Limb and Director, Working With Children Screening Unit As the Delegate for the Chief Executive Officer, Department Of Communities [No 2]
[2025] WASAT 20
•5 MARCH 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: WORKING WITH CHILDREN (SCREENING) ACT 2004 (WA)
CITATION: LIMB and DIRECTOR, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [No 2] [2025] WASAT 20
MEMBER: DR S WILLEY, SENIOR MEMBER
HEARD: 25 MARCH AND 5 JUNE 2024
DELIVERED : 5 MARCH 2025
FILE NO/S: VR 28 of 2023
BETWEEN: JUSTIN LIMB
Applicant
AND
DIRECTOR, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
Respondent
Catchwords:
Working with children check - Application for assessment notice - Negative notice issued - Application to review negative notice - Non-conviction charges - Whether Tribunal can make positive finding that alleged offending occurred - Where no positive finding can be made - Where applicant admits to sexual contact with a graduated student - Whether applicant poses unacceptable risk to children - Application of factors set out in Working with Children (Screening) Act 2004 (WA)
Legislation:
Children and Community Services Act 2004 (WA)
Criminal Code Act Compilation Act 1913 (WA), s 322, s 322(2), s 322(4), s 322(5)
Evidence Act 1906 (WA), s 31A
State Administrative Tribunal Act 2004 (WA), s 9(a), s 18, s 27(1), s 27(3), s 29(1), s 29(3), s 31, s 32, s 32(1), s 32(2)(a), s 32(2)(b), s 32(3), s 32(4)
Teacher Registration Act 2012 (WA)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 7(2)(a)
Working with Children (Criminal Record Checking) Amendment Act 2022 (WA), s 44
Working with Children (Criminal Record Checking) Amendment Bill 2009 (WA)
Working with Children (Criminal Record Checking) Amendment Bill 2022 (WA)
Working with Children (Criminal Record Checking) Bill 2004 (WA)
Working with Children (Screening) Act 2004 (WA), s 3, s 4, s 6, s 7, s 9, s 12, s 12(1), s 12(1)(b), s 12(5), s 12(8), s 12(8)(b), s 12(8)(c), s 12(8)(d), s 12(8)(e), s 12(8)(f), s 12(8)(g), s 13A(2), s 23, s 26, s 34, s 62, s 63(2)(b), Pt 6, Sch 1, Sch 2
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Ms S Keighery and Mr E Heywood |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
A and Chief Executive Officer, Department for Child Protection and Family Support [2016] WASAT 74
Asplin v The State of Western Australia [2013] WASCA 2
Briginshaw v Briginshaw (1938) 60 CLR 336
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125
Chief Executive Officer, Department for Child Protection v T [No 2] [2013] WASCA 206
Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1
Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413
Forrest & Forrest v Minister for Aboriginal Affairs [2024] WASCA 96
G and Department for Child Protection and Family Support [2022] WASAT 48
HML v R [2008] HCA 16; (2008) 235 CLR 334
Khosa v Legal Profession Complaints Committee [2021] WASCA 64
Limb and Director, Working with Children Screening Unit as the Delegate for the Chief Executive Officer, Department of Communities [2024] WASAT 48
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52
The State of Western Australia v Darker [2024] WADC 57
The State of Western Australia v Wark [2017] WASC 154
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Justin Limb (Applicant) was a teacher at Carey Baptist College (the School). In early 2020, the Western Australian Police Force (WA Police) notified the Working with Children Screening Unit that the Applicant had been charged with sexually penetrating a child over 16 years of age under his authority and indecently dealing with a child over 16 years of age under his authority. Ultimately, there would be 10 charges in total.
Because of these charges, the Applicant was issued with a negative notice[1] under the (now) Working with Children (Screening) Act 2004 (WA) (WCS Act). The effect of the negative notice is that the Applicant can no longer engage in child-related employment.[2]
[1] A 'negative notice' is defined in s 4 of the WCS Act to mean a notice issued by the CEO pursuant to s 12(1)(b).
[2] WCS Act, s 23.
On 25 November 2022, following a District Court of Western Australia jury trial, the Applicant was found not guilty on all 10 charges. The Applicant subsequently applied to cancel the negative notice.
Notwithstanding the 'non-conviction charges' (meaning, in effect, that the Applicant was not convicted), on 15 March 2023, the Director of the Working with Children Screening Unit, as the delegate for the Chief Executive Officer, Department of Communities (Respondent) nevertheless refused to cancel the negative notice.
The Applicant seeks a review of the Respondent's decision to refuse to cancel the negative notice (Review). The gravamen of his case in the Tribunal is that he was 'found innocent' in the District Court trial and hence should be entitled to resume child-related work.
Issue
The ultimate issue that I must determine is whether it is the correct and preferable decision to affirm, or set aside, the negative notice.[3]
[3] SAT Act, s 29(3).
As I will come to explain, the answer to that question centres on whether I find that there is an 'unacceptable risk' that the Applicant might, in the future, cause sexual or physical harm to children in the course of child-related work.[4]
[4] Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 [81] (Buss JA) (Grindrod [No 2]).
Result
For the following reasons, the decision of the Respondent to issue a negative notice on the Applicant is affirmed. The Review is dismissed.
Jurisdiction
The Review[5] arises in the Tribunal's review jurisdiction.[6] I am required to deal with the matter in accordance with the State Administrative Tribunal Act 2004 (WA) (SAT Act) and, in this instance, the WCS Act.[7]
[5] A review is available pursuant to WCS Act, s 26.
[6] State Administrative Tribunal Act 2004 (WA) (SAT Act).
[7] SAT Act, s 18.
My task is to make the correct and preferable decision at the time of the decision on the Review. The Review is conducted de novo and is not concerned with identifying errors in the making of the reviewable decision.[8] To that I would add that I am to conduct the Review afresh and not on the basis that the reviewable decision, of itself, is probative of its own correctness.[9] However, I may have regard, and give weight, to, the reasons for making the reviewable decision and any relevant findings of fact.[10]
[8] SAT Act, s 27(1).
[9] Forrest & Forrest v Minister for Aboriginal Affairs [2024] WASCA 96 (Buss P [58], Mitchell JA [118]) (Forrest).
[10] Forrest [59] (Buss P).
I may also consider new material, whether or not it existed at the time the reviewable decision was made.[11] Unlike the Applicant's District Court trial, neither party to the Review bears any legal or practical onus of proof.[12]
[11] SAT Act, s 27(3).
[12] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [115] (the Court).
In undertaking the Review, I have the same functions and discretions corresponding to those exercisable by the decision-maker in making the reviewable-decision.[13] I must act fairly and according to the substantial merits of the case.[14]
[13] SAT Act, s 29(1).
[14] SAT Act, s 9(a).
Materials before the Tribunal
The materials that I have before me include (but is not limited to):
(a)Application for review, 8 April 2023;
(b)The reviewable decision (on reconsideration), 5 July 2023;
(c)The Indictment, 31 December 2021;
(d)Amended Statement of Material Facts, 30 December 2021;
(e)Sworn statement of AB, (YZ's mother);
(f)Sworn statement of WX, (former School student) 16 December 2019;
(g)Sworn statement of UV, (former School student), 20 October 2020;
(h)Sworn statement of CD, (YZ's sister), 15 January 2020;
(i)Sworn statement of YZ (complainant), 18 November 2019;
(j)Sworn statement of EF (YZ's School friend), 14 January 2020;
(k)Sworn statement of ST (YZ's School friend), 18 March 2020;
(l)Sworn statement of QR (former School student), 30 October 2020;
(m)Sworn statement of MN (Assistant Principal at the School), 2 April 2022;
(n)An email/letter (letter) from YZ to the School, 12 September 2019;
(o)An email/letter (letter) from WX to the School, 12 September 2019;
(p)Transcript of the Applicant's police interview, 28 January 2020;
(q)Transcript of the District Court trial (4 - 6 April, 25 - 26 October, 22 25 November 2022);
(r)Expert witness statement of Dr Rosemary Cant, 24 January 2024; and
(s)Applicant's witness statement, 20 September 2023.[15]
[15] The Applicant also filed an identical document named 'Applicant's Response to Respondent's Statement of Issues, Facts and Contentions'. This statement was made Exhibit 3. In these reasons, I will generally refer to the Applicant's witness statement (Exhibit 4) (Limb Statement).
Overview
Given the length of these reasons, it is appropriate that I provide a brief overview of the cases pressed by both the Applicant and the Respondent.
The Applicant's case in the Review is, in effect that he was 'proved innocent' by the District Court and presents no risks to children. His case is, in effect, that I should positively find that the conduct alleged by YZ did not occur. Accordingly, by reason of the non-conviction charges, the negative notice should be set aside, and he should be permitted to engage in child-related work.
The Respondent, on the other hand, submits that the correct and preferable decision is to maintain the negative notice. The fact that the Applicant was acquitted in the District Court does not mean that his version of events is true. The Respondent's case is that I should make no positive finding either way as to whether the conduct alleged against the Applicant did, or did not, occur. Rather, it says that YZ's account of what occurred is credible and that, having regard to the criteria set out in s 12(8) of the WCS Act, there are particular or exceptional circumstances which justify the negative notice being affirmed.
Legislative scheme
The purpose of the WCS Act
The long title of the WCS Act provides that it is an Act to inter alia 'prohibit people who have been charged with or convicted of certain offences from carrying out child-related work'.
As was explained in G,[16] the purpose of the WCS Act is to protect 'children'[17] by reducing the risk of harm to them arising from contact with persons engaged in 'child-related work'.[18]
[16] G and Department for Child Protection and Family Support [2022] WASAT 48 (G) [19] (Glancy DP).
[17] A 'child' is person under the age of 18: WCS Act, s 4.
[18] 'Child-related work' is defined in s 6 of the WCS Act.
The WCS Act was drafted to respond:[19]
… to community concerns about the abuse of children by persons who are in a position of trust, particularly if there is opportunity for the substantial contact and relationships associated with the grooming of children by paedophiles.
[19] Working with Children (Criminal Record Checking) Bill 2004 (WA), 2R, 28 October 2004, Legislative Council, Hansard, page 7451 (Hon Ken Travers) (2R Speech).
In Grindrod[No2],[20] Buss JA (Wheeler JA agreeing) explained the object of the working with children legislation, as follows:
The subject matter and scheme … 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 work in child-related employment and have been convicted of, or charged with, (including charged with and acquitted of) specific criminal offences. The evident legislative purpose is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in child-related employment who pose or may pose a potential threat[.]
[20] Grindrod [No 2] [76].
Buss JA further explained that while the WCS Act does not have a punitive or disciplinary purpose, its application or implementation may adversely affect the civil rights of applicants who are issued with a negative notice, including applicants with nonconviction charges.[21]
Recent amendments to the WCS Act
[21] Grindrod [No 2] [76].
The Working with Children (Criminal Record Checking) Act 2004 (WA) (Original WC Act) was recently amended by the Working with Children (Criminal Record Checking) Amendment Act 2022 (WA) (Amendment Act).
The Amendment Act was prepared against the backdrop of the Royal Commission into Institutional Responses to Child Sexual Abuse in its Working with Children Checks Report 2015. National Standards for Working with Children Checks were developed collaboratively across all jurisdictions and were published in 2019.[22] The relevant amendments commenced on 1 July 2023.
[22] Working with Children (Criminal Record Checking) Amendment Bill 2022 (WA), Explanatory Memorandum.
As I have set out, the Original WC Act has now been renamed the WCS Act.
The substantive effect of the commencement of the WCS Act is that the offences for which the Applicant was charged are now Class 1 offences. Part 6 of the WCS Act sets out the transitional provisions. Section 62 defines 'former classification provisions' to mean s 7, and Sch 1 and Sch 2, as in force immediately before commencement day'.[23]
[23] Perforce of s 44 of the Amendment Act, the 'commencement day' was 1 July 2023.
Pursuant to s 63(2)(b) of the WCS Act, the former classification provisions apply to this review until a decision is made on the review. The offences for which the Applicant was charged (being under s 322 of the Criminal Code Act Compilation Act 1913 (WA) (the Code) were Class 2 offences in the Original WC Act.[24] A Class 2 offence was an offence against a provision listed in Sch 2.[25] In the second reading speech, it was explained that the Class 2 offences are:
[A] set of serious convictions of a sexual or violent nature - known as class 2 offences - will result in a bar on a person obtaining child-related work, unless assessment of the criminal record, including submission by the applicant, indicates that exceptional circumstances exist and the applicant does not pose a likely risk of harm to children[.][26]
Assessments under the WCS Act
[24] They are now Class 1 offences in the WCS Act.
[25] Original WC Act, s 7(2)(a). Class 1 offences (set out in Sch 1 to the WWC Act) involve serious sexual offending of various kinds in relation to a child under the age of 13 years. Class 2 offences (set out in Sch 2 to the WWC Act) involve other kinds of sexual offending against children under 13 years of age, other forms of sexual offending including production of and distribution of child exploitation material and facilitating sexual offences against children outside Western Australia and other serious but non-sexual offending such as murder, manslaughter and grievous bodily harm, sexual offences involving children over the age of 13 years and adults, grooming by use of a carriage service, and offences under the Children and Community Services Act 2004 (WA) including failing to protect a child from significant harm: G [24].
[26] 2R Speech, page 7451.
The WCS Act sets out procedures for checking the criminal records of people who carry out, or propose to carry out, child-related work.[27]
[27] WCS Act, s 34.
An applicant may apply for an assessment notice for child-related employment.[28] The CEO[29] is to decide an application for child-related employment in accordance with s 12. The CEO must either issue an assessment notice or a negative notice.[30] Section 12 of the WCS Act includes a Table.
[28] WCS Act, s 9.
[29] Being the executive officer of the Department: WCS Act, s 4.
[30] WCS Act, s 12(1).
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, relevantly, the applicable provision opposite that condition. In the context of this case, the relevant section of the Table is extracted below:
Item
Condition
Applicable provision
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)
A 'non-conviction charge' relevantly means a 'charge of an offence that has been disposed of by a court otherwise than by way of a conviction …'.[31] The Applicant's acquittal has the effect that the charges against him are 'non-conviction charges' for the purposes of the WCS Act.
[31] WCS Act, s 4.
Section 12(5) provides that, in the context of a non-conviction charge, 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.
Section 12(8) sets out that, in the context of an application where subsection (5) applies, the CEO must decide whether they are satisfied in relation to the particular or exceptional circumstances of the case, having regard to:
…
(a)the best interests of children; and
(b)when the offence was committed or is alleged to have been committed or the relevant conduct occurred or is alleged to have occurred; and
(c)the age of the applicant when the offence was committed or is alleged to have been committed or the relevant conduct occurred or is alleged to have occurred; and
(d)the nature of the offence or relevant conduct and any relevance it has to child‑related work; and
(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; or
(iii)any conduct review finding or outcome in relation to the applicant;
and
(f)any information given by the applicant in, or in relation to, the application; and
(g)anything else that the CEO reasonably considers relevant to the decision.
Accordingly, the applicable statutory regime is such that, by reason of the nonconviction charges, an assessment notice ought to be issued to the Applicant unless the CEO is satisfied that, because of the particular reasons applying in this case, a negative notice should nonetheless be issued.
In contemplating the circumstances of the case, the CEO is to have regard to the range of matters set out in s 12(8) of the WCS Act (above). These criteria constitute an exhaustive statement of the factors that the decision-maker is required to take into account in deciding if the requisite satisfaction is attained. No other factors may be taken account of.[32]
[32] Grindrod [No. 2] [69] (Buss JA).
The WCS Act provides that '[i]n performing a function under [the] Act, the CEO or the [Tribunal] is to regard the best interests of children as the paramount consideration'.[33] However, paramount does not mean 'sole'.[34] Each of the s 12(8) factors must be taken account of. The weight to be given to any factor will depend on the circumstances of the case, but the criteria in s 12(8)(b) to (g) are all subordinate to the consideration of the best interests of children.[35]
[33] WCS Act, s 3.
[34] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 [106] (Buss JA) (Scott [No 2]).
[35] Scott [No. 2] [106].
Where a negative notice is issued, the CEO must, in writing, state the reasons for their decision and advise that an applicant may seek a review of the decision.[36]
Construction of the WCS Act
[36] WCS Act, s 13A(2).
The proper construction of the relevant provisions of the WCS Act has been considered by the Supreme Court and the Tribunal on a number of occasions.
In Chief Executive Officer, Department for Child Protection and Family Support v IGR (IGR),[37] the Court of Appeal (Quinlan CJ, Murphy and Beech JJA), referred in detail to Buss JA's analysis of the statutory scheme in Grindrod [No 2]. More recently, in G (then) Glancy DP included the following summary which I gratefully adopt (internal citations omitted):[38]
[37] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 (IGR) [13] - [16].
[38] G [28].
1.Section 12(5) (formerly s 12(4)) of the [WCS Act] imposes on the CEO an obligation to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. The power to issue a negative notice is enlivened by the existence of the CEO's satisfaction.
2.The requisite state of satisfaction must be attained because of the particular circumstances of the applicant's application by reference to the criteria in paras (a) - (g) of s 12(8) of the [WCS Act]. The criteria in s 12(8) are exhaustive criteria of the matters that the CEO is entitled to and bound to take into account.
3.The CEO must give separate consideration to each matter in s 12(8) of the [WCS Act], but the best interests of children, the criterion in s 12(8)(a), is the paramount consideration. If, and to the extent that, in any particular case, a criterion in s 12(8)(b) - (g) of the [WCS Act] conflicts with the criterion in para (a), the relevant criterion in s 12(8)(b) - (g) must yield.
4.The question for the CEO in every case is whether, on the material properly before the CEO and having regard to the criteria in s 12(8) of the [WCS Act], the CEO is satisfied that a negative notice should be issued. If the CEO, having regard to the criteria in s 12(8), is satisfied affirmatively that a negative notice should be issued, then a negative notice must be issued. If the CEO is not so satisfied, then they must issue an assessment notice.
5.Parliament has adopted a precautionary approach in relation to protecting children from the risk of sexual and physical harm.
6.The CEO may not issue a negative notice unless they find, on the basis of the material properly before the CEO and having regard to the criteria in s 12(8) of the [WCS Act], there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children in the course of carrying out childrelated work.
7.The [WCS Act] is not concerned with the proof of offences that the applicant may have previously committed but with the prevention of potential harm. Therefore, it is not the CEO's role to determine whether the applicant is, in fact and at law, guilty of the relevant non-conviction charges. The [WCS Act] is concerned with the analysis and evaluation of risk.
8.Risk is to be assessed on all of the information and other material before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at trial. It will no doubt be necessary for the CEO to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts and reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts and suspicions.
9.Reasonable suspicions may play a proper part in the evaluative process, but they are not to be treated as an element of the statutory test requiring their own separate construction and application.
10.Factors that bear upon risk and which should be taken into account under s 12(8) (a), (d), (e) and (f) of the Act have been held to include:
a.The circumstances which culminated in the charge of an offence being disposed of by the Court otherwise than by way of conviction;
b.The apparent strength or weakness of the case against the applicant in relation to the non-conviction charge(s) in question;
c.The degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and
d.The likelihood of any such future risk materialising.
Meaning of 'unacceptable risk'
In Grindrod[No 2], Buss JA explained that, in the context of the WCS Act, an appreciable or perceptible risk is an 'unacceptable risk'. His Honour explained the concept of unacceptable risk as follows:[39]
'Unacceptable risk' is a familiar concept in the context of family law disputes in relation to parenting (custody or access) matters. In M v M (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshaw v Briginshaw (1938) 60 CLR 336, 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm' (A v A [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (B v B (Access) [1986] FLC 91-758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk': In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse[.]
[39] Grindrod [No 2] [83].
Findings and reasonable suspicions
Perforce of s 77 of the SAT Act, in giving my reasons, I am required to include findings on material questions of fact.
In an administrative review of this kind, the civil standard of proof applies. Given the serious nature of the allegations, the principles set out in Briginshaw v Briginshaw(Briginshaw) may also apply.[40] In these reasons, where I state that I am satisfied as to the existence of a fact, I mean that I am satisfied on the balance of probabilities that the fact has been proved.
[40] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw).
The Evidence Act 1906 (WA) (Evidence Act) does not apply in the Tribunal. Accordingly, I am not bound by the rules of evidence, nor any practices or procedures applicable to courts.[41] Furthermore, I am required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[42] I may admit into evidence the contents of any document[43] and may inform myself as I see fit.[44] I am, however, generally bound by the rules of natural justice.[45]
[41] SAT Act, s 32(2)(a).
[42] SAT Act, s 32(2)(b).
[43] SAT Act, s 32(3).
[44] SAT Act, s 32(4); see also Khosa v Legal Profession Complaints Committee [2021] WASCA 64 [52] (the Court).
[45] SAT Act, s 32(1).
As will be apparent, the breadth of the evidence relied upon by the Respondent in the Review extends well beyond what was adduced in the District Court trial and includes the Applicant's police interview as well as a number of sworn statements from other former students. While I note the Applicant was not legally represented, he is a qualified teacher, is intelligent,[46] articulate and by the time of the Review, has some experience with court and tribunal processes. He certainly was not unfamiliar with the SAT Act.[47] He did not object to such evidence, but he did take issue with the accuracy of some of the accounts from former students.
[46] Which included locating and reading Dr Cant's PhD thesis for the purpose of his cross-examination.
[47] As is evident by his application for a non-publication order.
I allowed such evidence having regard to the latitude of s 32 of the SAT Act, because my ultimate task is to make the correct and preferable decision on the Review and also because the materials appeared to, on its face at least, meet the threshold test of relevance.[48] In doing so, I have nevertheless taken account of the requirements of s 31A of the Evidence Act, which deals with propensity and relationship evidence.
[48] Having regard to the comments on relevance made by Gleeson CJ in HMLvR [2008] HCA 16; (2008) 235 CLR 334 [6].
Section 31A defines propensity and relationship evidence in wide terms.[49] Those definitions encompass more than common law similar fact evidence. The Court of Appeal has explained that there are three requirements for evidence to be admissible under s 31A:[50]
1.The first requirement is that the evidence comes within either or both of the definitions of propensity evidence and relationship evidence.
2.The second requirement is that the court must consider that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value.
3.The third requirement is that the probative value of the evidence compared to the degree of risk of an unfair trial is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
[49] Asplin v The State of Western Australia [2013] WASCA 2 [33] (Martin CJ).
[50] The State of Western Australia v Darker [2024] WADC 57 [19] (Prior DCJ); Dair v The State of Western Australia [2008] WASCA 72; (2008) 36 WAR 413 [171] (Miller JA).
As Pritchard J explained in The State of Western Australia v Wark:[51]
The ordinary meaning of the word 'propensity' is 'a natural or habitual inclination or tendency' and 'a predisposition or inclination to, towards, or for a particular action, habit, quality, etc.; a tendency to do something'. 'Propensity' evidence is thus evidence which shows that a person has a natural or habitual inclination, or tendency, to do something, or to behave in a particular way, or a predisposition or inclination towards a particular action, habit or quality. (internal citations omitted)
[51] The State of Western Australia v Wark [2017] WASC 154 [41].
By reason of s 32(2) of the SAT Act, it is strictly unnecessary for me to direct myself to s 31A of the Evidence Act. However, where, in these reasons, I refer, and have regard, to this broader evidence, in particular the statements of other former students, I am alive to the potential prejudicial effect of such evidence, but I have nevertheless reached the view that the evidence is both relevant and has probative value such that it ought to be considered.
As will also be apparent, where I do have regard to such propensity evidence, I have been careful not to rely on such evidence to draw positive facts. However, as I will come to, this broader evidence does, I find, in some instances, and against the backdrop of YZ's allegations, give rise to reasonable suspicions.
In Chief Executive Officer, Department for Child Protection v T [No 2],[52] Murphy JA stated the following in relation to the notion of 'reasonable suspicions' in the context of the WCS Act:
62.The term 'reasonable suspicions' in the court's reasons in Grindrod [No 2] [87] is not to be treated as an element of the statutory test requiring its own separate construction and application. Moreover, its meaning is not, in principle, properly determined by reference to statutory language in other statutory contexts, in the absence of some indication to that effect in the court's reasons, or that the court was using it as a term of art.
63.The words 'reasonable suspicions' in Grindrod [No 2] [87] are to be understood in their context. The context is a description of the way in which the relevant decision-maker may reach the level of satisfaction required by s 12(4) (now s 12(5)) of the Working with Children (Criminal Record Checking) Act 2004 (WA) in respect of what is, in essence, a value judgment. As the opening sentence in Grindrod [No 2] [87] and the decision of this court in Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 (Hardingham Appeal Decision) indicate, generally speaking, all information and other material properly before the decision-maker must be taken into account. This would include material which would not be admissible in a court of law, although, as the last sentence of Grindrod [No 2] [87] indicates, all such material and information must be weighed for its 'apparent probative value'. See also in this regard Hardingham Appeal Decision [56].
64The '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.
[52] Chief Executive Officer, Department for Child Protection v T[No 2] [2013] WASCA 206.
My task on the Review
In IGR,[53] the Court of Appeal explained that, in the context of an application for an assessment notice, in circumstances where an applicant has been charged, but not convicted, with respect to either a Class 1 or Class 2 offence, the Tribunal might reach one of the following three conclusions:
(1)a positive finding that the alleged conduct occurred;
(2)a positive finding that the alleged conduct did not occur; or
(3)that no positive finding, one way or the other, can or should be made.
[53] IGR [121].
Further, in IGR, the Court of Appeal explained (internal citations omitted):
122Whether the decision-maker is able to reach a positive finding in terms of the first two categories is a matter for the decisionmaker in light of all of the circumstances. As the court observed in M v M (in the context of custody and access):
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is wellfounded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless.
123Consistently with the approach in M v M, in the present statutory context, if the decision-maker is able to make a positive finding (either way), it will be likely to have a significant, and in some cases decisive, impact on the decision. A positive finding that the alleged conduct did occur will have pervasive significance for the assessment required by s 12(8) of the Act, given that the best interests of children is the paramount consideration. A finding to contrary effect - that the conduct did not occur - will also be very significant. Where, as here, the alleged conduct is the sole ground for not issuing an assessment notice, a positive finding that the conduct the subject of the charge(s) did not occur will mean that an assessment notice will issue, as upon such a finding there will no longer be any impediment to that occurring.
124The third category of case is that in which the decision-maker concludes that it is not able to, or it is not appropriate to, make a positive finding one way or the other. That was the position in Grindrod [No 2]. That case demonstrates that an inability to make a positive finding, one way or the other, is not the end of the matter. The decision-maker must proceed to analyse and evaluate whether the relevant unacceptable risk has been established.
125It is only in the third category of case that the factors enumerated in [86](a) and (b) of Grindrod [No 2],[54] bearing on whether there is an unacceptable risk, arise for consideration.
[54] Set out at [38(10)(a)] and (b) above].
The Indictment
On 31 December 2021, the Director of Public Prosecutions signed an indictment containing 10 charges relating to a series of incidents that allegedly took place between 31 May 2007 and July 2008 (the relevant period), while the Applicant was employed as a teacher at the School (Indictment).
Each charge related to YZ, a former student. During the relevant period, the Applicant was 35 or 36 years old. YZ was born sometime in the last quarter of 1990. Accordingly, she was 16 or 17 years old during the relevant period. The charges alleged that the Applicant indecently dealt with YZ by:
(a)kissing her on the mouth (one count);
(b)masturbating in her presence (two counts);
(c)introducing a penis into her mouth (four counts);
(d)penetrating her vagina with his finger (two counts); and
(e)penetrating her vagina with his penis (one count).
Evidence in the District Court trial
Witnesses
Given the nature of the charges, I have anonymised the witnesses who gave evidence at the District Court trial. I have also anonymised the former students who made police statements in relation to the Applicant. However, for the reasons I explained in Limb and Director, Working with Children Screening Unit as the Delegate for the CEO, Department of Communities,[55] I refused to make a non-publication order in relation to the Applicant.
[55] Limb and Director, Working with Children Screening Unit as the Delegate for the Chief Executive Officer, Department of Communities [2024] WASAT 48.
The following persons gave evidence at, or were referred to, at the trial:
(a)YZ, the complainant;
(b)AB, YZ's mother;
(c)CD, YZ's sister;
(d)EF, School student and YZ's friend during the relevant period;
(e)GH,[56] EF's older brother;
(f)the Applicant;
(g)OP, the Applicant's wife; and
(h)WX, School student.
Overview of the evidence
YZ's evidence: counselling, Bible studies and movie nights
[56] GH was referred to in the evidence at trial but did not give evidence.
YZ attended the School from 2000 until her graduation in November 2007. The Applicant became known to YZ sometime in 2003 while YZ was serving an 'in-school' suspension. YZ was sitting in the lobby of the English building, near where the Applicant taught. The two interacted and YZ remembers the Applicant telling her that he had heard that she was 'special or smart'.[57] He gave her a copy of the book 'The English Patient' and told her to read it so they could discuss it at a later time.
[57] Exhibit 1: Respondent's Section 24 Bundle (Respondent's Bundle), page 549.
She became friends with the Applicant. They regularly talked about a wide range of topics, including how things were for her at home.[58] She trusted him, and he counselled her, including coming to her house. The Applicant referred to himself as her father figure.[59] She told the Applicant that she wore make-up as she felt insecure. He told her he found her insecurity 'cute'.[60]
[58] Respondent's Bundle, page 550.
[59] Respondent's Bundle, page 551.
[60] Respondent's Bundle, pages 552 and 622.
They frequently spoke about religion. YZ regularly attended Bible studies at the Applicant's house from Year 10, when she was about 14 or 15 years old.[61] Between three and seven students attended. WX, whose close friend was YZ's sister, occasionally attended.[62] The Bible studies were held in the theatre room of the Applicant's house. They would often finish late, and OP would often go to bed before they concluded.[63]
[61] Respondent's Bundle, page 552.
[62] Respondent's Bundle, page 553.
[63] Respondent's Bundle, page 559.
YZ would remain at the Applicant's house after OP went to bed.
When YZ was about 15 years old, she, along with the Applicant, attended a dinner at WX's house. The Applicant, YZ and WX went and lay on WX's bed in her bedroom and listened to music. WX left the room, and the Applicant looked at YZ in what she regarded as a sexual way and rubbed his chest.[64]
[64] Respondent's Bundle, page 561.
Along with Bible studies, the Applicant also hosted movie nights at his house. Sometimes, there were combined Bible studies and movie nights.[65] The Applicant would regularly drive YZ home from these events.[66]
[65] Respondent's Bundle, page 562.
[66] Respondent's Bundle, page 563.
When she was 15, the Applicant asked YZ is she had ever given a 'blow job' and the extent of her sexual experience.[67]
[67] Respondent's Bundle, page 565.
The Applicant also told YZ that he liked standing behind 'girls/women' at the water fountain near his office at the School, as he could 'see their shape'.[68]
YZ's evidence as to the charged events
Count 1
[68] Respondent's Bundle, page 573.
In 2007, after a party in Mosman Park, the Applicant insisted on driving YZ home. While driving, the Applicant explained how lonely he was and how she could help him. He also explained how he had helped her over the years. YZ touching him would really help him. He asked her to stroke his chest, skin-on-skin. YZ wanted to be valued by the Applicant, so she unbuttoned the top of his shirt and started stroking his chest.[69]
[69] Charged pursuant to Criminal CodeAct Compilation Act 1913 (WA) (the Code), s 322(4).
The Applicant then explained he would feel better if they kissed. YZ obliged and kissed him. He placed his hand on the back of her head, and they kissed firmly for what felt like a long time. After the kiss concluded, the Applicant told her it was 'like kissing water'.[70]
Count 2
[70] Respondent's Bundle, page 578.
In 2007, after her Year 12 exams, around the time of leavers, YZ was sitting in the cinema room at the Applicant's house. The Applicant explained he was lonely and that her touching him on the chest really helped him. He unbuttoned his shirt, and she stroked his chest. He explained 'you can help me; I've helped you before. You should - we could help each other. You should do this'.[71]
[71] Respondent's Bundle, page 579.
He explained his wife's background and that she could not 'give blow jobs', that he was really missing that and that she could help him.[72] The Applicant took his penis out and started stroking it. The Applicant ejaculated onto his stomach.
[72] Respondent's Bundle, page 580.
At this time, YZ was still attending Bible studies and movie nights and very much wanted the Applicant's approval.[73]
Count 3
[73] Charged pursuant to s 322(4) of the Code.
About one week after the events leading to Count 2, YZ and the Applicant were again alone in the cinema room. The Applicant asked, and YZ agreed, for her to start stroking his chest again. The Applicant took his penis out and asked YZ to 'just kiss the top' which she did.[74] The Applicant put his hand on the back of her head, pushing his penis further into her mouth. He ejaculated into her mouth. She swallowed it and felt 'pretty nauseous'.[75]
Count 4
[74] Respondent's Bundle, page 581.
[75] Respondent's Bundle, page 582; charged pursuant to s 322(2) of the Code.
In late 2007, YZ was wearing a black dress in the cinema room. The Applicant persistently asked YZ if he could see her breasts. She thinks that she removed the straps, and that the Applicant pushed her dress down below her belly button. She was not wearing a bra. YZ then gave the Applicant a blow job until he ejaculated.[76]
[76] Respondent's Bundle, page 583.
YZ estimates that she performed oral sex on the Applicant 10 to 12 times, always at his house.[77]
Count 5
[77] Respondent's Bundle, page 589; charged pursuant to s 322(2) of the Code.
In late 2007/early 2008, YZ was at the Applicant's house but not in the cinema room. She was instead with the Applicant in a room with a green couch. YZ joked that the neighbours might see them through the window. YZ would have been aged 17. The Applicant was in a (bad) mood and was sharp with her.
By this time, YZ felt that the Applicant expected her to give him a blow job. Rather than trying to beg or convince her to perform oral sex, on this occasion he used a more demanding tone. YZ touched him on his right side between his ribs and hip. He did not like the touching and was unusually sharp with her.
YZ performed oral sex on the Applicant. After a while, the Applicant said to YZ 'doesn't it ever worry you if it takes a man a long time to come?' in a derisory tone. YZ felt the Applicant was trying to make her feel that she was not doing a good job. He ejaculated into her mouth. YZ then went to a sink and washed her hands and mouth.[78]
Count 6
[78] Charged pursuant to s 322(5) of the Code.
When YZ was 17 years old in late 2007/early 2008 (before she obtained her driver's licence), she was part of a group (from Bible studies) that went out for dinner. After dinner, YZ and the Applicant went back to his house (just the two of them). They engaged in a debate about moral relativism in the open lounge room. The Applicant considered that YZ was turned on by the intellectual debate.
The Applicant started talking about the size of her breasts. YZ explained her body was changing 'quite a lot' at the time.[79] The Applicant asked YZ to show him her breasts. YZ did not want to, and she said 'no'. The Applicant was persistent.
[79] Respondent's Bundle, page 592.
The Applicant asked YZ if she had ever had an orgasm. She had not. He suggested using a sex toy (something that would be 'put inside').[80] YZ was grossed out by that idea.
[80] Respondent's Bundle, page 593.
The Applicant put YZ's legs up on top of his and pulled down her tights and underwear. Her vagina was exposed. It was the first time he had seen it and said, 'why did you tell me you were normal'.[81] The Applicant stood up and moved to the other side of the couch. YZ was very still, lying on the couch.[82]
Count 7
[81] Respondent's Bundle, page 593.
[82] Charged pursuant to s 322(4) of the Code.
On the same evening as Count 6, the Applicant masturbated while looking at YZ's vagina. He inserted two fingers in her vagina. She felt a sharp nail. It didn't last long.[83]
Count 8
[83] Charged pursuant to s 322(2) of the Code.
On the same evening as Count 6 and Count 7, the Applicant then started rubbing his penis around the outside and, briefly, 'put his penis in my vagina'.[84]
[84] Respondent's Bundle, page 593.
YZ said 'no' and the Applicant pulled his penis back. He sat on the couch and masturbated until he ejaculated onto himself.
YZ recalls a conversation where the Applicant explained it was not cheating in the eyes of God if there was no sex, which she understood to mean no 'penis in vagina' sex.[85]
Count 9
[85] Respondent's Bundle, page 594; charged pursuant to s 322(2) of the Code.
On one occasion, YZ had hot pink acrylic nails and was wearing a yellow floral midlength skirt. She was at the Applicant's house in the cinema room. Other people were in the house (but not in the cinema room) and the Applicant explained that it was the first time he had been turned on by nails.[86]
[86] Respondent's Bundle, page 595; charged pursuant to s 322(2) of the Code.
Later that evening, after OP was in bed, YZ performed oral sex on the Applicant. She recalls that rather than being on her knees in front of him, she was instead on the couch beside him.
Count 10
On the same evening as Count 9, while YZ was performing oral sex on him, the Applicant reached around behind her and put his finger inside her vagina, repeatedly poking. It made her feel horrible and it was physically uncomfortable.[87]
Contact between the Applicant and YZ after her graduation
[87] Respondent's Bundle, page 595; charged pursuant to s 322(2) of the Code.
YZ engaged in conversations with the Applicant at the School and other places, including a Northbridge café which recent graduates would attend. They communicated via Facebook and a mobile telephone. For as long as she had a mobile phone, YZ recalls communicating with the Applicant.
In mid to late 2008, she stopped seeing the Applicant.
Cross-examination of YZ
YZ was extensively cross-examined. YZ agreed that 'it was fair to say that she did not know when the party was' (being the party that preceded the kiss leading to Count 1). However, she 'would be very surprised if it was in March 2008'.[88]
[88] Respondent's Bundle, page 608.
YZ denied that the kiss that formed the basis of Count 1 was her idea.[89] She also denied that the sexual interactions with the Applicant were limited to: one kissing episode, one episode where they each performed oral sex on each other (YZ said the Applicant never performed oral sex on her) [90] and a final episode where YZ showed the Applicant her vagina.[91]
[89] Respondent's Bundle, page 633.
[90] Respondent's Bundle, page 634.
[91] Respondent's Bundle, pages 633 - 634.
YZ denied that the sexual interactions only took place from March to April 2008.[92] Her evidence was that the sexual interactions took place over a period of 'six months or so'[93] from mid-late 2007 to mid-2008.[94]
[92] Respondent's Bundle, page 634.
[93] Respondent's Bundle, page 634.
[94] Respondent's Bundle, page 637.
YZ denied having a conversation about vibrators with the Applicant, but reiterated her evidence that, in the context of the conversation about whether she had had an orgasm, he did mention a sex toy.[95]
[95] Respondent's Bundle, page 635.
YZ denied that the Applicant never masturbated in front of her. 'He did' was her evidence.[96]
YZ: re-examination
[96] Respondent's Bundle, page 635.
YZ could not be specific about the date of the party after which she and the Applicant kissed but remembered it as a party for finishing school. She was barely 17 years old and could not yet purchase alcohol.[97]
[97] Respondent's Bundle, page 646.
YZ and the Applicant would discuss religion and issues she was having. She said he was a pastoral advisor to her: 'we would discuss religion and issues I was having, and he would give me advice on that in a religious way and in a, you know, sort of adult to teenager advice … within a religious context'.
AB's evidence
AB is YZ's mother. She had a car accident in 2003. That same year, YZ brought the Applicant to meet her. AB thanked the Applicant for the way he had supported YZ and her sister CD after her car accident.
AB's evidence was that she attended the Applicant's house, and he also came to her house. On Sundays, some families (mainly mothers) would go to the Applicant's house for a meal. They would say grace and eat together.[98] These evenings finished about 8.00 pm but one girl, WX, never left early.[99]
[98] Respondent's Bundle, page 714.
[99] Respondent's Bundle, page 717.
She also explained that the Applicant seemed to know 'an awful lot' about YZ.[100] He would give YZ lifts when she was 14 or 15 years old.[101]
[100] Respondent's Bundle, page 715
[101] Respondent's Bundle, page 715.
While she assumed the Applicant took YZ to his house, she knew that he drove her home.[102]
[102] Respondent's Bundle, page 716.
AB could not recall when the graduation ceremony for YZ was held but accepted it could have been 'after 2007'.[103]
CD's evidence
[103] Respondent's Bundle, page 722.
CD is YZ's sister. She also attended the School.
CD's evidence was that the Applicant was 'close to a lot of students and teachers'.[104]
[104] Respondent's Bundle, page 724.
She observed that YZ attended a beliefs and values, or religion group, at the Applicant's home. After obtaining her driver's licence, she picked YZ up from there a few times in 2006/2007.[105]
EF's evidence
[105] Respondent's Bundle, pages 724 - 725.
EF attended the School and was a very good friend of YZ.[106] Their friendship continued after graduation.[107] When in Year 7 or Year 8 she was in a beliefs and values class with YZ, which the Applicant taught.[108]
[106] Respondent's Bundle, page 728.
[107] Respondent's Bundle, page 729.
[108] Respondent's Bundle, page 729.
EF explained that the Applicant 'would have one-on-one relationships with students where he would kind of counsel them after school and during recess and lunch'. She was not counselled by him, but YZ was.[109]
[109] Respondent's Bundle, page 729.
She characterised the relationship between YZ and the Applicant as a 'friendship, even at school. They'd have lots of jokes together …'.[110]
[110] Respondent's Bundle, page 729.
She also attended the Applicant's house on a couple of occasions for Bible studies. About eight to 10 people would attend.[111] Her vague memory was she attended Bible study classes in about Year 10.[112] She was dropped off/picked up by a sibling or her mother.[113] She thinks she may have attended twice.[114]
[111] Respondent's Bundle, page 729.
[112] Respondent's Bundle, page 730.
[113] Respondent's Bundle, page 730.
[114] Respondent's Bundle, page 733.
EF has an older brother, GH. He is two years older than her.[115]
[115] Respondent's Bundle, page 730.
GH was good friends with the Applicant. After she graduated, she attended the Applicant's house with GH to watch a movie.[116]
[116] Respondent's Bundle, page 731.
After leaving school, GH moved to Mosman Park. EF lived with GH in Mosman Park from late 2007/early 2008.[117] They would host parties.[118] The Applicant attended these house parties in 2008.[119] At this time, she and YZ were close friends.[120]
[117] Respondent's Bundle, page 731.
[118] Respondent's Bundle, page 731.
[119] Respondent's Bundle, page 731.
[120] Respondent's Bundle, page 731.
YZ would get lifts with the Applicant.[121] EF recalls a party in 2008 when the Applicant drove YZ home.[122] From what she can recall, the party was in March 2008,[123] but her memory is a 'bit blurry'.[124] GH attended university in 2008.
[121] Respondent's Bundle, page 731.
[122] Respondent's Bundle, page 732.
[123] Respondent's Bundle, page 733.
[124] Respondent's Bundle, page 734.
EF recalls that YZ was 'very religiously focused' in Year 10 and Year 11.[125] During Year 11 and Year 12 she says she was 'still religious', but she did not attend the Applicant's house during this time. She recalls that she and YZ 'lost focus' on religion towards the end of their schooling, especially after graduating.[126]
Applicant's evidence: examination-in-chief
[125] Respondent's Bundle, page 733.
[126] Respondent's Bundle, page 733.
The Applicant commenced teaching in 1998. He started at the School in 1999, and remained there for 22 years. His role at the School changed many times. During his tenure, he taught English, social studies, philosophy and ethics. He also taught a religion-focused unit named 'beliefs and values' to introduce students to a Biblical world view,[127] which was taught once a week to Year 7 to Year 10.[128] For Year 11 and Year 12, there was a values day once a term.[129] In 2009, the beliefs and values unit ceased and the Applicant instead taught philosophy and ethics.[130]
Meeting YZ
[127] Respondent's Bundle, page 746.
[128] Respondent's Bundle, page 747.
[129] Respondent's Bundle, page 747.
[130] Respondent's Bundle, page 747.
The Applicant met YZ when she was in Year 8. After discussing YZ with another teacher whom she was clashing with, he gave her a book to read (The English Patient). That teacher suspected YZ was 'very bright and … probably a little bored'.[131] He said to YZ: 'I understand you're fairly sharp, I think you should be able to deal with this book. Read the book'.[132]
[131] Respondent's Bundle, page 749.
[132] Respondent's Bundle, page 750.
The Applicant had a role in counselling students, usually up to four or five students that he kept meeting with 'just [to] check how they're tracking'.[133] The Applicant explained that before he was a schoolteacher, he worked at DrugARM Western Australia with homeless children and children with drug problems. He did a lot of counselling and therapy through that role.[134]
[133] Respondent's Bundle, page 750.
[134] Respondent's Bundle, page 750.
The Applicant began to counsel YZ when she was in Year 9. It was considered that YZ should be brought into the Bible study group that was then emerging.[135]
Bible study group
[135] Respondent's Bundle, page 751.
In 2005, the Bible study group started as lunchtime meetings where the students would ask questions. The Applicant thinks those meetings took place in an English classroom.[136] There was a core group of five or six students. The meetings then started to take place outside of the School, at students' houses.[137]
[136] Respondent's Bundle, page 751.
[137] Respondent's Bundle, page 753.
Ultimately, the meetings ended up at the Applicant's house on Sunday evenings[138] and were held in his theatre room.[139] The meetings at his house commenced in mid-2005 and YZ would frequently attend. On average, there would be between 12 and 15 students attending.[140] He was the only staff member that attended, although his wife and children were home.
[138] Respondent's Bundle, page 760.
[139] Respondent's Bundle, page 753.
[140] Respondent's Bundle, page 759.
These meetings petered out as the Year 12 students focused on exams. The meetings continued until March/April of 2006 as, by that time, the Carey Baptist Church had appointed a youth pastor. The youth pastor took over these meetings.[141]
[141] Respondent's Bundle, page 761.
After he ceased hosting these meetings, he 'really had nothing to do with YZ' while she was in Year 11 and 12.[142]
Interactions with YZ while she was at School
[142] Respondent's Bundle, page 761.
The Applicant would have been YZ's 'direct teacher' in the beliefs and values unit, 'very early on'. However, he does not recall her as a student in that class.[143]
[143] Respondent's Bundle, page 762.
In terms of the 'alleged conversations' with YZ, his evidence was that he 'did not speak to her in that fashion'.[144] When YZ was in Year 9, he went to her house on a weekend to assist in familial communications.[145]
[144] Respondent's Bundle, page 762.
[145] Respondent's Bundle, page 762.
He also attended a dinner at another student's house, WX. He thinks it was in 2005. AB attended this dinner as did CD. WX was just commencing at the School.[146] He does not recall lying on the bed and listening to music with 'the girls'.[147] He denies that he looked at YZ in a sexual way and that he rubbed his chest.[148]
[146] Respondent's Bundle, page 763.
[147] Respondent's Bundle, page 763.
[148] Respondent's Bundle, page 763.
YZ graduated in December 2007. He reconnected with her in late February, early March 2008.[149] She was at the School (to give a talk to students) and came past as he finished teaching his beliefs and values unit. He was surprised to see her.[150] They went out for coffee in Canning Vale.[151] She drove. There was no sexual contact.
The three sexual encounters
[149] Respondent's Bundle, page 765.
[150] Respondent's Bundle, page 766.
[151] Respondent's Bundle, page 766.
After their coffee, he next saw YZ a couple of weeks later at GH's house in Mosman Park. The Applicant and GH became very good friends after he graduated from the School. GH was hosting a party, there was a lot of people attending, including YZ.[152]
[152] Respondent's Bundle, page 767.
He saw YZ and asked, 'if she was all right'. YZ was calling her mother for a lift home. The Applicant offered to drive her instead. She accepted that offer.[153] It was about a 35-minute drive to her home.
[153] Respondent's Bundle, page 767.
When out the front of AB's house, the Applicant 'kissed her'.[154] They chatted and shared a 'mutual' kiss.[155] It was not a very long kiss. Afterwards, he drove home. It was mid-late March 2008.
[154] Respondent's Bundle, page 768.
[155] Respondent's Bundle, page 768.
The next time he saw YZ was at his house. She came to just 'hang out' at his house. His family was home. There was no sexual contact.[156]
[156] Respondent's Bundle, page 769.
There were two further occasions when he was sexually intimate with YZ. The first of these was in late April 2008. YZ came around to his house late in the evening. They were chatting and the conversation became sexual. He explains:
I asked if she would give me a blow job. She did. And then I gave her oral sex, and that was that.[157]
[157] Respondent's Bundle, page 769.
Those interactions took place between 10.00 and 11.00 pm. YZ left before midnight.
The second of these occasions was 'maybe late May'. He and YZ kissed on the couch at his house. Along with the kissing, YZ exposed herself, showing him her vagina. The Applicant did not touch her. It was after 10.00 pm. OP was in bed.[158] YZ left late in the evening.[159]
[158] Respondent's Bundle, page 770.
[159] Respondent's Bundle, page 771.
During this period in 2008, there were no Bible studies being held at his house.
He and YZ continued to catch up at his house until June 2008, but there was no further sexual contact.
The Applicant denied he:
(a)kissed YZ while she was a student;
(b)ever masturbated in the presence of YZ;[160] or
(c)introduced his penis into her mouth during the time she was in his Bible studies class.[161]
[160] Respondent's Bundle, page 772.
[161] Respondent's Bundle, page 772.
At the time he did introduce his penis into her mouth, he said YZ was his 'friend'.[162] At the time they kissed after the party, they were 'just acquaintances'.[163] At the time that they kissed on the couch, and YZ showed him her vagina, they shared a 'friendship'.[164]
[162] Respondent's Bundle, page 772.
[163] Respondent's Bundle, page 773.
[164] Respondent's Bundle, page 773.
At the time of the three sexual encounters, YZ was not a student at the School, and he was not her teacher.[165]
Applicant's cross-examination
[165] Respondent's Bundle, page 773.
The Applicant denied that the sexual encounters commenced in 2008, when he was YZ's teacher.[166]
[166] Respondent's Bundle, page 773.
In terms of the encounter involving oral sex, the Applicant's evidence was:[167]
MR PROSECUTOR: So you just said to her, 'Would you mind giving me oral sex?'
And she just complied with that?---
APPLICANT: Yes.
[167] Respondent's Bundle, page 774.
The Applicant said, before the encounter which involved oral sex, he started the sexual aspect of the conversations because he found her sexually attractive.[168] He cannot remember what was said.[169] YZ was not sexually attractive to him while she was a student, only from 2008.[170]
[168] Respondent's Bundle, page 775.
[169] Respondent's Bundle, page 776.
[170] Respondent's Bundle, page 775.
When he asked YZ for oral sex, his wife was home and was asleep.[171] He asked her for a blowjob 'because [he] imagined it would be enjoyable'.[172] The Applicant denied that he had told YZ that OP did not give him oral sex, and that is why he asked her.[173]
[171] Respondent's Bundle, page 776.
[172] Respondent's Bundle, page 776.
[173] Respondent's Bundle, pages 776 - 777.
The Applicant agreed that his police interview was incorrect in that he said that he had nothing to do with YZ in Years 11 and 12. He agreed that he was her Bible studies teacher in Year 11, until the youth pastor was appointed.[174]
[174] Respondent's Bundle, pages 778 - 780.
The Applicant denied that the party that he drove YZ home from, and when they first kissed, was at the end of 2007. He insisted it was March 2008.[175] He denied that he asked YZ what her breasts and vagina looked like while he was driving her home.[176] He also denied, while they were parked up the street from her house, saying to YZ that:[177]
(a)he was lonely;
(b)she should help him deal with his loneliness;
(c)he had helped her over the years; and
(d)he needed some touching, and that she could stroke his chest.
[175] Respondent's Bundle, page 781.
[176] Respondent's Bundle, page 781.
[177] Respondent's Bundle, page 782.
He denies that he said to YZ that kissing her 'was like kissing water'.[178]
[178] Respondent's Bundle, page 782.
In terms of the encounter involving oral sex, the Applicant says that YZ did not just turn up at his house, but that there would have been some phone communication to 'just hang out'.[179] He denied that he started masturbating his penis in front of YZ to try and convince her to perform oral sex.[180] He denied that he masturbated himself and ejaculated on his stomach in front of YZ, around the time of her Year 12 exams.[181]
[179] Respondent's Bundle, page 784.
[180] Respondent's Bundle, page 785.
[181] Respondent's Bundle, page 785.
He denied that about a week later, again at his house with YZ, he took his penis out, began masturbating and asked YZ to kiss the top of it.[182] He denied that when she did kiss it, he put his hand on the back of her head, forcing his penis further into her mouth. He denies that he ejaculated into her mouth.[183]
[182] Respondent's Bundle, page 787.
[183] Respondent's Bundle, page 787.
He denied that he persistently asked to see YZ's breasts and that on one occasion she was wearing a black dress which was pushed down to her waist to expose them. On this occasion, he denied she performed oral sex on him.[184]
[184] Respondent's Bundle, page 788.
He denied that on another occasion he was in a bad mood and 'demanded' oral sex from YZ. He denied he asked her if she worried 'that it took a man a long time to come'?[185]
[185] Respondent's Bundle, page 789.
He denied that on another occasion, after going out with a group of people for dinner, that he and YZ were at his house and that he:
(a)talked to YZ about her breast size and commented that they seemed a 'bit bigger than usual';
(b)asked YZ if she had ever had an orgasm; and
(c)suggested she use a sex toy.
He also denied that he put YZ's legs on top of his and pulled down her tights and underwear.[186] He denied that he masturbated while he looked at her vagina.[187]
[186] Respondent's Bundle, page 789.
[187] Respondent's Bundle, page 790.
He denied that there was an occasion where YZ wore pink acrylic nails and that he told her he was turned on by them. He also denied that, on that evening, YZ performed oral sex on him and that, while she was doing so, inserted a finger into her vagina.[188]
[188] Respondent's Bundle, page 790.
He disagreed that the Bible studies continued into 2008.[189] He denied that he told YZ he was like a father-figure to her.[190] He denied that he had ever said to YZ that he found her insecurity 'cute'.[191]
[189] Respondent's Bundle, page 784.
[190] Respondent's Bundle, page 790.
[191] Respondent's Bundle, page 791.
He denied that the sexual contact commenced in late 2007 (and not in March 2008).[192]
[192] Respondent's Bundle, page 791.
He denied that YZ was in his class in Year 11 and Year 12 but agrees they would have been at some of the same events, such as an assembly.[193]
[193] Respondent's Bundle, page 791.
The Applicant started to counsel YZ while she was in Year 9. He attended her house one weekend to discuss how the family was communicating. From mid-2005 to March/April 2006, YZ attended Bible studies meetings at the Applicant's home.
When questioned on his relationship with YZ, the Applicant's evidence was as follows:[194]
[194] Respondent's Bundle, page 792.
MR PROSECUTOR: Do you agree that the relationship between you and [YZ] when she was in years 11 and 12, was a teacher-student relationship?---
APPLICANT: It was a - well, if I'm not teaching her, am I - is that a student-teacher relationship - - -
MR PROSECUTOR: Well - - - ?---
APPLICANT: - - - by definition?
MR PROSECUTOR: Well, that's what you told the police in the interview. You - you described the relationship between you and [YZ] as [a] formal teacher-student relationship?---
APPLICANT: I guess like any of the hundreds of students on campus, yes.
MR PROSECUTOR: I mean you're a teacher there. Any of the students there, you are in a teacher-student relationship aren't you?---
APPLICANT: I want to be careful how I answer that. I - yes, it's correct.
MR PROSECUTOR: Yes?---
APPLICANT: But there's a difference - when you're directly in authority over a student in your classroom versus what's going on in the other side of the school, with someone that you have nothing to do with.
MR PROSECUTOR: But it is still a teacher-student relationship, where any students at that - that school - - -?---
APPLICANT: Any student - any student you come into contact with, no matter how brief, that is a student-teacher relationship.
MR PROSECUTOR: And do you agree that [YZ] whilst she was in those bible study classes, was under your care at your home?---
APPLICANT: In the years 2005, early-2006, yes, she is under my legal care.
MR PROSECUTOR: Well, that's what you say, the dates. I'm suggesting to you, as we've said a number of times, that it was in 2007 into early-2008?---
APPLICANT: And I will disagree with you, sir, all the way home.
MR PROSECUTOR: But do you agree that at any time that [YZ] was in those bible study classes at your home, she was under your care?---
APPLICANT: Yeah, in 2005, 2006. I have - put it like this. If we run into a student out in the street who's drunk, we have a duty of care of that student. So that is my understanding of the responsibility.
Applicant's re-examination
In re-examination, the Applicant reiterated his evidence that the sexual interactions with YZ commenced in March 2008 and ended in June 2008.
OP's evidence: examination-in-chief
OP is the Applicant's wife. They married in 1998. They have children. Her evidence was that the Bible studies group occurred in 2005 at their house on Sunday evenings. They would have dinner, and the group would 'wrap-up fairly earlyish, like 8-ish'.[195] Up to 25 students attended, 15 was the minimum.[196]
[195] Respondent's Bundle, page 795.
[196] Respondent's Bundle, page 797.
The Bible studies group could not have gone much into 2006, because the children would have been in school, and she had started working.[197]
[197] Respondent's Bundle, page 796.
OP knew of YZ as one of the students who regularly attended the Bible studies group.[198] She did see YZ in 2006, but not in 2007 after the Bible studies group ceased.[199] She saw YZ in around April 2008 at a dinner at her house.[200] After that, she came over 'another handful of times. Like four or five'.[201]
[198] Respondent's Bundle, page 798.
[199] Respondent's Bundle, page 798.
[200] Respondent's Bundle, page 798.
[201] Respondent's Bundle, page 798.
In late 2007, her sister (together with her husband) came to stay at their house for around six weeks.[202]
[202] Respondent's Bundle, page 798.
In the years 2007 and 2008, her sexual relationship with her husband included oral sex.[203]
Cross-examination of OP
[203] Respondent's Bundle, page 799.
OP agreed that she did not participate in the Bible studies sessions, but she would meet some of the parents at pick-up.[204] She specifically remembers YZ because she wanted to be a hairdresser. OP let YZ cut her hair.
[204] Respondent's Bundle, pages 800 - 801.
OP was asked whether she wondered what YZ was doing after she started coming to the house (again) for a period from April 2008. Her answer was 'no'.[205]
[205] Respondent's Bundle, page 801.
During that period, OP was in bed one night but not asleep. She heard a knock on the door and YZ's voice in the hallway.[206] After stewing on it for some months, in November 2008 she asked the Applicant whether he was having an affair with YZ.[207]
[206] Respondent's Bundle, page 802.
[207] Respondent's Bundle, pages 802 - 803.
When asked, OP's evidence was that the Applicant said that he had taken her home from a party in 2008 and he had kissed her. She had performed oral sex on him at their house and that on another occasion he had taken OP's sex toy (a vibrating 'egg') and she had used it over her clothes. He also said he performed oral sex on YZ but had to stop.[208]
[208] Respondent's Bundle, page 803.
OP denied her evidence was attempting to protect her husband.[209]
[209] Respondent's Bundle, page 803.
Other materials provided to the Tribunal
YZ's letter to the School
On 12 September 2019, YZ notified the School of her interactions with the Applicant while he was her teacher and pastoral carer. She explained to the School that the Applicant sexually manipulated her, touched her and encouraged her to engage in sexual acts with him, including fellatio.[210]
[210] Respondent's Bundle, page 171.
Her letter then detailed some of the events that were to form the basis of her evidence at the trial. These include the Applicant telling her he was lonely and that they could help each other.
She explains that she is not the only girl to whom he made sexual advances. She explains that one of these women is WX (and she was using her name with permission). YZ explains that she will leave it for others (if they wish to) to share their stories.[211]
YZ's police statement
[211] Respondent's Bundle, page 171.
On 18 November 2019, YZ gave a sworn statement to the police. She recounts much of what would later become her evidence at the trial. I do not intend to repeat her explanation of those events.
In terms of how the relationship with the Applicant ended, she recalls the Applicant explained how he had sexual relationships with a Japanese teacher that was staying with him. They were also discussing a friend of the Applicant's she had met at a movie night at his house. YZ said the Applicant encouraged her to get in contact with him. She was upset at this idea, but he contacted her. She assumed the Applicant had passed along her details. He was in his 40s she recalls. They met and ultimately had a consensual sexual encounter.[212]
[212] Respondent's Bundle, pages 127 - 128.
That sexual encounter changed the dynamic with the Applicant. He was furious. YZ no longer wanted to be around him. They ceased contact. After a few months, the Applicant rang YZ and apologised and explained it was like his girlfriend had cheated on him.[213] In mid-2008, the Applicant asked YZ to come to his house. YZ said no.
[213] Respondent's Bundle, page 128.
Meeting and speaking with WX made YZ reflect on what had happened to her. The events with the Applicant have affected her emotionally. She dropped out of university and did not think she would live beyond her early 20s. She experiences depression and anxiety and has trouble sleeping. She dreams about what happened. She does not trust men, is rarely intimate and has not been in a relationship for years. She concludes her statement with the comment that lying for the Applicant all this time has ultimately proved to be 'really destructive' for her.[214]
WX's letter to the School
[214] Respondent's Bundle, page 130.
On 12 September 2019, WX also wrote to the School. She explained that the purpose of the communication was to 'report a series of inappropriate interactions she had with the Applicant between 2005 and 2006 which were of a sexual nature'.[215]
[215] Respondent's Bundle, page 172.
WX graduated from the School in 2005. After graduation, she attended the Bible studies that were also attended by YZ. WX would attend the house for dinner and help put the Applicant's children to bed. While she was there, and after OP was in bed, she and the Applicant would stay up late talking until after midnight.[216]
[216] Respondent's Bundle, page 172.
In 2006, after WX had commenced university studies, she would spend a considerable amount of time with the Applicant and his family. The late-night conversations grew more intense. The Applicant explained that while he loved his wife, he craved the physical connection that she was too tired to provide. They grew closer. WX 'felt like an adult, having adult conversations with someone I admired in school for being smart and funny'.[217]
[217] Respondent's Bundle, page 172.
The conversations ultimately turned sexual. The Applicant explained how orgasms affected his body. They talked about masturbation. On many occasions, he offered WX use of his wife's sex toy (an egg toy). He offered to leave the room while she experimented with them, explaining it would be beneficial for her. She never used the egg toy. [218]
[218] Respondent's Bundle, pages 172 - 173.
In her letter, WX explains that she is ashamed and embarrassed by what they did. How did she let this happen?
The Applicant questioned WX as to whether she masturbated, how often, whether she had big breasts and if she had sensitive nipples.[219]
[219] Respondent's Bundle, page 173.
Because the Applicant was asking in a matter-of-fact manner, WX eventually agreed to take her shirt off so the Applicant could see her breasts (with her bra on). WX does not remember when this started happening. Eventually, the Applicant wanted to see WX's breasts. 'Stupidly', WX would take her bra off. Her pants also came off. She never took her underpants off.[220]
[220] Respondent's Bundle, page 173.
At first the Applicant did not touch her; he would turn the lights down as he liked how the shadows moved over her body.
The Applicant explained that he missed his wife's touch. He loved being lightly tickled, caressed. He asked again and again for WX to massage him over his shirt. WX would massage his shoulders, arms and chest. The Applicant asked her to sit on his lap so she could massage his back better. His shirt ultimately came off, he said it felt better without his shirt.[221]
[221] Respondent's Bundle, page 173.
The Applicant had a hairy chest, but his pants were always on. WX sought assurances from the Applicant that he was not aroused, because she reasoned that, 'so long as it wasn't sexual in nature, they weren't doing anything wrong'. The Applicant assured her he was not aroused.[222]
[222] Respondent's Bundle, page 173.
The Applicant would hold and caress WX, he caressed her skin and her naked body. The Applicant explained that he was fascinated by how WX's body reacted as compared to OP's.
WX does not think that the Applicant held his body to hers while they were shirtless. She had forgotten him touching her but, as she reflected on these events, she recalls he did, many times.[223]
[223] Respondent's Bundle, page 173.
These events took place over a six-eight-month period. In most instances when she was at the house, she would end up sitting on the couch, mostly naked.[224] WX says she had turned 18 while these events occurred. She recalls turning 18 as she was given a necklace by OP for her birthday.[225]
[224] Respondent's Bundle, page 173.
[225] Respondent's Bundle, page 172.
WX now lives interstate and had occasion to catch up with YZ in 2019. They caught up, reminisced and ended up reflecting on their school days. YZ explained that she was abused by the Applicant. She was shocked that they were so close at the time, but she never knew.
When YZ ceased seeing the Applicant, that is when WX considers she became close with him.[226] Her relationship ended with the Applicant after he explained that he thought he loved her. WX explained to him that he was lonely, and he only thought it was love 'because [she] was young, and he wasn't getting enough at home'.[227]
[226] Respondent's Bundle, page 174.
[227] Respondent's Bundle, page 174.
At some level, I must say that I find the Applicant's evidence is extraordinary. Rather than showing any kind of insight or contrition in the context of his admitted conduct, his evidence left me with the impression that it is his view that, in effect, as soon as the calendar ticks over to a new year, former students, even those students who have just graduated, are 'fair game' for sexual liaisons. He is indignant that he has not been permitted to re-engage in child-related work. In his view, he did nothing wrong, and he was proved innocent in the District Court.
In addition, while he has expressed shame as to his conduct, he has not explained why he feels that way. It may be because he was married with children at the time. It may also be because the sexual conduct took place in his marital home (while OP and children were asleep). It may simply be because he got caught out. His evidence does not provide an answer.
While he also says what happened with YZ was an anomalous event caused by (unexplained) circumstances, he immediately follows that up by nevertheless emphasising that he broke no laws, rules or guidelines.[352] I have set out some of his evidence above at [238] to [250]. The overview of the evidence set out there sufficiently encapsulates the case put by the Applicant in the Review.[353] His evidence in the Review, together with the case he puts forward, also represents his attitude to what occurred with YZ, and includes his appreciation and understanding of professional boundaries.
[352] ts 10, 25 March 2025.
[353] Which is set out further at [273] to [280] above.
Having considered his evidence (both written and oral) and observed his demeanor, it is apparent to me that he is completely blind as to why engaging in sexual contact with a very recently graduated student might be a concern from the standpoint of those that administer the WCS Act.
What is certain is that he does not present as a man carrying any kind of remorse or concern from the standpoint of YZ. To the contrary, his argument is that his conduct was vindicated by the District Court. Furthermore, in the Review, he now seeks to paint YZ as a skilled liar who, together with others, actively conspired to fabricate evidence against him. In the Review, he explained that YZ had a 'vault like mind' as he sought to attack her credibility and to further his claim of a conspiracy.[354] He says YZ has 'carefully crafted her story to ensure it is peppered with falsehoods that seek to paint me as a sexual predator, complete with unsettling Christian overtures of emotional manipulation'.[355] As is apparent, that was not his case in the District Court. I accept the Respondent's submissions in this regard.
Why I cannot make a positive finding that the conduct alleged in the Indictment occurred
[354] ts 18, 25 March 2025.
[355] Limb Statement, para 79.
In making the reviewable decision,[356] the Respondent reached the view that YZ's testimony was 'compelling, consistent and provided a feeling of truth'. I have read for myself the transcript of the District Court trial, and particularly the evidence of both YZ and the Applicant (including their cross-examination). I have also read her statement, and the materials provided to the School. While I must conduct the hearing de novo and not start from the premise that the reviewable decision has, of itself, any probative force, I too have reached the view, and find, that YZ's evidence was consistent, credible and leaves one with a sense of being a truthful account.
[356] Being the decision made on 5 July 2023, pursuant to orders made under s 31 of the SAT Act.
Nevertheless, for the following reasons, I am unable to make a positive finding that the conduct alleged in the Indictment did, in fact, occur.
The first is that the Applicant is entitled to procedural fairness. While I have read the transcript of YZ's evidence in the District Court, and find that her account there was consistent, credible and has a sense of truth to it, the fact also remains that I have not had the opportunity to observe her demeanour. In addition, the Applicant has been unable to question her in the context of the Review. Given the gravity of what YZ alleges against the Applicant, I find I am not in a position to make any positive findings that the alleged conduct did, in fact, occur. Without the benefit of hearing from and observing YZ, I am unable to feel a sense of actual persuasion that the conduct alleged did in fact occur, despite the apparent strength of her evidence.
The second is that YZ admitted that she could not be certain that the party, following which the sexual contact commenced, was not in March 2008. The conduct alleged against the Applicant was that the sexual contact occurred at a time when YZ was under the supervision or care of the Applicant. YZ's concession that she could not be certain as to the dates does raise some doubts in terms of the charges set out in the Indictment. Furthermore, while EF accepted her memory was a 'bit blurry', she also recalls that the party was in March 2008, not late 2007.
The third is that I am not satisfied that the Applicant would have made such a grave mistake. While the Applicant was an unimpressive witness, I am somewhat doubtful that he would engage in sexual contact with a current student. The broader propensity evidence provided by WX, UV and QR to which I am entitled to consider, and which I will come back to, tends to support the Applicant's evidence on this point as it suggests that he seeks to cultivate or exploit sexual opportunities only with former students. No other student claims that there was sexualised conduct with the Applicant while they were at the School. Against that broader background, the alleged conduct, at least as far as 2007 is concerned, does appear anomalous.
Why I am unable to positively find that the conduct alleged in the Indictment did not occur
While I am unable to make a positive finding that the alleged conduct did occur, for the following two reasons, I find I am also unable to positively find that it did not occur.
The first is, as I have already explained, YZ's evidence in the District Court was consistent, credible and had a sense of being a truthful account. Indeed, leaving aside the question of when the conduct commenced, I find that YZ's account of the nature and extent of the sexual contact between them is far more plausible than that given by the Applicant.
She explains in clear terms how the conversation between them became sexualised which then ultimately manifested in sexual contact. Her account is corroborated, at some level, by the evidence of ST, which includes a letter written by YZ when she was in Year 10. That letter speaks of the special relationship she then felt with him. At that time, shortly before the alleged conduct occurred, she viewed him as her father figure. The Applicant had, by that time, also explained to YZ his concern the 'devil' may cause him to make a mistake with her.
YZ's account also explains in close detail the nature of the conversations between her and the Applicant, which commenced when the Applicant started explaining his physical needs that she could help him with. She explains how he craved non-sexual touching (stroking his chest) and then ultimately progresses to her performing oral sex on him or him otherwise masturbating with her being in some state of undress. She also recounts an instance of penile, and also digital, penetration of her vagina.
The manner in which these events are recounted, including the details, such as, for example:
(a)the Applicant explaining his craving for physical touch and the fact that his wife was not fulfilling his needs;
(b)the questions he asked her about, for example, her breasts;
(c)his offering of his wife's sex toy;
(d)things he said to her along the way (such as, 'the kissing water' comment); and
(e)the detailed nature of her accounts of the sexual contact (how he found her insecurity cute, how she felt when she ingested semen, how he got short with her on one occasion for not making him ejaculate sooner, how when he digitally penetrated her, she felt his nail, how he liked her pink acrylic nails),
has been clear and consistent and, as I have already explained, leaves one with a sense that it is a truthful account.
The second is that the Applicant's account, as he explains it, strikes me as much less plausible than YZ's. The Applicant characterises their sexual contact as, in effect, three separate and isolated events. His evidence was that they were not in an evolving and growing intimate relationship at this time. Rather, they were only acquaintances or friends,[357] a friendship punctuated, it seems, by three instances of sexual contact. First, they kiss, then a few weeks later they engage in oral sex and then a few weeks after that, YZ shows the Applicant her vagina. While ordinarily, given the passage of time, one may express some doubt or uncertainty about how these events unfolded, the Applicant has been steadfastly firm in his view as to what happened and when.
[357] ts 25, 25 March 2024.
Nevertheless, despite his asserted confidence of his recall of these events, I struggle to see how a sexual relationship would evolve in the way he describes. His explanation of their sexual relationship being limited to, in effect, three isolated events, without a growing level of intervening closeness and intimacy, does not strike me as inherently likely. While he explains that he and YZ did catch up and chat during this period, outside of the three instances of sexual contact,[358] I certainly do not have an actual sense of persuasion the Applicant's account of what occurred with YZ is entirely truthful nor fulsome.
[358] Respondent's Bundle, page 771.
I stress here that it is not my role to establish, in any definitive sense, which of these accounts is truthful. Nevertheless, while I am unable to positively find that the conduct alleged by YZ occurred, I am also unable to make any positive finding in relation to the Applicant's account. Accordingly, I find that I am unable to make a positive finding that the conduct alleged by YZ did not occur.
What can be made of the statements from other students?
In terms of the broader propensity evidence, for the reasons that follow, I have taken account of the statements made by some former students. Given that they did not attend the Tribunal to give evidence, I have approached this evidence with caution.
This broader evidence was raised squarely in Dr Cant's evidence. The Applicant has been given an opportunity to respond to this evidence. The Applicant does not directly reject this evidence from other students as being untrue per se, but instead says it is part of a conspiracy against him largely orchestrated by YZ, WX and EF.[359] He suggests that only the evidence of UV is truly independent.
[359] Limb Statement, para 72.
Viewed as a whole, (against the background of the Applicant's admitted conduct), the statements made by WX, UV, ST and QR point to, or at least raise reasonable suspicions of, a repeated pattern of behaviour (or tendency) on the part of the Applicant to exploit, or at least seek to exploit, his relationships with some ex-students for possible sexual opportunities. It is also the case that these statements suggest that the Applicant continued to engage in sexualised conversations with former students long after the events with YZ. For example, QR graduated in 2010, UV in 2014.
The account provided by WX has some similarity with that provided by YZ, in that they each point to the Applicant initially requesting physical contact (stroking his chest) which then progressed further. Both YZ and WX refer to the Applicant's repeated references to his apparent loneliness and how his wife did not satisfy his needs of being touched and lightly caressed. They both explain how the Applicant constantly asked to observe their bodies and how persistent the Applicant was in terms of requesting physical contact. They both explain how this conduct occurred at his house in the evenings, on the couch after his family was asleep.
In addition, both YZ and WX refer to the 'egg' sex toy and the Applicant's offer for them to try it. WX's evidence was that the physical contact never progressed beyond the stroking of the Applicant's chest and body. Although, I also note here WX's statement that, in effect, their relationship ended after the Applicant told her he loved her.
In the context of my task under the WCS Act, WX's evidence is, I find, probative of a tendency on the part of the Applicant to sexualise relationships with graduated students. More than that, that tendency includes persistent requests for these former students to, in effect, undress for his gratification. Both YZ and WX ended up in very vulnerable situations. That is because, late into the evening, on many occasions, they were at the house of a mature man who had been their teacher until recently.
However, in evaluating these accounts, I am mindful of the fact that YZ and WX did discuss their respective experiences before making their statements. They also each (separately) contacted the School on the same day to explain what they each say happened. It is also the case that the Applicant was never charged in relation to WX. While he did give 'no comment' answers when asked by police whether he engaged in sexual contact with her, it is relevant that on her own evidence, WX was 18 years old (or at least turned 18) during, the relevant period. WX also does not allege that, aside from the chest stroking and massages, there was any further physical contact between them. Accordingly, whatever may be said as to the Applicant's alleged conduct with WX, there is no suggestion, on the evidence before me, that he engaged in any criminal behaviour (including with any other former student, aside from YZ).
I also find that the evidence provided by UV has some probative value in that it suggests that the Applicant was seeking to exploit his relationship with her to, possibly at the very least, engage in sexual communications. UV explains that having graduated in 2014, the Applicant commenced sexualising their conversations in 2015 by talking about her breasts, the breasts of other students as well as former students he says he had had sex with.[360] The overall evidence from these former students suggests that once the conversation becomes sexualised, things may progress further.
[360] Respondent's Bundle, page 106.
That is certainly the experience of QR who states that she initially engaged with the Applicant in sexual chat in 2012 and 2013. The Applicant would give QR advice on her sexual experiences and told her she would enjoy anal intercourse. He also told QR about his sexual experiences with OP. Ultimately these conversations led to her sending him a photograph of her breasts. She says he replied with a photograph of his penis. Following that, the Applicant met her in a car park to discuss the photographs.
Now the conversations turned sexual in 2012/2013, sometime after QR's graduation in 2010. It can be accepted this timeframe is of greater duration than as between the Applicant and YZ. However, what is, I find, probative is that there was, on QR's account, no substantive break in the relationship between them. The Applicant often met QR at gigs and parties following her graduation. They had remained friends and, after a period, albeit more than a year, the dynamics of their relationship took on sexual overtones. Nevertheless, it was a relationship that emanated directly from their shared time at the School.
I do not accept the Applicant's submission that these statements from former students evince a broad ranging conspiracy against him. While I am mindful that I did not hear from these women directly, for the following three reasons, the various accounts of these former students do not, to me, have a feel or sense of fabrication or embellishment.
Firstly, none of the accounts allege that the Applicant committed a crime against them.
Secondly, no former student suggests he made them do something against their will. Unlike YZ, they each say they had graduated, in some instances, years prior, and each make it plain they were willing participants in the events that unfolded. If it be a conspiracy, it is a conspiracy alleging no crime.
Thirdly, if YZ and WX were actively trying to conspire against the Applicant by fabricating allegations, why would they have been so honest and forthright with the police and the School that they had spoken with each other before coming forward? If they did conspire, they have made absolutely no effort to hide it. Furthermore, the conduct alleged by WX is very different from that reported by YZ.
Rather than being evidence of a conspiracy, I find it is equally plausible that, after their catch up, both YZ and WX realised that what they each say had happened to them, may have happened to others. Perhaps at that point they each felt compelled to act. The same could be said for QR and UV.
I find that the evidence in these sworn statements, considered as a whole, do have some probative value, as they evince a repeated pattern of behaviour. While it is the case that the extent of the sexual contact that occurred with YZ (either as alleged by YZ or as admitted by the Applicant) was not said to have been repeated with these other former students, their evidence is probative, in the context of this case.
That is because each of these women explain how their former teacher sought or maintained contact with them after their graduation and how ultimately, the nature of the relationship in each instance took on, at the very least, sexual overtones. I find that these statements give rise to reasonable suspicions that the Applicant's sexual contact with YZ, which the Applicant admits to, may not have been the one-off anomalous incident that he now seeks to portray it as.
Nevertheless, without being able to test and probe this evidence, I am in no position to make any positive findings as to whether the conduct alleged by these former students against the Applicant, in fact, occurred. However, they do raise reasonable suspicions that I have set out above. I put it no higher than that.
These reasonable suspicions only heighten my concerns as to the Applicant's attitude to what happened with YZ. As I have explained, he simply sees nothing wrong with what happened as YZ, on his evidence, had graduated.
Findings that may be made as to the Applicant's admitted conduct
As I have explained, the Applicant's evidence both in the District Court and in the Review is that, after having little to do with YZ in her senior school years up until she graduated at the end of 2007, they resumed contact when YZ returned to the School to speak to students in early 2008. After seeing each other at the School, they went for coffee. Shortly thereafter, in March 2008, they then both found themselves at a party in Mosman Park. After chatting, YZ said she was going to go home, and the Applicant then offered to drive her, so as to save AB from having to drive a considerable distance to come and collect YZ.
During that drive home, and after, he and the Applicant talked which culminated in them kissing in his parked car. Sometime after that, perhaps in April 2008, YZ was at his house after his wife and children were in bed. He asked YZ for a 'blow job' which she agreed to perform. He then performed oral sex on her. Sometime after this, in perhaps May 2008, and again in his house after OP and his children had gone to sleep, YZ showed the Applicant her vagina.
Accepting for present purposes that the sexual contact between YZ and the Applicant was as per his account, I am satisfied, and I find, that the reason why YZ, and her mother, were content for the Applicant to drive her home from the party in March 2008 was because they both knew and trusted him.
I find that a very large part of that trust was due to the fact that the Applicant was a teacher at the School. Not only that, but the Applicant had also been YZ's direct teacher, albeit intermittently, over a number of the previous years (up until and including when YZ was in Year 11). But more than that, and significantly, he had also counselled her from a very young age and had even been to their familial home for meetings. On the question of counselling, the fact he was asked by the School to counsel a then 13 year-old in a one-on-one environment suggests that YZ was vulnerable, in that she needed additional help and support. Her family history, which I have chosen not to record in these reasons, confirms that to be the case.[361] He had also hosted YZ and AB at his house for social gatherings as well as the Bible studies. The Applicant was very familiar to both YZ and AB.
[361] Respondent's Bundle, page 118.
By reason of the relationship he shared with their family, both YZ and AB knew and trusted him as at March 2008. Viewed objectively, based on the totality of the evidence before me from both YZ, the Applicant as well as those who knew them at the time, I find there was a 'special connection' between them, well beyond that of what may be regarded as an ordinary (and appropriate) teacher-student dynamic. I have already referred to the letter to ST where YZ described him as her 'father figure'. I am satisfied, and I find, that in March 2008 they remained very close and had been so for a number of years.
I find that, as at March 2008, on the back of the recent coffee catch-up, which occurred following YZ attending the School, that special connection endured and subsisted. I find it was a relationship developed both at the School and, more particularly, the many extracurricular events they attended together away from the School (but still connected with it, such as the Bible studies group).
I am satisfied, by reference to YZ's evidence, which is corroborated by others,[362] that she and the Applicant had, for long periods during her school years, shared a strong relationship and had interacted regularly and at length. I so find. It matters not that the Applicant was not YZ's direct teacher in Year 12 (although he admits, they both would have been at assemblies during this time).
[362] For example, refer [97], [105] and [224].
By the time of the party in March 2008, I am not at all satisfied that that bond or connection they shared at the School had sufficiently dissolved or waned to the point where their meeting at the party could, in practical terms, be regarded as two people re-meeting and reconnecting with each other. How could it be enough time? YZ had only just graduated. Furthermore, while YZ was no longer a student, she was still 17 and a child. As at 2008, the Applicant was a mature, married man in his mid30s.
I therefore reject the Applicant's evidence in the Review that YZ was a stranger to him in March 2008. It is simply nonsense for the Applicant to try and explain what happened at the party in Mosman Park as, in effect, two strangers meeting. His repeated attempts to try and downplay, and to distance himself from, their close relationship after the fact simply highlights the Applicant's complete lack of insight.
The point being that, as at March 2008, I find that YZ trusted the Applicant because of that special connection between them which had developed during their time shared at the School. I am satisfied, and I find, that it was this relationship that led to, and manifested itself in, the sexual contact that commenced, on the Applicant's version of events, in March 2008.
In participating in that sexual contact, the Applicant's prior conduct towards YZ throughout her school years can then reasonably be described as taking on the complexion of grooming.
Even on his own evidence, it may reasonably be inferred that the Applicant exploited his position as YZ's teacher for sexual purposes. After their first kiss, YZ attended his house late in the evening in, he says, perhaps April 2008, where he asked her to perform oral sex on him. By that time, it was barely more than four months after she graduated. In attending his house, she was attending the house of a married man (whom she had by then kissed) whose family was at home at the time. I find that the only rational explanation for YZ agreeing to attend his house was because she was familiar with, and trusted, him. That trust emanated directly from the fact he had counselled her, was a teacher at the School and that they had shared a very close bond for a number of years. By asking her to perform oral sex on him, he breached that trust.
Consistent with Dr Cant's opinion, I am satisfied, and find, that the Applicant gave YZ special and preferential treatment during their time at the School in a manner that laid the foundations for the sexual contact that would ultimately eventuate. This conduct includes his counselling of her as well as the long chats (about many topics) they shared both in and outside the School over previous years. It includes him adopting the label of YZ's 'father-figure' as well as the lifts he used to give her after Bible studies and movie nights.
By taking the step to engage in sexual contact with YZ when he did, he abused the inherent trust that is placed in those who teach children. Accordingly, I accept Dr Cant's evidence that the Applicant's admitted conduct towards YZ evinces prior sexual grooming behaviour. I so find.
Consideration of the s 12(8) factors
In making a decision on the Review, by reason of the non-conviction charges, I must evaluate whether there is an unacceptable risk in the Applicant being entitled to engage in child-related work. For reasons I have explained, I am unable to make a positive finding as to whether or not the conduct alleged against the Applicant occurred or not.
In the ordinary course, I would now proceed to undertake a detailed consideration as to my findings, as well as my reasonable suspicions, in the context of the factors set out in s 12(8) of the WCS Act, in order to make a decision on the Review. In doing so, I would also have regard to Buss JA's analysis in Grindrod [No 2] and the factors that bear upon an assessment of risk in such circumstances.[363]
[363] Grindrod [No 2] [86].
However, that is not a path that I need to traverse in close detail in order to make a decision on the Review.
The Applicant's evidence both at his District Court trial and in the Review, which for the purposes of reaching a decision on the Review I will accept, is that he engaged in sexual relations with a 17-year-old girl commencing in March 2008 who, up until the end of 2007, had been a student at his School. Not long after their initial kiss, in April 2008, on his own evidence, he invited a recently graduated student into his family home and asked her to perform oral sex on him.
It is also the case that what he says happened with YZ was not a one-off event. It was repeated three times. That, of itself, is troubling. That is because the Applicant, by his own admission, engaged in a two-month long sexual relationship with a just graduated former student.
Nor is it accurate to simply characterise YZ as a former student. That label does not adequately describe the relationship between YZ and the Applicant. While they were at the School, the Applicant had counselled YZ in a one-on-one context when she was 13, she had attended Bible studies at his house on weekends as well as movie nights. They shared a special (even close) relationship, and I have found, consistent with Dr Cant's evaluation, that he groomed YZ while she was at the School.
As I have also explained, perhaps more troubling than the admitted conduct itself, is the Applicant's attitude. He displays absolutely no insight as to why sexual contact with a recently graduated student is concerning from the standpoint of those who administer the WCS Act. He is not at all remorseful. Rather, in the Review he sought to defend and justify his actions with YZ. On a number of occasions, he stressed the fact that she had (albeit just) graduated when the sexual contact commenced, as justification for his argument to set aside the negative notice.
Because of his indignant attitude, because he sees nothing wrong with what he did with YZ, because he feels his conduct has been vindicated (even approved) by the District Court, I have absolutely no confidence that, in the fullness of time, the Applicant would not again seek to engage in similar conduct, if I were to set the negative notice aside.
The paramount consideration under s 12(8) of the WCS Act is the best interests of children. I reiterate that paramount does not mean sole. Nevertheless, I find it is unnecessary for me to deal with the remaining criteria in s 12(8) in exhaustive detail because I am satisfied that the Applicant's admitted conduct, together with his general attitude to that conduct, as explained in his evidence before the Tribunal in the Review, is more than a sufficient basis to conclude that there is an unacceptable risk in him being entitled to engage in child-related work.
Even so, I have taken account of the factors enumerated in subparagraphs (b) to (g) of s 12(8) of the WCS Act.
As to s 12(8)(b), the length of time since 2008 is, at first blush, a significant factor that ought to go in his favour. However, that is tempered somewhat by the fact that this long period of time has not resulted in any growth, perspective or insight on the part of the Applicant. Even with the benefit of time, his evidence remains that because he did nothing illegal, he did nothing wrong.
Pursuant to s 12(8)(c), consideration of his age at the relevant time does not go in his favour. As at 2007/2008, he was a mature man in his 30s.
Taking account of s 12(8)(d), the nature of the admitted conduct, which involves sexual interactions with a child, is very relevant to child-related work. He was employed as a teacher and the sexual contact occurred with a recently graduated student. Consideration of this factor weighs heavily against the Applicant.
For the purposes of s 12(8)(e), the effects of his conduct have been serious. As I have set out above,[364] YZ's statement sets out that what happened between them has had significant, and enduring, adverse effects on her.[365]
[364] Refer [172] above.
[365] Respondent's Bundle, page 130.
Indeed, in G, Glancy DP observed that it is not controversial that significant harm is done to children by sexual offending.[366] While the Applicant did not commit a sexual offence against YZ, the evidence before me plainly establishes that she struggles with what happened between her and the Applicant at the end of her schooling. The effect of the same or similar conduct as to that alleged by YZ, (or admitted by the Applicant), would be both significant and serious. This factor goes against the Applicant.
[366] G [114].
Taking account of s 12(8)(f), the Applicant filed little in the way of further information. I have before me his witness statement which is generally consistent with his denials of the non-conviction charge. To that the Respondent submits it adds little to the question of whether there is an unacceptable risk. I agree.
The Applicant filed no character references, nor did he call any other witnesses. The Respondent submits there is no evidence before me that the Applicant is a person of good character. Even if there was such evidence, the Tribunal has previously found that the premise that a person of reported 'good character' is unlikely to harm a child is unfounded. Such character assessments are ill-suited to reliably mitigate any potential risks in a person's behaviour and conduct.[367] I find this factor is neutral.
[367] A and Chief Executive Officer, Department for Child Protection and Family Support [2016] WASAT 74 [156].
In terms of other information that I consider to be relevant pursuant to s 12(8)(g), I do have before me the statements from some former students. As I explained, this evidence gives rise to reasonable suspicions that what occurred with YZ was not the anomalous event the Applicant says it was. Such conduct with recent graduates might not be illegal, but nor is it necessarily acceptable from the standpoint of the best interests of children, if the Applicant is found to have exploited his position of trust as their former teacher.
While the statements from former students do raise reasonable suspicions of a repeated pattern of behaviour which itself is of serious concern, I have not found it necessary to place any significant weight on this evidence in order to reach my decision. Put another way, I would have reached the same decision based only on the Applicant's admitted conduct and his attitude to that conduct.
Conclusion
Even though the charges against the Applicant are non-conviction charges for the purposes of the WCS Act, the Applicant's admitted conduct, together with his attitude to that admitted conduct, is such that I find, for the purposes of s 12(8) of the WCS Act, that there is an unacceptable risk in the Applicant being permitted to engage in child-related work, having regard to the particular circumstances of this case.
Ultimately my task under s 12(8) of the WCS Act is to make an evaluative judgement taking account of the relevant criteria. Those criteria mandate that the best interests of children are the paramount consideration. I find that, in this case, the best interests of children mandate that the negative notice ought to be affirmed. Consideration of the remaining factors under s 12(8)(b) to (g) does not alter the result. In fact, they very much reinforce it.
Decision
For the reasons I have set out, I find that the Applicant presents an unacceptable risk to children. His admitted conduct and general attitude to the events that he said occurred with YZ, is sufficient for me to reach that conclusion. I have found that he groomed YZ for sexual purposes.
In the language of Grindrod [No 2], I find that, in the particular circumstances of this case, unacceptable risk has been established.
Accordingly, the negative notice must be maintained.
A final comment
Finally, at a general level, it needs to be said that if teachers choose to retain contact with former students and, ultimately, to engage in sexual contact with any number of them, then that, of itself, is not necessarily illegal. I stress here that each case will turn on its own facts. The assessment process under the WCS Act is not a character test per se. Rather, it is a process which assesses the risks to children posed by those seeking child-related work.
However, let me clear, if a teacher wishes to engage in sexual contact with a former student, much care needs to be taken to ensure that the power imbalance that once existed, which lies at the base of the student-teacher relationship that they shared, has sufficiently dissipated and waned with the effluxion of time before that contact commences. Otherwise, there may be a perception that the teacher is exploiting their position of trust with a former student for sexual gratification. So much is made clear by the Teacher Registration Board's publication Teacher-Student Professional Boundaries: A Resource for WA Teachers which explains that:[368]
A relationship with a person who was previously the teacher's student, may be lawful but may still generate concerns that a teacher may previously have abused their position or crossed professional boundaries by using their position as a teacher to prepare a student for a relationship.
A teacher may, for example, find that concerns arise as to whether a relationship with a former student arose from a breach of professional boundaries, including grooming behaviour while the former student was under the care of the teacher. If the emotional intimacy of the relationship developed while a teacher-student relationship existed, the teacher will have abused their position.
By ensuring that a teacher's relationships with his or her students are strictly professional and do not breach boundaries, a teacher who forms a relationship with a former student will be less likely to come under scrutiny, if considerable time has passed between the time when the student was at school and the commencement of the relationship.
[368] Teacher-Student Professional Boundaries: A Resource for WA Teachers (Revised Edition), August 2019, page 20.
In that sense, I pause to observe here that the penalties imposed under the Teacher Registration Act 2012 (WA) indicate that teachers making inappropriate sexual comments to both current and, significantly, former students, have been dealt with as very serious breaches of the trust placed in teachers.
For example, in Teacher Registration Board and Clarke (Clarke),[369] a period of disqualification of 3 years was imposed on a teacher who made sexually inappropriate comments to two current students and also some inappropriate comments to (then former) students on Facebook following his termination. While the penalty stems from a different legislative regime, it does shed some light on the need for teachers to maintain proper professional boundaries with students (both current and former).
[369] Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52, Annexure A; see also [79] and the cases referred to therein.
On any view, the conduct in Clarke falls well short of the Applicant's admitted conduct here, even though YZ had recently graduated. In Clarke the Tribunal, including Pritchard P, noted that teachers enjoy a 'significant position of trust' which requires them 'to interact professionally with vulnerable students'.[370] The Tribunal noted that the conduct in question 'crossed the professional boundary that a teacher must maintain in his or her relationships with students. The role of a teacher is not to act as if they are a student, or to cultivate private friendships with students'.[371] Such comments are apposite to this case.
[370] Clarke, Annexure A, [4(b), (c)].
[371] Clarke [50].
While engaging in sexual conduct with former students might not be conduct that attracts criminal sanction for a teacher, it might nevertheless, depending on all of the circumstances, not be viewed favourably by those that administer the WCS Act.
It is of course the case that the period of time that should elapse between a student graduating, and a former teacher engaging in an intimate relationship with that student, is not fixed nor it is prescribed. Each case will depend on its own circumstances. However, on any view, it is a course of conduct that a teacher should approach with great care and caution.
Orders
The Tribunal orders:
1.The decision under review is affirmed.
2.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
5 MARCH 2025
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