K and CHIEF EXECUTIVE OFFICER DEPARTMENT FOR CHILD PROTECTION
[2011] WASAT 37
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: K and CHIEF EXECUTIVE OFFICER DEPARTMENT FOR CHILD PROTECTION [2011] WASAT 37
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MS K KEMP (SESSIONAL MEMBER)
HEARD: 27 JANUARY 2011
DELIVERED : 9 MARCH 2011
FILE NO/S: VR 173 of 2010
BETWEEN: K
Applicant
AND
CHIEF EXECUTIVE OFFICER DEPARTMENT FOR CHILD PROTECTION
Respondent
Catchwords:
Working with Children (Criminal Record Checking) Act 2004 (WA) - Review of refusal of application to have a negative notice cancelled - Class 2 offences - Nonconviction charges - Whether unacceptable risk that applicant will cause harm to children in the course of carrying out childrelated work - Best interests of children paramount to consideration
Legislation:
Evidence Act 1906 (WA), s 36C
Public Sector Management Act 1994 (WA), s 80, s 83(1)(b)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 62(3)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 4, s 12, s 16, s 16(1), s 16(3), s 18(1), s 19, s 19(1), s 19(8)
Working with Children (Criminal Record Checking) Act Amendment Act 2010 (WA), s 12
Result:
The application for review is dismissed
Category: B
Representation:
Counsel:
Applicant: Ms CA McKenzie
Respondent: Mr P Dixon
Solicitors:
Applicant: McKenzie & McKenzie
Respondent: N/A
Case(s) referred to in decision(s):
C and CEO, Department of Community Development [2007] WASAT 116
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, who had been a school teacher for many years, applied for a review of a decision made by the respondent to refuse to cancel a negative notice issued to the applicant under the Working with Children (Criminal Record Checking) Act2004 (WA). The negative notice had been issued as a result of the applicant having 'nonconviction charges' in respect of Class 2 offences.
In 2005, the applicant was charged with eight counts of indecently dealing with a child under the age of 13 years, the child being a student at a school where the applicant was the acting deputy principal. Those charges were dismissed when the Crown elected not to proceed during the subsequent trial.
The applicant was also charged in 2005 with in total seven counts of indecently dealing with his two female nieces, both of whom were children under the age of 13 years. Then in 2006, the applicant was charged with two counts of indecently dealing with a child, being his daughter.
In respect of all of those latter charges, the applicant was acquitted.
The Tribunal examined the circumstances surrounding the alleged offences and information and other material, including character references, submitted by the applicant. The Tribunal concluded that the issue of a notice permitting the applicant to work with children would give rise to an unacceptable risk of harm to children. As the best interests of children must be the paramount consideration, the Tribunal decided that the respondent's decision to refuse to cancel the negative notice should be affirmed.
Background
The applicant was born on 17 June 1960. For many years he worked as a teacher in various capacities in schools in the State.
On 13 August 2009, the then Department of Education and Training (DET) notified the respondent (CEO) that the applicant had been charged with 'a number of serious sexual offences'. This notice was given under s 16(1) of the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act).
The applicant had in fact already been tried in the District Court in Perth in 2007 in respect of these charges and had been acquitted or the proceedings were discontinued as the case may be.
After receiving this notice and on 17 August 2009, the CEO under s 16(3) of the WWC Act invited the applicant to apply for an assessment notice. The CEO did not receive such an application from the applicant and on 25 September 2009, under s 18(1) of WWC Act, the CEO issued the applicant with a negative notice.
The applicant denies receiving the documents referred to in the preceding paragraph, but nonetheless on 7 December 2009 the applicant made an application for an assessment notice. The applicant indicated that he was at that time in childrelated work as a manager of training at Curtin VTEC.
On 4 January 2010, the CEO wrote to the applicant advising him that he had already been issued with a negative notice and was therefore prohibited from carrying out childrelated work. The CEO on the same date advised the applicant's employer that a negative notice had been issued to the applicant and provided the employer with a copy of the negative notice.
On 13 March 2010, the applicant made an application to cancel the negative notice under s 19 of the WWC Act. By letter dated 19 August 2010, the CEO refused to cancel the negative notice and on 7 September 2010 the applicant applied to the Tribunal for a review of that decision.
Nonpublication of the applicant's name
Section 36C of the Evidence Act 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence. For this reason, an order is made by the Tribunal pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) prohibiting the publication of the names of the applicant and of the persons who made complaints against him. In these reasons the applicant will be referred to as K.
The relevant provisions of the WWC Act
In the decision of Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28 (Grindrod) Buss JA (with whom Wheeler JA agreed) set out fully the relevant provisions of the WWC Act (at [5] [16]). Because that analysis identified and discussed the provisions relevant to this particular matter, it is convenient for the Tribunal to adopt that analysis, some of which is set out below.
It should be noted however, that the Working with Children (Criminal Record Checking) Amendment Act 2010 (WA) (Amending Act) came into operation on 6 October 2010. This was, of course, after the date of the decision by the CEO to issue a negative notice to K under the WWC Act and it was also after the date of the decision in Grindrod. The Amending Act had not come into operation at the time when K applied to the Tribunal for a review of the CEO's decision, but it had come into operation by the time the Tribunal heard the parties in respect of that review. Because the review is de novo under s 27(1) of the SAT Act, the provisions of the WWC Act as amended by the Amending Act, will apply. References to the WWC Act in the passage from Grindrod below are of course references to the WWC Act prior to its amendment. However, the views expressed by Buss JA which follow continue to apply in relation to the present case.
Section 3 states that, in performing a function under the [WWC] Act, the CEO or the Tribunal is to regard the best interests of children as the paramount consideration.
Section 6 defines the term 'childrelated work'. The term includes, relevantly for present purposes, work if the usual duties of the work involve, or are likely to involve, contact with a child in connection with a coaching or private tuition service of any kind (but not including an informal arrangement entered into for private or domestic purposes) and a club, association or movement (including of a cultural, recreational or sporting nature and whether incorporated or not) with a significant membership or involvement of children (but not including an informal arrangement entered into for private or domestic purposes).
Section 7 defines the meaning of 'Class 1 offence' and 'Class 2 offence'. It provides:
(1)A Class 1 offence is
(a)an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 1 offence;
(d)an offence that, at the time it was committed -
(i)was a Class 1 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section was an offence of a kind referred to in this subsection.
(2)A Class 2 offence is -
(a)an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 2 offence;
(d)an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this subsection or subsection (1);
(e)an offence that, at the time it was committed
(i)was a Class 2 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
It is unnecessary to reproduce the offences described in each of Sch 1 and Sch 2. The offences in Sch 1 relate, in general, to sex offences against children under the age of 13 years. The offences in Sch 2 include various sex offences against children and also offences which do not necessarily involve children but would ordinarily be regarded as rendering a person who has committed them (or, probably, has been charged with them) unsuitable to carry out work involving, or likely to involve, contact with children. I note, for present purposes, that the 'Class 2 offences' include the offence of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code 1913 (WA).
By s 9(1) [of the WWC Act], a person who is, or is proposed to be, employed in childrelated employment by another person (the employer) may apply to the CEO for an assessment notice. On receiving the application, the CEO is empowered, by s 9(4), to ask the applicant to provide any further information or documents that the CEO reasonably needs to establish the applicant's identity or for a proper consideration of the application.
Section 12, as amended by the Amending Act, is of central importance to this proceeding, as it prescribes how applications under the WWC Act are to be determined. As amended, s 12 now provides as follows:
(1)The CEO is to decide an application under section 9 or 10 in accordance with this section
(a)by issuing an assessment notice to the applicant; or
(b)by issuing a negative notice to the applicant.
(2)The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3)If one or more conditions specified in the Table apply in relation to an applicant, the CEO is to decide the application in accordance with -
(a)if any one condition applies, the applicable provision opposite that condition; or
(b)if more than one condition applies, the applicable provision opposite the condition that has the higher or highest item number in the Table.
Table
| Item | Condition | Applicable provision |
| 1. | The CEO is not aware of (a) any offence of which the applicant has been convicted; or (b) any charge of an offence against the applicant. | s 12(4) |
| 2. | The CEO is aware that the applicant has a nonconviction charge in respect of a Class 3 offence. | s 12(4) |
| 3. | The CEO is aware, not as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence. | s 12(4) |
| 4. | The CEO is aware, as a result of a notice under section 16(1) or 17(1), of a pending charge against the applicant in respect of a Class 3 offence. | S 12(5) |
| 5. | The CEO is aware of a Class 3 offence of which the applicant has been convicted. | s 2(5) |
| 6. | The CEO is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence. | s 12(5) |
| 7. | The CEO (a) is aware of a Class 3 offence of which the applicant has been convicted; and (b) reasonably believes that in the course of committing the offence the applicant performed an indecent act. | s 12(6) |
| 8. | The CEO is aware of a pending charge against the applicant in respect of a Class 1 offence or a Class 2 offence. | s 12(6) |
| 9. | The CEO is aware of a Class 2 offence of which the applicant has been convicted. | s 12(6) |
| 10. | The CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted. | s 12(6) |
| 11. | The CEO is aware of a Class 1 offence (that was not committed by the applicant when a child) of which the applicant has been convicted. | s 12(7) |
(4)If this subsection applies, the CEO is to issue an assessment notice to the applicant.
(5)If this subsection applies, 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 this subsection applies, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7)If this subsection applies, the CEO is to issue a negative notice to the applicant.
(8)If subsection (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)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.
A Class 3 offence is an offence that is not a Class 1 offence or a Class 2 offence.
Section 4 of the WWC Act defines a nonconviction charge as meaning 'a charge of an offence that has been disposed of by a court otherwise than by way of conviction'.
Under s 19(1) of the WWC Act, a person to whom a negative notice has been issued may apply to the CEO for the notice to be cancelled. Under s 19(8) of the WWC Act, s 12(2) to s 12(8) then applies to that application as if it were an application for an assessment notice.
K's criminal history
K has one conviction for a Class 3 offence. In 1987, K was convicted for stealing and was fined $50. The conviction was declared as spent.
K also has a nonconviction charge in respect of a Class 3 offence, a charge for assault occasioning bodily harm. This related to an allegation that in December 2002, K struck his daughter on the left side of her face and pushed her over. The charge was dismissed in January 2008, no evidence having been offered.
K does not have any convictions or nonconviction charges in respect of any Class 1 offences. However, he has nonconviction charges in respect of a number of Class 2 offences. These are, in summary:
The CE complaints
In 2005, K was charged with eight counts of indecently dealing with a child under the age of 13 years on eight different occasions by touching her breasts and vagina. These events were alleged to have occurred in 2004 when the complainant, CE, was 11 years old and was a Year 6 student at a regional school where K was the Acting Deputy Principal. K was providing tutoring and classroom instruction to the complainant. The particulars of each incident are:
a) K knelt behind the complainant when teaching a lesson in a classroom. He placed his right hand on the complainant's knee and moved his hand up the complainant's leg and moved his hand onto her stomach. He touched her left breast over top of her clothing.
b) and c) Approximately one week after the first incident, K was tutoring the complainant alone after school hours in a classroom. K moved his hand up the complainant's shirt while she was seated in his chair and placed his hand on her left breast outside of her bra. He then moved the same hand down to her vagina on the outside of her jeans.
d) and e) Whilst tutoring the complainant after school hours, K put his hand on the complainant's leg and worked his hand under her jumper, placing his hand on her breast on the outside of her bra. K removed his hand when somebody entered the room. When that person left, he placed his hand on her breast again, this time on the outside of her clothing.
f) The complainant was in the photocopier room of the school using the photocopier. K entered the room and placed his hand on the complainant's breast on the outside of her clothing.
g) Whilst tutoring the complainant after school hours in a classroom, K took hold of the complainant's hand and placed her hand onto his penis, on the outside of his clothing. K held the complainant's palm on his penis for a short while before she pulled her hand away.
h) Whilst tutoring the complainant after school hours in the school library, K unfastened two buttons of the complainant's jeans and worked his hand inside her jeans, placing his hand on her underpants, rubbing his fingers on the outside of the complainant's vagina.
The PB complaints
In September 2005, K was charged with four counts of indecently dealing with PB, a child under the age of 13 years, details of which are as follows:
a) Between 1 January 1999 and 31 December 2000, K, the uncle of PB, a child under 13 years of age, touched PB around her nipples when in her sister's room at their home.
b) At the same time and place as a), K touched PB's vagina.
c) Between 1 January 1999 and 31 December 2000, at K's house, K touched PB around her nipples.
d) At the same time and place as c), K also touched PB's vaginal area.
The CB complaints
In 2005, at the same time as K was charged with the PB complaints, K was charged on three counts of indecently dealing with CB, a child under the age of 13 years, details of which are as follows:
a) Between 1 January 1999 and 6 November 2001, K indecently dealt with his niece, CB, a child under the age of 13 years and the sister of PB, whilst at her home by touching her breast around the nipple area.
b) At the same time as a), K also touched CB's vaginal area.
c) Between 1 January 1999 and 31 December 2000, K incited CB to do an indecent act, namely place her hand on his crotch.
The R complaints
In 2006, K was charged with two counts of indecently dealing with a child who he then knew to be his lineal relative. Details of those allegations are as follows:
R is K's daughter, aged 17 at the time of the alleged incidents. On an evening in April 2001, R was lying between her parents on their bed talking. R's mother left the room. K then placed his open hand under R's Tshirt and began to rub both her breasts prior to moving his hand down to her stomach. He then moved his hand to the inside of R's track pants and rubbed her on the vagina.
In March 2007, K was tried in respect of the CE complaints and in November 2007, K was tried in respect of all of the R complaints, the PB complaints and the CB complaints.
The investigation and trial in respect of CE's complaints
CE was interviewed by the police on two separate occasions, the first on 29 September 2005, when she was 12 and the second on 15 September 2006 when she was 13 years old. The interviews were both filmed and recorded.
In her 2005 statement, CE particularised the alleged incidents, stating that K put his hand on her leg in class, and that he would kneel down beside her and come close behind her. He would move his hand towards her breasts while in class. Some of the incidents she could recall in detail, alleging touching in the photocopier room, the music room and the classroom of her school. Other incidents were more vaguely recalled. She stated that she felt scared when K touched her.
She gave the impression of being a happy child. She spoke of playing with her father after school, about a friend's dog, about her last birthday party and the presents she received.
In her second statement of 15 September 2006, she detailed an incident in the library behind a partition, when K came in and pulled down her pants and kissed her vagina. She had not raised this incident in her first statement. She recalled that a teacher, Ms G, came in looking for K and that he then pulled up her knickers and jeans with both hands and told her to go home. She explained that she first complained about K's behaviour to her friend, T, a Year 7 student, in the corridor.
T subsequently gave a statement that CE had disclosed the abuse to her in the school corridor but could not remember when that was. T said that CE told her that K had 'kissed her on her private part, the stomach and her two boobs'.
At the trial in March 2007, CE was crossexamined on her statements. The crossexamination focused on the details of the time of the alleged incidents. The manner of her questioning seems from the transcript to be inappropriate in parts for a person of her age and stage of development. When it was for example suggested to her by defence counsel that the applicant did not put his hand on her breast under her shirt she said 'No'. When she was questioned about the incident in the photocopier room, it was suggested to her that K did not touch her on the breast and CE replied 'No'. The question had to be clarified and she then responded 'Yeah he did … I don't remember but I remember him doing something'.
The trial judge commented to defence counsel on more than one occasion that CE was a child and that the manner of questioning CE was confusing her.
In her police interviews, CE was very clear about what she alleged had occurred and parts of it were recalled in great detail. However, CE's evidence at the trial presented as inconsistent and vague. After the crossexamination of CE, the State presented a notice of discontinuance in respect of the proceedings. The prosecutor stated that 'there is no longer reasonable prospects of conviction and accordingly it is not in the public interest to proceed'.
The court accepted the notice on 29 March 2007.
CB's interview on 19 September 2005
CB is K's sister's daughter and his niece and was aged 16 at the time of the interview. She stated that when she was approximately 12 years old K came to visit the family home. K came into the bedroom and put his hand up her shirt, touching her breasts with his fingers, around the nipple area. K's younger children were also in the room. He then touched her vagina on the outside and then 'he'd just walk away basically'. CB said that sometimes he would touch her and PB at the same time, and in one incident he touched underneath her underwear, touching her skin. CB recalled the day when the applicant came over and made her touch his crotch when in the garden, a few years after the bedroom incident. In a third incident, she recalled giving K's daughter, then aged 5, a piggyback and K came up behind her and put his hand down her pants and rubbed her vagina. CB could not recall other specific incidents but said that touching happened on a few times before the first incident which she detailed.
CB complained about this to her parents on 17 September 2005.
PB's interview on 19 September 2005
PB is also K's niece and is the twin sister of CB. She was of course also aged 16 at the time of her interview. She stated that when she was in primary school K would touch her by putting his hand up her shirt or down her pants. On another occasion she was watching television and K sat down, put his arms around her waist and put his hand down her underwear touching the inside of her leg around her vagina. She recalled that she was wearing overalls. K got up and left after a few minutes.
PB was prompted to complain about K to her parents in September 2005, after completing a questionnaire dealing with anorexia in which she was asked if she had ever been sexually abused.
R's statement
R gave a statement on 24 October 2006, in which she said she was born on 23 December 1983 and is the daughter of K. She is the eldest of four children.
In 2001, she was in her first year of university and was 17 years of age. On a weekday evening in April 2001, she was in her parent's bed at her family home. She had been placed in the bed by her mother because she had been distressed earlier in the evening due to a relationship breakup. Both her parents and she were lying in bed together. K had only returned home from work a short time before.
Her mother left the bed during the night. R was lying in the middle of the bed and K was lying to her right. She was wearing track suit pants and a Tshirt. At some point, which she believed was shortly after her mother got out of the bed, her father rolled towards her and touched her. He put one of his hands under her Tshirt from the front. He proceeded to touch both her breasts, one to another, with an open hand. He said words to the effect that she 'wasn't so skinny after all'. His hand then moved down her stomach into the waistband at the front of her track suit pants. He touched her right upper thigh on the outer back and inside and then he moved his hand towards the outside of her vagina. She does not recall whether he put his hand inside her underwear. She rolled away to the opposite side of the bed, away from her father. She left the bed, saying that she was going to make a cup of tea.
The first person she told about K touching her in the bed was her former boyfriend at a café near her home. She did not say when this conversation took place.
The trial in respect of PB's, CB's and R's complaints
On 23 April 2007, it was decided that the charges involving CB and PB would be joined with charges involving the applicant's daughter, R so that all three matters, (R, PB, and CB) would be tried together. In making of that decision, the judge at the hearing held that not only were they similar charges, but she also considered the type of touching to be of a similar kind, they were opportunistic in nature and tended to show a disregard for the fact that other persons and relatives were present.
CB's and PB's evidence at the trial
CB and PB were both crossexamined at the trial. The defence's case was that the offending was unlikely because somebody could have entered the bedroom at any time and that they had concocted the allegations. There were also issues around describing the duration of the touching. PB had said that the touching went on for five minutes, but then said that she did not mean five minutes literally. PB maintained her allegations under some pressure from defence counsel. She had some difficulty in remembering exactly when the events took place, except that she was at the time still in primary school. It was suggested that the touching could not have occurred because other children were around, there was visibility during the incident and that K would not have risked that exposure. PB and CB were vague about some details of the offending but both complainants were adamant in their evidence that K had offended as alleged. It would seem that CB and PB had discussed the incidents between themselves prior to making their complaints, but it is unclear as to when those discussions had taken place.
R's evidence at the trial
R was 24 years of age at the time of the trial. She gave evidence that in April 2001 she was upset about a breakup with her boyfriend and was lying in between her parents on their bed at night. The context was that she had gone missing on several occasions, had been suicidal and her parents wanted to keep an eye on her. When her mother left the bedroom, her father touched her on the stomach with an open hand and touched her breasts and said 'she was not a skinny girl anymore'. He then moved his hand, sliding it into her track pants and touched her vagina on the outside of her underwear.
R did not tell her mother immediately about the incident but did communicate with her exboyfriend about the incident, writing a note to him to the effect that her father had 'fingered her'. The boyfriend gave evidence of this communication, saying it was sometime in June or July of 2001 and that he recalled it had been within a week or two of the alleged incident.
The defence's case was that R was suicidal and emotionally unstable at the time she alleged the offending had taken place and also that she brought the charges in the midst of her parent's family court proceedings in order to assist her mother, and after the allegations of CB and PB came to light.
K's evidence at the trial
K admitted that there were times during visits to his sister's home that he went into PB and CB's bedrooms to check on his own children and that he was alone at times with the complainants. When it was put to him that he had had an opportunity to do the alleged acts he responded 'unfortunately yes …'. However, he strenuously denied touching his nieces inappropriately.
K admitted touching R on her breast but said it was accidental. He stated:
We all went to sleep. At some time in the night if I had to hazard a guess I would say 2 o'clock in the morning I woke up and when I woke up I rolled over and was cuddled up to [R] and my right arm was over the top of her body. She was lying on her back, and my arm was over her chest area. When I realised that it was her and not my wife, I guess I was more embarrassed than anything. I couldn't move my hand away immediately and patted her on the hip and said "you are not my skinny little girl anymore" and I rolled over and went back to sleep. I thought that was the end of it.
When questioned in examination as to whether he had touched his daughter's vagina he responded 'I am not ashamed to say that I am a tactile person and when I am sleeping with my partner I do sleep cuddled up and I may have touched her while I was asleep, but I have absolutely no recollection that I did so'.
When asked if he had touched his daughter's breasts that night, the applicant stated 'No, not consciously. But yes, my hand was on her breast'.
The trial ran from 5 to 9 November 2007 and K was acquitted of all charges.
Investigation by the Department of Education
DET's Complaints Management Unit, now known as the Standards and Integrity Directorate, was notified on 19 September 2005 of the allegations made against K. DET subsequently wrote to K on 20 September 2005 advising K that DET had received information that indicated that he may have acted in a manner which constituted a breach of discipline pursuant to s 80 of the Public Sector Management Act 1994 (WA) (PSM Act). DET subsequently conducted an investigation. This investigation as far as the complaints of PB, CB and R are concerned, focussed on the relevant police reports. The complaints of CE were investigated more widely.
A report dated 8 April 2009 summarised the findings of the investigation. In regard to CE's complaints, a number of teachers were interviewed. One teacher, Ms G, stated that she became concerned about how close K was sitting to CE whilst tutoring her when a full time assistant reported her concerns to her.
After being informed of this, she would occasionally look into the tutoring class and saw what she believed as K sitting unnecessarily close to and leaning up against CE. She also observed that K had his arm around CE. She was almost certain that she saw a child sitting on K's knee at an overnight camp. She, and other teachers, expressed their concerns to the principal in 2004 about K's behaviour. Ms O, an education assistant during 2004 at the school, was aware of K tutoring CE and that they spent more time than normal together. She observed K's arm around CE sometimes when he was tutoring her and became uncomfortable being present when he was tutoring her. Ultimately, she refused to be present while K was with CE as she felt uncomfortable. K then had to tutor CE in the principal's office.
On 14 July 2009, DET charged the applicant with eight serious breaches of discipline pursuant to s 83(1)(b) of the PSM Act. On 1 September 2009, K resigned from DET and the charges were discontinued.
The evidence at the hearing
The hearing of this proceeding took place in Kalgoorlie on 27 January 2011. A statement was submitted by K and K also gave oral evidence at the hearing. He made the following points:
•He and his sister, the mother of CB and PB, had a 'normal' family relationship.
•The alleged conduct complained of by PB and CB would have taken place while their parents and K's wife were present in the house and his children were in the same room. He states that 'this scenario is implausible and simply did not happen'.
•K believes that he would have only seen his sister and PB and CB during the Christmas holidays of 1999 and 'once or twice more throughout 2000'. He states that he simply did not have the opportunity to offend against CB and PB on the occasions when the conduct was alleged to have taken place.
•He points out that PB has insisted that she did not discuss the conduct with her sister, whereas CB admitted that the two of them had discussed the allegations several times in the months prior to making them but volunteered the statement that it was 'not a setup'.
•K categorically denies that he touched either CB or PB at any time in any way that was inappropriate.
•K states that at no stage was he ever alone with CE in either the classroom, the reception area or the photocopier room. Under crossexamination, he admitted to putting his arm around the back of her chair. However, he denies touching her or any other student inappropriately.
•In 1999, R was displaying significant behavioural problems and had a history of selfharm. She was undergoing psychiatric treatment and K and his wife had arranged for private psychiatric counselling and a week in a clinic for therapy. K confronted her and told her that if she did not seek appropriate treatment then she would have to move out of the family home as she would 'no longer be welcome'.
•As a result of K refusing to allow what he described as R's destructive behaviour to continue, his relationship with her deteriorated and his relationship with R has been strained ever since.
•K admitted to touching R's chest area as she alleged, but stated that it was entirely accidental.
K submitted a number of character references from people, most of whom had known him for a long time either professionally, personally or both. All had been made aware of the allegations made against him and all expressed disbelief at those allegations. They spoke of him as a devoted husband and father.
Finally, K states that he has been working professionally with children since he was a young man and he never felt that he represented a threat to any of them.
The test to be applied
Section s 12(5) of the WWC Act (formerly s 12(4)) requires that, on an application for an assessment notice, or for cancellation of a negative notice, if the CEO is aware of a non-conviction charge for a Class 2 offence, an assessment notice is to be issued to K unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued.
In Grindrod, Buss JA (with whom Wheeler JA agreed) said (at [81]):
In my opinion, it is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.
The 'unacceptable risk' test was reiterated by Buss JA in Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171 (Scott) at [123].
In relation to nonconviction charges, Buss JA in Grindrod observed that it is not the Tribunal's function to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the nonconviction charge in question. Rather, the relevant function involves an analysis and evaluation of risk, and the prevention of potential future harm (at [84]). The risk in question has to be unacceptable, not likely (at [85]). Buss JA also observed at [87] that it will be necessary for the Tribunal, in deciding whether there is an unacceptable risk, to rely partly on facts and partly on reasonable suspicions.
In Grindrod at [86] Buss JA said:
The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non-conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in childrelated employment; and
(d)the likelihood of any such future risk materialising.
Bearing in mind that the best interests of children is the paramount consideration, it is necessary to consider the factors set out in para (b) (g) of s 12(8) of the WWC Act, as amended by the Amending Act, having regard to the factors identified in Grindrod at [86]. In Scott at [104] Buss JA stated that the CEO (and therefore the Tribunal) is bound to take into account each of the criteria in para (a) (f) and is not entitled to take into account any other factors.
Considerations prescribed by s 12(8) of the WWC Act
In accordance with the principles which have emerged from the authorities referred to above, the paramount consideration is the best interests of children. If there is an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of carrying out any childrelated employment that he might undertake, then the best interests of children require that the negative notice should not be cancelled. We propose to look at each of the considerations in s 12(8)(b) (g) before returning to the consideration in s 12(8)(a), the best interests of children. We have included in our consideration the offence actually committed by K, as well as the Class 2 and Class 3 nonconviction charges.
We agree however, with the CEO's conclusion that K's property related offence and assault charge are not considered relevant to childrelated work.
When the offences were or are alleged to have been committed s 12(8)(b)
The alleged conduct giving rise to the nonconviction charges is said to have occurred between 1999 and 2004. The Tribunal regards the alleged conduct as being relatively recent and the fact that seven years have elapsed since the last of those incidents were alleged to have occurred is not in the Tribunal's view a significant factor in favour of or against the applicant.
The age of the applicant when the offence is alleged to have been committed s 12(8)(c)
The applicant was born on 17 June 1960. Thus the alleged conduct took place when the applicant was between 39 and 44 years of age. He is now 50 years of age. In C and CEO, Department of Community Development [2007] WASAT 116, Barker J stated at [101] that:
The age of a person at the time of an offence was committed or was alleged to have been committed may reasonably be considered relevant on the basis that, amongst other things, if the applicant were relatively young at the time, he or she may have outgrown a certain immaturity they then had and may possibly be considered, taking into account other factors, unlikely to engage in such conduct again.
This is not a case where the applicant's age could have any mitigating effect on his alleged conduct. The Tribunal does not agree with any proposition that there is any material difference in maturity between a man aged 44 and a man aged 50.
Nature of the convictions and alleged offence and relevance to child-related work s 12(8)(d)
We have already concluded that K's earlier conviction and assault charge are not considered relevant to childrelated work.
However, the nature of the Class 2 nonconviction charges are highly relevant to childrelated work. While not all of them occurred in the course of childrelated work, they involve allegations of indecently dealing with girls between the ages of 9 and 17 over a period of about five years, they involve an alleged breach of trust by K in that the complainants were a pupil, a niece or a child of K as the case may be, and they are highly material to the consideration of the likelihood of any future risk to children materialising, notwithstanding that some of the alleged offences occurred in a domestic setting.
Also, there is some similarity between the alleged offences and if the offending is thought to have occurred this might be suggestive of a pattern of abuse. If the alleged offences did in fact occur, they were opportunistic and carried out while other persons were present or at least nearby. Those opportunities and circumstances commonly arise in the course of childrelated work.
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 s 12(8)(e)
This is a new sub-section inserted by the Amending Act. This requires the Tribunal to give specific consideration to the effect on a child were the applicant to behave in a similar way to a previous charge or conviction.
Counsel for the respondent submits that s 27(2) of the SAT Act requires the Tribunal, in determining K's application, to apply s 12 of the WWC Act as it was at the time that K had applied to the CEO to cancel the negative notice and prior to the Amending Act coming into operation. The Tribunal has already concluded at para [15] that the provisions of the WWC Act as amended by the Amending Act will apply. However, if this is not correct, then the consideration under this critierion should be regarded as a consideration under s 12(8)(g), being other matters relevant to the decision.
In the Second Reading Speech that accompanied the passage of the Amending Act through the Legislative Assembly, it was stated that, even if the alleged conduct took place many years ago, the passage of time without further charges or convictions will not be sufficient to issue an assessment notice if a repetition of that type of behaviour would result in significant harm to a child: Western Australia, Parliamentary Debates Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary).
The Tribunal has already formed the view that the alleged conduct took place relatively recently and no weight is given in the Tribunal's determination to the passage of time since the trial. However, the occurance of the type of behaviour which has been alleged would most certainly result in significant harm to a child.
Information given by the applicant in or in relation to the application and other matters relevant to the decision s 12(8)(f) and (g)
The respondent, with K's consent, sought information from DET and was provided with a copy of DET's report referred to at para [56] above. The information contained in that report has been considered by the Tribunal, as has the other information set out above in these reasons relating to the applicant and the circumstances of the alleged offences. However, less weight has been placed upon the information arising from DET's report because its investigation was discontinued following K's resignation.
In relation to non-conviction charges, the factors identified by Buss JA in Grindrod at [86] need to be considered. It is clear that there was evidence at the second trial which, if accepted by the jury, was capable of sustaining the charges against K. The prosecution's case was based entirely on the credibility, reliability, accuracy and truthfulness of the three complainants' evidence. The jury clearly did not accept some or all of the complainants' evidence and were not satisfied beyond reasonable doubt as to the guilt of K.
The best interests of children - s 12(8)(a)
As we have previously observed, it is not the Tribunal's function to adjudicate upon whether K is or is not guilty of the nonconviction charges. The Tribunal has not attempted to do so. We are only concerned with the prevention of potential future harm to children.
In the case of the charges arising from the complaints made by CE, the Director of Public Prosecutions must have considered that a prima facie case existed and that there was a reasonable prospect of conviction. However, it soon became clear during the trial that there were weaknesses in the prosecution's case. The case depended almost entirely on CE's testimony which, as the trial progressed, appeared to be less and less reliable, resulting in the presentation of a notice of discontinuance in respect of the proceedings.
Notwithstanding the discontinuance, the evidence supports the existence of a reasonable suspicion that K did in fact deal indecently with CE. Her statements to the police, when questioned in a manner appropriate for a child, were relatively clear and detailed and showed that there was no doubt in her mind that she had been touched inappropriately by the applicant. It was only during her crossexamination at the trial that she became confused, even though she maintained consistently that she remembered K 'doing something'.
There was no evidence, at the trial or at the hearing of the Tribunal, that CE had in any way colluded with or even knew the other complainants, and yet there were some similarities in the nature and pattern of the alleged behaviour in respect of all of the complaints.
A suspicion in relation to the alleged offences against PB and CB is not as readily identified. It is clear that K had limited contact with his nieces, there is some evidence of collusion between the two of them and there is some disparity in their testimony with regard to the times when the alleged offences took place. While it is always possible that the events described did take place, there is nothing in the evidence to give the Tribunal any reason to conclude that there is reasonable suspicion that this is in fact the case.
K has admitted that he may have touched his daughter in the manner suggested by her, but stated that it was accidental. There is also evidence to suggest that R was under a great deal of mental stress at the time and it is possible that K's actions were misinterpreted by her. However, for K to put himself into a situation where he is alone in bed with his 17 year old daughter when both of them were partially clothed, and when he knew that she was in a particularly vulnerable state demonstrates at the very least a serious lack of judgment on K's part and is highly material to the consideration of the likelihood of any future risk to children materialising.
Conclusion
We have concluded that, notwithstanding the fact that K was not convicted of any of the Class 2 offences and despite the high regard in which he is held by his character referees, the negative notice should not be cancelled. In the particular circumstances of this case, there would be an unacceptable risk in the future to children if an assessment notice is granted in place of the negative notice.
We accept that the applicant may suffer some prejudice or embarrassment in his personal or professional life as a result of the Tribunal's decision, but those factors cannot outweigh our conclusions about the best interests of children.
Orders
1. Pursuant to s 61 of the State Administrative Tribunal Act 2004 (WA) the name of the applicant and of the original complainants is not to be published.
2. The decision of the CEO not to cancel the negative notice issued to the applicant is affirmed.
3. The application for review is otherwise dismissed.
I certify that this and the preceding [89] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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