T and Chief Executive Officer, Department for Child Protection
[2012] WASAT 235
•28 NOVEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)
CITATION: T and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2012] WASAT 235
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 6 AND 7 AUGUST 2012
DELIVERED : 28 NOVEMBER 2012
FILE NO/S: VR 162 of 2011
BETWEEN: T
Applicant
AND
CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent
Catchwords:
Review of decision to refuse to cancel a negative notice Non-conviction charges Whether particular circumstances of the case justified a negative notice Whether unacceptable risk that applicant would cause sexual or physical harm to children in the course of carrying out childrelated work Best interests of children paramount consideration
Legislation:
Criminal Code 1913 (WA), s 320(4)
Education Act 1928 (WA), s 7C
Evidence Act 1906 (WA), s 36C
State Administrative Tribunal Act 2004 (WA), s 27, s 46(1), s 62(3)
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 6(1)(xii), s 12, s 13, s 16, s 16(3), s 19, s 19(3)(c), s 19(8), s 26(1)(b), s 26(2)(b)
Working with Children (Criminal Record Checking) Act Amendment Act 2010 (WA)
Result:
Application upheld
Summary of Tribunal's decision:
The applicant, a primary school teacher, held an 'assessment notice', commonly referred to as a working with children permit, until he was charged with two counts of indecently dealing with a child under 13. The CEO of the Department for Child Protection then cancelled his permit and issued him instead with a negative notice.
The applicant was subsequently acquitted of those charges and requested that his permit be reinstated. The CEO refused to reinstate the permit, on the basis that, notwithstanding his acquittal, there was still 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 work. This decision was based on a number of factors, including that in 1999 there had been allegations against the applicant of a similar nature to those which led to the applicant being charged. The police and the Department of Education had investigated the 1999 allegations and decided not to take any further action against the applicant. However, the CEO was nonetheless of the view that it would be in the best interests of children that the applicant's negative notice should not be cancelled.
The applicant sought a review by the Tribunal of the CEO's decision. The Tribunal noted that it is required to cancel the negative notice unless it is satisfied, because of the particular circumstances of the case, that the negative notice should not be cancelled. The Tribunal concluded that it was not so satisfied. The applicant had been acquitted after trial of the allegations which led to the charges in question and the other allegations had been investigated and did not lead to any charges being laid.
The Tribunal found that there were no other circumstances arising which could lead the Tribunal to justifiably believe that if the applicant were involved in child-related work then children would be put at risk of sexual or physical harm.
The Tribunal ordered that the applicant's negative notice be cancelled and an assessment notice issued.
Category: B
Representation:
Counsel:
Applicant: Mr J Davies
Respondent: Mr P Urquhart
Solicitors:
Applicant: Slater and Gordon
Respondent: Department for Child Protection
Case(s) referred to in decision(s):
Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28
Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262
Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86
REASONS FOR DECISION OF THE TRIBUNAL:
Non-publication of the applicant's name
Section 36C of the EvidenceAct 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence.
An order was made on 7 August 2012 by the Tribunal pursuant to s 62(3) of the SAT Act prohibiting the publication of the name of the applicant and any of the complainants in the allegations that gave rise to this matter. In these reasons the applicant will be referred to as the applicant or T. The complainants will be referred to by their initials.
Background
The applicant was born on 5 October 1950 and has been a primary school teacher for most, if not all, of his working life. He is also a volunteer Club Captain with Surf Life Saving WA.
The Working with Children (Criminal Record Checking) Act 2004 (WA) (Act) prohibits (subject to some limited exceptions) a person from being employed in childrelated employment as defined in s 4 of the Act unless the person has a current 'assessment notice'. In March 2008, the applicant applied under the Act for an assessment notice, which was issued by the respondent (CEO) on 30 April 2008.
On 23 October 2009, the Department of Education and Training (DET) provided written notice to the CEO that the applicant had been charged with offences of indecent dealing with a child under 13 years of age contrary to s 320(4) of the Criminal Code 1913 (WA). The alleged offences were said to have occurred during the school year in 1995. The two complainants were both Year 6 male students, aged 11, at the school where the applicant taught.
The offence of indecent dealing with a child under the age of 13 is termed a Class 2 offence under the Act.
As a result, on 26 October 2009 the CEO notified the applicant that he must apply again for an assessment notice. The applicant made that application on 27 October 2009. The applicant was subsequently invited to provide a submission to the CEO. The applicant declined to do so, saying that the criminal charges against him had not yet been dealt with.
The Act provides that a negative notice should be issued to the applicant if the CEO is aware of a pending charge against the applicant for a Class 2 offence unless, because of the exceptional circumstances of the case, an assessment notice should be issued. The CEO considered that, on the available information, the CEO was unable to identify any exceptional circumstances to support the issue of an assessment notice. The CEO issued a negative notice to the applicant on 5 May 2010.
On 21 May 2010 (VR 85 of 2010), the applicant applied to the Tribunal for a review of the decision to issue a negative notice. However, on 25 August 2010, the applicant was acquitted of the criminal charges. Accordingly, he withdrew that application and applied to the CEO to cancel the negative notice on the basis of his acquittal.
For the purposes of the Act, the applicant now has 'nonconviction charges' in respect of Class 2 offences. Accordingly, upon application, the CEO must cancel the negative notice unless the CEO is satisfied that because of the particular circumstances of the case the negative notice should be maintained.
The CEO sought further details relating to the nonconviction charges and proceedings from the Office of the Director of Public Prosecutions for the State of Western Australia and the Western Australian Police.
The information obtained in relation to the nonconviction charges included:
a)Prosecution Notice dated 23 October 2009 and witness statements of the two complainants and the mother of one of them;
b)Indictment 508 of 2010 dated 2 March 2010;
c)Transcript of the video record of interview dated 12 October 2009;
d)Transcript of District Court 508 of 2010 proceedings;
e)Victorian Police brief in relation to complainant TD; and
f) Western Australian Police Running Sheet.
There is a further issue that the CEO took into consideration. I will deal with this in more detail later in these reasons. At this stage it is only necessary to say that on 23 December 2010 the applicant provided the CEO with his consent for release of information from DET about an inquiry carried out by DET in 1999 under s 7C of the Education Act 1928 (WA). This inquiry related to allegations of inappropriate touching by T of pupils in his class.
On 17 March 2011 the CEO invited the applicant to provide a further submission in relation to the DET inquiry. No further submission was received.
The CEO refused the application to cancel the negative notice and on 3 August 2011 the applicant was given written notice of that decision.
The CEO's reasons for its decision
The respondent provided a statement of its reasons for the decision not to cancel the negative notice. It is appropriate to set out here those reasons in full. In those reasons, an assessment notice is referred to as a WWC Card.
REASONS FOR DECISION
When the offence was committed or is alleged to have been committed
The alleged conduct giving rise to the non-conviction charges is said to have occurred in 1995. The passage of time without further charge or conviction is not sufficient to issue a WWC Card if a repetition of the indecent dealing as alleged would result in significant harm to a child. If the Applicant were to behave in future in a way similar to the alleged offending, that behaviour would result in significant harm to a child.
The age of the Applicant when the offence was committed or is alleged to have been committed
The Applicant was 45 years old at the time of the alleged Class 2 offences and had been teaching for over 20 years. The boundaries of acceptable behaviour should have been well known and understood by the Applicant at the time of the alleged offences and immaturity or lack of experience is not a mitigating factor.
The nature of the offence and any relevance it has to child-related work
The offences are scheduled as Class 2 under the Act. The conduct is alleged to have occurred in the classroom against the Applicant's students. The non-conviction charges are highly relevant to child-related work.
There are a number of similarities in the type of conduct alleged to have constituted the two offences including the setting, the nature of the offence and the report of the slow increase in the manner of the inappropriate touching. The description of the offending behaviour, of touching beginning non-sexually and slowly escalating, is consistent with grooming behaviours which are known to be employed to gain a child's friendship and accustom them to the idea of being touched in an increasingly intimate way. It is not unusual for perpetrators to use the slowly escalating behaviour to mask abuse happening directly in front of others which ultimately minimises the likelihood of disclosure and the chance that a child who discloses will be believed.
Anything else that the CEO reasonably considers relevant to the decision
DET investigation of prior alleged conduct
In 1999 the Applicant was found not guilty of misconduct under section 7C(2)(e) of the Education Act in respect of three allegations of inappropriate touching of three boys. The Independent Inquirer who conducted the investigation found there was no 'hard' evidence in support of the allegations. Relevantly:
•The complaints as described by the investigator at the time are similar in nature and context to the allegations the subject of the nonconviction charges faced by the Applicant many years later.
•The allegations arose from an independent third person (a parent) who had overheard comments among the boys.
•The DET investigator did not interview any of the children.
•The Mother of two of the boys initially stated she 'did not want the children growing up thinking they had been molested by a teacher'. Later, the Mother indicated that she supported the Applicant. She stated that she wanted the matter quickly resolved because the 'younger child is worried about what might happen to his teacher and that he might have to appear in Court'. The investigation indicates that the boys had told their Mother that the alleged conduct had not occurred and she stated she believed them. The Mother told the investigator that one of the boys (who was still in the Applicant's class) was happy to continue in it. It is noted that, inconsistently with her other statements, the mother 'advised them how to avoid the Applicant and how to protect themselves'.
•The DET investigator concludes that it was clear that the Mother of two of the boys wanted the matter put behind them and the impact on the children minimised.
The matter was reported to Police prior to the DET conducting the above investigation. The Police interviewed only two of three of the boys. Following that interview Police did not proceed to charge the Applicant. The reasons for the absence of formal charges by Police are not known. The information obtained from DET indicates that the way the Police approached the matter was less than ideal, and may have had a frightening effect on the children.
It is significant that the Applicant was never charged with an offence following investigation of the allegations and the [sic] no conclusions can be made on the information available as to whether the Applicant is likely to have engaged in the conduct as alleged.
However, the DET allegations constitute descriptions of unrelated alleged conduct that is similar in nature to that described by the two complainants in the Applicant's criminal trial many years later. Significance is given to the allegations in this regard only.
The Class 2 offences were alleged to have been committed in 1995. The passage of more than 15 years since the events are alleged to have occurred may be seen as a factor suggesting a reduced risk of repetition if it can be said that the alleged offences were one or two isolated incidents. However, when considered in totality with the further allegations made in 1999, we are presented with a series of allegations which set out a pattern of similar behaviour towards pre-pubescent boys over a five year period.
There is a common theme to the type of behaviour alleged in the 2009 charges and the 1999 DET allegations, the circumstances in which they arose as well as the age and gender of the victims. The probative value of the 2009 charges and the 1999 DET allegations, when considered in total, arises from the improbability of 5 separate complainants and 1 of the complainant's mothers independently giving accounts of incidents occurring having a high degree of similarity unless the events occurred.
Strengths and Weaknesses of the Criminal Case
The prosecution's case relied entirely on the complainant's evidence, in relation to an historical offence. The jury clearly did not accept some or all of that evidence and were not satisfied beyond reasonable doubt as to the guilt of the Applicant.
However, the evidence provided by the complainants set out a disturbing pattern of alleged behaviour and were independent of each other. The description of the offending behaviour with touching beginning nonsexually and slowly escalating, is consistent with grooming behaviours which are known to be employed to gain a child's friendship and accustom them to the idea of being touched in an increasingly intimate way. It is not unusual for perpetrators to use the slowly escalating behaviour to mask abuse happening directly in front of others which ultimately minimises the likelihood of disclosure and the chance that a child who discloses will be believed. When the circumstances surrounding the non-conviction charges are considered, together with the further allegations of similar conduct against three boys of similar age, there is a reasonable suspicion that the Applicant may represent future harm to a child during the course of childrelated work.
Whilst the Applicant was acquitted of the 2009 charges at trial, the standard of proof in criminal proceedings is 'beyond reasonable doubt'. In making my decision I must only be satisfied of a 'reasonable suspicion' in forming a view as to whether the Applicant represents an unacceptable risk to children. Therefore, I may use the same evidence to satisfy myself, to the civil standard of proof rather than the higher criminal standard, that the Applicant represents an unacceptable risk to children.
The best interests of children
The Applicant's submission points out his long career in teaching and community service, his acquittal on the nonconviction charges, and refers to character referees who provided references in his criminal trial. Aspects of these factors together with the conclusion of the DET investigation support the Applicant's case.
Sections 3 and 12(8)(a) make the best interests of children the paramount consideration. In this case there are positive factors supporting the Applicant's case. There are also conflicting negative factors. In such cases of conflict, the positive factors must yield to the paramount consideration prescribed by sections 12(8)(a) and 3, being the best interests of children.
The information obtained has identified that the Applicant has a number of unproved and uncharged allegations levelled against him in respect of similar conduct against 5 children. I am satisfied that the circumstances and details associated with the alleged offending (rather than the mere number of allegations) constitute conduct which, in combination, gives rise to reasonable grounds for suspicion that the Applicant may constitute an unacceptable risk of harm to a child in the course of childrelated work.
I consider that particular circumstances have been identified sufficient to satisfy me that there is an unacceptable risk that the Applicant might cause sexual harm to a child in the course of child-related work.
The application to the Tribunal
On 31 August 2011, the applicant applied to the Tribunal for a review of the CEO's decision to refuse to cancel the negative notice. The matter was heard on 6 and 7 August 2012. The CEO filed with the Tribunal a statement of his reasons for his decision, along with other documents and materials which he regarded as relevant to the Tribunal's review (Respondent's Bundle).
Further particulars of the allegations
The 1999 allegations
On 14 September 1999 a report (Respondent's Bundle Part B page 3) was given to the Principal of the school where the applicant was teaching (School) by a teacher who had been approached by a parent and classroom helper at the School. According to the report, the parent told the teacher that when she had collected her son from the School along with three other boys, JR, GR and GG, GR allegedly disclosed to her that T had sat him on his lap and placed his hands up his pants. GG at the time said the same was done to him. Later when they had reached JR's house, JR claimed that T had done the same thing to him.
The police were informed and subsequently interviewed two of the boys, JR and GR. The police then elected to take no further action in the matter.
On 4 October 1999 (Respondent's Bundle Part B page 17) T was informed that there would be an inquiry pursuant to s 7C of the now repealed Education Act 1928 (WA) into three allegations of misconduct concerning inappropriate touching of JR, GR and GG. The specific allegations read:
•in November 1998 or thereabouts you placed [GR], a student at [the School], on your lap and put your hands up his pants and touched him in an inappropriate manner;
•during 1994 or 1995, you touched [JR], a student at [the School] in an inappropriate manner by placing your hands up his pants;
•at a date not specified, you touched [GG], a student at [the School] in an inappropriate manner by placing your hands up his pants.
By letter dated 19 October 1999 (Respondent's Bundle Part B page 36) T was informed that following an inquiry conducted by an independent Inquirer, he was found 'not guilty of misconduct' in relation to the allegations of touching JR, GR and GG in an inappropriate manner. The Inquirer's report stated that there was no 'hard evidence' to support the allegations (Respondent's Bundle Part B page 28).
The findings of the inquiry were based on an interview with Mrs R (the mother of JR and GR), an interview with T, and an interview with the Principal. The children were not interviewed because Mrs R refused to allow it and the Inquirer believes that GG's parents may not even be aware of the complaint.
Mrs R wanted the matter to be dealt with quickly and confidentially, and was critical of the manner in which the police had dealt with the initial complaint. The police had apparently interrupted a school sports day on 16 September 1999 when they arrived to interview JR and GR and had not initially told GR why he was being taken from the sports oval. JR had been ill that day and was not at the oval. He was collected from his home.
While it is clear that the police interviewed the children, there is no information of what, if anything, the boys disclosed to the police.
Mrs R told the Inquirer that she had no concerns about the applicant or how he related to the children, and that she had seen nothing to indicate that T had interfered with her children. The Inquirer noted that Mrs R could have, but did not, request that GR be moved to another class. She said that GR had told her that the applicant 'has not touched him' (Respondent's Bundle Part B page 30).
T was interviewed on 11 October 1999. T initially thought the inquiry was about a recent incident that occurred at the front of the school when he had noticed some students looking over the school fence towards the road outside the school. The students told him that their ball had 'bounced over the fence' and he had picked up one of the boys by the collar and the seat of his pants and asked if he should 'bounce' the boy over the fence too. The applicant then retrieved the ball. He regarded it as a 'pleasant incident' and said that the children had been amused.
However, a passing motorist thought that the applicant was mistreating a child and reported the incident to the Principal.
Once the nature of the inquiry had been clarified, T denied the allegations of touching. He stated that he could only recall one incident when he had ever allowed a child to sit on his knee, and this occurred when he was attempting to soothe a distressed child. T speculated that there may have been a 'whispering campaign' against him after two students, whom T had reported to police for graffiti, had called out across a sports oval where he was coaching that he was a 'paedophile'.
The Inquirer expressed the view that the reference to 'paedophile' was more likely to be a reflection that the applicant was at that time a 50yearold bachelor rather than having any connection with the incidents under investigation. The Inquirer assessed that T had answered his questions fully and frankly.
The school principal, Mr M, was interviewed on 11 October 1999. Mr M referred to the incident at the school fence, but stated that it was an innocent action that had been misconstrued. Mr M stated that he believed that T may have sat children on his knee when showing them the computer screen. However, he had been watching T since the report of inappropriate touching, and had not seen anything of concern (Respondent's Bundle Part B pages 34 35).
The 2009 allegations
The second set of allegations came from two young men, TD and RR. These were the allegations that gave rise to the Class 2 charges. Both complainants alleged that incidents of indecent dealing had occurred in 1995. Both TD and RR reported the incidents in 2009.
TD's allegations
On 23 October 2009 T was charged with indecently dealing with TD between 1 January 1995 and 31 December 1995. TD was 11 years of age at the time and a Year 6 pupil in the applicant's class at the School. TD provided a five page statement of allegations to the Victorian police dated 24 March 2009.
In that statement, TD stated that he was first taught by T in 1993, when TD was in Grade 4. Whilst TD stated that he was scared of T, he did not recall any inappropriate touching at that time.
TD stated that when he was in Year 6 he had liked T. He said when he approached T for assistance, T would rub his back outside his school shirt. TD stated that T then progressed to rubbing the bare skin on his back. T allegedly then started placing his hands down the back of TD's shorts on the outside of his underpants.
TD described the touching as a sequence of rubbing his back or inner thigh before touching his bare buttock. TD alleged that T did this over a period of months, and that on two or three occasions T put his right hand down his shorts and underwear and slid his hand right down the length of his penis.
TD said he told his mother in 1995 that T was rubbing his back and making him feel uncomfortable. TD stated that he did not however tell his mother about the other alleged incidents of inappropriate touching because he did not want to get into trouble.
TD claims that he met RR by chance in 2002, and they discussed T touching them. TD reported the matter to the police in Melbourne in 2009.
RR's allegations
T was also charged with one count of indecently dealing with RR, also a Year 6 pupil of in T's class in 1995. T initially taught RR in a Year 4 class, and then again in Year 6 in 1995. The charge alleged that sometime between 1 January 1995 and 31 December 1995, T approached RR's desk and sat down beside him, placing his left hand on the complainant's left knee and moved it up and down RR's thigh. T allegedly placed his hand beneath RR's shorts and touched his genital area through his underwear. RR claimed that he pulled away when T tried to place his hand underneath his underwear. RR stated that this touching occurred on a regular basis, as he was having trouble at school and required a lot of help from T. RR alleged that this touching made him feel extremely uncomfortable but that he did not tell anybody about it because T was the teacher and everyone liked him.
However, TD testified at the trial that RR had told him in 1995 about being touched by T (T:77; 23.08.10).
TD's evidence at the trial
TD was 26 years of age at the time of the trial and gave his evidence from Germany. TD stated that he remembered that he had been looking forward to being in T's class in 1995.
TD described T's classroom as being set up in rows, with children facing the blackboard, and T's desk was situated at the back left hand corner of the classroom.
TD described the incidents as set out in his statement of allegations. TD stated that the touching occurred on more than one occasion over six months. TD stated that after one incident, in which T allegedly touched his penis, TD decided that in future conversations with T he would position himself on the other side of T's desk.
On crossexamination, TD maintained that he had been inappropriately touched and denied harbouring a grudge against T. TD stated that he initiated the complaint in 2009 because he wanted closure from the past, and because he had always felt embarrassed and ashamed.
RR's evidence at the trial
RR was 25 years old when he gave evidence at the trial. He was employed then as a business manager and mortgage broker in Perth.
RR also stated that T's desk was at the back left-hand corner of the classroom. He said that he recalled T touching him twice. The first was when T allegedly touched his leg and slid his hand up to RR's lower buttock. The second was when T allegedly touched his underwear and RR had pulled away.
RR said that he had run into TD in 2003 when he was 19 years old. RR had been drinking and he asked TD if anything had happened to him. He had not seen TD for seven years. TD did not respond to his question, but a year later TD contacted RR and said that he had made a statement to the police and asked RR if he would like to make a statement as well.
It was put to RR that he made a false allegation and held a grudge against T, but RR maintained throughout his crossexamination that he was inappropriately touched.
T's evidence at the trial
T denied the allegations both in his 2009 record of interview and at the trial in 2010. T stated that he had never rubbed any child on the leg although he could recall grabbing a child on the knee when they were 'mucking around' in the school grounds.
T stated that it was possible that both TD and RR had developed grudges against him. T stated that he and RR had developed an 'anger' between them about homework, and that both boys were disappointed that they were not allowed to go on a school camp.
T recalled an incident when he had bumped into TD at around 2007 2008 and TD had stated 'I'd like to smash your face in'. T stated that he was confused about why TD had reacted in that way.
TD in fact denied that this incident had taken place (T:89; 23.08.10).
The transcript of the court proceedings shows that after a trial held on 23, 24 and 25 August 2010 the applicant was acquitted of both charges of indecent dealing with a child under 13 years of age by a jury before Staude DCJ in the Perth District Court. The decision of the jury was unanimous and was delivered within three hours of retiring to consider its verdict.
The Law
Section 27 of the SAT Act provides that a review is to be by way of a hearing de novo. The Act was amended in 2010 and although the changes do not have any bearing on the Tribunal's decision in this matter, the numbering of subsections in s 12 of the Act are affected. It is not disputed that for the purpose of this hearing the current version of the Act is relevant. Unless otherwise indicated, references will be to the Act in its current form.
A review of a decision not to cancel a negative notice is to be determined by reference to the principles applicable to an application for an assessment notice; s 19(8). Section 12 provides for the process to be followed in respect of an application for an assessment notice. Section 12(5) provides that where a person has been charged with, but not convicted of, a Class 2 offence, the CEO is to issue an assessment notice to the person unless satisfied that 'because of the particular circumstances of the case, a negative notice should be issued'. By way of contrast, had the applicant been convicted of a Class 2 offence, the CEO would have been required to issue a negative notice unless satisfied that 'because of the exceptional circumstances of the case, an assessment notice should be issued'; s 12(6).
Section 12(8) states:
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 childrelated work;
(e)the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of
(i)any offence committed by the applicant; or
(ii)any charge against the applicant;
(f)any information given by the applicant in, or in relation to, the application;
(g)anything else that the CEO reasonably considers relevant to the decision.
Subparagraph (e) was introduced in 2010. Otherwise, s 12(8) has remained unchanged at all times relevant to these proceedings save for the references to the numbers of other subsections.
The provisions and scheme of the Act have been examined and discussed in a decision of the Court of Appeal: Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28 (Grindrod). In Grindrod, Buss JA said that the criteria in s 12(8), bearing in mind the breadth of subsection (8)(f), constitute the factors which the CEO must have regard to in deciding whether he or she has attained the requisite satisfaction and is not entitled to take into account any other factors; [69]. Although each of the criteria must be given separate consideration, they are not all of equal significance in the evaluative exercise. In particular, the best interest of children is the paramount consideration; s 3 of the Act; [70].
Buss JA then observed that neither s 12(4) (now renumbered as s 12(5)) nor s 12(8) expressly states what finding the CEO must make in order to reach satisfaction that a negative notice should issue. His Honour then concluded:
In my opinion, it is implicit in s 12[(5)] and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12[(5)] unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) - (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.
The 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 [81] - [82].
He went on to say:
It is not the CEO's function (under 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) 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 childrelated 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, 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 (76 78); Re H and ors (minors) [1996] AC 563, 572 573 (Lord BrowneWilkinson, dissenting) and 576 - 577 (Lord Lloyd of Berwick, dissenting); Murphy [243] - [305] (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 nonconviction 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[(5)], there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions [84] - [87]. [original emphasis]
Clearly, the CEO may issue 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. It is also clear that 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 nonconviction charge or charges. In Chief Executive Officer, Department for Child Protection v Hardingham [2011] WASCA 262 Martin CJ, Murphy JA and Allanson J said at [52]:
Where s 12(5) applies, the decision-maker must decide whether he or she is satisfied, because of the particular circumstances of the case, that a negative notice should be issued. The phase 'in the particular circumstances of the case' most naturally refers to the circumstances of the application being determined. The words, in their natural meaning, do not confine the decision-maker to the circumstances of the charge, nor do they confine consideration to the details of the criminal record.
As noted earlier in these reasons, in Grindrod Buss JA referred to the need for the decisionmaker to rely partly on facts and partly on reasonable suspicions in deciding whether there is an unacceptable risk of harm. Heenan J in Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86 (Hardingham) considered the meaning of the term 'reasonable suspicions' and said at [152]:
It is this content of the term 'reasonable suspicion' carrying with it the need for the suspicion to be reasonably based upon plausible information or facts, but not necessarily material amounting to prima facie proof or admissible evidence - Shaaban Bin Hussein v Chong Fook Kam [1969] 3 All ER 1626, 1630 (Lord Devlin PC) to which I consider Buss JA and the other judges in Grindrod and Scott were referring rather than to 'imagination or surmise'. Accordingly, there must be some established basis for the existence of the alleged reasonable suspicion which will allow scrutiny of its probative value, as Buss JA intended should occur. Were there no basis advanced for the existence of the alleged suspicion, then not only would it be unreasonable but scrutiny of its probative value would not be possible. [152]
The evidence at the hearing before the Tribunal
The Applicant
T provided a witness statement to the Tribunal (Exhibit 3).
The statement first describes the applicant's education and his extensive community service, including his involvement in WA Surf Lifesaving and his involvement in coaching juniors in Rugby League. T says he has been teaching primary school students since the early 1970s.
He then addresses the allegations that were made against him in 1999. In the late third term of 1999, the Principal of the School informed T that he had been accused of molesting three male students under his care. He was upset and took a week off from work. He was then called to a meeting at the district office where he was officially informed of a departmental investigation into the matter. He says that he was told that the police had found the allegations to be untrue.
T had a meeting with a union representative and a department representative where it was 'deemed I was innocent', but he was informed that 'should anything like this happen again', his position would be terminated. After the meeting, the applicant says he was contacted by the parents of three of the students involved. T gave evidence to the effect that his relationship with the family remains friendly. The father had wanted to shake hands with T, in front of the class, to show his son that 'there were no hard feelings and he could relax'.
The applicant next addresses the accusations made against him which gave rise to the Class 2 Charges. T taught both complainants (TD and RR) at the School. T describes both complainants as academically disadvantaged. He says that TD had a tendency to be very vocal and was prone to complaining in class, whereas RR was a lot quieter, and preferred not to draw attention to himself. When T first taught TD in Year 4 (1993) he came with a report suggesting that he could spell words at a Year 7 level. T suspected that this report was incorrect, and discussed TD's academic problems with the Principal, and with other teachers. T contends that TD may have overheard these discussions. T gave evidence to the effect that both complainants were loathe to complete school work. T says that he had difficulty 'bonding' with the complainants and motivating them academically. T suggested that the complainants may have felt vindictive towards him because they didn't get to go on school camp with him, and because T wrote reports to the complainants' parents stating that they lacked academic ability.
The applicant describes how, on 12 October 2009, he was taken to the Spearwood police station for an interview. T was bailed and escorted back to the School to collect his immediate possessions. This is the only time that the applicant has returned to the School since being charged.
T gave evidence that he has been suffering from anxiety and depression since being charged with the offences, and is currently being treated with antidepressants.
At the hearing, T was crossexamined by counsel for the respondent on a number of issues, including his heterosexual relationships and his decision to teach at primary rather than high school level. He was also asked about his interest in rugby and coaching juniors and his interest in junior lifesaving at his local surf club. T insisted that his involvement in these activities arose from an interest in child development, and not any ulterior motive.
T was also crossexamined regarding his decision to position his desk at the back of the classroom. TD had alleged that he was interfered with whilst standing alongside the teacher's desk at the back of the class. T maintained that placing the teacher's desk at the back of the class was a conventional teaching technique.
T was questioned about his personal boundaries regarding physical contact with students. T stated that he would not ever have physical contact with students unless a child was injured. T was then crossexamined regarding a number of incidents relating to physical contact with students which emerged during his police interview in 2010 and the investigation conducted into T's behaviour in 1999. In addition to the incidents described earlier in these reasons, the applicant was questioned about incidents involving preprimary school children sitting on T's lap. T insisted that whenever children sat on his lap he would push them off. However, there was an incident when T sat a child on his lap because the child was severely emotionally distressed regarding his dysfunctional home life. T denied ever sitting children on his lap for the purpose of showing them things on a computer screen.
T was cross-examined regarding the incident where exstudents accused T of being a paedophile. This occurred in 1999, before any allegations of indecent dealing had been made against T. This incident was referred to in the earlier inquiry by DET. T gave evidence that those students may have had a grudge against him since attending the School. One of the students had been suspended after T caught him in a violent confrontation with another student. T reported another of the exstudents to a local ranger because he suspected the student was responsible for some graffiti. T could not give an explanation as to why the exstudents used the word 'paedophile' as opposed to a more common derogatory term. T said that he did not ask for any explanation as to why the exstudents referred to him in this offensive manner.
The applicant was questioned about the occasion when TD allegedly threatened T that he wanted to 'smash [T's] face in'. Counsel for the respondent suggested that TD's reaction when he saw T was extreme, given that it was 13 years since T had taught him. T said that he was shocked by TD's outburst, and therefore did not question why he was so angry. T gave evidence that he had seen TD several times since TD had turned 16, and that on previous occasions the meetings had been cordial. T stated that he did not know why TD was so upset, or why TD apparently broke down during the trial. T reiterated that none of his actions towards TD could have been misinterpreted as indecent dealing with a child.
As mentioned earlier, TD denied at T's trial that this incident had taken place at all.
T was questioned regarding the allegations made against him in 1999 and his continuing relationship with the family involved. He was asked why he had never subsequently raised with any of the boys why they had made the allegations against him. He said he did not 'think it's something that you bring up in conversation like this'.
T was also crossexamined regarding an incident involving one of the boys (GG) at a school camp. GG had been scared of going to the camp because he had recently witnessed a robbery. T agreed that he had suggested to GG that he should sleep in a bed close to T. However, he refuted the allegation that he suggested that GG sleep in his bed.
Finally T was crossexamined regarding his relationship with TD and RR. He was asked why he was able to have a 'jocular' relationship with other students in his class, but not with TD and RR. T denied that this strained relationship might be explained by inappropriate conduct towards the boys. T was also questioned about the evidence TD gave at trial. While he categorically denied all the allegations made by TD, he conceded that there was a pattern in the behaviour TD described which was characteristic of 'grooming'.
T stated that he knew each of the boys were particularly vulnerable: TD suffered from attention deficit disorder for which he was taking medication and RR was from a single parent family and living in Homeswest accommodation. However, T denied targeting the boys. In both TD and RR's evidence at trial, it was suggested that T had a good rapport with the boys, and in particular helped RR a lot with his academic difficulties. However, T denied that he had a good rapport with the boys or that they liked T as a teacher.
T reiterated that he believed that RR and TD had concocted the story of his alleged indecent dealings because they were resentful of T.
Character References
T filed five character witness statements in support of his application. These statements were tendered as exhibits at the hearing. Only one of those witnesses gave evidence at the hearing.
One witness who worked with T at the School and has known T for around 20 years, gave evidence that he was a professional and dedicated teacher who had a good rapport with his students. She describes T as a friendly person who is an active member of his local community and who encouraged his students to excel (Exhibit 11). A witness statement from a former colleague of T's (Exhibit 10) stated that the witness taught at the School in a room adjacent to T between 1992 and 2000. He also gave evidence of T's extensive involvement in the local community, and stated that he did not know '… of any person within teaching ranks or outside them who has given as much assistance to the children and youth of this state'.
Three other witnesses also provided character references in support of T's application (Exhibits 7, 8 and 9). Those three witnesses knew T through his surf club, and attested to his integrity and his extensive community service. Two of them, in particular, have had close relationships with T from an early age.
Only one of them, Simon, was crossexamined at the hearing. Simon was questioned regarding games that he described playing with T and other children on surf life saving camps. Simon maintained that there was no sexual innuendo in these games. Simon also stated that he always stayed in separate rooms from the coaches when on camp.
Expert Evidence
Two expert witnesses gave evidence at the hearing. Dr Phil Watts was called by the applicant and Ms Rosemary Cant by the respondent. Ms Cant is a clinical psychologist and Dr Watts is a clinical and forensic psychologist.
Dr Watts and Ms Cant filed a Joint Statement of Experts with the Tribunal (Exhibit 4), outlining the points on which they agree and disagree. Dr Watts and Ms Cant gave evidence at the hearing concurrently. Dr Watts and Ms Cant looked at different aspects of the case, with Dr Watts assessing T himself, and Ms Cant reviewing the various witness statements of T and the complainants.
Dr Watts conducted both a personality assessment and a sexual assessment of T, using a variety of clinical tests. These included a Personality Assessment Inventory, the Clarke Sexual History Questionnaire for Males and the Garos Sexual Behaviour Inventory. Both experts acknowledge that the assessment of T as reported does not show any sexual pathology. However, both experts also agree that a lack of pathology does not rule out a possibility that someone can or has committed sexual offences. Moreover, Ms Cant points out that someone in T's circumstances may want to provide a positive position, and the Clarke Inventory in particular may be able to be presented positively by an intelligent person. Dr Watts does not disagree with this point. However, upon crossexamination, Dr Watts stated that while he believed that T had a slight tendency towards giving a positive impression, there was nothing to indicate a deliberate attempt to distort the results. Moreover, Dr Watts pointed out that where subjects try to deny sexuality across a whole range of areas, the results of the test will clearly be distorted by dishonesty. Therefore, in order to 'fool' an assessor, the subject of a test would have to selectively deny rather than have a pattern of denial.
Both experts also discussed the concept of grooming. Dr Watts and Ms Cant agreed that sex offenders can be anyone irrespective of character or standing in society. The issue of whether they are good with children does not prove or disprove risk. Ms Cant's opinion is that if the complainants' allegations are true, the alleged escalation in the type of touching committed by T would be consistent with grooming behaviour. Dr Watts states that although it is true that some people abuse children actively build their trust, there are thousands of popular teachers who have the trust of children but are not grooming them. Dr Watts states that T's relationship with the children alone is not a marker for grooming, and that sexual behaviour must be the indication of grooming.
Both experts agree that if the allegations by the five boys were true then it would constitute a significant risk factor. However, Dr Watts and Ms Cant disagree about the amount of weight which could be placed on the allegations. Ms Cant holds that there is evidence of two lots of allegations between the boys. Ms Cant says that there is no evidence that the two separate groups either knew what had happened or discussed it with one another. Ms Cant also points out that psychological studies show that boys are reluctant to talk about sexual abuse. Ms Cant states that, in the case of TD, it would not be unusual for a boy to make a partial, as opposed to complete, disclosure to his mother at the time of the offence. Further, Ms Cant states that an educative program, such as the 'Constable Care' program, would not be helpful to boys experiencing inappropriate touching by a wellliked and trusted teacher.
Dr Watts believes that all of the boys were likely to have known each other and have knowledge of what happened, given that they were in school together, and a teacher leaving the school would be discussed widely. He also points out that T has taught in a number of schools and yet all the allegations came from one group of boys from one school only.
Ms Cant's evidence addresses whether the classroom was an improbable place for sexual offending to occur. Ms Cant holds that while reliable data on prevalence is relatively limited, it is evident from relevant literature, the courts and the media, that children are abused at school by teachers and other school staff.
While the school principal's records mention rumours about T, there is no evidence of what the rumours were or how extensive. Both experts suggest that poor records from DET and the police make it difficult to determine what happened.
Both experts also discussed the intervening years since the alleged offences. Both experts agree that an absence of reported allegations in that time does not rule out the possibility that further abuse may have happened, given that the disclosure rate amongst boys is low. However, they accept that there is no evidence to confirm this risk.
Therefore, the real issue of contention between the experts is limited to the weight which can be given to the original allegations.
Findings
The paramount consideration is the best interests of children; s 3 and s 12(8)(a) of the Act. The task of the Tribunal is to determine whether, based on the evidence before it, T poses an unacceptable risk of sexual or physical harm to children if he engages in childrelated employment. The degree of risk must be determined not only with reference to facts and evidence which would be admissible in court, but also with reference to 'reasonable suspicions'; Grindrod at [87]. There must, however, be some established basis for the existence of that suspicion; Hardingham at [152]. In determining whether the negative notice should be cancelled, the Tribunal must have regard to the factors listed under s 12(8) of the Act, and the relevant factors enunciated in Grindrod relating to unacceptable risk.
I turn first to the allegations in 2009 which led to T's trial and subsequent acquittal. There is no doubt that these were serious charges and highly relevant to childrelated work. The jury at the trial heard the evidence of the two complainants and that of the applicant. It then unanimously reached its decision to acquit the applicant of those charges.
The reason why the charges did not result in a conviction is, I expect, that the jury simply did not believe the complainants or preferred the evidence of the applicant.
In Hardingham, Heenan J said at [59] '… if … there is no cogent reason to conclude that the person charged actually committed the offence, then to reason from the mere laying of the charge to a conclusion that the offence had been committed is entirely unjustified and prejudicial'. He went on to say at [135] '… if the case is not one of those in which its strength is not destroyed or significantly diminished by the fact that an acquittal or dismissal resulted or that the prosecution was not pursued, it must mean that the resulting absence of a conviction is due to the weakness or absence of a case to establish that the person charged had committed the alleged offence'.
The prosecution in this case did not abandon the charges and presumably presented its case in the best possible light.
The significance of the fact that the two young men separately complained about incidents of indecent touching which had some similarities between them was somewhat diminished by the fact that, at the trial, one of the complainants admitted to discussing those incidents with the other in 1995 at the time they were said to have occurred.
The allegations in 1999 led the police to interview only two of the boys concerned. They then decided not to charge the applicant. Again, this is probably because the police considered that the applicant had no case to answer or that there were weaknesses in the case that led them to conclude that it was pointless to proceed further.
The subsequent departmental inquiry also led to the conclusion by the Inquirer that the applicant was 'not guilty of misconduct'. In that case, the Inquirer gave his reasons for that conclusion, namely that there was insufficient evidence against the applicant to support the charges. The Inquirer was not permitted to interview the children concerned, but that did not lead him to say that he could not therefore draw any conclusions from his investigation.
The expert witnesses' view is that if the allegations against the applicant were true then children would be at risk if the applicant's negative notice is cancelled. That is undoubtedly so, but none of the allegations were made out and I have no justification for concluding that, based on fact, reasonable suspicions or both, the allegations are true.
Nothing emerged from the trial or the investigation of the 1999 allegations which constituted an admission of conduct which could be regarded as deplorable or in some way established that the applicant should not be involved in childrelated work.
I also note that there have been no allegations made against the applicant in other schools where the applicant has taught or in the sporting associations with which he has been involved.
Conclusion
Having regard to the factors set out in s 12(8) of the Act and on the information and other material before me, it is my conclusion that there is nothing to lead me to consider that the negative notice should not be cancelled. I do not consider that there are any circumstances of this case to suggest that to cancel the negative notice would result in an unacceptable risk that the applicant might cause sexual or physical harm to children in the course of childrelated work.
Orders
For the reasons given above, the Tribunal orders that:
1.The review application is allowed.
2.The decision of the CEO under review is set aside.
3.The negative notice issued under s 12(5) of the Working with Children (Criminal Record Checking) Act 2004 (WA) is cancelled.
4.The CEO (or delegate) of the Department for Child Protection is to take such steps as are necessary to cause the applicant to be issued with an assessment notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) in accordance with this decision.
I certify that this and the preceding [105] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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