Secretary to the Department of Justice and Regulation v LLF
[2018] VSCA 155
•18 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0105
| SECRETARY TO THE DEPARTMENT OF JUSTICE AND REGULATION | Applicant |
| v | |
| LLF (a pseudonym)[1] | First Respondent |
| and | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the first respondent. See n 2 below.
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| JUDGES: | BEACH, McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 May 2018 |
| DATE OF JUDGMENT: | 18 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 155 |
| JUDGMENT APPEALED FROM: | [2017] VCAT 1371 (Judge Harbison, Acting President) |
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ADMINISTRATIVE LAW – Working with Children Act 2005 (Act) – Application for assessment notice – Application ‘category A application’ owing to convictions for rape – Secretary required to refuse category A applications – VCAT empowered to decide category A applications – VCAT jurisdiction dependent on rape convictions – Whether VCAT finding that offender did not perpetrate rapes inconsistent with rape convictions – Whether VCAT found convictions based on mere presence during rapes – Whether VCAT confined consideration of public interest to single factor – Working with Children Act 2005 ss 12(1)(e), 12(2), 26A(1), 26A(3), 26A(4), 26A(5) applied – Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C J Horan QC with Ms K M Evans | Working With Children Check Unit, Department of Justice and Regulation |
| For the First Respondent | Ms C M Harris QC with Ms G Cafarella | Victoria Legal Aid |
BEACH JA
McLEISH JA
NIALL JA:
The first respondent LLF[2] wishes to work as a youth worker assisting children in residential care. To that end, on 6 September 2016 he applied under s 10 of the Working with Children Act 2005 (the ‘Act’) to the applicant (the ‘Secretary’) for a working with children check to be carried out and an assessment notice given to him.
[2]The first respondent applied without objection for an order that he be identified by pseudonym, given that he had offended only as a child. The Court indicated at the hearing that it would make such an order, and an order directing that access to the Court file be permitted only to the extent that any document identifying the name of the first respondent, the victim of the offending or any other child offenders was redacted in that respect. The Open Courts Act 2013 is not concerned with orders concealing identity or prohibiting or restricting access to court files; such orders are made in the exercise of the Court’s inherent jurisdiction: Secretary, Department of Justice and Regulation v Zhong [No 2] [2017] VSCA 19 [3] (Santamaria, Ferguson and McLeish JJA).
A police record check on LLF revealed, among other things, that in 1994 he had been convicted in the Melbourne Children’s Court of five counts of rape. As a result of these convictions, LLF’s application was a ‘category A application’ under s 12 of the Act, which the Secretary was required to refuse. Accordingly, on 28 September 2016, a delegate of the Secretary gave LLF a ‘negative notice’ refusing him an assessment notice.
LLF then applied to the the second respondent (the ‘Tribunal’) under s 26A of the Act for an order directing that he be given an assessment notice. The Secretary opposed the application.
On 29 August 2017, the Tribunal, constituted by the acting President, granted the application and ordered the Secretary to issue an assessment notice to LLF.[3]
[3]LLF v Secretary to the Department of Justice and Regulation [2017] VCAT 1371 (‘Reasons’).
The Secretary now seeks leave to appeal from the decision of the Tribunal on questions of law pursuant to s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998.
Provisions of the Act
Section 12 of the Act relevantly states:
12 Category A application
(1)An application is a category A application for the purposes of this Act if it is in respect of a person—
…
(e)who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category A offence other than an offence specified in clause 1 or 2 of Schedule 1.
(2)The Secretary must refuse to give an assessment notice on a category A application.
LLF’s convictions for rape, an offence against s 38 of the Crimes Act 1958, are convictions for a ‘category A offence’ under sch 1 cl 5 of the Act. As a result, LLF’s application for a working with children check was a ‘category A application’ under s 12(1)(e) of the Act, which the Secretary was required to refuse under s 12(2).
Section 26A of the Act empowers the Tribunal to hear applications for working with children checks that have been refused by the Secretary pursuant to s 12(2). As in force at the time of LLF’s application to the Secretary, it relevantly stated:
26A Jurisdiction of VCAT—category A
(1) A person who has been given a negative notice—
(a)on a category A application (other than a person referred to in paragraph (a), (b) or (c) of section 12(1)); or
…
may apply to VCAT for an assessment notice to be given to him or her.
…
(3)VCAT must not make an order for the giving of an assessment notice on an application under subsection (1) unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children, having regard to—
(a)the nature and gravity of the offence and its relevance to child-related work; and
(b)the period of time since the applicant committed the offence; and
(c)whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and
(d)the sentence imposed for the offence; and
(e)the ages of the applicant and of any victim at the time the applicant committed the offence; and
(f)whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and
(g)the applicant's behaviour since he or she committed the offence; and
(h)the likelihood of future threat to a child caused by the applicant; and
(i)any information given by the applicant in, or in relation to, the application; and
(j)any other matter that VCAT considers relevant to the application.
(4)For the purposes of subsection (3), in satisfying itself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT must be satisfied that—
(a)a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any type of child-related work; and
(b)the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
(5)If, in accordance with this section, VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give the assessment notice to the applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.
LLF’s application in the Tribunal
LLF’s convictions for rape
In 1994, when LLF was 16 years old, he pleaded guilty in the Melbourne Children’s Court and was convicted of five counts of rape contrary to s 38 of the Crimes Act 1958 and two counts of intentionally or recklessly causing serious injury contrary to s 18 of that Act. The conduct that gave rise to these convictions occurred on 27 and 28 June 1994, when LLF was 15 years old.
The Tribunal accepted LLF’s account of the offending, which involved three co-offenders. The offending and LLF’s decision to plead guilty are described in the Tribunal’s reasons as follows:[4]
[4]Reasons [16]–[21].
The four boys visited another boy’s home and over the course of two days [LLF] was involved with them in several physical and sexual assaults directed towards a fourteen year old boy who was present in that home, and who was virtually imprisoned by them at the property.
The other boys, including [LLF], were each around fifteen years old.
The physical and sexual assaults which were committed over that period of two days were horrific. The boy’s head was shaved. He was anally raped with several everyday items. He was brutally kicked and punched.
[LLF] admits that he kicked and punched the boy on several occasions. However, he says that he did not physically take part in any of those sexual incidents. He agreed that [he] may have collected some household items for use by the other boys perpetrating the rapes, but he gave emphatic evidence that he did not physically participate in any of the rapes. He has given a consistent account of this level of involvement from the time he was charged.
He recalls sitting on the couch telling jokes and laughing with his friend while these crimes were committed. He said that he was doing this to try to distract himself from the sexual crimes that were being inflicted on the boy. He was terrified that if he protested about the rapes, he would be treated in the same way.
[LLF] was ultimately charged together with the other boys with five counts of rape and two charges of inflicting injury by kicking. He said that his options as explained by his lawyer at that time were that he could plead guilty to the rapes in the Children’s Court and complete a 42 week Youth Attendance order, or plead not guilty and defend the charges in a jury trial in the County Court. He describes himself as being young and scared and so he decided to plead guilty, even though he had not physically participated in the rapes. He also took into account in rejecting the not guilty option that this would mean that the victim would need to relive the experience in giving evidence against him. He thought the victim had suffered enough and did not want to prolong his humiliation.
The parties’ submissions in the Tribunal
LLF submitted to the Tribunal that it should be satisfied that he posed no unjustifiable risk to the safety of children. He submitted that he was not the primary perpetrator of the rapes for which he was convicted in 1994, that he had maintained that position consistently since two weeks after the offences occurred, and that these convictions and others in 1994 (see [17] below) were explained by the circumstances of his upbringing, and were for offences he had committed as a child.
Before the Tribunal, LLF gave evidence about his childhood, the facts of which are not in dispute. The Tribunal described his childhood as ‘one of the most difficult upbringings imaginable’.[5] Among other things, it set out the following details:[6]
[5]Reasons [1].
[6]Reasons [1]–[3], [8]–[11].
From the time that he was about four years of age, he was cruelly abused by his mother, and by his mother’s same-sex partner.
Although he has tried to shut it out, he still remembers cruelty and abuse on an horrific scale. He remembers his mother’s partner abusing his and his sister’s pets. He recounts how on one occasion the partner drowned his sister’s cat by requiring the girl to hold her hands around the neck of the cat whilst it drowned in a bucket of water.
[LLF]’s mother had a significant mental illness. She told him often that she didn’t want him. She would frequently beat him. She attempted to strangle him on one occasion. She would cut her own body with a pocket knife till she bled in the presence of the boy. She would tell him wild and terrifying tales about daemons. She would slice her own body whilst her body was positioned over the top of him as he slept. On one occasion he woke up in the middle of the night soaking wet with his mother’s blood from this activity.
…
His father was never mentioned by any family member, and he still has no information about him.
He was first taken into foster care when he was 10 years old. Given the events which I have described, it is not surprising that he had many placement problems during that fostering. Between 1988 and 1992 he details fifteen different foster accommodations, all of a temporary nature. He says that this very frequent change of accommodation was required because he would get very angry towards his carers and would often become uncontrollable. He describes himself as being very unhappy for most of his youth as he felt he never belonged anywhere.
He left school at year 10 in December 1993 when he was aged 15. In the early part of that year he lived at a boys home in St Kilda. This was his only significant opportunity to make friends but he never felt that he fitted in with the others in this accommodation.
By that time he had been before the Children’s Court of Victoria on many occasions for offences such as assaults, intentionally and recklessly causing injury and other similar unruly behaviour. He says that that behaviour arose because of his appalling start in life, and this is reflected in the fact that this offending was in the main dealt with by nonconviction dispositions or probation periods.
LLF pointed the Tribunal to the fact that he had not been convicted of any offence since 1994 — a period of approximately 23 years. He relied on four character references and a report from a clinical and forensic psychiatrist as showing that he had been successfully rehabilitated, had built a normal life in the community and was at very low risk for further reoffending of any kind. LLF also submitted that he was remorseful and took his prior conduct very seriously, and that he had taken positive steps to manage his mental health over the years, beyond the rehabilitation required as part of the youth attendance order imposed in respect of the rape convictions.
LLF submitted before the Tribunal that he had completed most of the assessments for his qualification as a youth worker (other than the practical component, which required the assessment notice under the Act) and that he was committed to using his own negative life experiences to improve the lives of young people.
Before the Tribunal, the Secretary submitted that when LLF’s convictions for rape and his prior and subsequent behaviour were taken into account, the Tribunal could not be satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children.
The Secretary further submitted that the Tribunal could not ‘go behind’ the rape convictions and accept LLF’s evidence that he was not the main perpetrator, as the fact that he was convicted of the rapes demonstrated that he was a participant in them.
The Secretary relied on additional conduct of LLF, prior to the rapes, which gave rise to convictions in 1994 in the Children’s Court for assault, criminal damage, intentionally or recklessly causing injury and reckless conduct endangering serious injury. In particular, the Secretary relied on an incident that occurred when LLF was 15 years old, during which he grabbed a residential care worker by the throat in the course of an argument and punched another worker.
The Secretary also noted that, as an adult, LLF had been involved in two serious incidents that showed he had a ‘predilection for reacting violently when provoked by minor upsets’.[7] In 2006 LLF had an argument with his partner, grabbed him around the neck and forced him out of the house. LLF’s partner called the police and a restraining order was taken out against LLF for 12 months. No charges were laid. On another occasion, in an argument between LLF and a colleague, LLF grabbed the colleague around the neck and attempted to choke him.
[7]Reasons [71].
The Tribunal’s decision
The Tribunal found that, while LLF maintained that he was not physically involved in perpetrating the rapes, he nevertheless took full responsibility for his role in the offending, including having kicked and punched the victim. (LLF had also admitted to having helped shave the victim’s head.) The Tribunal found that there was no persuasive evidence that LLF had physically assisted in the rapes and accepted LLF’s evidence that he had not done so.[8] The Tribunal stated that it was persuaded:[9]
by the evidence of [LLF] that he was not a perpetrator of any of the anal rapes, although of course this does not mean that he did not bear significant moral responsibility for allowing these disgraceful crimes to occur.
[8]Reasons [92]–[93].
[9]Reasons [95].
The Tribunal, acknowledging that the Secretary had made detailed submissions on each of the factors to be considered under s 26A, found the most compelling matter telling against giving LLF an assessment notice was ‘the seriousness of the offending and the nature of the crime of rape as directly relevant to childcare work’.[10] However, the Secretary had not suggested that LLF posed a sexual risk to the safety of children. Rather, the Secretary’s submissions had suggested LLF posed a risk of violence because of his earlier convictions and incidents that occurred when he was an adult.[11]
[10]Reasons [96]–[97].
[11]Reasons [100].
The Tribunal found that these offences of violence were explained by LLF’s hardship as a child, and that such offending had ceased after his rehabilitation following the Children’s Court order. As to the later incidents, the Tribunal found that they were of a different character entirely and did not show that LLF posed an unacceptable risk to the safety of children.[12]
[12]Reasons [101]–[102].
The Tribunal, having ‘weigh[ed] each one of the factors argued’, formed the view that:[13]
a reasonable person, knowing all of the history of [LLF], would allow him to have unsupervised access to children. It would also be in the public interest for a man such as [LLF], who has faced extreme deprivation as a child, to be able to use his life skills for the benefit of disadvantaged children in this community, particularly the cohort of children who have experienced similar rejection and have turned to crime.
[13]Reasons [102]–[103].
The Tribunal allowed the application and ordered the Secretary to give an assessment notice to LLF.
Questions of law and grounds of appeal
The Secretary seeks leave to appeal from the orders of the Tribunal on the following questions of law:
A.Did the Tribunal err by making findings of fact that were inconsistent with the First Respondent’s conviction of five counts of rape contrary to s 38 of the Crimes Act 1958, and relying on those findings in determining that the First Respondent would not pose an unjustifiable risk to the safety of children?
B.Did the Tribunal fail to perform its statutory task under s 26A(5) of the Act, in that it confined its consideration of whether it was in the public interest for the Tribunal to direct the Applicant to give the First Respondent an assessment notice to a single factor and, in doing so, failed to form the requisite state of satisfaction on the basis of ‘all the circumstances’?
The Secretary’s proposed grounds of appeal are as follows:
Ground 1: As to Question A:
(a) The First Respondent had pleaded guilty to, and been convicted of, five counts of rape.
(b) The Tribunal found at [92] that the First Respondent did not physically assist in any of the rapes and found at [95] that the First Respondent was not a perpetrator of any of the anal rapes.
(c) These findings were inconsistent with the charges of rape to which the First Respondent pleaded guilty, and of which the First Respondent was convicted.
(d) In determining whether the First Respondent would pose an unjustifiable risk to the safety of children, the Tribunal erred by taking into account findings that were inconsistent with the First Respondent’s guilty pleas and convictions.
Ground 2: As to Question B:
(a) The Tribunal found at [103] that it would be in the public interest for a man who has faced extreme deprivation as a child to be able to use his life skills for the benefit of disadvantaged children in the community.
(b) The Tribunal erred by failing to perform its statutory task under s 26A(5) of the Act, in that:
(i) the Tribunal confined its consideration of whether it was in the public interest for the Tribunal to direct the Applicant to give the First Respondent an assessment notice to a single factor; and
(ii) the Tribunal failed to consider the Applicant’s argument that, even if the Tribunal found that the First Respondent did not pose an unjustifiable risk to the safety of children, the Tribunal should find that it would not be in the public interest for a man with LLF’s offending history and an admitted short temper to be permitted to work with children who may themselves have volatile temperaments and be in particular need of protection.
Ground 1: Findings of fact inconsistent with rape convictions
The parties’ submissions
The Secretary accepted that it was appropriate for the Tribunal to hear evidence about the circumstances leading to LLF’s rape convictions in order to consider factors relevant to its determination, for example, the nature and gravity of the offences and their relevance to child-related work. However, he submitted that the Tribunal was not permitted to rely on that evidence to make findings of fact inconsistent with the essential factual basis of LLF’s convictions or to rely on findings of that kind to determine LLF’s potential risk to the safety of children.
The Secretary submitted that the Tribunal’s jurisdiction to determine LLF’s application under s 26A of the Act was enlivened as a result of his convictions for rape.[14] The Secretary submitted that, by making the findings it did, the Tribunal impermissibly impugned the very convictions that founded its authority to determine LLF’s application,[15] which was an error of law.[16]
[14]This was to be distinguished from cases in which a conviction was merely a relevant matter to be taken into account: Saffron v Commissioner of Taxation (Cth)) (1991) 30 FCR 578 (‘Saffron’); Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 (‘Ali’); Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474.
[15]Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, 240–1 [25]–[34], 244 [45] (Branson, Lindgren and Emmett JJ) (‘SRT’); Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 (‘Daniele’); Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441, 449 (Fox J), 465–9 (Sheppard J) (‘Gungor’); Ali (2000) 106 FCR 313, 317–18 [14]–[16], 325 [42] (Branson J).
[16]Gungor (1982) 63 FLR 441, 450 (Fox J), 468–9 (Sheppard J).
The Secretary took issue, in particular, with the Tribunal’s finding that LLF ‘was not a perpetrator of any of the anal rapes, although … this does not mean that he did not bear significant moral responsibility’.[17]
[17]Reasons [95].
The Secretary submitted that the five counts of rape with which LLF was charged, and to which he pleaded guilty, were in the same form, the only difference being the nature of the object used to perpetrate the rape. One example was as follows:
The defendant at Doncaster on the 27th June 1994 did rape [the victim] in that you introduced an object not being part of the body to wit, a razor blade handle into the anus of [the victim].
The Secretary submitted that by pleading guilty to the rape charges, LLF formally confessed to every element necessary to constitute the offence.[18] Given the way the charge was formulated, the essential factual basis of LLF’s rape convictions was that he had physically participated in the rapes. The Secretary also pointed to material contemporaneous with LLF’s convictions in which he was said to have expressed remorse for not refusing to participate in the offending. It followed, in the Secretary’s submission, that the Tribunal erred in accepting that LLF’s conviction was based on aiding and abetting the principal offenders of the rapes rather than having participated in the offending himself.
[18]R v D’Orta-Ekenaike [1998] 2 VR 140, 146–7 (Winneke P, Brooking JA and Vincent AJA agreeing).
The Secretary further submitted that, even if the Tribunal was correct in accepting that LLF was convicted on the basis of aiding and abetting the principal offenders, it had erred in accepting that he could have been convicted on that basis by merely being present during the offending and failing to intervene. It was said that, at the least, LLF must have intentionally participated in the rapes by intentionally lending assistance and encouraging the other boys to sexually penetrate
the victim.[19]
[19]Crimes Act 1958 s 323; GAS v The Queen (2004) 217 CLR 198, 207 [19] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) (‘GAS’). The Secretary did not challenge a finding by the Tribunal that LLF agreed that he ‘may have collected some household items for use by the other boys perpetrating the rapes’ (Reasons [19]), but submitted that LLF’s evidence before the Tribunal was that he could not remember whether or not he had done so.
It followed, in the Secretary’s submissions, that the Tribunal’s finding that LLF was not a perpetrator of the rapes, and that his responsibility was limited to merely being present during the rapes and ‘allowing [them] to occur’,[20] was inconsistent with the essential factual basis of the convictions, and therefore impermissibly impugned those convictions.
[20]Reasons [95].
The Secretary submitted that the Tribunal had ‘watered down’ LLF’s conduct to such an extent that the rape convictions had been ‘set at nought’. As a result, the Tribunal was said to have fallen into error. Moreover, the Secretary submitted that the Tribunal expressed no awareness of the borderline between permissibly assessing the circumstances of the offending giving rise to the convictions and impermissibly making findings inconsistently with them.[21]
[21]Gungor (1982) 63 FLR 441, 449 (Fox J).
LLF accepted that a tribunal is not permitted to impugn the basis for its jurisdiction. He also accepted that his rape convictions were the basis for the Tribunal’s jurisdiction under s 26A of the Act. However, he submitted that the Tribunal’s findings did not impugn those convictions: the Tribunal was required to consider the full circumstances of the offending under s 26A(3)(a), which required an analysis beyond the description in the charges.
He submitted that s 323 of the Crimes Act 1958, in the form applicable at the time of the offending, provided for a person to be convicted on the basis of complicity even if that person had not participated in the physical acts constituting the offence. It stated:
A person who aids, abets, counsels or procures the commission of an indictable offence may be tried, indicted or presented as a principal offender.
LLF submitted that, under that provision, a person could be guilty as a principal if they were present and aided or gave encouragement, including by assisting or supplying the instrument for a crime, even if they did not commit the physical acts constituting the actus reus of the offence.
LLF submitted that, although there was a paucity of material relating to his conviction and sentence in 1994, some contemporaneous materials demonstrated that he was sentenced on the basis of complicity. These included:
· a psychological report from 3 November 1994 (the day before LLF’s guilty plea), stating that its writer had been given information that ‘[LLF] was allegedly involved in aiding and abetting the main perpetrator’;
· a Department of Health and Community Services (‘DHCS’) progress report dated 28 November 1994 that stated that LLF ‘was disgusted by what was done to the victim’ but that he ‘did not stop or refuse to participate as he was afraid that he [would] be targeted by the group. [LLF] admitted that he became involved … but claims that he was not the main instigator of the cruel acts performed on the victim’; and
· DHCS notes dated 5 July 1994 stating that ‘[LLF’s co-accused] is alleged to be the instigator and main offender’.
LLF submitted that there was no evidence before the Tribunal that the Children’s Court had convicted him on the basis that he had physically committed the actus reus of the offences of rape and such evidence was not an essential factual basis for the convictions. He also submitted that there was no procedural or other requirement that the charges or convictions defined whether the accused had participated in the physical acts of the offence himself or had aided or abetted the principal perpetrator.
Further, LLF submitted that the Secretary’s characterisation of the Tribunal’s finding, that, in effect, LLF was ‘merely present‘ during the rapes, was incorrect. He submitted that the language used in the Tribunal’s reasons, that he ‘was not a perpetrator of any of the anal rapes’, ought to be read in the context of the decision as a whole, which both acknowledged the centrality of the rape convictions to the application before it,[22] and included findings that LLF ‘was involved … in several physical and sexual assaults’,[23] ‘had taken full responsibility for his criminal actions in respect of the rapes’,[24] and ‘finds it very difficult to come to terms with his involvement in these series of events’.[25]
[22]Reasons [23].
[23]Reasons [16].
[24]Reasons [92].
[25]Reasons [22].
LLF further submitted that the act of sitting on a couch only a few metres from the rapes and laughing with a friend (albeit not about the rapes) could constitute encouragement for the purposes of the law of complicity. If, as the Tribunal had found, LLF may have helped obtain some of the household items used in the rapes, and if he had failed to release the victim from the house when they were alone together, this was further evidence of his assistance in the offending.
LLF submitted that the reference in the Tribunal’s reasons to his ‘moral responsibility’ did not detract from its clear acknowledgments of his criminal responsibility for the offending.
Analysis
The parties were agreed as to the applicable legal principles. The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for
a purpose other than impugning the conviction itself.[26] In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[27]
[26]SRT (1999) 91 FCR 234, 240 [25], 244 [40], 245 [46] (Branson, Lindgren and Emmett JJ); Daniele (1981) 61 FLR 354, 358 (Fisher and Lockhart JJ); Gungor (1982) 63 FLR 441, 445–6 (Fox J), 468–9 (Sheppard J); Ali (2000) 106 FCR 313, 325 [42] (Branson J).
[27]Ridley v Secretary, Department of Social Security (1993) 42 FCR 276, 281–3 (Spender, Gummow and Lee JJ); Saffron (1991) 30 FCR 578, 582 (Davies J), 589–92 (Lockhart J); Ali (2000) 106 FCR 313, 325 [43] (Branson J).
It was accepted by both parties that the present case falls into the former category, because both the Secretary’s decision under s 12(2) of the Act and the Tribunal’s jurisdiction under s 26A depended upon the existence of the convictions which rendered LLF’s application a ‘category A application’.
The question for decision is therefore whether the Tribunal made findings that were inconsistent with the essential factual basis of LLF’s convictions.
In our view, nothing in the Tribunal’s reasons is inconsistent with acceptance of LLF’s convictions for rape. First, the form of the charge is not determinative. As noted above, s 323 of the Crimes Act 1958 provided at the relevant time that a person who aids, abets, counsels or procures the commission of an indictable offence could be tried, indicted or presented as a principal offender. Nothing therefore turns on the charge alleging that ‘the defendant … did rape‘ or that ‘you [ie LLF] introduced an object … into the anus of’ the victim.’[28]
[28]Giorgianni v The Queen (1985) 156 CLR 473, 497 (Wilson, Dawson and Deane JJ) (‘Giorgianni’) (albeit that their Honours deprecated as undesirable the failure to make clear that a charge is brought on the basis of complicity).
Secondly, read in context, the Tribunal’s statement to the effect that LLF was not a perpetrator of the rapes meant that he was not the person who performed the physical acts of rape, not that he bore no legal responsibility for those acts. Similarly, the Tribunal’s reference to LLF’s ‘moral responsibility’ is not to be read as excluding legal responsibility. The Tribunal was not treating LLF as a person who had pleaded guilty for merely pragmatic reasons or had been incorrectly convicted of the rapes. Nor did LLF argue to that effect. The Tribunal made repeated reference to LLF as an offender and to his sense of responsibility and remorse, and identified ‘the seriousness of the offending’ as a ‘compelling’ consideration.[29]
[29]Reasons [97].
Thirdly, LLF’s evidence of the circumstances of the offending, as accepted by the Tribunal, was consistent with his guilt of the offences of rape as an aider and abettor. The Tribunal described LLF as having been ‘involved with [the other boys] in several physical and sexual assaults’ of the victim ‘who was virtually imprisoned by them at the property’.[30] LLF was present during the sexual offending and the Tribunal appears to have accepted that he may have assisted in locating objects with which that offending took place. He was physically proximate to the offending and did nothing to stop the rapes, instead laughing with a friend on a couch (albeit, he said, this was to distract himself from the offending). These acts together amounted to aiding and abetting by encouraging or assisting the rapes.[31]
[30]Reasons [16].
[31]GAS (2004) 217 CLR 198, 207 [19], citing Giorgianni (1985) 156 CLR 473, 506 (Wilson, Deane and Dawson JJ).
Next, contrary to the Secretary’s submissions, the Tribunal did not effectively find that LLF had merely been present at the rapes so as to lack the intention required to have aided and abetted the rapes.[32] It is true that the Tribunal found that he had ‘allowed’ the rapes to occur, but the Tribunal also accepted that he felt remorse and fully responsible for what happened. LLF’s involvement, in the manner described, went beyond mere presence and was consistent with him having had the requisite intention to have been guilty of rape. In this way, the Tribunal’s findings did not ‘go behind’ the convictions or ‘set them at nought’.
[32]Ibid.
Finally, although not strictly necessary to decide, the Tribunal’s understanding of the facts is consistent with the position suggested by documents contemporary with both the offending and LLF’s guilty plea. Reference was made above to a psychological report dated the day before the guilty plea, referring to LLF as ‘aiding and abetting the main perpetrator’, and to departmental records showing that LLF disclaimed being the instigator and main offender from an early date (consistently with his evidence to the Tribunal).[33]
[33]See [37] above.
For the above reasons, while leave to appeal should be granted in respect of proposed ground 1, the ground must fail.
Ground 2: Failure to consider ‘all the circumstances’ in the public interest
The parties’ submissions
The Secretary submitted that the Tribunal had erred in law by failing to take into account whether, in all the circumstances, it was in the public interest to grant an assessment notice to LLF as required by s 26A(5) of the Act.[34] The Secretary submitted that the Tribunal had limited its consideration of the public interest to a single factor, namely that it was in the public interest for LLF to do work that would benefit disadvantaged children.[35] The Secretary submitted that the Tribunal’s narrow view of the matters it was required to take into account was an error of law in that it failed to perform its statutory task properly.[36] The Secretary also submitted that the failure of the Tribunal to deal properly with the public interest factors he had raised that weighed against granting the assessment notice amounted to a denial of procedural fairness.[37]
[34]Maleckas (LKQ) v Secretary to the Department of Justice (2011) 34 VR 23, 40 [92] (Kyrou J) (‘Maleckas’).
[35]Reasons [103].
[36]Maleckas (2011) 34 VR 23, 40 [92] (Kyrou J).
[37]See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] (Gummow and Callinan JJ), 1102 [95] (Hayne J); NABE v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] (2004) 144 FCR 1, 19 [60] (Black CJ, French and Selway JJ).
The Secretary submitted that s 26A requires the Tribunal to be satisfied of at least two matters before it can order the giving of an assessment notice. First, under sub-s (3) the Tribunal must be satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children, which in turn includes being satisfied of the matters set out in sub-s (4). Secondly, under sub-s (5), it may only order the giving of an assessment notice if it is also satisfied, in all the circumstances, that it is in the public interest to do so. In other words, s 26A(5) contemplates that public interest considerations may justify the rejection of an application for an assessment notice even where the Tribunal is satisfied that the person would not pose an unjustifiable risk to the safety of children.
The Secretary submitted that, although a wide range of considerations might be relevant in assessing whether giving an assessment notice would be in the public interest,[38] the primary public interest to which the Act is addressed is protecting children from sexual or physical harm.[39] In particular, the Secretary submitted that the Tribunal failed to deal with the argument the Secretary had advanced that a relevant consideration in the public interest was the heightened need to protect children in residential care who themselves are likely to be highly vulnerable and volatile.
[38]Secretary, Department of Justice v LMB [2012] VSCA 143 [28] (Warren CJ, Osborn JA and Cavanough AJA); ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140, 162 [20] (French CJ, Gummow and Crennan JJ), citing O’Sullivan v Farrer (1989) 168 CLR 210, 216; Osland v Secretary, Department of Justice (2010) 241 CLR 320, 329 [13] (French CJ, Gummow and Bell JJ).
[39]Sections 1(1), 1A; RePJR and Secretary, Department of Justice (2006) 25 VAR 336, 345 [45] (Morris J). See also Hogan v Hinch (2011) 243 CLR 506, 536–7 [31]–[32] (French CJ).
The Secretary submitted that a number of additional considerations pointed against granting LLF an assessment notice, namely his history of violent offending and his admitted short temper; the lack of any evidence that he had skills that would benefit children or make him a positive role model for them; and the evidence that LLF could benefit from further counselling to maintain positive mental health.
In oral argument, counsel for the Secretary submitted that the Tribunal also erred in its assessment of the public interest question under s 26A(5) by considering only LLF’s intended work with children in residential care rather than the fact that an assessment notice would allow him to do any child-related work. This narrow focus in determining whether the granting of an assessment notice would be in the public interest was said to have been exacerbated by the lack of any discrete finding as to s 26A(4)(b), which directs attention to whether LLF’s ‘engagement in any type of child-related work’ would pose an unjustifiable risk to the safety of children.
LLF submitted that, by viewing his risk against the kind of work he intended to engage in, involving unsupervised access to vulnerable children, the Tribunal assessed his risk to children at its highest and so effectively considered whether he posed an unjustifiable risk to children in any scenario.
LLF submitted that, although the Tribunal referred to only one factor in expressing its conclusion on the public interest test, there was no error in the Tribunal expressing that conclusion by reference to the factor it found decisive. He submitted that the public interest test in s 26A(5) afforded the Tribunal a broad discretion in its consideration of the public interest, for which a ‘vast range of considerations might rationally be thought relevant’, and that it was for the Tribunal to determine, by reference to the circumstances of the case, which warranted consideration.
LLF also submitted that, in any event, the Tribunal’s reasons read as a whole made clear that it was well across all the evidence before it and set out a range of factors relevant to the public interest question. These included those factors the Secretary urged it to consider: LLF’s history of violence and the potential vulnerability and volatile temperaments of those children with whom he may work,[40] his lack of relevant experience[41] and the recommendation for further counselling.[42]
[40]Reasons [75], [97]–[98].
[41]Reasons [98].
[42]Reasons [89].
Finally, LLF submitted that the Tribunal noted a further matter in considering the public interest question, described in the Reasons as ‘the most significant factor’, which was the Tribunal member’s ‘assessment that [LLF] has been successfully rehabilitated and now has the opportunity to become a force for good in this community’.[43] This was said to have countered the factors raised by the Secretary.
[43]Reasons [106].
Analysis
To the extent that the Secretary contended that it can be inferred that the Tribunal failed to take ‘all the circumstances’ in the public interest into account, the argument must be rejected. The fact that the Tribunal referred only to one factor in stating its conclusion as to the public interest, at the end of its reasons, does not mean that it necessarily relied only on that factor. The relevant passages of the Tribunal’s reasons are as follows:[44]
[44]Reasons [102]–[103], [106].
[M]y overall assessment, weighing each one of the factors argued before me, is that [LLF] does not present an unjustifiable risk to the safety of children.
I also have formed the view that a reasonable person, knowing all of the history of this man, would allow him to have unsupervised access to children. It would also be in the public interest for a man such as [LLF], who has faced extreme deprivation as a child, to be able to use his life skills for the benefit of disadvantaged children in this community, particularly the cohort of children who have experienced similar rejection and have turned to crime.
…
I am well aware that I must give only minimal weight to [LLF]’s personal wishes in deciding this application. In my view the most significant factor is my assessment that [LLF] has been successfully rehabilitated and now has the opportunity to become a force for good in this community.
The Tribunal was required to undertake a two-stage test, asking first whether it was satisfied that giving the assessment notice to LLF would not pose an unjustifiable risk to the safety of children having regard to the matters in s 26A(3) of the Act, and then, if so, whether it was satisfied that, in all the circumstances, it was in the public interest to direct the Secretary to give an assessment notice to LLF. While two questions are involved, plainly the considerations relevant to each part of the test may overlap, perhaps to a very significant extent.
With one qualification dealt with below (and subject of course to the first proposed ground of appeal), the Secretary did not suggest that the Tribunal had failed to take account of circumstances relevant to the question of unjustifiable risk. The argument is instead that, when the Tribunal came to address the public interest, it confined itself unduly to the single factor mentioned in the reasons set out above. But that is to adopt too narrow a reading of the reasons. The Tribunal considered ‘each one of the factors argued’ and ‘all of the history’ of LLF, for the purposes of assessing unjustifiable risk. The Tribunal did not repeat that language in relation to the public interest test, but specified the decisive consideration it had weighed in that context. Introducing that conclusion with the expression ‘also’ confirmed that the reasons for the two conclusions are not to be read in isolation. Moreover, the Tribunal later described LLF’s successful rehabilitation and his opportunity to be a force for good in the community as ‘the most significant factor’, indicating that other factors were considered. It is not to be inferred, from the fact that the Tribunal did not repeat in terms the factors it had already considered, that it did not take them into account in respect of the public interest.[45]
[45]DPP v Smith [1991] 1 VR 63, 75 (Kaye, Fullagar and Ormiston JJ).
Nor can it be said that the Tribunal failed to take account of the fact that the children with whom LLF proposed to work may themselves be volatile and in need of protection. The Tribunal plainly did not underestimate the challenges of working with children in residential care. It described ‘the cohort of children who have experienced similar rejection and have turned to crime’.[46] It referred expressly to LLF’s subsequent incidents involving violence against adults and noted that no charges had been laid. It must also be recalled that the Secretary did not suggest that LLF posed a risk of sexual harm to children.
[46]Reasons [103].
Finally, the qualification referred to above, which partly informs the argument just noted, is that the Secretary contended that the Tribunal had failed to take account of the fact that an assessment notice would enable LLF to perform ‘any type’ of child-related work and not just to work with children in residential care. Both limbs of the test require consideration of an application from that standpoint.[47]
[47]See s 26A(4)(a) and (b), as to the unjustifiable risk test in sub-s (3). The same applies to the public interest test because it addresses the public interest in giving an assessment notice, necessarily enabling the person to engage in any child-related work.
It is true that the Tribunal directed its focus to the particular work which LLF proposed to undertake and made no specific finding related to the risk of LLF engaging in ‘any type’ of child-related work. In another case, this could reveal an error of law. But here the applicant for an assessment notice was proposing to engage in child-related work of the most challenging kind with highly vulnerable children. The Tribunal was well aware of this, as already explained. Moreover, the Tribunal’s finding that ‘a reasonable person … would allow [LLF] to have unsupervised access to children’[48] is not limited to the specific work LLF intends to undertake. The finding is plainly referable to the test in s 26A(4)(a), namely whether a reasonable person would allow his or her child to have direct unsupervised contact with an applicant while that applicant was engaged in ‘any type of child-related work’. In the circumstances, the Tribunal’s conclusion inevitably entailed a finding of the requisite kind and no error is shown.
[48]Reasons [103], extracted above at [60].
Leave to appeal on the second proposed ground should be granted but the ground must also be rejected.
Conclusion
The Secretary should have leave to appeal but the appeal should be dismissed.
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