M and DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
[2013] WASAT 122
•8 AUGUST 2013
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : VOCATIONAL REGULATION | ||
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| HEARD |
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Applicant
AND
DEPARTMENT FOR CHILD PROTECTION AND
FAMILY SUPPORTRespondent
Catchwords:
Working with Children (Criminal Record Checking) Act 2004 (WA) - Application for assessment notice for child-related employment - Review of decision to issue a negative notice - Non-conviction charges for Class 2 offences - Sexual penetration without consent of a person over 13 years of age but under 16 years of age - Class 3 convictions for unlawful assault - Pending charge for common assault - Whether, because of the particular circumstances of the case, a negative notice should be issued - Whether there is an unacceptable risk that
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applicant might, in the future, cause sexual or physical harm to children if engaged in child-related employment - Best interests of children paramount consideration
Legislation:
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4,
s 6(1)(a), s 6(1)(a)(iv), s 7(2) s 9, s 12, s 13A
Working with Children (Criminal Record Checking) Amendment Bill 2004
(WA)
Result:
Decision to issue negative notice to applicant affirmed
Summary of Tribunal's decision:
The applicant sought review of the decision to issue a negative notice to him following his application for a working with children card. The applicant sought a working with children card in order to work as a children's tutor.
The applicant has four non-conviction charges in relation to sexual penetration without consent of a 15-year-old girl in 1998, when he was aged 27. He was acquitted of the charges by a jury at the direction of the trial judge, because the complainant did not attend to give evidence, although she had done so on two previous scheduled trial dates, and the prosecution's application for an adjournment was refused. The adjournment was refused having regard to two previous adjournments of the trial date when the complainant's friend, who was aged 14 years at the time of the alleged offences and who said that she had been sexually assaulted by a co-accused at the same time, did not attend to give evidence.
The applicant also has convictions for violent offending between 2000 and 2007 and for driving under the influence of alcohol, most recently in 2012.
The Tribunal determined that there is an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment. The Tribunal found that there is a reasonable suspicion that the applicant acted, if not in the manner alleged in the non-conviction charges, then at least in a manner which is entirely inappropriate and unacceptable in relation to children. The Tribunal also found that the applicant demonstrated no insight into how utterly inappropriate and unacceptable it is for a 27-year-old man to have sexual intercourse with a 15-year-old girl (putting aside whether it was non-consensual). Furthermore, the Tribunal found that the applicant's charges and convictions over a 15 year
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period, from his late 20s to his early 40s, demonstrate a course of conduct and pattern of behaviour of violence towards vulnerable people, often fuelled by abuse of alcohol.
The Tribunal affirmed the decision to issue the applicant with a negative
notice.
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr PJ Urquhart |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Department for Child Protection and Family |
Support (Working with Children Screening
Unit)
Case(s) referred to in decision(s):
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
Hardingham and Chief Executive Officer, Department for Child Protection
[2012] WASAT 153
[2013] WASAT 122
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 The applicant has applied to the Tribunal for review of the decision
of the Chief Executive Officer (CEO) of the Department for Child Protection and Family Support (Department) to issue him with a negative notice under s 13A of the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act).
2 The applicant said that he has tutored children in Victoria and has
been working as a children's tutor with a company in Western Australia since mid-2012. The WWC Act prohibits a person from being employed in 'child-related work' (including a coaching or private tuition service: s 6(1)(a)(iv)) unless the person has a current 'assessment notice' (commonly referred to as a 'working with children card' or 'WWC card'). Therefore, on 27 August 2012, the applicant applied to the CEO of the Department for an assessment notice.
3 A criminal record check in respect of the applicant revealed that he
has four 'non-conviction charges' (meaning charges for offences that have been disposed of by a court otherwise than by way of convictions: s 4 of the WWC Act) of sexual penetration without consent of a person over 13 years of age and under 16 years of age, and an associated deprivation of liberty non-conviction charge, in respect of alleged conduct by him in January 1998. The offence of sexual penetration without consent of a child over 13 years of age and under 16 years of age is a 'Class 2 offence' under the WWC Act: s 7(2) and Sch 2.
4 The applicant's criminal record also includes convictions for
unlawful assault in 2000 (two counts, together with threats to kill, using threatening words and threatening behaviour in the same incident), 2005 (and recklessly causing injury to another person in the same incident), and 2008 (two counts against two different people). He also has a number of convictions for disorderly conduct and for driving under the influence of alcohol, most recently in June 2012 and July 2012. The applicant has also been charged with common assault in aggravating circumstances in relation to a domestic violence incident in November 2011. This charge is currently pending before the Magistrates Court.
5 A theme and course of conduct reflected in these charges and
convictions is the applicant's violent behaviour towards vulnerable people
after abuse of alcohol.
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6 Because of the non-conviction charges in respect of the four Class 2
offences (see legal framework and principles below), under s 12(5) of the WWC Act, 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 him. The issue for determination in this proceeding is, therefore, whether, because of the particular circumstances of the case, a negative notice should be issued to the applicant. As discussed below, this assessment requires a determination as to whether, on all of the information now before the Tribunal, there is an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment.
Background
The applicant was born in Africa in August 1970.
Class 2 non-conviction charges
The complainant provided a sworn statement dated 9 January 1998 and a further sworn statement dated 2 July 1999. The complainant was aged 15 years and 10 months at the time of the alleged offences and when she provided her first sworn statement the next day. The complainant stated that she and her friend (complainant's friend), who was aged 14 years and three months at the time of the alleged offences, were at a shopping centre in northern Perth at about 6.30 pm on 8 January 1998. The complainant said that they were approached by two African males, one of whom said 'Do you two want to come for a ride, we're only going for a short drive, I've been drinking, let's go for some cones'. The complainant said that the man who spoke to them then grabbed her arm and started walking her towards a white Commodore across the street, while the other man grabbed the complainant's friend. The complainant said that she was trying to pull away, but the man would not let go, and that she was 'too scared to say anything'. She said that she and her friend were pulled into the car.
9 The complainant said that the driver of the car (later identified as the
applicant) was also African. She said that they drove to a tavern and that she was 'too scared to say anything'. She said that the men bought alcohol, including two bottles of 'Passion Pop'. The complainant said that they drove around and stopped a couple of times. In her second statement, the complainant said that they eventually stopped at a park. She said that the applicant grabbed her by her left arm and dragged her into the park. She said that the applicant pushed down and removed her
[2013] WASAT 122
track suit pants and her underwear and then removed his pants. She said that she was laying on her back and was 'very frightened'. She said that the applicant then forced her legs open, knelt between her legs and forced her to feel his erect penis. She said that she felt his penis, because she thought that if she did not, he would hurt her. She said that she did not know how long he had sex with her and did not know whether he ejaculated inside her vagina. She said that after he got off her, the applicant put on his pants and told her not to move. She said that she was laying on the ground and was 'too frightened to move or run away'.
10 While she was on the ground, one of the other males from the vehicle
walked over and said a few words to the applicant. The applicant then walked away leaving her with the other male standing over her. The complainant said that the other male then pushed his pants to his ankles, forced her legs apart and forced his penis into her vagina. She did not recall if he ejaculated inside of her. When he was finished, she got dressed and the second man held her by the arm and took her to the car.
11 In her first statement, the complainant said that the men took her and
her friend to a unit. While they were going to the unit the men surrounded them. The complainant said that, at the unit, the applicant introduced her to his sister. The complainant said that, while the applicant and another man were holding her and her friend by the arm, they took the girls into the applicant's bedroom. She said 'I didn't want to go in there'. She noticed the time on the CD player was 11.55 pm.
12 The complainant said that the applicant took off his pants and was
not wearing any underwear. She said that she told him 'I don't want to do anything', but he was 'too drunk and wouldn't listen'. She said that he walked up to her and took off her shirt, slipped her shoes off and took her pants off. She said that he took her underwear off and pushed her back onto the bed. She said that he was standing in front of her and put a condom on his penis. She said that he got on top of her and put his penis inside her. She said that he was holding her arms down while he had sex with her and that 'he went for ages'. She said that 'he ejaculated because of the noise he made and the stuff in the condom'.
13 The complainant said that the applicant told her not to move, put his
shorts on and went out to the lounge room. She said that he returned and laid next to her in bed. She said that she faced away from him and was crying but he said 'stop being a baby'.
[2013] WASAT 122
14 The complainant said that the applicant woke up and 'got on top of
me again about half an hour later'. She said that 'he didn't bother about a condom this time'. She said that she did not say anything, just cried. She said that he was mumbling some words in an African language, but she did not know what it was. She said that he held her arms down and that she thinks he ejaculated again. She said that he then went and had a shower while she was crying.
15 The complainant said that the applicant then came back to the room
and raped her for a fourth time. He did not use a condom and she was
'just crying'. She said that he ejaculated on this occasion.
The complainant said that the police arrived at the unit at 5.30 am to 6 am on 9 January 1998.
17 The applicant's sister provided a statement to police in which she
said that the applicant and his friends came to the apartment on 8 January 1998 with two girls and that the name of one of the girls was the first name of the complainant, but she could not recall the name of the other girl. She said that the men had brought alcohol with them and she saw the girls drink a Passion Pop while in the lounge room. She said that they were all talking and 'the girls seemed happy and were laughing with us'. She said that after being in the unit for about ten minutes, the men and the girls left and came back at 9.30 pm with two other girls. She said that she went to sleep at 9.35 pm and was woken by policemen who were in her room.
18 The complainant was examined by a doctor at the Sexual Assault
Referral Centre in Subiaco at 10.40 am on 9 January 1998. In a medical report dated 9 July 1999, the doctor said that, although the complainant was examined without any enhanced technique, on genital examination, the doctor found three sites of genital injury. The doctor said that in a study carried out between November 1994 and October 1995 of all clients - over 100 - examined at the Sexual Assault Resource Centre who alleged that they had been sexually assaulted, only 17% had visible genital injuries. The doctor also said that a comparative study was conducted between women following consensual sexual intercourse and women alleging sexual assault which found that there was a significantly lower incidence of genital injury following consensual intercourse than in cases of alleged sexual assault and also that, where injury occurred in consensual intercourse, it was confined to one site only.
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19 The doctor concluded that the complainant's 'multiple soft tissue
injuries … could have resulted from pressure or friction to these areas' and
that:The genital findings of a hair located high in the vagina is consistent with recent vaginal penetration. The combination of marked tenderness at the introitus or opening to the vagina, erythema or redness at the posterior fourchette and lower vaginal wall tenderness indicate that forceful vaginal penetration has occurred.
20 The police seized a condom they found at the unit for forensic
examination. The forensic evidence showed that the applicant's sperm was located on the inside of the condom and that sperm of his co-accused was found on the outside of the condom. The forensic evidence is consistent with the complainant's statement that she was raped by the second man at the park without a condom before she was raped by the applicant using a condom. It is a reasonable inference that the other man's sperm became attached to the outside of the condom while the applicant had intercourse with the complainant.
21 The police took photographs of the complainant and her friend in
order for the prosecution to show that at the time of the alleged offences the girls were dressed modestly and were not 'made up' to look older than their age, in anticipation of the accuseds' defence of an honest and reasonable mistake that the complainants were of the age of consent. The photographs of the complainant show that she looked like a young teenager.
22 The complainant's friend also provided two sworn statements in
which she described more threatening language when she and the complainant were abducted by the men and the offering of a 'cone'. She described being dragged into the vehicle by force. She described being sexually assaulted in a park by one of the other men, and said that she was bleeding from her vagina. She also described going to the unit, and being put on a mattress and raped by the co-accused. She also said that she escaped during the night from a balcony window and telephoned police from a public telephone.
23 Statements by police officers confirm that they were called to a
public telephone early in the morning on 9 January 1998 where they found the complainant's friend who was visibly upset and appeared to have been crying. The police officers said that they were directed by the complainant's friend to the unit where they found the applicant in bed with the complainant, and found the co-accused who the complainant said was
[2013] WASAT 122
the second man to rape her at the park and who the complainant's friend
said raped her at the unit, asleep on the floor.24 The applicant did not take part in a record of interview with police.
He provided two submissions to the CEO of the Department which we will refer to later in these reasons.
25 The applicant was charged with four counts of sexual penetration
without consent of a child over 13 years of age and under 16 years of age and with one count of deprivation of liberty. On 11 July 2000, the applicant was acquitted of all charges by a jury, at the direction of the trial judge, in the Perth District Court. This occurred because the complainant, then aged 18 years, did not attend the trial to give evidence. The trial of the applicant, the co-accused alleged to have been the second person to rape the complainant at the park and to rape the complainant's friend at the unit, and a third co-accused charged with deprivation of liberty but not with sexual penetration, was listed to take place, initially, on 19 July 1999 and, subsequently, on 13 December 1999. However, on each of these occasions, the complainant's friend did not attend to give evidence and the prosecution made successful applications for an adjournment of the proceedings. On each occasion, the prosecution also made applications, which were unsuccessful, for the complainant to give pre-recorded evidence in the proceedings.
A file note prepared by the Crown Prosecutor on 12 July 1999 records that the complainant 'raised the question of the inability of anyone to find [her friend]' and 'raised concerns about going ahead with the case without [her friend]'. As noted, the complainant nevertheless attended to give evidence on two subsequent occasions, but, in her friend's absence, the trial did not proceed.
The complainant's friend tragically took her life on 29 January 2000, when she was just 16 years of age. It is not known whether the complainant was aware of her friend's death when the complainant did not attend to give evidence on 11 July 2000. In any case, as Mr PJ Urquhart of counsel, who appeared on behalf of the Department, submitted, the complainant's failure to attend to give evidence on a third occasion is reasonably explicable after the complainant's friend failed to attend on the two earlier occasions and the complainant was concerned about giving evidence without her friend.
[2013] WASAT 122
Convictions for violent offending
28 On 10 March 2000, the applicant pleaded guilty to one count of
threatening to kill, two counts of assault occasioning bodily harm, one count of using threatening words and one count of using threatening behaviour, involving his then de facto wife and her father, which occurred on 4 January 2000. The sentencing facts were that the applicant punched his de facto wife on the back of the neck with a clenched fist and pushed her against a wall, knocking her to the ground. He hit her five times on top of the head with an open hand and also used her own hand to make her punch herself. She telephoned her father for assistance. When her father, aged in his late forties, arrived, the applicant, then aged 29, grabbed him by the wrist and threatened to kill him. The applicant punched him in the face and top of the head repeatedly, using a clenched fist. The applicant grabbed the older man by the throat and led him to the hall, pushing him against the wall, where the applicant again punched him in the face and top of the head, making similar threats to kill. The applicant pushed the other man outside of the house and continued to punch him, pushing him to the ground, still threatening to kill him, while shouting 'I'm African'. A neighbour intervened.
29 Both complainants suffered soft tissue injuries to the head and face.
At sentencing, defence counsel made the submission that the applicant did not have a drinking problem, although he had been drinking on the night of the assaults, and that he was not a violent person.
30 In her sworn statement, the applicant's de facto wife described him as
being 'really drunk' on the day of the offences, while he was driving home with her from the beach and when they picked up their 10-month-old son from her father's house and arrived home. At home, she said that the applicant was 'swinging the baby around', he fell against the entertainment unit and the baby ended up on the floor. She said that after the applicant hit her on the back of the head with a clenched fist, and as she was on the telephone to her father, the applicant 'picked [their son] up and was holding him upside down'. She said that the applicant was 'hurting the baby'. She also said that, while the applicant was grabbing her hand and was using her hand to hit herself about five times in the face, their son was screeching and climbed onto the applicant's back. She said '[The applicant] kept hitting me with [their son] on his back'.
| 31 | On 4 November 2005, the applicant was convicted in Victoria of unlawful assault and recklessly causing injury on 6 August 2004. According to a statement by Victoria Police dated 19 October 2012, the |
[2013] WASAT 122
applicant had been staying temporarily with the first complainant until he found other accommodation. They had a disagreement and the first complainant asked the applicant to leave. He did so and went to a train station. The first complainant and her friend, the second complainant, then drove to the train station to retrieve the first complainant's mobile phone from the applicant. Another dispute took place. The applicant punched the first complainant in the stomach several times and also kicked her in the legs several times. The second complainant tried to stop the assault which resulted in her also being punched and kicked by the applicant.
32 On 23 June 2008, the applicant was convicted of two counts of
unlawful assault in Victoria. According to the statement by Victoria Police, on 16 June 2007, police attended at a residence and spoke to the first complainant who stated that the applicant, who had been her de facto partner for five months, was very intoxicated and that they had had an argument in relation to his drinking. She said that the applicant became aggressive and pushed her. He also slapped her several times and scratched her. She suffered minor injuries. He also assaulted the second complainant who was present.
Pending assault charge
33 The applicant has also been charged with common assault in
aggravating circumstances in relation to a domestic violence incident on 25 November 2011. The Statement of Material Facts alleges that the applicant pushed his wife's face into a mattress making it difficult for her to breathe, and when she stood up, he immediately pushed her back onto the ground. It is alleged that the applicant then stood on his wife's back, preventing her from getting up and kicked her once in the legs. It is alleged that she suffered bruising to her right shoulder and left lower arm, stiffness in her neck and tenderness to the top of her head, as a result of the incident.
34 The applicant was arrested on 27 December 2012 and participated in
an electronic record of interview in which he denied the incident but offered the explanation that 'she tried to tackle me to the ground, I was just pushing her away'.
Legal framework and principles
Section 3 of the WWC Act states that:
[2013] WASAT 122
In performing a function under this Act, the CEO or the State Administrative Tribunal is to regard the best interests of children as the paramount consideration.
36 Section 12(1) of the WWC Act states that the CEO is to decide an
application for an assessment notice in accordance with s 12 by issuing either an assessment notice or a negative notice to the applicant. Section 12(3) of the WWC Act states that if one or more of the conditions specified in the Table to that subsection apply in relation to an applicant, the CEO is to decide the application in accordance with the applicable provision opposite that condition. Item [6] of the Table specifies the condition that 'The CEO is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence' and the applicable provision opposite this condition is s 12(5) of the WWC Act. As the applicant has non-conviction charges in respect of Class 2 offences, his application for an assessment notice is to be determined by the Tribunal on review in accordance with s 12(5) of the WWC Act. Section 12(5) of the WWC Act states as follows:
If this subsection applies, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
Section 12(8) of the WWC Act states as follows:
If subsection (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to -
(a) the best interests of children; (b) when the offence was committed or is alleged to have been committed; (c) the age of the applicant when the offence was committed or is alleged to have been committed; (d) the nature of the offence and any relevance it has to child-related work; (e) the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of - (i) any offence committed by the applicant; or
(ii) any charge against the applicant;
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(f) any information given by the applicant in, or in relation to, the application; (g) anything else that the CEO reasonably considers relevant to the decision.
38 The subject matter and scheme of the WWC Act has been considered
in two decisions of the Court of Appeal: Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 (Grindrod) and Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 (Scott). In Grindrod, Buss JA, with whom Wheeler JA agreed, explained at [76] that:
The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who work in child-related employment and have been convicted of, or charged with, (including charged with and acquitted of) specified criminal offences. The evident legislative purpose is to protect children 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. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with non- conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity.
39 Buss JA held in Grindrod at [77] that '… the Parliament has adopted a precautionary approach …' in relation to the issue of a negative notice to an applicant who has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence. His Honour discerned a precautionary approach from three aspects of the legislation, namely the best interests of children being 'the paramount consideration' in the CEO's assessment, the issuing of a negative notice being dependent upon the 'CEO's satisfaction' (that is, the CEO's state of mind) in relation to the particular circumstances of the case, rather than upon the existence of an objective 'fact', and that the CEO may decide an application after inviting the applicant to make a submission about information concerning the applicant's criminal record and about the applicant's suitability to be issued with an assessment notice (s 13(1)(a) of the WWC Act), but without provision for or contemplation of a hearing for the purpose of determining facts or any other question: at [77]. At [78], his Honour observed that the 'existence of a precautionary approach generally in relation to protecting children from the risk of sexual or physical harm is
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also apparent from the Minister's second reading speech', extracts of
which his Honour then set out.40 Buss JA explained in Grindrod at [65] that s 12(5) (at the time of the decision in Grindrod this provision was s 12(4)) imposes an obligation on the CEO, relevantly, 'to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant'. At [69] his Honour held that the language of s 12(8) indicates that the criteria in the paragraphs 'constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction'. However, his Honour said at [70] that, although the CEO must give separate consideration to each of the criteria, 'each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform'. In particular, in consequence of s 3 of the WWC Act which, as noted earlier, declares that the best interests of children is 'the paramount consideration' in the performance of a function under the Act, if and to the extent that, in a particular case, a criterion other than paragraph (a) conflicts with paragraph (a), the other criterion 'must yield'. Furthermore, his Honour said at [71] that, although all the criteria in paragraphs (a) - (g) of s 12(8) must be taken into account, the weight to be accorded to them will vary depending on the facts and circumstances of the particular case, and that in some cases the criteria in paragraphs (b) - (g) 'may be of little practical significance, when compared with the paramount consideration of the best interests of children'.
41 The WWC Act does not expressly state what finding the CEO or
the Tribunal on review must make in order to be satisfied, under s 12(5), that, because of the particular circumstances of the case, a negative notice should be issued to the applicant. In Grindrod at [81], Buss JA held that it is implicit in s 12(4) (now s 12(5)) and s 12(8), in the context of s 3 and the WWC Act read as a whole, that a negative notice may not be issued unless the CEO (or the Tribunal on review) finds 'that there is an "unacceptable risk" that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment'. At [82], his Honour said that:
The notion of 'unacceptable risk' reflects the evident policy of the WWC Act in balancing the risk of harm to children on the one hand with the civil rights of an applicant on the other. It embodies the precautionary approach that I have mentioned.
Buss JA said the following in Grindrod at [84] - [87]:
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It is not the CEO's function (under s 12(4) [now s 12(5)]) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.
The critical question for the CEO under s 12(4) [now s 12(5)] is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in [Briginshaw v Briginshaw (1938) 60 CLR 336], that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. Compare M v M [(1988) 166 CLR 69] (at 76 - 78); Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (at 572 - 573) per Lord Browne-Wilkinson, dissenting; (at 576 - 577) per Lord Lloyd of Berwick, dissenting; [Murphy v Murphy [2007] FamCA 795] (at [243] - [305]) per Carmody J.
The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a) the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness); (b) the apparent strength or weakness of the case against the applicant in relation to the non-conviction charge in question; (c) the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and (d) the likelihood of any such future risk materialising. The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4) [now s 12(5)], there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be
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accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.
43 As Buss JA emphasised, the CEO (and the Tribunal on review) must
determine whether there is an unacceptable risk that an applicant might, in the future, cause sexual or physical harm to children if he or she were engaged in child-related employment having regard to all of the relevant information, including the circumstances of the non-conviction charge or charges, but also including relevant information not directly relating to the non-conviction charge or charges. As Supplementary President Justice Hall said in Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153 (Hardingham) at [36]:
It is clear that the Parliament made specific provision for the issuing of a negative notice in circumstances where the person to whom the notice issues has been charged but not convicted of a sexual offence against a child. The fact that the person has not been convicted, and the reasons why, may be relevant in considering whether 'the particular circumstances of the case' are sufficient to satisfy the CEO that a negative notice should issue. However, all of the relevant circumstances must be considered, not only those directly relating to the non-conviction charge or charges.
Is the Tribunal satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant?
44 The issue for determination in this review is whether, on all of the
information now before the Tribunal, there is an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment: Grindrod at [85]. In considering whether such a finding should be made, the Tribunal must have regard to each of the criteria listed in s 12(8) of the WWC Act, including, in particular, the paramount consideration of the best interests of children.
45 We will address the criteria in paragraphs (b) - (g) first, followed by
the paramount consideration of the best interests of children in
paragraph (a).46 Having regard to all of these criteria, on all of the information now
before the Tribunal, we consider that there is an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment. We are, therefore,
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satisfied that, because of the particular circumstances of the case, a
negative notice should be issued to the applicant.
'When the offence was committed or is alleged to have been committed'
(s 12(8)(b) of the WWC Act)
The Class 2 offences were allegedly committed in January 1998, over 15 years ago. However, the second reading speech in relation to the Working with Children (Criminal Record Checking) Amendment Bill 2009 (WA) states, relevantly, as follows:
It is the Government's intention that, even when an offence against a young person took place many years ago, the passage of time without further charges or convictions will not be sufficient to issue an assessment notice if a repetition of the type of behaviour would result in significant harm to a child.
(Western Australia, Parliamentary Debates, Legislative Assembly, 5 May 2010 (AJ Simpson, Parliamentary Secretary) at page 2475).
48 Furthermore, although the Class 2 offences were alleged to have
been committed over 15 years ago, the alleged crimes were crimes of, and involved, violence towards a teenage girl, and the applicant's subsequent convictions and charges for assault and other violence reflects a continuing course of conduct and pattern of behaviour involving violence towards vulnerable people, generally women and, in one case, an older man. A common theme in the applicant's alleged and proven offending is his abuse of alcohol and subsequent violence directed against vulnerable people. In our view, this has the effect that, although alleged to have been committed over 15 years ago, the Class 2 non-conviction charges remain significant.
'The age of the applicant when the offence was committed or is alleged to
have been committed' (s 12(8)(c) of the WWC Act)
49 The applicant was 27 years old at the time of the alleged Class 2
offences. He was almost double the age of the complainant and the complainant's friend. The applicant was, therefore, a mature man when he is alleged to have committed the offences.
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'The nature of the offence and any relevance it has to child-related work'
(s 12(8)(d) of the WWC Act)
50 The Class 2 non-conviction charges are highly relevant to
child-related work. The nature of the alleged offences involved serious
sexual harm to children.
'The effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to the conduct the subject of - (i) any offence committed by the applicant or (ii) any charge against the applicant' (s 12(8)(e) of the WWC Act)
51 Plainly, if future conduct were the same or similar to the conduct the
subject of the Class 2 non-conviction charges, the effect on children
would involve significant harm.
'Any information given by the applicant in, or in relation to, the
application' (s 12(8)(f) of the WWC Act)
The applicant made two submissions to the CEO of the Department, the first on 14 February 2013 and the second on 29 April 2013.
On 4 June 2013, Deputy President Judge Sharp made the following
order:
If any party proposes to give evidence or call any witness, including any expert, to give evidence at the hearing it must by 8 July 2013 file with the Tribunal a signed statement of the witness's evidence and give a copy of the statement to the other parties.
54 The applicant did not file any witness statement by himself or by any
other witness by 8 July 2013 or subsequently. With the consent of the Department, the Tribunal invited the applicant, on a number of occasions during the hearing, to give oral evidence, on oath or affirmation, as to the truthfulness of factual statements made in his submissions and as to any other matter he considers relevant. The Tribunal pointed out to the applicant that the absence of evidence by him would affect the weight that the Tribunal can give to factual statements in his submissions, although the Tribunal also pointed out to the applicant that if he chooses to give evidence then the Department's counsel would be entitled to cross-examine him in relation to any matter relevant to the Tribunal's assessment on review. The applicant elected not to give evidence.
55 In his first submission, the applicant said that the Class 2
non-conviction charges were 'exaggerated and I assure you that it never happened to the extent that the judge threw out the case simply because
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the complainants kept running whenever they were brought to court' and that 'there was no credible information or substance for the case to proceed'. In his second submission, the applicant said:
Non Conviction charges for aggravated sexual penetration without consent never happened simply because the girl lied to me about her age; she was in possession of alcohol and claimed that it was her sixteenth birthday. In all seriousness, she came in the car voluntarily and this happened over the [sic] years ago. Honestly I do not see the point of hanging on such illogical and irrelevant allegations which are detrimental to my future pursuits. Additionally, these incidents took place over a decade ago and to make it even stronger, I was not convicted.
In his second submission, the applicant also said:
Let me defend myself by saying that the girl did not tell me her exact age that she was under the legal age of consent and I do not take delight in this kind of inconveniences in my life. This mushroomed as a surprise to me when they fabricated the case in line with their ulterior motives. I repeatedly went to court for over two years for this [sic] unfounded and baseless accusations until they were thrown out due to lack of credibility. The case had no substantial evidence to deem it meritorious.
57 Although the fact that the applicant was acquitted is relevant, the
jury, which had already been empanelled, was directed by the trial judge to acquit him because the prosecution was unable to call the complainant. As noted earlier, the complainant had attended to give evidence at the trial on the two prior occasions when it was listed to take place. On both occasions, the trial was adjourned because of the absence of the complainant's friend. As also noted earlier, the complainant raised concerns about going ahead with the case without her friend and did not attend the third scheduled trial date after the complainant's friend had failed to attend on the two previous occasions (and had subsequently committed suicide). Although it would be generally expected that a trial would be adjourned on the first occasion that a complainant did not attend to give evidence, in this case the adjournment was refused having regard to the two prior adjournments caused by the complainant's friend's absence. Furthermore, significantly, the prosecution had unsuccessfully applied on two occasions for the complainant to be permitted to give pre-recorded evidence.
58 The prosecution case against the applicant was strong, because of the
sworn statements of the complainant, the sworn statements of the complainant's friend which described the abduction and sexual assaults in similar terms to the complainant, the medical evidence and the forensic evidence. The medical evidence strongly suggested that the complainant
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had been subjected to forceful (and non-consensual) intercourse. The forensic evidence showed that the applicant's sperm was on the inside of a used condom while his co-accused's sperm was on the outside. This was consistent with the complainant's evidence that she had been raped by the co-accused before she was raped by the applicant. However, in the absence of the complainant, the prosecution could not rely on the strongly corroborating medical and forensic evidence. Furthermore, although it was unclear whether the prosecution was aware of the complainant's friend's death at the time of the third scheduled trial date, she was not alive to give evidence.
59 There is no satisfactory evidence before the Tribunal that the
complainant lied to the applicant about her age, that she did not tell him about her exact age, that she was under the legal age of consent, that she claimed it was her sixteenth birthday or that she came into the car voluntarily. Indeed, the sworn statements of the complainant and the complainant's friend are inconsistent with the assertion that the complainant went along voluntarily, and there was strong evidence that (even if she could consent), the complainant did not consent and was forcefully raped. The period of time that has elapsed since the allegations the subject of the non-conviction charges was addressed earlier in these reasons under s 12(8)(b) of the WWC Act.
60 In his first submission, the applicant said that his convictions for
assault and other offences in 2000, 2005 and 2008 '… resulted from people confronting me at my place of residence especially the father of my ex fiancée and my exgirlfriend's [sic] friend', and said 'I defended my self [sic] from these people inline [sic] with their aggression when they came to my place due to their emotional attachment to the women I was living with at the time'. In his second submission, the applicant said that 'the 2000 and 2007 incidents occurred simply in the name of self-defense [sic] as I was not the aggressor and never will i [sic] be' and 'the 2007 incident was brought about by [my] ex-girlfriend's friend coming to attack me at my place of residence'.
61 However, these assertions are fanciful in light of his plea of guilty
and the sworn statements of the applicant's de facto wife and her father in relation to the incident in 2000, his convictions in relation to the incidents in 2004 and 2007, and the fact that the incident in 2004 occurred at a train station, not at his place of residence.
62 In his first statement, the applicant said that '… it came to my
attention that I had alcohol problems so I went for counselling at Thornlie
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alcohol and drug counselling centre with Dawn as my case worker which took six weeks'. He also said that 'I have abstained from alcohol abuse and changed my behaviour because it is detrimental to future pursuits and health'. However, the applicant produced no satisfactory or supporting evidence as to when this counselling occurred or what it entailed. Furthermore, the evidence shows that the applicant has had a history of alcohol abuse contributing to threatening and physically abusive behaviour to other people. He has four convictions for driving under the influence of alcohol with a blood alcohol level of greater than 0.08 g/100ml, most recently in June 2012 and in July 2012. There is no credible evidence before the Tribunal that the applicant has abstained from alcohol abuse or changed his behaviour.
63 In his first submission, the applicant said that he has three children,
one boy and two girls, and in his second statement he said that 'to my mind, Iam [sic] a man of high moral character, integrity as well as ethically equipped having completed my studies and this is what i [sic] am instilling in my biological children'. In his second submission, the applicant said that 'I have two daughters whom i [sic] am raising and I have a religious grounding to bring strong girls of my own'. Curiously, he also said in his second submission that 'I share my bed with my biological children and that does not lead to sexual malpractices'.
64 There is no evidence, other than his assertion, that the applicant is 'a
man of high moral character, integrity as well as ethically equipped'. His criminal record and the Tribunal's reasonable suspicion that he acted in the manner alleged in the non-conviction charges, or at least in a manner which was entirely inappropriate and unacceptable in relation to a 15-year-old child, speaks strongly to the contrary. As noted earlier, the applicant's de facto wife gave a sworn statement in relation to the incident in 2000 that, when the applicant's son was 10 months old, he was 'swinging the baby around' and 'was holding him upside down' and 'hurting him'. Although we note that there is no evidence that the applicant has harmed his daughters, for reasons set out in relation to the best interests of children under s 12(8)(a) of the WWC Act below, we consider that the best interests of children requires the issue of a negative notice to him.
65 Finally, in his second submission, the applicant said that he should
be granted a WWC card 'so that I utilize [sic] my special credentials which I have achieved through extensive tertiary studies over three years precious critical time', he is 'the absolute best tutor' and wishes to be able to work as a tutor 'to have a better life for my children and to fit in society
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instead of being perceived as a social misfit because I cannot apply my
credentials'. However, as Buss JA said in Scott at [109]:… The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account.
'Anything else that the CEO reasonably considers relevant to the decision'
(s 12(8)(g) of the WWC Act)
66 The Department has records of two domestic violence incidents, in
February 2011 and in July 2011, in which the applicant has allegedly been verbally and physically abusive to his wife in the presence of her 16-year-old daughter. The reports of both incidents refer to abuse of alcohol by the applicant and associated violent behaviour. Although the applicant has not been charged in relation to these alleged incidents, they provide some further indication of the pattern of behaviour and course of conduct disclosed in any case by the other evidence.
'The best interests of children' (s 3 and s 12(8)(a) of the WWC Act'
67 As noted earlier, s 3 of the WWC Act states that the best interests of
children is 'the paramount consideration'. We consider that, on all of the information now before the Tribunal, there is an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment. We have come to this view for the following reasons.
68 First, there is, in our view, a reasonable suspicion that the applicant
acted, if not in the manner alleged in the non-conviction charges, then at least in a manner which is entirely inappropriate and unacceptable in relation to children. While he was acquitted on all charges, as we found earlier, the case against him was strong. The prosecution did not proceed because of the absence of the complainant, and her absence was, in the circumstances, reasonably explicable. While her evidence was not tested at trial, it was strongly corroborated by the statement of her friend, the medical evidence and the forensic evidence. Furthermore, the applicant did not in fact deny that he had sexual intercourse with the complainant, asserting in his second submission that the non-conviction charges 'never
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happened simply because the girl lied to me about her age; she was in possession of alcohol and claimed that it was her 16th birthday' and 'she came in the car voluntarily'. There is at least a reasonable suspicion that the applicant had forceful and non-consensual sexual intercourse with a 15-year-old girl.
69 Furthermore, and in any case, there is a reasonable suspicion that the
applicant acted in an entirely inappropriate and unacceptable manner in relation to children. As found earlier, the photographs taken by police show that the complainant clearly looked like a young teenager at the time of the alleged offences. There is at least a reasonable suspicion that the applicant, together with his friends, forced the two young teenage girls into a car, provided them with alcohol, and kept them forcibly in his unit overnight, and that the applicant slept in the same bed as the complainant. Even this reasonable suspicion is sufficient, in our view, for a finding that there is an unacceptable risk that the applicant might, in the future, cause sexual or physical harm to children in the course of carrying out child-related employment.
70 Secondly, the applicant has demonstrated absolutely no insight into
how utterly inappropriate and unacceptable it is for a 27-year-old man to have sexual intercourse with a 15-year-old girl (putting aside whether it is non-consensual). He characterised the allegations of serious sexual crimes against a child as 'inconveniences' in his life and as 'irrelevant' to his application for a working with children card. As Hall J noted in Hardingham at [161]:
I note that the question is whether children would be exposed to an unacceptable risk of sexual or physical harm, not whether the applicant would commit a sexual offence. In these circumstances, it is relevant to take into account that harm may occur inadvertently because a person misunderstands or fails to appreciate social norms and interpersonal boundaries. Harm may occur to children in such circumstances even though the perpetrator did not intend to commit an offence. This is a relevant consideration in respect of the applicant. Even if his own accounts and explanations for his conduct were accepted they display a very marked lack of appreciation of the inappropriateness of that conduct and the risks of harm that are attendant on such conduct.
71 Thirdly, the applicant's charges and convictions over a 15 year
period, from his late 20s to his early 40s, demonstrate a course of conduct and pattern of behaviour of violence directed by a mature man towards vulnerable people, often fuelled by abuse of alcohol.
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72 While none of the charges (other than then non-conviction charges in
respect of the Class 2 offences) or convictions specifically relate to causing harm to children, the sworn statement of his de facto wife in relation to the offence in 2000, to which the applicant pleaded guilty, evidences that he hurt his own child when he was intoxicated and was verbally and physically abusive to his de facto wife and her father. Furthermore, there is evidence of two domestic violence incidents in 2011 in which the applicant is alleged to have assaulted his wife in the presence of her 16-year-old daughter while intoxicated.
73 Given the precautionary approach of the legislation and the
paramount consideration of the best interests of children, the information before the Tribunal demonstrates that there is an unacceptable risk that the applicant might, in the future, abuse alcohol and become violent towards children in the course of carrying out child-related employment.
Conclusion
74 We consider that there is an unacceptable risk that the applicant
might, in the future, cause sexual or physical harm to children if engaged in child-related employment. We are, therefore, satisfied that, because of the particular circumstances of the case, a negative notice should be issued to him.
| Orders |
The Tribunal makes the following orders:
1. The application for review is dismissed. 2. The decision made by the Chief Executive Officer of the respondent on 5 April 2013 to issue a negative notice to the applicant is affirmed.
I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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