got my money, you bitch'. He heard J tell K to get in the car and shut up, and said that she was still asking to be let go. He told J to wait for him and that they would go to the police station together. When he returned with the taxi, J, K and J's car were gone (Exhibit A pages 284-287, page 599, pages 604 and 610).
57 In his interview with Police on 24 May 2005, J said he had gone into Northbridge about 10 pm on 23 May 2005. He said he went to the Deen and was dancing there, and met a friend, T, and a lady he had met the day before (Exhibit A pages 8385).
58 Although J said he had drunk one eighth of a bottle of red wine, he admitted he did feel intoxicated. He had been drinking in his car, and said he had mainly drunk non-alcoholic drinks in the Deen (Exhibit A pages 8687).
59 After J left his friends at the Deen, he was on his way to a nightclub Blueprint when he 'was stopped by about four ladies' who he described as '1819 years, 17, around there' (Exhibit A pages 8788).
60 J said he gave them a ride for a short distance and when they got out, they took his money, a jumper and some wine from the car (Exhibit A pages 8890).
61 The group ran off and J said he noticed that one of them had left her bag in his car. He parked his car and met a taxi driver who said that some girls had just stolen money from him. J was unable to chase them successfully so he returned to the car and then spotted a now larger group of about six people. J said he gave chase again, and this time a group of the girls went and smashed his car (Exhibit A pages 9293)
62 During his interview, J told Police that he and a taxi driver had detained a girl, and that it was the taxi driver that had grabbed K and put her in his taxi and that he was waiting to follow the taxi-driver (Exhibit A pages 9395).
63 J then stated the group of girls emerged with stones and he was worried for his life. He said he feared for his life because there were also three men (Exhibit A pages 9596). He stated he was so worried he decided to drive off for 10 to15 minutes (Exhibit A page 96).
64 J said that afternoon, he did not know where he was, he was alone, he had a bad headache; he looked at a map and got to his house; and then he woke up between 2 pm and 4 pm the following afternoon (Exhibit A pages 9697).
65 J admitted that he had picked up 'a stick' when chasing the girls but he again denied hitting K with the 'stick' (Exhibit A pages 9798). In particular, when confronted with the taxi driver's version of events, which corroborated K's version of events, J denied driving off with K (Exhibit A pages 98100).
66 When told by the Police that the taxi driver said that he saw J hit K with a stick, J denied it and told Police that it was the taxi driver who had hit K (Exhibit A page 103).
67 J also denied taking K to Bayswater and the river, and he denied having sex with K (Exhibit A page 100 and 102).
68 J then told Police he needed to rectify two parts of his statement to Police (Exhibit A page 104). He said when he was chasing the girls he threw the stick, he then admitted that he found the two girls hiding and was yelling and threatening them, and then he 'may' have hit one. He then admitted throwing the stick out at the same place where he was cleaning out his car. When asked if the young girl was with him then, he said 'actually, yes' (Exhibit A pages 104 and 105).
69 J stated he had put K in the front seat and that the taxi driver was going to follow him but the taxi driver had told J that he was drunk and did not want to face Police (Exhibit A page 38 and page 753). B gave evidence at the trial that J was the one who said he could not take her to Police as he had been drinking. B could smell alcohol on J (Exhibit A page 599).
70 J then stated that he did drive off with K, intending to go to a police station, and that she offered him oral sex if he would release her (Exhibit A pages 106 and 107 and page 117). J did not take A to a police station, nor did he call Police even though he had a mobile phone with him (Exhibit A pages 107 and 108).
71 J said that he pulled his car into a parking station and K performed oral sex near a tree trunk. He said he wanted to have vaginal sex with her but she did not want to, so he stopped (Exhibit A pages 108110).
72 J also admitted that he had hit K with a stick deliberately and that she had told him it hurt her (Exhibit A pages 109-111 and pages 115 and 116).
73 Later on, in his interview, J said that he was touching K and that she undid his fly (Exhibit A page 121). J then said that after he had stopped in a carpark and gone to a bush area, he tried to remove her pants because he wanted sexual intercourse with her and that she did not want sexual intercourse. He stated that he told her he was not going to have sexual intercourse with her because she did want to have sex with him (Exhibit A pages 123 and 124).
74 J stated that at the time he was bitter and that he was going to get revenge but that, in the course of talking to K, he thought that he should not get revenge (Exhibit A page 128).
75 J maintained throughout his interview with the Police that he did not have sexual intercourse with K, and that the only sex they had was consensual oral sex after K had offered it to him in exchange for not going to the Police.
76 First Class Constable Thomas observed K on the afternoon of 24 May 2005 to be withdrawn, visibly upset and with significant bruising to her arms and legs (Exhibit A page 330).
77 Ms Furmedge, a senior forensic scientist, gave evidence at the trial. She concluded that the DNA profile recovered from sperm cells collected from the high vaginal and labial swabs provided by K matched J's reference DNA profile (Exhibit A pages 299-307 and 717-726).
78 The plank of wood that was retrieved from the scene and that was used by J to hit K measured 210 by 70 by 20 millimetres (Exhibit A page 720). It had small nails in it.
79 Dr Hoey examined K 12 hours after the incident with J. Dr Hoey noted that K spontaneously complained of pain in her back, arms and legs as a result of being hit with a piece of wood (Exhibit A pages 294298 and page 576).
80 Dr Hoey’s evidence noted K had darker skin, so it was harder to detect bruising (Exhibit A pages 577578). Dr Hoey described a number of separate bruises on K's arms and legs, all of which were consistent with being struck by Exhibit 2. (Exhibit A pages 577580).
81 Dr Hoey concluded that because of the size of the bruising, there must have been a reasonable amount of force applied (Exhibit A page 585).
82 A report from Mr Bagdonovicius, a senior forensic scientist, established that J's sperm was found in K's vagina (Exhibit A pages 300301 and pages 717721). This evidence made J's denial of sexual intercourse with K unfounded.
83 J gave evidence at his trial (Exhibit A pages 727-838). His evidence at trial was vastly different from his Police interview, and he admitted that he had told the Police a series of lies in his interview (Exhibit A pages 785, 798, 800 and pages 805809). J explained that he had lied throughout his interview with the Police because he was scared and afraid the Police would torture him or even kill him (Exhibit A pages 785787).
84 J stated that he had falsely blamed the taxi driver because he was afraid to tell Police the truth (Exhibit A pages 804-805).
85 J said that as he chased the group, he was hit by a bottle and then by a piece of wood, which he then picked up and hit the two girls that were close to him. He hit one girl once, and K two or three times (Exhibit A pages 743746). He then hit K again on the leg and he did it because he was very angry. He accepted responsibility for the bruising on K's legs (Exhibit A pages 746-747).
86 J admitted holding K by the wrist (Exhibit A page 748). He then saw his car window being smashed, and he became angry and was very emotional. He threw the 'stick' in the car. He was told to take K to the Police. He stated he 'guided' K to his car and said he was taking her to the police station. He denied threatening to kill her (Exhibit A pages 749, 752 and 754).
87 J said his anger then subsided, and he said sorry to K and became worried about what would happen to her if he took her to the police station, so had second thoughts. J then said that K offered him a 'head job' in exchange for not taking her to the police station, and also offered to help him clean his car (Exhibit A page 758). J's evidence was that K guided him to a carpark, he cleaned the glass from the car and threw out the piece of wood (Exhibit A pages 755-760).
88 J stated that K pecked and hugged him and said she was sorry (Exhibit A page 764). J stated '[w]hen she hugged me I was just not sure about my feelings but then I felt a sudden desire … so we started kissing' (Exhibit A page 763). He urinated, and then thought about having sex with K. He fondled her backside, buttocks and breasts. He retrieved a condom from his car and put it on his penis. He decided it was getting cold and removed the condom from his penis and went back to the car. He denied having sex on the tree stump. He said that she performed oral sex on him (Exhibit A pages 763765 and 770773).
89 J stated that he then drove K home but K directed him to a school, removed her pants and they started kissing, and it was very passionate and intense, and that they had sex in his car. He described K as directing his penis into her vagina and then admitted that he ejaculated in her without wearing a condom (Exhibit A pages 774-778).
90 There was no dispute that J had hit K with a plank of wood and that K suffered bruising as a result. J had argued that he was acting in selfdefence, or alternatively, under provocation. J argued that he had initially, lawfully, grabbed K to take her to a police station, as she was an offender, and then she had voluntarily stayed in his car. His evidence was that all acts of sexual intercourse were consensual.
91 In the course of his Honour's summing up to the jury, he stated:
The evidence in question is comprised of some of the answers given by the accused to the police in the course of the videotaped record of interview. That video is an exhibit and you will have it with you in the jury room, you can play it back to yourselves as you see fit. By my count, and it's only an approximation, the accused in answering questions put to him by the police lied on 32 occasions.
As I said, that's an approximation and it's necessarily an approximation because, of course, some of the lies overlapped, some were simply logical extrapolations of an earlier lie, logical extensions of what he had already said. On any view of the evidence you might be entitled to think, indeed it is conceded on behalf of the accused man he did tell lies to the police and he told lies which fall into three categories of course.
One category concerns the alleged assault. He was asked by the police about the circumstances in which he assaulted [K], he told lies about that. He was asked by police about the unlawful detention, the alleged unlawful detention and he told lies about that and he was asked by the police about sexual acts between [K] and himself and-he told lies about that.
The lies I am talking about, or the evidence of lies, falls into three categories. One relating to the first charge on the indictment, the second relating to the second charge and then a number of lies about the remaining charges, the charges alleging sexual offences. The accused commenced to lie to the police you might think it's a matter for you, about a third of the way or just under a third of the way into his interview with them.
He was asked about how he came into contact with a girl, she wasn't identified as [K] at the time, and said that he was running towards the girl and he couldn't catch her and then he heard his car being damaged, ran back towards his car and then he said the taxi man appeared from the other side and he was already grabbing one lady and that's not true he has now told you.
He said that the taxi man put the girl in the back seat of his car and that's not true as he told you. He said the girl was pulled out of the back seat of his car and then placed in the taxi, and that's not true.
He said he left the scene alone, not with a girl in his car, and that's not true, and he said he proceeded home and that wasn't true. He said he had a stick at one time but he threw it away and that wasn't true. He said he didn't hit a girl with a stick and that was a lie. He denied going off in his car with the girl in the front seat and that wasn't true. He denied taking her to a carpark near the river. He denied having vaginal sexual intercourse with her. He denied hitting her with a stick at any time. He said that the taxi driver hit her with the stick and that it was the taxi driver who pushed her into his car.
So on any view of the evidence, members of the jury, you are entitled to take the view, it's a matter for you, that the accused told a number of lies to the police, lies about the questions relating to the assault, lies about the alleged unlawful detention and lies about the sexual contact between [K] and himself.
- The jury found J not guilty by majority verdict on the counts of sexual penetration without consent (Exhibit A pages 949-950).
92 On the basis of J's admissions, the Tribunal concludes that:
a) J, who was then 30 years old, assaulted a 16 year old girl repeatedly with a plank of wood causing bruising;
b) he stated that he was taking K to the police station;
c) he had K in his car;
d) when J was in a position of dominance over her by reason of the assault and having Kin his car, he accepted an offer from a 16yearold girl to perform fellatio on him in return for not going to the police; and
e) thereafter when he was still in a position of dominance over K, in that he had assaulted her, he had sexual intercourse with K.
93 The standard of proof requirement in a criminal trial is beyond reasonable doubt. That is not the standard that has to be reached in matters under the Act. The evidence of other witnesses and the forensic evidence largely corroborate K's evidence.
94 Given that J lied repeatedly, it is difficult to accept the evidence he gave at trial or in his interview for the purposes of assessing whether he poses an unacceptable risk under the Act.
95 K denies that she gave consent, but even if K gave consent, J's conduct took advantage of the very vulnerable position that K was in, in relation to J.
96 J's conduct did not occur in a working with children environment. However, J's conduct demonstrates a complete lack of understanding of the proper boundaries of conduct towards a child as defined under the Act. J's conduct towards K was inexcusable.
Disciplinary findings Northern Territory Teacher's Registration Board
97 J resigned from his employment with the Northern Territory Department of Education and Training on 6 May 2011 following a letter written by the Department dated 5 May 2011 outlining a number of allegations. Following J's suspension, an inquiry was held under s 67A of the Teacher Registration (Northern Territory) Act (NT) (Teacher Registration Act).
98 The Teacher Registration Board of the Northern Territory (the Board) determined that J did not meet the standard of behaviour reasonably expected of a teacher, and that J's registration be suspended for 12 months from 1 September 2011 pursuant to s 67(4) of the Teacher Registration Act. The determination was based on the Report from the Inquiry Committee (the Report) dated 23 August 2011 (Exhibit A Part A).
99 The Inquiry Committee found that on 27 April 2011, J had acted inappropriately with a female student, S, aged 17 years. S had a mild intellectual disability (IQ 56) and severe visual impairment. Her language assessment was stated as functioning six years below age appropriate and her cognitive functioning was consistently lower than age appropriate (Exhibit A Part A paragraph 25). J had attended Centralian Senior College (the College) on the same date in an intoxicated state.
100 J had also attended the College on 3 May 2011 in a 'highly intoxicated state' (Exhibit A Part A pages 1 and 2).
101 S explained that on 27 April 2012, she was walking from the College towards Charles Darwin University Campus when J, a teacher at the College, asked her to meet him in a room at school. She met him at 3:15 pm at the reception. J told her to come with him so he could get to know his new student. She was not his student. They walked to a classroom (Exhibit A Part A paragraph 29).
102 J sat behind the teacher's desk and she sat in front of it. J asked her if she wanted to sit closer, and she declined. He asked her age to which she responded 17. J said (incorrectly) he was 28. J asked her where she lived, told her that he would like to get to know her better and that she could come and cook tea for him and he could do the same for her. J suggested that they could be boyfriend and girlfriend and told her not to tell anybody because he did not want to be investigated (Exhibit A Part A paragraphs 25-35).
103 S had discussed being lonely. J had mentioned being her friend and that he would arrange to get her into his classes. At the end of the conversation, he offered to walk her home and she declined. As she walked away she started to feel unsafe and did not want to return to school (Exhibit A Part A paragraphs 3235).
104 J denied all the allegations of inappropriate behaviour and said S approached him saying she needed to speak to him. He had done research on 'loners' and was keen to offer her support and that S had misinterpreted his actions, possibly due to her intellectual difficulties (Exhibit A Part A paragraphs 39-45).
105 The Inquiry Committee found S to be a reliable witness (Exhibit A Part A at paragraph 47). The Committee found that J was not truthful with the Committee and 'not an entirely reliable witness' (Exhibit A Part A paragraph 50).
106 The Tribunal notes that the Inquiry Committee's findings as to J's reliability is consistent with the manner in which he gave evidence at the time of the Class 2 charges.
107 The Principal of the College stated that shortly after J started working at the College, J had been absent numerous times without notice, and the Principal had, on at least three occasions, gone to J's residence and observed J to be intoxicated with empty bourbon and wine bottles, and advised him to stay home (Exhibit A Part A paragraph 48).
108 J was observed by teaching staff, at midday on 27 April 2011, to be unstable on his feet, with bloodshot eyes and slurred speech. J said that he had been unwell. He denied being drunk (Exhibit A Part A paragraph 49).
109 On 3 May 2011, J was observed by staff to be unstable on his feet at 9 am. The Principal found J looking into the sky at the oval; he was incoherent and staggering but not aggressive. J denied being drunk and said he was unwell. He did agree to go to the hospital and his blood alcohol test revealed his blood alcohol level was 0.325 (Exhibit A Part A paragraphs 51 and 52).
110 The Inquiry Committee made findings of fact on the civil standard of proof. The findings of inappropriate behaviour were that J:
a) asked the student to sit closer to him;
b) suggested they could cook meals for each other at his home;
c) suggested they meet each other's family;
d) suggested they could be boyfriend and girlfriend; and
e) instructed her not to tell anybody.
(Exhibit A Part A paragraph 76)
111 The Inquiry Committee noted at Exhibit A Part A:
…
87. The teacher's behaviour in respect of the student was a serious breach of the relative positions of power and vulnerability between the teacher and the student, and the teacher's position of trust and influence. The teacher's failure to admit to the behaviour in respect of the student and face its consequences shows a lack of moral responsibility which points against the teacher's fitness to teach.
88. The teacher's behaviour in attending at the College on 3 May 2011 during school time in an obviously intoxicated state had the potential to convey a very poor example to students, and to bring the College and teachers generally into disrepute amongst students, parents and the community generally. On the other hand, on the morning in question, the teacher did not have any classes and, because the Principal intervened, he did not teach any class in that condition.
89. The teacher explains his behaviour on 3 May 2011 by reference to his mental health issues and alcoholism, for which he is receiving treatment. Clearly, such matters are not ones for which the teacher is personally at fault. His demonstrated efforts to address these issues are to be commended, and represent positive evidence in relation to his fitness to teach.
90. However, the teacher has not admitted to being intoxicated at the College on 3 May 2011, rather blaming the appearances of intoxication and the high blood alcohol reading on his consumption of alcohol the day before combined with his medication. Further, the teacher has denied that he was affected by alcohol on 27 April 2011, and that he consumed alcohol during his employment at the College on occasions other than 3 May 2011, and failed to attend for work as a consequence. This denial of the impacts of his alcoholism on his professional life suggests a lack of insight into the problem, as does his failure to acknowledge that his issues with alcohol continue to have the potential for negative impact on his profession as a teacher because of the risk of another 'lapse'. In these circumstances, the Committee is not confident in the teacher's assurances that he will never have another 'lapse'.
…
- The Inquiry Committee further noted that J's denial of the impacts of his alcoholism suggested a lack of insight into the problem.
112 Paragraphs 87 and 88 from the Report as set out above are an accurate characterisation of J's conduct.
Common assault in circumstances of aggravation nonconviction Class 3 charges
113 J was charged with common assault in circumstances of aggravation, contrary to s 313(1)(a) of the Criminal Code (Class 3 charges), in relation to an alleged incident involving his partner (JN) on 28 February 2014. That charge was dismissed for want of prosecution on 30 September 2014 (Exhibit A page 963). J was convicted on 1 April 2014 on his plea of guilty of breaching a restraining order arising as a result of that incident (Exhibit A page 12).
114 The Statement of Material Facts (Exhibit A pages 965966) was:
This domestic incident occurred at 4b Nicholas Crescent. Hilton. Present at the address at the time of the offence were five children aged from three to eleven years old.
At about 1:00 am on Friday the 28th of February 2014, a verbal argument evolved between the accused and victim regarding dinner and the accused's use of his work laptop.
The victim picked up the laptop which the accused was using at the time and moved it to a shelf.
The accused took offence by this and using his arm, he applied pressure around the victim's throat.
The victim's eleven year old son witnessed the accused try to strangle the victim.
The accused then punched the victim twice to the right side of her face, causing pain to her ear and cheek.
The eleven year old ran to his next door neighbour, requesting an ambulance for the victim.
Saint John Ambulance attended the address and conveyed the victim to Fremantle Hospital to be examined.
Police arrested the accused under suspicion of aggravated Common Assault and was conveyed to Fremantle Police Station where he participated in an Electronic Record of Interview.
The accused stated he was merely protecting himself as the victim threatened him with a knife.
Police questioned the victim and her eleven year old child separately and both stated a knife was never used.
Police found no evidence to suggest otherwise.
EXPLANATION: 'She threatened me with a knife'.
115 In JN's statement, she alleged that after she took J's computer away from him because dinner was ready, he punched her twice to the right side of the face, and put his hands around her throat in front of her son (AJ). JN said J was drunk and angry (Exhibit A page 974). An interpreter was present by telephone when her statement was taken (Exhibit A page 1002).
116 At the hearing, JN confirmed the contents of what was effectively a witness statement from her dated 9 May 2016 (Exhibit C). JN effectively denied her previous statement and blamed herself. She claimed that she did not understand what her witness statement was.
117 Although JN denied it, the statement was clearly drafted by someone other than JN. The language standard in the statement is far more sophisticated than the oral evidence given by JN at the hearing.
118 A neighbour, MS, provided a witness statement (Exhibit A pages 976982). She said that at 1 am on 28 February 2014, AJ knocked on her door; he was very shaken and in a panic. He asked her to call an ambulance. AJ explained that his mother had hit her head and said he had to get back or he would get in trouble with J. He returned after a short time and asked her to help as J was choking his mother (Exhibit A pages 976 and 977).
119 MS stated that when she went with AJ, she saw JN running out of her front door crying and only wearing her underwear, and it appeared J was chasing her (Exhibit A page 977). JN was sobbing and crying and looked terrified. AJ and JN told her that J had punched JN in the head and was choking her, and she observed a bit of blood on JN's right ear (Exhibit A pages 978 and 979).
120 AJ told her J had punched him as well (Exhibit A page 979). No charges were laid in relation to that allegation.
121 MS noticed that J was obstructing the ambulance officers once they arrived, stating he was a doctor (Exhibit A page 979). MS stayed with JN's children when JN was taken to hospital and J was taken to the police station (Exhibit A page 980).
122 MS was an independent observer. There is no reason not to accept her evidence. It is consistent with an assault by J on JN as described by JN in her first statement.
123 J returned to the house at 5:30 am, contravening a 72 hour Police Order to stay away from the residence (Exhibit A pages 981 and 1001).
124 Ambulance officers described J as being obstructive and complaining that he was the one assaulted. The officers noticed bruising and swelling to the JN's face. JN had stated she was afraid to leave her children with J (Exhibit A pages 984-986). JN, translating through her son, described being punched and kicked to the face and kicked in the abdomen by J . She complained of a sore right hand as a result of being slammed in the door and the ambulance attendants observed it was swollen. She also had swelling to her right foot and redness around her neck (Exhibit A page 987).
125 The injuries were documented in JN's patient care record (Exhibit A pages 1011-1022)
126 At 1:40 am, ambulance officers called the Police for assistance (Exhibit A page 996). At 1:54 am, J called the Police stating that he had been assaulted but did not want to report it, and stated that he had not assaulted JN (Exhibit A page 997).
127 Police officers who attended observed J to be intoxicated and aggressive and escorted him away. Constable Tippins stated that J said 'I hurt [JN]' (Exhibit A pages 990992 and pages 9971000). Then J stated 'I am doctor. Let me do what I want', and he was placed in handcuffs as he kept trying to get past the Police and they were concerned he could become violent towards them (Exhibit A page 993).
128 J was interviewed and stated that JN had smashed his computer and threw it against the wall (Exhibit A page 1005). Later on that evening, the Police attended JN's house again and JN retrieved J's laptop from a shelf in J's bedroom. The laptop was undamaged (Exhibit A page 1002).
129 In his interview with the Police, J said that JN had threatened him with a knife, that AJ had punched him, and that he was angry but controlled. He admitted grabbing JN by the throat so that she would release the knife. When asked if he squeezed her throat, he replied, 'I am a doctor, I know how many breaths' (Exhibit A pages 10051007).
130 J suggested it was JN who was intoxicated and that AJ had accidentally punched his mother. J sought to place the blame on JN and, to a lesser extent, on AJ (Exhibit A pages 10071009).
131 J admitted to the Police at the scene that he had assaulted JN.
132 JN gave her evidence in a very evasive manner. Having regard to the contents of Exhibit C and the evidence given by MS, the Tribunal does not accept that Exhibit C accurately states what happened. The Tribunal finds that JN's statement to the Police accurately reflects the events of 28 February 2014.
133 J's conduct on 27 April 2014 included assaulting a young boy, AJ, assaulting a woman and being obstructive to the Police and ambulance officers.
134 On 27 April 2014, J again demonstrated a propensity to resort to violence against women. It again shows a complete lack of what is appropriate conduct towards women and children.
Other Class 3 offences
135 J also has a number of Class 3 convictions for driving under the influence and no authority to drive (Exhibit A pages 12-13). The Tribunal has not taken these into account in reaching its decision.
Information under the Children and Community Services Act 2004 (WA) (CCS Act)
136 Evidence was led of incidents involving J as a result of reporting under the CCS Act (Exhibit B). The Tribunal has not analysed that evidence because the evidence considered above is sufficient to reach a conclusion about J's application.
Section 12(8) considerations
137 Section 12(8) of the Act states that if subsection 12(5) applies in respect of an offence, the CEO is to decide whether 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 was committed or is alleged to have been committed;
(c) the age of the applicant when the offence was committed or is alleged to have been committed;
(d) the nature of the offence and any relevance it has to child-related work;
(e) the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of
(i) any offence committed by the applicant; or
(ii) any charge against the applicant;
(f) any information given by the applicant in, or in relation to, the application;
(g) anything else that the CEO reasonably considers relevant to the decision.
When the offence was committed or is alleged to have been committed: s 12(8)(b) of the Act
138 The incident giving rise to the Class 2 charges occurred in May 2004, about 12 years ago.
139 On the basis of J's admissions alone, his conduct was a serious breach of appropriate conduct towards a child.
140 Given the unreliability of J as a witness, there is strong probative evidence that his conduct was far more serious than his admissions. The more serious the conduct, the less the passing of time will diminish its significance.
141 J's conduct in the Northern Territory occurred about five years ago.
142 J's assaults occurred about two years ago.
The age of J when the offence was committed or is alleged to have been committed: s 12(8)(c) of the Act
143 J was a mature man, aged 30 years and a qualified teacher at the time of the Class 2 offences. K was 16 years of age. There was a significant age disparity between J and K.
144 J was about 33 years old at the time of his conduct in the Northern Territory. S was 17 years old. Due to S's impairment, her functional age was lower.
145 J was 38 years of age at the time of the assault. AJ who was also assaulted and who witnessed J's assault on his mother, was 11 years old.
The nature of the offence and any relevance it has to childrelated work: s 12(8)(d) of the Act
146 The Class 2 non-conviction charges offences are highly relevant to child-related work. The charges involve serious sexual and physical harm to a vulnerable teenager. J hit K with a piece of wood, on numerous occasions, when angry and emotional. It was not an appropriate course of action to take in dealing with troublesome teenagers. Whilst K was pleading to be let go and was scared and crying, he detained her in his car. He then drove off with her, in the middle of the night, and took her to a park where he had oral sex and sexual intercourse with her. He ejaculated in her vagina. He then dropped her off at her relatives’ house.
147 As a result of J's repeated assaults on K with a piece of wood and locking K in his car, she was in a highly vulnerable position. J took advantage of that position.
148 J's conduct towards S was directly related to working with children. His conduct was totally inappropriate. Once again, he sought to take advantage of a very vulnerable child.
149 The Class 3 assault charges involving J's partner and AJ involved a serious assault. J was intoxicated. A child witnessed the incident, became involved in the assault, and had to seek assistance from a neighbour for his mother. He was observed to be very distressed.
The effect of future conduct by J in relation to a child if that future conduct were the same, or similar to, the conduct the subject of (i) any offence committed by J or (ii) any charge against J: s 12(8)(e) of the Act.
150 If future conduct were the same or similar with regard to the Class 2 or Class 3 charges, or J's conduct in the Northern Territory were to take place again, the possible effect on children could be significant harm.
Any information given by J in, or in relation to, the application: s 12(8)(f) of the Act
151 J provided a submission to the CEO dated 23 April 2015. He emphasised that he was found not guilty of the charges and strongly denied the offending. He stated '[t]here have been no further allegations made against me in this or any other State'. He also stated that the 2014 allegation of assault was falsely made (Exhibit A pages 35 and 36).
152 J stated that he works with the best interests of children in mind all the time. He stated that he has completed several educational and training programs including crisis prevention and a mentorship programme. He has a doctorate from the University of Western Australia.
153 J said that he suffered from depression in 2008-2009 and started drinking heavily. He stated that at no time were children put at risk from his drinking. He also stated that he has never considered himself to be a risk to children (Exhibit A page 37).
154 J's depression in 20082009 does not explain his conduct in 2005 and 2011.
155 A letter dated 21 June 2011 signed by two psychologists stated that J had attended counselling between 18 April and 31 May 2011. The letter stated that J had developed strategies to prevent alcohol intake, had selfreported cessation of alcohol, and had started to develop new ways to deal with challenges (Exhibit A page 38).
156 J's conduct towards S in the Northern Territory occurred while he was having counselling.
157 J submitted a letter dated 13 December 2014 from Captain Gideon Lumuli of the Salvation Army thanking J for being part of the worship team whilst in Darwin (Exhibit A page 44). That letter does not address any of the issues before the Tribunal.
158 A letter from Mr Keith Buzzacott, dated 19 July 2011, stated that J was addressing his alcohol problem and that J reported to Mr Buzzacott that he was making good progress. The 2014 assaults show that, given J's history, the Tribunal cannot have confidence in the statement from J to Mr Buzzacott that he was making good progress.
159 A letter from Dr Mokala dated 5 March 2013 stated that J had been under his care for depression and alcohol issues, and that J had reported to him that he had not any alcohol in the past two years. His recent blood tests were normal (Exhibit A page 41). The incident on 28 February 2014 showed that J still had problems with alcohol.
160 A letter from Dr Olise, dated 6 May 2015, stated that J had been a patient at the practice and that he had not manifested any clinical signs of alcohol dependence.
161 Exhibit D was a report dated 4 April 2016 from Ms Keech of the South Metropolitan Community Alcohol and Drug Service. The report states:
This is to say that [J] has been regularly attending appointments at the above named service since 12 January 2016.
[J] is a pleasant, co-operative person who attends appointments on time.
It is noted that there have been real improvements in [J's] physical Health, and overall presentation since commencing in this program.
[J] shows good insight into the cumulative harms related to alcohol misuse and has chosen to address them.
Firstly, [J] is prescribed Naltrexone, a medication which is taken to assist in maintaining abstinence of alcohol consumption and this is proving to be effective.
Secondly, [J] has regular counselling with a psychologist at this service, to address some anger management issues and these sessions are proving to be very beneficial.
Thirdly, [J] is motivated, presents well and articulates much sadness and economic stress in not being able to continue with teaching at present. [J] respects that there is a process involved in his pursuit to return to his profession, and thus far, has found participation in the recent mediation process to be productive and informative.
162 J appears to have failed to take any steps to address his alcohol abuse until 12 January 2016, that is, about two months after the CEO filed its submissions on 24 November 2015.
163 Given J's previous history of counselling, the Tribunal does not share the opinion in the report about J's insight, nor can it be confident in J's ability to cope when drinking alcohol.
164 J submitted references from Ms Liz Veel, Principal at Sanderson Middle School, Mr Barry Malezer, a teacher at Roebourne District High School and Mr Greg Shepard, a teacher at Roebourne District High School, all attesting to the capabilities of J (Exhibit A pages 4548). However, those references cannot carry a great deal of weight having regard to J's conduct.
165 J swore a statutory declaration dated 19 May 2015. He declared that he no longer had a drinking problem and that all criminal charges against him were false. He stated that, at all times, he worked with the best interests of children in mind and that he adhered to the professional standards of the teaching profession. He further stated that he works towards observing the highest ethical and moral standards in Australian society, and that he does not consider himself, as an educator, educational psychologist and a child carer, to be a risk to children (Exhibit A pages 50 and 51).
166 The jury's acquittal of J in 2005 simply means that the charges were not proven beyond reasonable doubt.
167 There is no basis for concluding that the allegations were false. J has no insight into the seriousness of the conduct revealed by his own admissions.
168 J failed to disclose the adverse findings against him in the Northern Territory to the CEO. These findings were highly relevant to an assessment of his suitability to work with children.
169 A negative notice will clearly impact on J's earning capacity. However, the primary concern is the best interests of children.
Anything else that the CEO considers relevant to the decision: s 12(8)(g) of the Act
170 The Inquiry Committee's Report and findings of J's inappropriate behaviour in the Northern Territory are highly relevant and have been discussed above.
The best interests of children (S12(8)(a) of the Act)
171 The evidence before the Tribunal establishes:
a) J has put a vulnerable child, S, at risk in the workplace in his capacity as a teacher, and has exploited his position of trust and authority;
b) J has acted in a profoundly inappropriate and very harmful way when confronted with troublesome teenagers, and has exploited that situation to gratify his own sexual needs with a vulnerable teenager, K, after he had physically assaulted her with a plank of wood a number of times (whether or not she gave consent); and
c) J has recently assaulted his partner in front of her child and assaulted the child.
- The best interests of children require that they not be exposed to the risk of such conduct by J. Violence, the exploitation of vulnerable parties and the crossing of boundaries are unacceptable.
Conclusion
172 Considering the precautionary approach of the Act and the paramount consideration of the best interests of children, the information before the Tribunal demonstrates that there is an unacceptable risk that J might, in the future, cause physical and sexual harm to a child in the course of carrying out childrelated employment.
Order
1. The application for review is dismissed.
I certify that this and the preceding [172] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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