M and Chief Executive Officer Of Department for Community Development
[2009] WASAT 6
•21 JANUARY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: M and CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITY DEVELOPMENT [2009] WASAT 6
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS M JORDAN (SENIOR SESSIONAL MEMBER)
HEARD: 5 AND 6 NOVEMBER 2008
DELIVERED : 21 JANUARY 2009
FILE NO/S: VR 87 of 2008
BETWEEN: M
Applicant
AND
CHIEF EXECUTIVE OFFICER OF DEPARTMENT FOR COMMUNITY DEVELOPMENT
Respondent
Catchwords:
Working With Children (Criminal Record Checking) Act 2004 Nonconviction charges Whether negative notice should be issued because of particular circumstances of the case Indictment for indecent dealings and sexual penetration of stepdaughter Jury unable to reach verdict No retrial Prosecution abandoned Whether unacceptable risk that the applicant might in future cause sexual or physical harm to children
Legislation:
Education Regulations 1960 (WA), reg 135
Evidence Act 1906 (WA), s 36C
Public Sector Management Act 1994 (WA), s 80
State Administrative Tribunal Act 2004 (WA), s 27, s 62(3)
Working With Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 12, s 16(1), s 16(3), s 24, s 26
Working With Children (Criminal Record Checking) Regulations 2005 (WA), reg 23
Result:
Decision to issue negative notice affirmed
Category: B
Representation:
Counsel:
Applicant: Mr M Crispe
Respondent: Mr P Dixon
Solicitors:
Applicant: Max Crispe
Respondent: Mr P Dixon
Case(s) referred to in decision(s):
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant was issued with a negative notice under the Working With Children (Criminal Record Checking) Act 2004 (WA) by reason of certain nonconviction charges of indecent dealing with a child. He sought a review of that decision.
The Tribunal examined the history of the charges and the evidence given in relation to them. The jury at the applicant's trial had been hopelessly deadlocked. A retrial did not proceed because of the complainant's apparent reluctance to give evidence a further time.
The Tribunal concluded that, notwithstanding that M had not been convicted of any offences, there is an unacceptable risk that the issue of an assessment notice to the applicant may result in harm to children. Accordingly, the decision to issue a negative notice was affirmed.
The application
The applicant, M, has been a principal of various primary schools in Western Australia for 20 years and has been involved in teaching for approximately 34 years.
In March 2007, M made an application under the Working With Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) for an assessment notice. The application was made following a requirement to make an application issued by the Chief Executive Officer of the Department for Community Development pursuant to s 16(3) of the WWC Act. That requirement was made as a result of a notice given by M's employer under s 16(1) of the WWC Act that M had been indicted and tried on eight counts of sexual offences against a child. The notice stated that the jury had been unable to reach a verdict and that, on 3 December 2003, a nolle prosequi was entered.
The CEO reviewed the materials relating to the charges, and resolved to issue a negative notice. M applied to the Tribunal for a review of that decision.
The issue for the Tribunal is whether an assessment notice should be issued the applicant, or whether the Tribunal is satisfied that, because of the particular circumstances of the case, a negative notice should be issued.
Non-publication of the applicant's name
The complainant in relation to the charges the subject of the indictment was a stepdaughter of M. Section 36C of the Evidence Act 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence. Publication of the applicant's name in these proceedings would offend that section. Accordingly, in these reasons the applicant will be referred to as M, and there will be an order made pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) that the name of the applicant not be published.
WWC Act
Section 24 of the WWC Act creates an offence of being employed in childrelated employment without having a current assessment notice. Working as a principal, or teacher, in an educational institution for children is clearly within definition of 'childrelated employment' under the WWC Act.
Under reg 23 of the Working With Children (Criminal Record Checking) Regulations 2005 (WA), M, being a member of the Western Australian College of Teaching, would not have been required to hold an assessment notice until his membership of the College expired, or 1 January 2011 (whichever was earlier), save for the requirement to apply served on him by the CEO under s 16.
M has no record of criminal convictions. The WWC Act deals, however, with what are referred to as 'nonconviction charges'. They are defined as meaning 'a charge of an offence that has been disposed of by a court otherwise than by way of a conviction' by s 4 of the WWC Act. The acceptance by the District Court of the nolle prosequi in relation to the indictment for the alleged offences referred to above means that the charges in the indictment are nonconviction charges for the purposes of the WWC Act.
Section 12 of the WWC Act deals with the approach to be taken to making a decision on an application for an assessment notice. Section 12(4) provides:
If the CEO -
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a non‑conviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
The nonconviction charges in this case are in respect of class 2 offences.
To reach satisfaction in relation to particular circumstances for the purposes of s 12(4), s 12(8) provides:
If subsection (4), (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to -
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to childrelated work;
(e)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
Section 3 of the WWC Act provides that, in performing a function under the Act, the CEO, or the State Administrative Tribunal is to regard the best interests of children as the paramount consideration. It follows that each of the criterion specified in par (a)(f) of s 12(8) are not of equal significance, and that, by reason of s 3, par (a) of s 12(8) takes precedence over the criterion in par (b)(f) to the extent that they may be in conflict see Chief Executive Officer, Department for Child Protection v Grindrod (No 2)(2008) WASCA 28 at [70] (Grindrod).
Section 26 of the WWC Act provides a right of a person who has received a negative notice to apply to this Tribunal for a review of that decision. That review is by way of a hearing de novo - s 27 of the State Administrative Tribunal Act 2004 (WA).
The test to be applied
In Grindrod, which concerned nonconviction charges, Buss JA (with whom Wheeler JA agreed) discussed the approach to be taken by the CEO (and the Tribunal) when deciding applications which fall under s 12(4) of the WWC Act. That approach was helpfully summarised in the respondent's submissions, which the applicant accepted as a correct statement of the relevant principles emerging from Grindrod. That summary, which we adopt, is as follows:
In Chief Executive Officer, Department for Child Protection v Grindrod [2008] WASCA 28 ("Grindrod"), the Court of Appeal has considered the approach to be taken by the Tribunal when deciding applications for a WWC Check under s 12(4).
The legislative purpose of s 12(4) is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in childrelated employment who pose or may pose a potential threat, even though the civil rights of applicants issued with negative notices will be adversely affected, and in some cases, those applicants with nonconviction charges may suffer serious of irretrievable damage to their reputations or a significant diminution of their earning capacity (Grindrod para 76 page 26).
It is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO (and the Tribunal on review of the CEO's decision) is not to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including in particular, the paramount consideration of the best interests of children) that there is an "unacceptable risk" that the applicant might cause sexual or physical harm to children, in the course of carrying out childrelated employment (Grindrod para 81 page 29).
The critical question for the Tribunal under s 12(4) is whether, on all the information and other material properly before the Tribunal, there is an "unacceptable risk" that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out childrelated employment (Grindrod para 85 page 30).
The risk in question has to be unacceptable, not likely (Grindrod para 85 page 30).
Even if the information and other material properly before the Tribunal does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function (Grindrod para 85 page 30).
The factors which bear upon risk include (but are not limited to):
i.the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
ii.the apparent strength or weakness of the case against the applicant in relation to the non‑conviction charge in question;
iii.the degree and seriousness of any future risk to children if the applicant were to be engaged in child‑related employment; and
iv.[t]he likelihood of any such future risk materialising.
It will be necessary for the Tribunal to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions (Grindrod para 87 page 31).
The non-conviction charges
The applicant was charged on indictment dated 23 August 2003 in relation to eight alleged offences. The offences charged were:
1)on a date unknown between 1 January 1984 and 7 February 1984 at Telfer, he unlawfully and indecently dealt with E, a girl under the age of 13 years, by penetrating her vagina with his finger,
2)on another date unknown between 1 January 1984 and 15 February 1984 at Telfer, he unlawfully and indecently dealt with E, a girl under the age of 13 years, by penetrating her vagina with his finger,
3)on a date unknown between 1 April 1985 and 30 April 1985 at Broome, he unlawfully and indecently dealt with E, a girl under the age of 13 years, by rubbing his penis against her,
4)on a date unknown between 1 January 1987 and 26 January 1987 at Karratha, he sexually penetrated E, who was under the age of 16 years, without her consent by penetrating her vagina with his finger,
5)on the same unknown date between 1 January 1987 and 26 January 1987 at Karratha, he again sexually penetrated E without her consent by penetrating her vagina with his finger,
6)on the same unknown date between 1 January 1987 and 26 January 1987 at Karratha, he unlawfully and indecently dealt with E, a girl under the age of 13 years, by ejaculating on her,
7)on a date unknown between 27 September 1987 and 31 December 1987 at Karratha, he unlawfully and indecently dealt with E, a child under 14 years of age, by rubbing her breasts, and
8)on the same unknown date between 24 September 1987 and 31 December 1987 at Karratha, he again unlawfully and indecently dealt with E, a child under 14 years of age, by rubbing his penis against her.
A trial of the indictment took place over three days from 25 August 2003 to 27 August 2003.
The jury retired to consider its verdict at 2.48 pm on 27 August 2003. Just after 8 pm, the jury conveyed a question to the trial judge. Their question was answered, and they retired again at 8.23 pm. Just before 9 pm, the jury conveyed a note to the judge. According to the judge, the note indicated that the jury had reached a hopeless deadlock and that they did not consider that their positions would change given more time. Apparently, the jury indicated the numbers on either side of the deadlock, and on that basis the trial judge considered that it would be unreasonable to ask them to deliberate further with a view to seeking to achieve a majority decision. Accordingly, the jury was discharged, and the applicant was remanded to appear again at a status conference with a view to setting dates for a retrial.
The matter came back before the District Court on 17 December 2003. The prosecutor advised the court that 'Given the attitude of the complainant in this matter the Crown is of the view that it would not be in the public interest to proceed with a retrial', and on that basis a nolle prosequi was tendered.
There is no information before the Tribunal as to what was meant by the reference to the 'attitude of the complainant'. The applicant's contention was that the inference should be drawn that cross-examination of the complainant at the trial had demonstrated her to be an unreliable witness and that she must have advised the prosecution that she no longer wished to be involved in the case. The respondent submitted that the decision not to proceed with the retrial was not due to a lack of credibility of the complainant's evidence, but rather her reluctance to go through the process of giving evidence again.
In our view, it is not appropriate to draw any inferences as to the veracity of the complainant's evidence from her apparent reluctance to participate in a retrial. There may be many reasons why a complainant in relation to alleged sexual offences might be reluctant to participate in the trial process for a second time. In this case, the relationship between the complainant and her mother, as well as her stepfather, had substantially broken down by the time the allegations were made. The allegations no doubt played a significant part in that breakdown. The process of giving evidence must undoubtedly have been distressing for the complainant, and the trial process would have been traumatic for all concerned. The Statement of Prosecution Policy and Guidelines published by the Director of Public Prosecutions provides that 'despite the existence of a prima facie case and reasonable prospects of conviction', factors which may render a prosecution inappropriate, or not in the public interest, include 'the attitude of the victim of an alleged offence to a prosecution'.
In the circumstances, little can be read into the complainant's reluctance to give evidence at a second trial.
The applicant's background
The applicant is currently aged 54. Until late March 2008, he was employed by the Education Department holding a position of principal of a metropolitan primary school. He had been in that position for approximately three years with most of his duties being administration, staff management and policy development.
M had been a principal of two other metropolitan primary schools for the twelve years prior to his most recent appointment. As with his most recent appointment, his duties did not generally involve teaching, but were rather administrative in their nature. M has been involved in teaching for some 33 years.
The applicant has two children by a previous marriage which had lasted for seven years. In January 1984, M met his present wife, A. She had two daughters, the complainant, E, and her younger sister, D. A had worked in the education system and had initially met M in 1982. They had maintained contact during 1983, when M was posted to the northwest town, Telfer, and A resided in a southwest town. They eventually commenced living together in Telfer at the beginning of 1984. They were subsequently married in January 1986.
M's children lived with their mother, although they spent school holiday periods with M. When A began living with M, A's two daughters also lived with them. When they moved to Telfer, E was nine years old, and D was seven years old.
In July 1990, M and A had a child, B, after they had returned to live in Perth.
The criminal proceedings against M
In August 2001, each of E and D made statements to police investigators. The statement by E contained the allegations which formed the basis of the eight alleged offences for which M was subsequently indicted. In relation to count three, which alleged an offence at Broome, E said in her statement that the offence occurred at Cable Beach, when M and her mother were swimming naked and she and her sister were told to remove their bathers. E identified the particular occasion by reference to a recollection of staying at a school camp in Broome which was run by an acquaintance of M. She recalled the occasion took place when she was 10 years of age and they went to Broome for the Easter school holidays.
E stated that, after the event which she placed in late 1987 and which formed count six of the indictment, she told her mother what had occurred. Her mother allegedly told her to speak to M about the matter, and she said that M had apologised and said that he must have been sleepwalking.
E also said in her statement that when she was about 17, which would have been around 1991, M and A were considering a separation. In that context a question arose as to with whom B would live, and there was a suggestion that she would live with M. E alleged that she said to her mother 'over my dead body' and accused M of being a paedophile. She said that, in any event, E and A did not separate on that occasion.
M and A did separate for about three or four months in 1994, and then for two years commencing in December 1998. According to E's statement, in about April 1999, she spoke to A and explained to her what M had done to her as a child. E maintained that she had been the subject of continuous abuse from the time that they moved to Telfer until she was about 14 years of age.
E's younger sister, D, also made a statement to the police in June 2001. She made similar allegations against M concerning the period that they lived in Telfer. The allegations did not identify specific occasions, but rather alleged regular abuse during that period.
M underwent a video record of interview with the police in late June 2001. The allegations made by E and D were put to him during that interview, but he exercised his right to decline to comment on the allegations.
After charges were laid, a preliminary hearing was heard before a magistrate in May 2002. E gave evidence at the preliminary hearing. Her evidence was consistent with her statement to the police. She was crossexamined by M's counsel. The questioning was to the effect that E's complaint to the police was intended to undermine her mother's relationship with M, because E had learned at Christmas 2000 that her mother intended to reunite with M. E denied that proposition and said that her complaint was made after the police contacted her in February as a result of a complaint which D had made to the police. At that time, E was living in Sydney. She said that her complaint 'was a result of my sister being challenged by her husband as to why she had such a difficult sex life and wanting to know what was wrong and she sought counselling and finally revealed to me that she'd also been hurt'. She explained that her sister had been referred to the Sexual Assault Referral Centre who had in turn referred her to the Department of Family and Children's Services because of concern for the welfare of B, who had been residing with M during the period of her parent's separation, and was continuing to reside with M and A after they resumed living together.
In the course of crossexamination, E was asked to confirm that she had never previously made a complaint to police about the alleged abuse. She acknowledged that she had not previously made a complaint and explained 'when I originally sought counselling in my teenage years, they told me that it was my word against his and that it was probably just going to put me through hell rather than actually achieving anything'.
E was also asked about the conversation in 1991 with her mother in which she allegedly accused M of being a paedophile. It was suggested to her that she had said to her mother that she would 'make up an allegation' and that 'by the time anyone finds out that it's not true, it will be too late'. She denied having said those words.
The trial commenced on 25 August 2003. E gave evidence in chief consistent with her original statement. Apart from the particularised incidents, she asserted that there was continuous abuse during the period that she lived in Telfer, although it 'would sort of ebb and flow'.
E was crossexamined at the trial. She was challenged as to the first count of the indictment on the basis that she had suggested in her evidence at the preliminary hearing that they had moved to Telfer a couple of weeks before school started, and the incident occurred in the first week that they were there. The crossexamination suggested that in fact, they had only moved to Telfer a day or two prior to the school term commencing.
As to the second count, in relation to which she had asserted that M had a torch with him, it was suggested to her that the family did not have a torch in Telfer in 1984. E said that she could not be sure whether or not they had a torch.
As to the incident in Broome, E had said in evidence that it occurred in Easter 1985 when they stayed at a school camp in Broome. She accepted that she only stayed in the school camp on one occasion. It was put to her that that occasion was in fact in August 1987. She was also crossexamined to the effect that there may have been accidental contact between her and M while swimming at Broome, but she denied that the touching was accidental.
In relation to other counts, she was crossexamined as to certain matters of detail, but maintained that the incidents occurred as she had described. Her crossexamination was otherwise directed to endeavouring to establish that she had a good relationship with M.
M gave evidence at his trial. He said that, when A and her daughters came to live with him in Telfer, he, A and her daughters drove, and they arrived only a day or so prior to the commencement of the school term. He described the house in which they lived at Telfer as small and said that noise travelled very easily through the house. He denied all of the allegations against him. He confirmed that he, A, E and D all stayed at the school camp in Broome in August 1987, when a friend of his became the camp director, but said they did not stay there in the past. That fact was confirmed by the friend who also gave evidence at the trial.
M, while denying the allegations of sexual abuse, said that there were occasions when he would need to go into the E's room to provide her with a wet towel or a water spray bottle to cool her on hot nights. He gave evidence to the effect that a number of the details given by E as to particular occasions of alleged sexual abuse could not have been accurate.
A also gave evidence at the trial; she generally corroborated the matters of detail which had been adduced from M in his evidence. She also said that she and her husband slept very closely, and if one moved it would usually disturb the other so that they would be conscious of their partner getting out of bed. She denied D's assertion that D had discussed the incident the subject of count six of the indictment with her shortly after it occurred.
A also gave evidence that at some stage when she was contemplating separation from M, E said that B would live with M 'over my dead body. I will claim he is an abusive father and by the time they find out the truth it'll all be too late'. A said that that conversation occurred in about 1994, when E was almost 20 years of age, just prior to A's first separation from M.
Family and Children's Services assessment
As we noted above, E gave evidence that her original statement to the police was prompted by contact from the police who had received a complaint from her sister D. It is apparent that D's complaint lead to an inquiry by the Department of Family and Children's Services to assess whether or not B was at risk by continuing to live with M and A. The matter was referred to an assessment team in May 2001, by which time the criminal charges against M had been initiated. A report was subsequently prepared. The report makes it clear that the concern initially expressed to the Department came from D. The Department then interviewed E. The complaints by each of them were essentially matters of the nature of the allegations of the criminal proceedings. The report expressed concern for B's safety, although B had been interviewed and denied any inappropriate behaviour with her father, with whom she said she had a positive relationship. An application for a care and protection order in the Children's Court was initiated, but withdrawn because of the fact that E and D refused to provide corroborating evidence, apparently because they were required to give evidence in the criminal court at a later time. The Department concluded that there was insufficient evidence available to warrant further action.
Department of Education and Training enquiry
In March 2004, the Director General of Education sent a notice to M of a possible breach of discipline pursuant to s 80 of the Public Sector Management Act 1994 (WA). It identified seven allegations. The first concerned indecent dealing with D and the remaining six concerned indecent dealings with E. The allegations relating to D were some of the allegations which form the subject of the indictment. An inquiry into those allegations was conducted by Ms N Ciffolilli, under an authority under the Director General. Ms Ciffolilli interviewed a number of witnesses including M, A, D, E and M's two children by his previous marriage. The outcome of the report was that Ms Ciffolilli was unable to resolve the conflict in the evidence and could find no basis to prefer the evidence of D and E over the evidence of M and A. She concluded that there was insufficient information to establish the allegations on the balance of probabilities. The evidence given by the various key witnesses to the inquiry was substantially consistent with their evidence at the criminal trial. A was particularly vehement in her defence of M and insisted that the events alleged could not have taken place. She denied that M ever went into the girls' rooms on his own after she and M had gone to bed. She maintained that if he went into their room it was 'usually with me by his side'.
In his evidence to Ms Ciffolilli, M said that when he had first separated, he had overheard a conversation just prior to his first separation from A, in which E said to A that she was going to make up a story that would destroy M. He heard the words 'over my dead body' used. He said that he was incensed when he heard that 'so I walked out and I thought I will just calm down, so I went outside and played with my car which I find therapeutic'. He said that he subsequently discussed the conversation with A, but he otherwise did not pursue the matter.
Department of Education inquiries
In 2000, certain independent inquiries were undertaken at the instance of the Department of Education under reg 135 of the Education Regulations 1960 (WA).
A number of the allegations made concerned complaints which are not relevant for present purposes and it is not necessary to give further consideration to them. There were allegations, however, of inappropriate relationships with mothers of children at M's school, with one of whom M had a brief sexual relationship. The two mothers concerned were sisters. The matters of complaint related to the period during which M was separated from A. In the first report, prepared by a Ms B Abbott, she concluded that there was sufficient information to establish some consistency in M's behaviour. She found that 'the behaviours attributed to [M], kissing female parents and teachers on the cheek at school and in the community, talking to parents and teachers about his personal issues and discussing his sex life appear to constitute unprofessional conduct which is not acceptable for a teacher or principal'.
The same allegations were further reviewed and became the subject of a report referred to as 'the Fells report' of 21 August 2000. That report dealt with a number of matters not presently relevant, but in relation to M's relationship with parents, it concluded that he did not make a sufficiently clear distinction between his professional and his private lives when conducting his duties as school principal. One allegation investigated in the Fells enquiry concerned paying undue attention to a year 6/7 student and asking personal questions about her mother. There was no allegation of any attention of a sexual nature towards the student. The report found that the girl was a credible witness and despite Ms' denial that he treated her differently from other students, it was found that she had been in receipt of undue attention by M and that his actions had contributed to her distress.
Consideration prescribed by s 12(8) of the WWC Act
Against that background, it is appropriate to have regard to the criteria specified in s 12(8) of the WWC Act. The paramount consideration is that set out in s 12(8)(a), namely the best interests of children. If there is an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of carrying out his child related employment, then the best interests of children require that a negative notice be issued. It is appropriate to look at each of the other considerations in s 12(8)(a) before returning to consideration of the best interests of children.
When the offences alleged to have been committed - s 12(8)(b)
The alleged offences are said to have occurred between 1984 and 1987. The particular acts alleged are said to have been part of an ongoing pattern of sexual abuse. The passage of 20 years since the events are alleged to have occurred might generally be seen to be a factor suggesting a reduced risk of repetition. The extent to which there may be a reduced risk of repetition is lessened, however, where conduct involves an ongoing pattern of abuse, rather than one or two isolated incidents.
M's age when the offences are alleged to have been committed - s 12(8)(c)
At the time of the alleged offences, M was aged between 30 and 33. At the time the alleged offences began, E was nine years old. Her sister, D, in respect of whom allegations of sexual abuse have been made, albeit not in criminal proceedings, was aged seven. M was the stepfather of the complainants and clearly in a position of trust. Clearly, this is not a case where, if the allegations were proved, M's age could be said to in any way mitigate the seriousness of the conduct.
Nature of the alleged offences and relevance to child related work - s 12(8)(d)
The offence of indecent dealing with a girl under the age of 13 is obviously highly relevant to child related work. The nature of the alleged offences, involving ongoing abuse over a period of years tends to increase the seriousness of the alleged offences in the context of consideration as to whether the applicant should be permitted to engage in child related work.
Information given by M in relation to the application - s 12(8)(e)
As already observed, M has had a long and quite successful career in teaching, and as a primary school principal. He received an award selected by a community organisation and the Department of Education as the outstanding school principal in Western Australia.
Before the Tribunal, M maintained his denial of any wrong doing in relation to D or E. He identified what he described as 'numerous credibility issues that arose during E's evidence at trial'. Those matters include issues as to whether the events complained of could have occurred at the times attributed to them, that E acknowledged that M undertook many activities with her suggestive of a good relationship rather than a relationship of fear and avoidance on her part, that there were inconsistencies in her evidence about events in Karratha and that her evidence conflicted with her mother's and M's accounts of events.
M asserted that the complaints by E and D to the police were a response to their unhappiness on learning in Christmas 2000 that their mother proposed reuniting with M.
In respect to the Department of Education inquiry matters, M asserted that the allegations arose because of bitterness and resentment which followed the brief sexual relationship between M and one of the complaining parents. He said that the relationship with that parent developed from a professional to a social then sexual relationship over time in a period when M was separated from his wife.
A also gave evidence before the Tribunal. She also suggested that the complaints arose from disappointment on her daughters' part that she and M were reuniting. She denied that E had ever made any complaint to her about M's conduct, other than to say that she intended to make up allegations against M. She repeated her denial made in the Ciffolilli inquiry that M had ever gone into the girls' rooms at night without A being present. She made allegations that E's conduct could be explained by E's involvement with drugs and a degree of paranoia. A became particularly emotional in her denial of any wrong doing by M.
M's daughter, B, also gave evidence. B had lived exclusively with M during the period of M and A's separation between 1998 and 2000. B is currently aged 18. She said that there has never been any inappropriate contact between her and her father, and the decision to stay with him during the separation was her decision because she has always enjoyed a closer relationship with her father than her mother. She did not consider that anything inappropriate was ever likely to happen between M and her.
We do not consider that the proposition that D and E made complaints to the police because of A's decision to reunite with M is supportable on the information before the Tribunal. While it may have come as a surprise to each of E and D that M and A were reconciling, there is no apparent reason why that fact should prompt the allegations to be made. B had already been living with M during the period of separation. Her position could presumably only be improved by the presence of A in the household.
We consider it much more likely, and on balance we find, that the reason for the complaint by E was as she explained in her evidence at the trial. That is, she received a call from the police who had initially been contacted by D. The explanation that D had undergone counselling at the suggestion of her husband, and the counselling had prompted her to make a complaint to the Sexual Assault Referral Centre, is a plausible explanation for D's motivation to speak to the police. The complaint by E to the police took place some four to five months after learning of M's reconciliation with A. It is far more likely that E's complaint was made because D had chosen to make a formal complaint and E responded to a request from the police that followed.
Anything else reasonably relevant to the decision - s 12(8)(f)
We consider that the findings of the inquiries carried out by the Education Department delegates are relevant to the decision facing the Tribunal. In two separate inquiries, M was found to have behaved inappropriately in failing to make a distinction between his professional and private life. He was found to have given undue attention to a young female student asking personal questions about her mother. While those findings did not involve any inappropriate physical or sexual conduct towards children, they do indicate a failure on M's part to properly recognise the boundaries of acceptable behaviour. By themselves, those findings would not constitute a circumstance which justify the issue of a negative notice under the WWC Act, but they are, in our view, relevant to the assessment of whether there exists an unacceptable risk to children in light of the nonconviction charges in relation to M.
Is there an unacceptable risk to children?
The factors which bear upon the risk were identified by the Court of Appeal in Grindrod and are referred to above at [17].
We have already considered the circumstances which culminated in the charges being disposed of by the Court. As we have already concluded, it is not appropriate to draw any inferences as to the veracity of the complainant's evidence from her reluctance to participate in a retrial.
It is reasonable to conclude that there were some inaccuracies in the account of the events given by E. For example, it may well be that she was mistaken as to when she and her family first moved to Telfer. Her evidence that she stayed at the school camp in Broome at Easter 1985 would appear to be incorrect. The substance of her allegations was that she was subjected to an ongoing regime of abuse. Given her age at the time and the substantial period which elapsed before she made a formal complaint, inaccuracies of that kind are hardly surprising. That those inaccuracies had been highlighted in crossexamination does not lead to the conclusion that E's attitude to participation in a retrial was borne of a concern that her credibility had been destroyed.
As to the apparent strength or weakness of the case against M the outcome of the initial trial suggests that the case neither overwhelmingly strong, nor particularly weak. Clearly, some members of the jury were satisfied beyond a reasonable doubt of M's guilt and others on the jury were not so satisfied.
What can be observed is that, on the various occasions on which E was required to recount events, her account was quite consistent. Equally, M's denial of wrong doing has been consistent throughout.
We would give little weight to the evidence of A given before the Tribunal in support of M. The vehemence of her assertion that it would have been simply impossible for these events to have occurred suggests a lack of objectivity in her evidence. Her evidence that M never entered her daughters' rooms alone is not only unlikely, but is inconsistent with M's own evidence at trial that he went to the girls' rooms to provide wet towels or cooling sprays for them. Although A made reference to those occasions on the basis that she always accompanied M, M's initial evidence on the point made no suggestion that he was accompanied by A on those occasions. Her evidence that the incident in the water at Broome could not have occurred because she was constantly observing M and the children in the water is inherently unlikely. It stretches credibility to expect that anyone would be so definite about events 15 years earlier during a family holiday.
The thrust of M and A's submissions is that E's allegations should be dismissed as fabrications. They rely on their version of the conversation in either 1991 (in E's version) or 1994 (in A's version), which M claims to have overheard. The allegation that M overheard that conversation appears to have first emerged during A's interview by Ms Ciffolilli in 2004. A's evidence was that she never discussed the conversation with M until some time after 'all this came out'. M's evidence is that he overheard the conversation by merely walked away and did not discuss it with A or E. That response on each of their parts is surprising and, in our view, unlikely. We also consider it unlikely that E formulated a plan in 1991 or 1994, and then waited ten years before putting the plan into action. That seems particularly unlikely given that it was not E who made the first complaint to the police, but D.
If M did do what he is accused of doing, then the assumption underlying the WWC Act is that there is a future risk that he might harm children in future. If the offences were committed, there can be no doubt the degree in seriousness is of the risk is such as to require a negative notice to issue. It is not the Tribunal's task to determine whether or not M is guilty of the offences with which he was charged. We are, however, entitled to take into account reasonable suspicions.
In our view, the consistency of E's allegations on each occasion she has made them, and their consistency with D's unparticularised allegations, gives rise to a suspicion that M has been involved in the sexual abuse of children over a period of some years during the mid1980s. We do not consider that that suspicion is dispelled by the apparent inaccuracies by E as to the particular details of the incidents subject of the charges. Nor, as we have observed, do we consider that the suspicion is dispelled by the alleged motive of both D and E to make complaints in order to prevent their mother reconciling with M.
We accept B's evidence that she has not had cause for concern about M's behaviour towards her, and that M's children by his first marriage enjoy a good relationship with him. Those facts do not, in our view, demand a conclusion that allegations by E and D were unfounded.
The nature of the allegations is such as to raise a real concern as to M's propensity to the sexual abuse of children. That is not to say that we make any finding that M did do that with which he was charged. The object of the WWC Act is the protection of children. The capacity to issue a negative notice where no criminal convictions exist leaves open the possibility that a person may be prevented from working with children even though they have not been convicted of any offence. In our view, in all the circumstances, that concern is at a level that we consider amounts to an unacceptable risk of harm of children in the future if M were to be granted an assessment notice.
The conclusion we have reached leads to the necessary finding that it would not be in the interests of children for an assessment notice to be issued to M.
In the circumstances, we consider that the decision of the Chief Executive Officer to issue a negative notice should be affirmed and the application for review dismissed.
Orders
1.Pursuant to s 62(3) of the State Administrative Tribunal Act 2004, the name of the applicant shall not be published except by the respondent for the purpose of, or in connection with, the performance of his functions under the Working With Children (Criminal Record Checking) Act 2004.
2.The decision of the respondent to issue a negative notice to the applicant is affirmed.
3.The application for review is otherwise dismissed.
I certify that this and the preceding [79] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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