Webb v Tang
[2021] WASC 344
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WEBB -v- TANG [2021] WASC 344
CORAM: QUINLAN CJ
HEARD: 1 SEPTEMBER 2021
DELIVERED : 13 OCTOBER 2021
FILE NO/S: SJA 1096 of 2020
BETWEEN: ANTHONY PAUL WEBB
Appellant
AND
JACKIE TANG
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE SHACKLETON
File Number : PE 19896 of 2019
Catchwords:
Criminal law – Appeal against conviction for failing to report sexual abuse of a child – Requirement for accused to believe on reasonable grounds that a child had been the subject of sexual abuse – Requirement to establish subjective state of mind – Whether inference of belief the only reasonable inference – Whether conviction unsafe and unsatisfactory – Whether magistrate gave adequate reasons for decision
Legislation:
Children and Community Services Act 2004 (WA), s 124A, s 124B, s 124C, s 124D
Criminal Appeals Act 2004 (WA), s 8, s 30
Magistrates Court Act 2004 (WA), s 31(1)
Result:
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | M J McCusker AC CVO QC & S Nigam |
| Respondent | : | J F Bennett |
Solicitors:
| Appellant | : | Nigams Legal Pty Ltd |
| Respondent | : | State Solicitor's Office |
Cases referred to in decision:
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
MEN v The State of Western Australia [2020] WASCA 118
Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Pangilinan [1999] QCA 528; [2001] 1 Qd R 56
S v The State of Western Australia [2021] WASCA 154
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Strahan v Brennan [2014] WASC 190
The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664
ZHA v The State of Western Australia [2020] WASCA 101
Table of Contents
Introduction and summary
Proceedings at trial
AB's evidence
Mr Loveridge's evidence
Mr Wright's evidence
Mr Scott's evidence
Mr Banks' evidence
Mr Norman's evidence
Ms Knapman's evidence
Mr Hince's evidence
Mr Wong's evidence
Ms Dalby's evidence
Sergeant Glynn's evidence
Ms Taylor's evidence
The 15 August 2018 interview
Mr Hailes' evidence
The learned magistrate's reasons for decision
Section 124B of the Children and Community Services Act 2004 (WA)
Ground 1 – unsafe or unsatisfactory verdict?
Unsafe or unsatisfactory verdict – legal principles
The nature of the challenge to the factual finding
Did AB tell the appellant that he had been the subject of sexual abuse?
Did the appellant believe what AB had told him?
Ground 2 – inadequate reasons?
Conclusion
QUINLAN CJ:
Introduction and summary
This is an appeal against conviction from the Magistrates Court.
On 4 November 2020, the appellant (Anthony Webb) was convicted after trial before Magistrate Shackleton, of one charge that, being a teacher, who in the course of his work as a teacher formed the belief on reasonable grounds that a child had been the subject of sexual abuse, he failed to report that belief as soon as practicable after forming the belief, contrary to s 124B of the Children and Community Services Act 2004 (WA) (the Act).
The circumstances giving rise to the conviction were as follows.
In April 2017, a group of boys from Trinity College (Trinity), a school in Perth, went on a school rugby trip to Japan. The appellant was one of three teachers who accompanied the boys on the rugby trip. One of the other teachers was Ian Hailes.
On 11 April 2017, one of the boys, AB, was assaulted by a group of the other boys. In the course of the assault, the other boys held AB down, removed his underwear and penetrated his anus with an object. AB later discovered that the object was a carrot. There was no contest at trial that AB was assaulted in the manner that he described.
Also not in dispute at trial was that, the following day, 12 April 2017, AB told the appellant about the incident. The words that AB said he used to describe the incident were that, 'I had a carrot shoved up my arse'. The learned magistrate was satisfied that AB told the appellant words to the effect that his anus had been penetrated with a carrot. This was consistent with the appellant's first written account of the events, a statement dated 13 September 2017. In that statement, the appellant said that AB 'opened up about the object (a carrot) being put into his anus'.[1]
[1] Exhibit 3.
There was no dispute that, after being told about the incident by AB, the appellant did not report it in the form required by the Act. The incident was ultimately reported by the Acting Headmaster of Trinity, Peter Norman, on 11 September 2017.[2] Again, in the statement dated 13 September 2017, the appellant said that Mr Hailes' and his response to AB was:[3]
We asked him if he was physically hurt and he said he wasn't. We asked who was the person/s who did this and he refused to give us any names. We asked what he would want us to do about the incident and he said he wanted nothing done about it. We respected his wishes in the matter and didn't take it any further.
[2] The date of the charge particularised in the Prosecution Notice was 12 April 2017 to 11 September 2017, being the period from the date that the appellant was informed of the incident by AB to the date it was reported by Mr Norman. While the appellant complained at trial that there were 'defects' in the charge period, as part of a permanent stay application, no such issue was raised in the appeal.
[3] Exhibit 3.
At trial there was no dispute that the assault described by AB amounted to 'sexual abuse' within the meaning of the Act[4] (although the appellant did take issue with that characterisation of the conduct on appeal).
[4] Trial ts 106 (24 September 2020).
The issue at trial was whether the appellant 'believe[d] on reasonable grounds' that AB had been the subject of sexual abuse.[5] That is, whether the appellant had a subjective state of mind inclining towards assent to, rather than rejecting, the proposition that AB had been the subject of sexual abuse.[6] That issue significantly depended upon whether the learned magistrate was satisfied, beyond reasonable doubt, that the appellant believed that what AB said had occurred in his room on 11 April 2017 had in fact occurred.
[5] See the appellant's closing submissions at trial: ts 108 ‑ 113 (24 September 2020).
[6] I have dealt with the nature of 'belief' in the context of s 124B of the Act in more detail below.
At trial, the appellant submitted that the learned magistrate could not be so satisfied and referred, in particular, to an interview given by the appellant on 15 August 2018.[7] In that interview the appellant made a number of statements in relation to his state of mind on 12 April 2017. Some of those statements expressed disbelief, or at least equivocation on the part of the appellant, as to what his state of mind was at that time. For example, the appellant said, in that interview:[8]
It's not that I didn't believe him, but I just didn't – I couldn't [believe] – I just didn't think that the group would – that that could have happened.
[7] Trial ts 113 (24 September 2020).
[8] Exhibit 7 (the 15 August 2018 interview), 17.
The learned magistrate was satisfied in all of the circumstances that the only reasonable inference was that the appellant formed the requisite belief and that it was on reasonable grounds.
His Honour entered a judgment of conviction, imposed a fine of $1,200 and made a spent conviction order.
The learned magistrate's reasons for his decision to convict the appellant included the following:
(a)his Honour found that AB told the appellant words to the effect that his anus had been penetrated with a carrot;
(b)his Honour found that the appellant's statement dated 13 September 2017 was intended to be, and was, an accurate reflection of the appellant's knowledge;
(c)his Honour rejected the appellant's account on 15 August 2018 that he did not believe that the assault had occurred; and
(d)the reason for his Honour's rejection of that account included the fact that the appellant asked AB if he wanted to see a doctor, said that he had kept an eye on him during the rest of the tour and decided to respect his wishes.
The appellant appeals on two grounds:
(a)that the verdict was unsafe and unsupported by the evidence, occasioning a miscarriage of justice (ground 1); and
(b)that the learned magistrate failed to give adequate reasons for his decision (ground 2).
For the reasons that follow, I would refuse leave to appeal in relation to each ground and dismiss the appeal.
As the appellant accepted at the hearing of the appeal, ground 1, which contends that the verdict of guilty was unsafe and unsatisfactory, requires that I conduct a real review of all of the evidence to determine whether it was open to the learned magistrate to be satisfied beyond reasonable doubt as to the guilt of the appellant of the offence charged.[9]
[9] See further [124] ‑ [130] below.
Proceedings at trial
The appellant was tried jointly with Mr Hailes. The summary that follows is confined to the evidence as it related to the appellant and, in particular, to the evidence as it related to the appellant's state of mind.
The trial before the learned magistrate was conducted over a number of days throughout 2020: 23 to 27 and 31 March, 22 May, 23 July and 24 September 2020 – a total of nine hearing days. Significant time and voluminous written submissions were devoted to legal arguments concerning whether the prosecution should be the subject of a permanent stay of proceedings and in relation to the admissibility of certain evidence. None of the learned magistrate's rulings in relation to those matters are challenged in the appeal and they may properly be put to one side. Those matters do, however, serve (perhaps) to explain why the trial took the time that it did, given the relatively narrow compass of the real issues in dispute.
The prosecutor called 12 witnesses: AB, Lachlan Loveridge, Kyle Wright, Jarrod Scott, Ivan Banks, Peter Norman, Eliza Knapman, Timothy Hince, Timothy Wong, Erin Dalby, Detective Sergeant Kevin Glynn and Jayne Taylor. Mr Hailes gave evidence in his defence. The appellant elected not to give evidence.
Prior to the prosecutor going into evidence, the appellant formally admitted that, at the relevant time, he was a registered teacher within the meaning of the Act.[10]
AB's evidence
[10] Trial ts 62 (23 March 2020).
AB gave evidence that in 2017 he was in year 11 at Trinity. He said that he went on a school rugby trip to Japan that year, representing the school for about a week and a half. The teachers on the tour were Mr Hailes, the appellant and a third teacher whose name he could not recall.[11]
[11] Trial ts 14 (24 March 2020).
While they were in Japan, the teachers and students stayed in two different hotels. At the second hotel there were roughly eight or nine students staying in the room that AB was in.[12]
[12] Trial ts 16 (24 March 2020).
On the second night at that hotel, AB said that a group of about 10 students came into his room. After an interaction with one of the other students in the room, the students turned around, grabbed AB and turned him over so that his face was in the ground. After a struggle, AB said 'one of the other students grabbed me and then, you know, forced me to the ground, held me much tighter, to which my pants and underwear were removed and an item was inserted into my anus.' He was later told by one of the students that the item was a carrot.[13]
[13] Trial ts 16 (24 March 2020).
The following morning the students were gathered for breakfast. On the tour they had a fine system where students could nominate a person to pay a ¥100 fine, to be pooled, with the intention that it would be donated to a local charity. AB said that the appellant was holding the bowl for the money. During the fine session on that day (AB believed he was the last person to speak), AB gave evidence that he said:[14]
I would like to nominate everyone who was in my room last night. You know what happened. You – you know what went on. Just put your money in and then we don't have to talk about it or words to that effect.
[14] Trial ts 17 (24 March 2020).
AB gave evidence that, after this, the appellant said to him '[w]e need more information. Not just – not just that. We need more clarification of what you mean by that.'[15]
[15] Trial ts 19 (24 March 2020).
AB gave evidence that he turned to the appellant and said 'I had a carrot shoved up my arse'. AB said that the appellant turned to Mr Hailes and said: 'Did you hear what he said?' Whereupon AB said louder 'I had a carrot shoved up my arse'. AB said that he was looking down at the time, he was very ashamed of what had happened and very embarrassed as well.[16]
[16] Trial ts 20 ‑ 21 (24 March 2020).
AB said that, later that morning the appellant approached him and said words to the effect, 'Did you want me to follow up on that thing that you brought up at breakfast today?' AB said that he replied, 'No. It's not a big deal. I just want it to go away.' The appellant said 'Okay' or words to that effect.[17]
[17] Trial ts 21 (24 March 2020).
After that there was no further mention of the incident on the trip.
AB gave evidence about other conversations he later had with staff at the school, including Mr Hince and Mr Norman. He said that he did not want to speak about the incident but he did confirm with Mr Norman that what had been reported to have occurred was correct, namely that he had been held down and had an object put into his anus against his will.[18]
[18] Trial ts 23 ‑ 26 (24 March 2020).
In cross‑examination by the appellant's trial counsel, AB agreed that the 'fine session' was a way of punishing people 'while also having a slightly, like, comical twist to it'.[19] He was cross‑examined as to how many times he said: 'I had a carrot shoved up my arse'.[20]
[19] Trial ts 27 (24 March 2020).
[20] Trial ts 31 ‑ 33 (24 March 2020).
AB agreed in cross‑examination that he had been bullied quite badly on the trip and was the subject of some really terrible bullying even up to October 2017.[21]
[21] Trial ts 36 (24 March 2020).
AB disagreed that the appellant asked him if he needed to see a doctor, but he did agree that, by his behaviour, the appellant was showing some consideration of AB's situation.[22]
[22] Trial ts 37 ‑ 38 (24 March 2020).
AB was also cross‑examined as to the precision of his language in what he said to the appellant:[23]
You never told him that you were held down by any of the boys, did you? --- No, I didn't.
No. You never told Tony Webb that your pants and your underwear were pulled off, did you? --- Well, since I didn't put the carrot in there myself, I thought that it would be pretty obvious that that's what had happened.
I appreciate that, but that's actually not my question and I do need you to listen carefully to the question, please? --- No. I didn't tell him.
You didn't tell him that you had had your underwear and your pants pulled off, did you? --- No, I didn't.
No. And you certainly didn't tell him – you didn't use the word 'penetration', did you? --- No.
No. And, again, I know this is embarrassing, but it's necessary. You didn't use the phrase, 'I had a carrot inserted into my anus,' did you? --- No. I used the term I had a – a carrot shoved up my arse.
Yes. And they were the words you used on the trip in Japan, aren't they, AB? You didn't use any other expression; correct? --- Those were the exact words.
[23] Trial ts 39 (24 March 2020).
AB was cross‑examined generally by Mr Hailes' counsel as to the quality of his recollection.[24]
Mr Loveridge's evidence
[24] Trial ts 40 ‑ 42 (24 March 2020).
Mr Loveridge gave evidence that in 2017 he was in year 10 at Trinity. He said that he went on the trip to Japan that year.[25] He said that he was present in the room when 'some year 11s and 12s' grabbed AB held him down, pulled down his pants 'and put a carrot in his bum'.[26]
[25] Trial ts 53 (24 March 2020).
[26] Trial ts 55 (24 March 2020).
Mr Loveridge described the fine session the following day in which AB said to the group: 'You know who you are, you know what you did, now own up'. He said that he later saw the appellant and Mr Hailes talking about the incident, but he could not recall what they were saying. He said, however, that he said to the appellant and Mr Hailes that during the incident someone was 'whacking' the carrot in with their palm.[27]
[27] Trial ts 56 ‑ 58 (24 March 2020).
In cross‑examination, Mr Loveridge agreed that the fine session was usually for things that happened on the tour that were light‑hearted.[28] He also said that he had agreed with AB that AB should bring up the incident at the fine session.[29]
Mr Wright's evidence
[28] Trial ts 56, 60 ‑ 61 (24 March 2020).
[29] Trial ts 61 (24 March 2020).
Mr Wright was also a Trinity student who went on the tour to Japan. He was 15 years old at the time.[30] Mr Wright was not present in the room when the assault on AB occurred. He came in when it was ending, when AB was standing up with tears on his face.[31] He also gave evidence about the fine session and of AB saying: 'You know who you are. You know what you've done. Pay up.'[32]
[30] Trial ts 76 ‑ 77 (24 March 2020).
[31] Trial ts 78 (24 March 2020).
[32] Trial ts 79 (24 March 2020).
Mr Wright also agreed in cross‑examination that the atmosphere of the fine session was usually fairly light‑hearted and jokey.[33] He said that when AB made his statement, the 'mood sort of shifted' and that he heard some of the students who were involved whispering to each other and heard the word 'snitch' being thrown around.[34]
Mr Scott's evidence
[33] Trial ts 81 (24 March 2020).
[34] Trial ts 84 (24 March 2020).
Mr Scott was the last of the former Trinity students to give evidence at the trial. He was in year 11 when he went on the tour to Japan. He also described the fine session, and AB saying something along the lines of 'you know what you did'. The appellant and Mr Hailes were present at the fine session.[35]
[35] Trial ts 88 ‑ 90 (24 March 2020).
In cross‑examination, Mr Scott also agreed that the fine sessions were usually jovial. He said that the way AB presented it was not quite as jovial but the general feeling in the room was still a little bit light‑hearted.[36]
Mr Banks' evidence
[36] Trial ts 92 ‑ 93 (24 March 2020).
Mr Banks was, from 2007 to 29 June 2018, the Headmaster at Trinity. In 2017, his Deputy Headmaster was Mr Norman, who also acted in the role of Acting Headmaster for a short time.[37] He described the arrangements for the rugby trip to Japan and a concern raised by a parent after the tour that was unrelated to AB.[38]
[37] Trial ts 105 ‑ 106 (25 March 2020).
[38] Trial ts 106 ‑ 109 (25 March 2020).
Later in the year, while he was in Broome, Mr Banks was alerted by Mr Norman to the fact that Mr Norman had been made aware that AB had been assaulted on the rugby tour. Mr Norman kept him informed as to what he was doing about it.[39]
[39] Trial ts 109 ‑ 110 (25 March 2020).
Mr Banks was cross‑examined as to the various governance structures involved in Trinity, including the Edmund Rice Education Australia (EREA) and the Catholic Education Office (CEO). He confirmed that he was aware that the appellant had engaged lawyers in October 2017 for the purpose of alleging that he had been unfairly dismissed. He was also asked a number of questions in relation to how Trinity handled the whole incident involving AB.[40] In re‑examination he stated that, to his knowledge, the appellant had not in fact brought an unfair dismissal claim.[41]
Mr Norman's evidence
[40] Trial ts 112 ‑ 122 (25 March 2020).
[41] Trial ts 124 (25 March 2020).
Mr Norman had, until the end of 2019, been the Deputy Headmaster of Trinity for nine years. He was acting in the role of Acting Headmaster in September 2017. He said that on 6 September 2017 he was told by two teachers that they had heard a rumour that a boy had a carrot forced into his anus on the rugby tour in Japan in April.[42]
[42] Trial ts 126 ‑ 128 (25 March 2020).
Amongst other things he did in response, Mr Norman asked Mr Hince to speak with AB. Mr Hince later relayed to Mr Norman that AB had said there was nothing to report. Mr Norman then received advice from Mr Wong at the CEO to speak to the staff on the tour.[43]
[43] Trial ts 130 ‑ 131 (25 March 2020).
Mr Norman said that he spoke to the appellant on 7 September 2017 in the Headmaster's Office. He said that he asked the appellant whether he knew anything about an incident on tour involving AB. Mr Norman gave evidence that:[44]
Tony said, yes, he was aware of an incident, that AB had told him that he had been held down by a group of boys and had a carrot forced into his anus.
[44] Trial ts 132 (25 March 2020).
Mr Norman said that, in that conversation, the appellant said that AB told him that he had spoken to Mr Hailes about the incident. Mr Norman said that it was a short conversation and that he told the appellant that he would need to speak to the CEO as to where to go from there. After speaking to Mr Hailes on 8 September 2017, Mr Norman ultimately spoke to Mr Wong at the CEO on Monday, 11 September 2017.[45]
[45] Trial ts 132 ‑ 135 (25 March 2020).
Mr Norman said that he spoke to the appellant again on that day (11 September 2017). He gave the following evidence:[46]
And how did the meeting go, what's you recollection of what happened? --- Yes, Tony sat down. I said, 'Did you remember some more detail?' He said that [AB] had said that there were about eight boys in the room. They had been mucking around, play fighting and then he had been held down by a number of him [sic], and had a carrot forced into his anus.
[46] Trial ts 138 (25 March 2020).
Mr Norman then made a report under the Act.[47]
[47] Trial ts 139 (25 March 2020).
At 11.32 am on 12 September 2017, Mr Norman requested, by email, that the appellant and Mr Hailes provide a written account of their recollections of the incident on the rugby tour.[48] The appellant's written response, signed by him, was received on 12 or 13 September 2017.[49] It reads:[50]
Written Statement from Anthony Webb
Japan Rugby Tour – Incident concerning [AB]
We were staying at the Sunset Breeze Hota away from any venues that the boys would want to go out to other than the shops around the corner. Because of this the boys tended to congregate in their rooms and entertained themselves there. The room in which [AB] was in did do some wrestling and play fighting.
The incident happened in the second half of the tour on or about the 11th of April and myself and Ian Hailes didn't come to hear about it until the next morning. When we heard about it we sought [AB] out without making a scene and talked to him about what happened to him. He initially didn't wish to tell us anything other than they were all playing at wrestling each other in their room. I am not sure who was in the room at the time as the boys went from room to room until it was lights out time. On further questioning, as to his well‑being he opened up about the object (a carrot) being put into his anus. We asked him if he was physically hurt and he said he wasn't. We asked who was the person/s who did this and he refused to give us any names. We asked what he would want us to do about the incident and he said he wanted nothing done about it. We respected his wishes in the matter and didn't take it any further.
We went to training and when [AB] went to the toilet Ian called the rest of the group together and gave them a talk about respect and care for each other and that some of the behaviour we have heard about, was not the type of behaviour we condone and it will not happen again. They seemed to understand what we meant and did the right thing from then on till the end of the tour.
Both Ian and I kept an eye on [AB] to ensure he was okay and asked on a regular basis if he was feeling well. This was done in passing because [AB] didn't want it to be seen like we were at him in front of the others. [AB] continued on with the tour and his rugby and enjoyed them both.
The information above is to the best of my recollections of the tour and the incident.
[48] Exhibit 1. I note that, at trial, there was an objection taken to the admission of this email, and the appellant's response (Exhibit 3). Indeed objection was taken to the admission of confessional material in seven exhibits (Exhibits 1 to 7) and to Mr Norman's evidence as to oral admissions made by the appellant and Mr Hailes. On 22 May 2020, the learned magistrate ruled that all of the confessional material was admissible and should not be excluded in the exercise of the court's discretion. No challenge to that ruling was made in the appeal.
[49] Trial ts 139 (25 March 2020).
[50] Exhibit 3 (the 13 September 2017 statement).
Mr Norman said he first had contact with Jayne Taylor, from the CEO, on the afternoon of 12 September 2017.[51]
[51] Trial ts 149 (25 March 2020).
In cross‑examination, Mr Norman confirmed that Ms Taylor called him on 12 September 2017 to suggest that Trinity needed to commence the disciplinary process against the teachers for misconduct.[52] He disagreed that the 13 September 2017 statement obtained from the appellant was a consequence of his intention to pursue disciplinary action.[53]
[52] Trial ts 149 (25 March 2020).
[53] Trial ts 154 (25 March 2020).
Mr Norman was asked a number of questions about an investigation by EREA into the handling of the whole incident by Trinity (including Mr Norman), following a complaint by AB's family.[54]
[54] Trial ts 157 ‑ 163 (25 March 2020).
Mr Norman was also cross‑examined as to the conversations that he had with the appellant on 7 and 11 September 2017. That cross‑examination included questions as to what trial counsel suggested was an 'important' distinction between AB having said that he had 'a carrot shoved up his arse' and Mr Norman saying that the appellant had said that AB had had a carrot 'forced' or 'inserted' into his anus.[55] As will be seen, similarly elusive distinctions were relied upon by the appellant in the appeal.
[55] Trial ts 178 (25 March 2020).
It was put to Mr Norman that he had fabricated aspects of what he had said that the appellant had said to him on 11 September 2017.[56] In re‑examination, Mr Norman's contemporaneous note of that conversation was tendered to rebut the suggestion of recent invention.[57]
Ms Knapman's evidence
[56] Trial ts 178 (25 March 2020).
[57] Trial ts 204 ‑ 209 (25 March 2020); Exhibit 5.
Ms Knapman was the Italian teacher at Trinity in 2017. She gave evidence that she was the third teacher who accompanied the students on the rugby tour to Japan.[58] She did not recall an occasion upon which AB nominated someone at a fine session or, indeed, anything out of the ordinary in relation to the tour. Her evidence principally related to a conversation that she had with Mr Hailes on 11 September 2017.[59]
Mr Hince's evidence
[58] Trial ts 218 (25 March 2020).
[59] Trial ts 220 ‑ 221 (25 March 2020).
Mr Hince was the Deputy Headmaster at Trinity in 2017. He gave evidence that he spoke to AB in late August 2017, as a result of a teacher telling Mr Hince about a rumour concerning the rugby tour. When he first spoke to AB, AB said that there had been no significant incidents on the tour.[60] He was later advised by Mr Norman that the appellant and Mr Hailes had confirmed that an assault on AB had taken place.[61]
Mr Wong's evidence
[60] Trial ts 247 ‑ 249 (26 March 2020).
[61] Trial ts 250 (26 March 2020).
Mr Wong was employed by the CEO. In 2017 his responsibilities included the role of a mandatory reporting consultant.[62] He gave evidence in relation to his dealings with Mr Norman in September 2017, and the advice that he gave in relation to mandatory reporting obligations. He confirmed that he was not advising Mr Norman in relation to disciplinary matters.[63] Mr Wong also confirmed, in cross‑examination, that the appellant had signed in as attending some training in relation to mandatory reporting in 2016.[64] He gave evidence in relation to the nature of that training.
Ms Dalby's evidence
[62] Trial ts 259 (26 March 2020).
[63] Trial ts 265 (26 March 2020).
[64] Trial ts 270 (26 March 2020).
Ms Dalby gave evidence that in 2018 she was a senior investigations officer at the Education and Care Regulatory Unit in the Department of Communities (the Department).[65] She undertook an investigation in relation to an allegation of failed mandatory reporting by the appellant and Mr Hailes.[66]
[65] Trial ts 286 (26 March 2020).
[66] Trial ts 287 (26 March 2020).
Ms Dalby gave evidence that she conducted a record of interview with the appellant (i.e. the 15 August 2018 interview). Due to technical difficulties, the recording itself, together with a transcript, were tendered by consent after Ms Dalby completed her evidence.[67] I have dealt with the 15 August 2018 interview separately below.
[67] Trial ts 287 ‑ 295 (26 March 2020).
Ms Dalby was cross‑examined at length in relation to her investigation, including the receipt of material from the CEO and her contact with AB's mother.[68]
Sergeant Glynn's evidence
[68] Trial ts 295 ‑ 306 (26 March 2020).
Sergeant Glynn was a Detective Sergeant with the Western Australian Police. In 2017 and 2018 he was attached to the Sexual Assault Squad.[69]
[69] Trial ts 308 (26 March 2020).
Detective Sergeant Glynn gave evidence, and was cross‑examined, concerning an investigation of a complaint made by AB's father in relation to the events on the rugby tour, none of which is relevant to the issues in the appeal.[70]
Ms Taylor's evidence
[70] Trial ts 309, 312 ‑ 317 (27 March 2020).
Ms Taylor was an employment relations consultant employed by the CEO. She gave evidence in relation to a disciplinary process conducted in relation to the appellant and Mr Hailes following advice to the CEO in September 2017 concerning their alleged failure to report the incident on the rugby tour. She described that process commencing with a 'stand down' meeting on 13 September 2017.[71]
[71] Trial ts 6 ‑ 9 (31 March 2020).
Ms Taylor identified various steps in the disciplinary process, including allegations letters to, and written responses from, the appellant and Mr Hailes, the detail of which were not the subject of evidence. Ms Taylor however indicated that the allegations letter to the appellant was given to him on or about 15 September 2017 and the response received on or about 22 September 2017.[72] The process ultimately resulted in the termination of the appellant's employment.[73]
[72] Trial ts 8 ‑ 9 (31 March 2020).
[73] Trial ts 10 ‑ 11 (31 March 2020).
Ms Taylor was cross‑examined at length, much of which cross‑examination appeared to be directed to precisely when the disciplinary process commenced, or was in contemplation.[74] None of that evidence is relevant to the issues in the appeal.
The 15 August 2018 interview
[74] Trial ts 11 ‑ 37 (31 March 2020).
The appellant's record of interview, the 15 August 2018 interview, together with a transcript, was the final prosecution exhibit.[75]
[75] In the extracts from the 15 August 2018 interview that are set out in these reasons those portions appearing in square brackets are either redactions of AB's name or corrections to the transcript based on my own review of the recording of the interview.
The 15 August 2018 interview occurred well after the appellant was dismissed from his employment at Trinity. He refers in the interview to 'being sacked'.[76]
[76] 15 August 2018 interview, 9.
The interview largely consists of questions and answers between Ms Dalby and the appellant. Another investigations officer with the Department (Luke Hansen) was present, but does not actively participate. The appellant's wife, Ms Webb, attended as a support person. Unfortunately there were a number of occasions on which Ms Webb intervened and made statements in the interview, including prompting the appellant,[77] making a critical remark in relation to another staff member at the school,[78] commenting upon what material should be relied upon[79] and even making comments about what the appellant 'would … even contemplate', think or know.[80]
[77] 15 August 2018 interview, 8.
[78] 15 August 2018 interview, 21.
[79] 15 August 2018 interview, 22.
[80] 15 August 2018 interview, 35, 39 ‑ 40, respectively.
In the 15 August 2018 interview, the appellant gave the following account of the events on the rugby tour:[81]
MR WEBB: We were on tour in Japan, on a rugby tour. We have a – every morning at breakfast, we would have breakfast and then we would have a – a session with the boys about things that [had] gone wrong, or that people [had] done – stupid things or wrong things during the day before, and we would fine them if we felt that they needed to be fined. And all the fine money was then collected, and given to a charity over in Japan. That was part of the – just the – the bonding and the team [sort of] spirit thing. And on the morning [in] question, we were going around. We were fining people [you know] for stupid things that they did, or didn't do or whatever, and at the – towards the end [of it], – [AB] – well, some of the boys were nudging at [AB] and that, and then I just said, 'Well is there anything else that we need to know about?', and [AB] said – or put his hand up and he said, 'Oh, yeah', and he said, 'Oh, they put a carrot in my bum'. And I said, 'Oh, really? Well, I don't want to know about that at the moment. Just leave that for now'. And I said, 'Look, we've got training this morning. I need all you guys to go up and get yourself organised for training', and just basically shoved that down – shut it down without being – making it too obvious, and I asked [AB] just to stay behind and I spoke to – I then got Ian, who'd left the room at the time, to come back into the room and I told him what had been said. Ian is the – was the tour director in charge of the tour, so he needed to know the matter so I [sort of] gave it to him. And then he and I spoke to [AB] about what he'd said, and basically he said that he was fine [and he] didn't want anything done about it. We·[sort of] said, 'You just said this', and he said, 'No, it's – it's fine. It's okay. I'm not worried' [you know]. And I said, 'Well, what happened?', and he wouldn't say what had happened. All he said was, 'We were just [you know] mucking around', and they were mucking around. Over the previous couple of nights, I had to go up into the rooms – the dorm rooms, and actually tell them to stop the wrestling, because we were in Japanese [sort of] dorm rooms on tatami mats, so they weren't in beds or anything like that. It was just a big, flat floor with tatami mats and mattresses, so they started having wrestling games in the evenings, and we told them to – [you know] 'It's time for rest. It's time for having time with yourselves, [you know] to be with each other, but not fighting'. And they continued, and we had to just keep coming back and back, as you do with boys of this age. They're fairly active, and fairly into it – so that sort of thing, and – [AB] was a – a willing recipient. He got into it as well. So they – he just basically told us they'd been wrestling, mucking around and – but, 'It was fine'. He was fine. So we just – we talked about [you know], did he need to see a doctor? Is he in pain? Is there anything wrong with him, and he said, 'No, I'm fine'. And we questioned him [for] a little bit longer, just trying to get him to tell us something about what had happened, and he told us nothing.
MS DALBY: Yep.
MR WEBB: He just, 'No, I'm fine', and then we said, 'Well, what do you want us to do about it?', and he said, 'I don't want anything done about it. I just want to get back and get onto training', and we [sort of] looked at each other and we thought, 'Well, we'll just keep an eye on you and see how things go'.
[81] 15 August 2018 interview, 7 ‑ 8.
The appellant was later taken to the conversation involving Mr Hailes:[82]
[82] 15 August 2018 interview, 11 ‑ 12.
MR WEBB: It was – well, we basically – I told Ian what [AB] had said, and Ian ---
MS DALBY: And what was that?
MR WEBB: That he had – a carrot had been put in his bum ---
MS DALBY: Mm hm.
MR WEBB: --- and Ian said, 'Okay', and then we started – we said, 'Rightio [AB], you've made a statement there. We need to find out what's going on – what happened'.
MS DALBY: Mm hm.
MR WEBB: And he said, 'Oh, it's fine Sir. We were just mucking around. It was just – [you know] we were wrestling again', and I – and then [you know] Ian took over, basically asking questions about [you know] who was involved and he didn't want to say anything. So basically, [AB] just shut down. He just [sort of] said nothing. He said, 'No, I don't want – it's fine. I'm okay' ---
MS DALBY: Mm hm.
MR WEBB: --- and we asked whether he wanted us to do anything ---
MS DALBY: Mm hm.
MR WEBB: --- for him or for – about it, and· he said, 'No, it's fine. 'It's okay. It's no worries', and we said, 'Do you need to see a doctor?', and he said, 'No, I'm okay'. And I thought – we said we would keep an eye on him. If he felt ill, or unwell or whatever, he was to come straight to us and we would take him ---
MS DALBY: Mm hm.
MR WEBB: --- straight to a doctor. And it went from there, I – at the time I [you know] – I just had no – no thoughts of a sexual nature at all about what was happening. The fact that he said that, it didn't – it just didn't ring right ---
MS DALBY: Okay.
MR WEBB: --- in my mind, but I – yep.
MS DALBY: What wasn't right about it? What did you think about that?
MR WEBB: Oh, I just – I didn't think that – well, I – my – [you know] my knowledge of the boys and that, I didn't think that that was something that they would do.
MS DALBY: Mm hm.
MR WEBB: I've been proved wrong ---
MS DALBY: Mm hm.
MR WEBB: --- now, from what I've read and [you know] all the rest of it.
MS DALBY: Mm hm.
MR WEBB: But I just didn't think that was what had happened.
Asked about AB, the appellant said:[83]
MS DALBY: Okay. So when [AB] said that at the – at the fines meeting or the breakfast meeting, tell me a bit about [AB], I guess.
MR WEBB: [AB] was a Year 11 boy. He's not – he is a bit of a – a loner. He's a – he really tries hard. I got a lot of time for [AB] ---
MS DALBY: Mm hm.
MR WEBB: He – because he's – he's not the most coordinated boy in the group.
MS DALBY: Mm hm.
MR WEBB: He's not – he's a very bright boy, and he works really hard ---
MS DALBY: Mm hm.
MR WEBB: --- in all the – all that he does, but from a – [you know] from a – from the rugby point of view, skills-wise he's very basic in his skills.
[83] 15 August 2018 interview, 13.
The interview returned to the appellant's response to AB's description of the incident:[84]
[84] 15 August 2018 interview, 14 ‑ 16.
MS DALBY: Okay, and in – in terms of [AB] – whether it's [you know] at the school, but I guess in particular on this trip as well, is he a trustworthy kid or does he ---
MR WEBB: Yeah.
MS DALBY: --- tend to make up stories ---
MR WEBB: Well---
MS DALBY: --- or ---
MR WEBB: --- I – I'm – yeah– I would say he was a trustworthy kid. I just – and the statement he made me – I just couldn't [under] --- that's why I took it to Ian straight away. I said, 'I don't know whether this is right or wrong'.
MS DALBY: Yep.
MR WEBB: That's why I took it to Ian as the head of the tour ---
MS DALBY: Mm hm.
MR WEBB: --- and then that's what the verdict – we [sort of] went from there, and he took over basically, and we just – the questions that I've said there were basically asked by either one of us ---
MS DALBY: Yep.
MR WEBB: --- to try and get to the bottom of the matter, and the matter just didn't – nothing came out of those questioning.
MS DALBY: Yep.
MR WEBB: So we just – yeah – kept an eye on it. [AB] said he didn't want anything done about it. We [sort of] said, 'Look, fine. But you need to let us know if you're not feeling well, if you're' ---
MS DALBY: Mm hm.
MR WEBB: 'Whatever else happens, you need to let us know about it straight away', and just left it at that, and ---
MS DALBY: Yep, did you have concerns that he was injured or harmed?
MR WEBB: Well, I – obviously we were concerned initially, but then when we watched him training and when we watched him with the guys afterwards when we were going on a bit of a sightseeing thing, he was fine. He was not a problem [you know]. He was with the boys. He wasn't going off to the side or [you know] being by himself. He was with his – with a group of boys all the time. They were involved in all the activities, and ---
MS DALBY: Yeah.
MR WEBB: --- he just seemed to be normal [AB].
MS DALBY: Okay. So when the three of you had your conversation, did you and Ian have a conversation after [AB] left ---
MR WEBB: We ---
MS DALBY: --- with each other?
MR WEBB: Well, we just [sort of] 'said – [you know] we just didn't know what had come [of that]. Okay, so he doesn't want anything done about it. What can we do about it? Well, there's nothing we can really do. There's – we don't know anything ---
MS DALBY: Mm hm.
MR WEBB: --- and we still really – well, I still really didn't know what had happened until I received the letter of allegation from the school that the incident had happened the way that it had.
The appellant was asked about the allegation letter from the school, which in context appears to be the letter referred to by Ms Taylor, given on or about 15 September 2017.[85] The questions and answers in that regard included:[86]
[85] See [66] above.
[86] 15 August 2018 interview, 17 ‑ 18.
MS DALBY: All right, great. So you said that the first you were aware of the incident was in the allegation letter that the school sent to you. So what are you saying you didn't know, or what – what new information was provided to you, that you were ---
MR WEBB: That the – that the boy was held down and that a carrot was inserted in his rectum. I – other than him saying that, I didn't believe – as I said before, I just didn't think that that would happen. It could have happened ---
MS DALBY: Mm hm.
MR WEBB: --- but in the letter of allegation it said that he was held down and that it was done.
MS WEBB: All that would be in the letter, wouldn't it(?)?
MS DALBY: Okay. So he told you that he had a carrot put in his bum? Is that ---
MR WEBB: That's what he said, yes.
MS DALBY: --- words to that effect? But that's what you were saying, you weren't sure ---
MR WEBB: Well, I – I – he said it ---
MS DALBY: Mm hm.
MR WEBB: --- but then when we asked about it, he didn't give us anything else to work on, so we just didn't. It's not that I didn't believe him, but I just didn't – I couldn't [believe] – I didn't think that the group would – that that could have happened.
MS DALBY: Yep.
MR WEBB: So I just didn't believe that it would have happened that way.
MS DALBY: Mm hm.
MR WEBB: But I mean, as I said on questioning, and we questioned him for a while. He gave us nothing. He just – he was – said he was fine, and he didn't want anything done about it and ---
MS DALBY: Yep.
MR WEBB: --- that was it. So we – we went with his request that he didn't want anything done with it but we just kept – told him that we would keep an eye on him ---
MS DALBY: Mm hm.
MR WEBB: --- and mentioned that if he needed to see a doctor or whatever, he said – to let us know about it.
Later in the interview, the appellant returned to the letter of allegation and what would have happened 'had I known what was in the letter of allegation'.[87] In that context, the appellant said:
[B]ut as I said if I'd been given more information, like the information that I have been given … I would have – it would have been well and truly reported well before we even got home.
[87] 15 August 2018 interview, 39.
Similar remarks appear again later in the interview.
Mr Hailes' evidence
As noted above, the appellant elected not to give evidence or call evidence at trial.
Mr Hailes did give evidence. Most of his evidence was, of course, concerned with the charge against him, rather than the appellant. Some limited matters of potential relevance to the appellant may be briefly summarised.
Mr Hailes said that, when the appellant first spoke to him about AB, the appellant said that AB had said 'they put a carrot in his pants'.[88] Mr Hailes said that he told the boys that the bullying of AB had to stop.[89]
[88] Trial ts 10 (24 September 2020).
[89] Trial ts 12 (24 September 2020).
Mr Hailes was cross‑examined by the appellant's counsel in relation to the appellant's statement in the 15 August 2018 interview that he had reported to Mr Hailes that AB had said that a carrot was 'put in his bum'. Mr Hailes said that that was not his recollection.[90]
[90] Trial ts 22 (24 September 2020).
Mr Hailes was also cross‑examined by the prosecutor in relation to his earlier written account of the evidence and AB's evidence, which he denied.
The learned magistrate's reasons for decision
The learned magistrate's reasons for decision were delivered orally on 4 November 2020. His Honour's reasons deal with the case against both the appellant and Mr Hailes. For that reason, the reasons, to an extent, move back and forth in relation to the issues in each case. I have confined the summary that follows to the reasons as they concern the appellant.
The learned magistrate properly directed himself in relation to the onus and standard of proof, the need to confine himself to the evidence and in particular to the evidence admissible against each of the appellant and Mr Hailes.[91] His Honour correctly directed himself in relation to the requirement, that in drawing inferences, an inference of guilt must not only be a rational inference, but the only rational inference.[92]
[91] Reasons ts 3 (4 November 2020).
[92] Reasons ts 3 ‑ 4 (4 November 2020).
His Honour identified the elements of the charge, including the meaning to be ascribed to the phrase 'believed on reasonable grounds'.[93] In that context his Honour referred to the High Court's decision in George v Rockett.[94] I need not repeat the learned magistrate's reasons in that regard. I will address those legal issues in the next part of these reasons.
[93] Reasons ts 4 ‑ 5 (4 November 2020).
[94] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (George v Rockett).
The learned magistrate also recognised the significance of the evidence of good character of the appellant; both as to whether the appellant would commit an offence such as the one that he was charged with and as to the credibility of the appellant's account in the 15 August 2018 interview.[95]
[95] Reasons ts 6 (4 November 2020).
His Honour also directed himself as to the appellant's election not to give evidence and the need not to use that election in any way against the appellant.[96]
[96] Reasons ts 7 (4 November 2020).
In relation to the 15 August 2018 interview, the learned magistrate said:[97]
Mr Webb participated in a video record of interview on 15 August 2018 and, having done so, I can consider what he said in that interview along with all of the other evidence in this trial. What he said in that interview may be used for an[d] against him. It forms part of the evidence that I must consider in deciding whether or not the prosecution has proven the offence against him beyond a reasonable doubt. However, what he said in the interview was not made on oath, has not been tested by cross‑examination and I'm not obliged to give the same weight to any exculpatory statements that he made during the interview.
In the interview, Mr Webb said that at a fines session during breakfast on the tour, some of the boys were nudging at AB and that when he asked whether there was anything they needed to know about, AB said, 'Oh, yeah. Oh, they put a carrot in my bum.' Mr Webb said that he asked AB to leave that for now and asked him to stay behind, which he described as shutting it down without making it too obvious because he didn't want AB to be too embarrassed. He said that he and Mr Hailes spoke to AB, which obviously is not admissible against Mr Hailes.
He said that AB said that he was fine and didn't want anything done about it and, when prompted about what he had just said, AB replied, 'It's okay. I'm not worried.' And when further prompted, AB wouldn't say what had happened and only said that they were mucking around. Mr Webb said that AB was asked if he needed to see a doctor, but AB said that he was fine and so it was decided to keep an eye on him. Ultimately, Mr Webb said that he didn't believe that the incident had occurred and that, if he had believed it to be true, AB and the boys concerned would have been sent straight home and the tour would have probably finished early.
[97] Reasons ts 7 (4 November 2020).
The learned magistrate gave himself a Liberato direction[98] in relation to the appellant's out‑of‑court statements.[99]
[98] Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507, 515 (Brennan J).
[99] Reasons ts 8 (4 November 2020).
His Honour also summarised the 13 September 2017 letter, as follows:[100]
In exhibit 3, Mr Webb said that the incident occurred on or about 11 April but that he did not hear about it until the next morning. Mr Webb says that AB 'initially didn't want to say anything other than that there had been wrestling but, upon further questioning, he opened up about the object (a carrot) being put into his anus'. Mr Webb said that AB was asked if he was physically hurt but AB said that he wasn't. Mr Webb said that AB refused to give any names and that he didn't want anything done about it. Mr Webb said that they 'respected his wishes in the matter and didn't take it any further'.
[100] Reasons ts 9 ‑ 10 (4 November 2020).
After summarising AB's evidence, the learned magistrate concluded:[101]
On the whole of the evidence, I have a doubt about whether AB announced the precise incident at the fines session in front of everybody, including the other students, or whether he did say the words, 'You know who you are. You know what you did' in front of everyone. However, I am satisfied on the totality of the evidence that he did tell Mr Webb that his anus had been penetrated with a carrot, or words to that effect, very shortly afterwards, either while everyone was leaving or once they had left.
I make that finding because AB says that he said it while they were in that breakfast room. Mr Webb said during the record of interview that, at breakfast, AB had said they put a carrot in his bum, and it also accords with Mr Webb's account in exhibit 3 that, before the training session, AB made the disclosure. I am unable to say whether Mr Hailes was present when AB told Mr Webb that.
[101] Reasons ts 10 ‑ 11 (4 November 2020).
The learned magistrate then dealt with Mr Hailes' evidence before returning to Mr Hailes' and the appellant's early accounts, including the 13 September 2017 statement. His Honour expressly found that the 13 September 2017 statement '[was] intended to be a reflection of [the appellant's] knowledge and [was] an accurate reflection of that knowledge'.[102]
[102] Reasons ts 12 (4 November 2020).
After concluding that he was satisfied that the charge against Mr Hailes was proven, his Honour returned to the appellant:[103]
Having found that AB told Mr Webb that his anus had been penetrated with a carrot, or whatever words he used, I'm also satisfied in the circumstances that the only reasonable inference is that he also formed the requisite belief and that it was on reasonable grounds. I reject what Mr Webb said in his video record of interview about not believing that it had occurred because he also said that he felt AB was embarrassed at breakfast and then shut it down. He asked him if he needed to see a doctor and said that he had kept [a]n eye on him during the rest of the tour and decided to respect his wishes. On that basis, I also find that the prosecution has proven that charge beyond a reasonable doubt.
[103] Reasons ts 12 (4 November 2020).
Before turning to the grounds of appeal, I will address the proper construction of s 124B of the Act.
Section 124B of the Children and Community Services Act 2004 (WA)
Section 124B of the Act forms part of pt 4 div 9A, which is headed 'Reporting sexual abuse of 'children'. Part 4 div 9A was inserted into the Act by the Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008 (WA).
Section 124B of the Act, relevantly, provides:
124B.Duty of certain people to report sexual abuse of children
(1)A person who –
(a)is a doctor, nurse, midwife, police officer, teacher or boarding supervisor; and
(b)believes on reasonable grounds that a child –
(i)has been the subject of sexual abuse that occurred on or after commencement day; or
(ii)is the subject of ongoing sexual abuse; and
(c)forms the belief –
(i)in the course of the person's work (whether paid or unpaid) as a doctor, nurse, midwife, police officer, teacher or boarding supervisor; and
(ii)on or after commencement day,
must report the belief as soon as practicable after forming the belief.
Penalty: a fine of $6,000.
(2)For the purposes of subsection (1) the report must be made to –
(a)the CEO; or
(b)a person approved by the CEO; or
(c)a person who is a member of a class of persons approved by the CEO.
Section 124A includes a number of definitions relevant to s 124B, including:
(a)the 'commencement date' in relation to a teacher is the day on which s 5 of the Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008 (WA) came into operation. That date was 1 January 2009;
(b)'sexual abuse' is defined as follows:
sexual abuse, in relation to a child, includes sexual behaviour in circumstances where –
(a) the child is the subject of bribery, coercion, a threat, exploitation or violence; or
(b) the child has less power than another person involved in the behaviour; or
(c) there is a significant disparity in the developmental function or maturity of the child and another person involved in the behaviour;
Both parties made submissions as to the proper construction of s 124B(1) of the Act and, in particular, the mental element of the offence; namely the requirement for the person to 'believe' that a child has been the subject of sexual abuse. Much attention was given in the appeal to the obligation of the prosecution to prove that an accused charged under s 124B of the Act must relevantly have a 'belief'.
In that regard the task of construing s 124B of the Act must begin and end with the statutory text, as a whole, considered in its context, including its objectively discerned statutory purpose.[104]
[104] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22] - [23] (French CJ, Hayne, Kiefel, Gageler & Keane JJ).
The appellant, in his submissions, emphasised that s 124B(1) required proof of a 'subjective' state of mind on the part of the accused; that is, that it was necessary for the prosecution to establish that the accused in fact formed a positive belief that a child had been the subject of sexual abuse.
Of that requirement there can be no doubt. In its terms, s 124B(1) clearly requires that, for an accused person to be in breach of the provision, the accused must have an actual belief that a child had been the subject of sexual abuse. It would not be enough that, in all of the circumstances that existed, an ordinary person would have formed the belief, or that the circumstances were such as to induce the belief in an ordinary person. The words of the statute make clear that a subjective state of mind is required.
In that context, the appellant referred, in his submissions, to an exchange during the Consideration in Detail of the Children and Community Services Amendment (Reporting Sexual Abuse of Children) Bill 2007 (WA),[105] in support of the proposition that s 124B imposed a subjective, rather than an objective test.[106] No resort to extrinsic material is, however, required to support or reach that conclusion. It is clear from the text itself that s 124B requires that, to be in breach of s 124B(1) of the Act, a person must have an actual belief.
[105] Namely, the Bill that lead to the Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008 (WA), which added pt 4 div 9A to the Act.
[106] Parliamentary Debates, Legislative Assembly, 1 April 2008, 1550 ‑ 1551.
Of course, s 124B also requires that the actual belief must be 'on reasonable grounds'. To that extent, the section also imports an objective requirement; namely that the person's subjective belief be based on objectively reasonable grounds. As will be seen, however, the appellant's submissions in the present case were focused on the subjective element of the charge.
It is necessary then to say something as to the proper construction of the required mental state: namely 'belief'.
In its ordinary and natural meaning a 'belief' is a mental acceptance of a statement, fact, doctrine or thing.[107] What 'belief' denotes as to the nature (or strength) of that acceptance will, however, depend upon the context in which it is used. That is, in its context, 'belief' may denote a more, or less, strong acceptance of the truth of a proposition.
[107] Shorter Oxford English Dictionary.
For example, in many contexts 'belief' would be understood to be an assent to a proposition that is less strong than 'knowledge'. As the Macquarie Dictionary says, for example, a 'belief' is 'based on grounds insufficient to afford positive knowledge'. A person might properly say of a particular event, for example, 'I believe that it occurred, although I do not know that to be the case'.
On the other hand, 'belief' ordinarily denotes a state of mind that is more than mere 'suspicion'. Belief denotes a degree of assent to a proposition as to a state of affairs that is lacking in suspicion.
In George v Rockett the High Court considered the meaning of both 'belief' and 'suspicion' in the context of provisions authorising the issue of a search warrant. In that context, the Court said:[108]
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
[108] George v Rockett, 116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).
As this passage makes clear, belief as 'an inclination of the mind towards assenting to, rather than rejecting, a proposition' is a form of assent that should not be equated to knowledge or certainty. Similarly it is not to be equated with satisfaction beyond reasonable doubt or on the balance of probabilities.
The statutory context considered in George v Rockett serves to explain why this was the conclusion in that case. The relevant statutory provisions in that case concerned the investigation of suspected crimes and whether there were 'reasonable grounds for believing' that the thing sought in the proposed search warrant would afford evidence as to the commission of any offence. As the purpose of the provision is concerned with investigation, rather than proof, the text of the provision did not require that the state of satisfaction (or assent) be at the level expected in the case of proof to a legal standard. If the person seeking a search warrant in those circumstances was required to 'know' or 'be certain' that the thing would afford evidence as to the commission of an offence, it would potentially defeat the purpose of the provision.
A similar purpose may be discerned from the provisions of pt 4 div 9A of the Act. It is concerned with the reporting of beliefs as to sexual abuse, which beliefs might then become the subject of investigation. Section 124D, for example provides that the CEO is required to give a copy of each written report to the Commissioner of Police. The statutory context contemplates that a person's 'belief' that sexual abuse has occurred, giving rise to a report, is a matter that may be expected to initiate an investigation as to whether sexual abuse has in fact occurred (rather than conclude such an investigation).
The statutory context and purpose of s 124B also indicates that a 'belief' that a child has been subject to abuse may well, as the High Court expressed it in George v Rockett 'leave something to surmise or conjecture'.
In this regard, for example, it may readily be appreciated that the 'reasonable grounds' upon which a person may 'form the belief' under s 124B(1) could potentially come from a wide variety of sources of information. Depending upon the circumstances, those sources of information might not include (unlike in the present case) an actual allegation of abuse by the child himself or herself. The obligation to report a 'belief', for example, applies to nurses and doctors. Members of those professions might well be expected, from time to time, to form the belief that a child has been the subject of sexual abuse on the basis of a physical examination of the child, in the absence of an allegation.
Section 124C(3) (which sets out the matters to be contained in a report) also makes clear that a person providing a report may well not know, or be able to report, the name of the child, or indeed, any person who might be alleged to be responsible for the sexual abuse.
None of which is to deny the requirement for the court to be satisfied, on a charge under s 124B(1), that the accused had an actual belief that a child had been the subject of sexual abuse. It is simply to recognise that such a belief may exist, notwithstanding that the person's understanding of the relevant circumstances may be incomplete or that there may remain a measure of uncertainty or doubt in relation to the issue, such that the belief would fall short of a legal standard of proof. As a matter of the construction of the Act, I specifically reject the appellant's submission that 'if there is uncertainty there is not belief'.[109]
[109] Appeal ts 10.
Before turning to the grounds of appeal, there is one further matter that should be noted in relation to the requisite belief. The 'belief' required by s 124B is, relevantly, a belief that a child has been the subject of sexual abuse, as that term is defined in s 124A. In that sense, it is a subjective belief about the existence of an objectively defined state of affairs. If, for example, a person subjectively believes (on reasonable grounds) that a child has been subjected to behaviour that amounts to 'sexual abuse' within the meaning of the definition, it is not a requirement of the provision that the person is personally of the view that that behaviour amounts to sexual abuse.
To illustrate this point, I will take the behaviour in the present case. A group of boys penetrated AB's anus with a foreign object, against his wishes. There was no contest at trial, and in my view there is no doubt, that such behaviour amounted to 'sexual abuse' within the meaning of s 124A. While penetration of a person's anus in that way is an act of bastardisation designed to humiliate the victim, it is nevertheless also properly characterised as sexual behaviour where the child is the subject of coercion or violence.
If a person, in the appellant's position, believed that a child had been subjected to that behaviour, it would constitute a belief that the child had been subject to sexual abuse. It would not cease to be such a belief simply because the person did not personally consider such behaviour to be 'sexual abuse' but merely boys 'mucking around'.
The issue as to the appellant's subjective belief in this case was therefore whether he believed that a group of boys had penetrated AB's anus with a carrot in circumstances in which that was contrary to AB's wishes.
I turn then to the grounds of appeal.
Ground 1 – unsafe or unsatisfactory verdict?
Ground 1 contends that '[t]he verdict of guilt was unsafe and unsupported by the evidence, occasioning a miscarriage of justice.' The appeal is therefore brought pursuant to the ground identified in s 8(1)(b) of the Criminal Appeals Act 2004 (WA) (Criminal Appeals Act), namely 'that there has been a miscarriage of justice'.
The appellant's submissions in relation to this ground were entirely focused on the subjective element of the charge; namely whether the evidence supported a finding that the appellant had a 'belief' that AB had been the subject of sexual abuse.[110] In that regard, the learned magistrate clearly found that the only reasonable inference was that the appellant formed such a belief after being told of the incident by AB.
[110] There was no suggestion that, if the appellant did have the subjective belief, there was any doubt that such a belief would be on 'reasonable grounds'. Clearly, if the appellant had a belief that AB had been sexually abused, on the basis that AB had told the appellant that he had been, AB's complaint itself would be 'reasonable grounds' for such a belief.
Ground 1, is therefore, essentially a challenge to that finding by the learned magistrate. It is a challenge as to a finding of fact. Ground 1 might therefore have been formulated as a ground pursuant to s 8(1)(a)(i) of the Criminal Appeals Act, namely that the learned magistrate made an 'error of … fact'. In the circumstances of this case, however, the formulation of the ground in that way would, in substance, have been to the same effect as the ground that the verdict was unsafe and unsupported by the evidence.
Unsafe or unsatisfactory verdict – legal principles
As formulated, ground 1 amounts to a contention that the verdict was unreasonable and cannot be supported having regard to the evidence.[111] As was said by the High Court in M v The Queen:[112]
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.
[111] In this respect the ground is akin to that provided for in relation to appeals from convictions in superior courts in s 30(3)(a)) of the Criminal Appeals Act.
[112] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ).
The principles to be applied in relation to such a ground are well‑settled, whether in relation to the verdict of a jury, a trial judge sitting alone or a magistrate.[113] The question for this Court is whether the learned magistrate's finding of guilt was open to his Honour on the whole of the evidence. I must review for myself the trial record for the purpose of forming my own assessment of whether or not it was open to his Honour to be satisfied beyond reasonable doubt that the appellant was guilty. The learned magistrate's finding of guilt is not to be disturbed unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or his Honour has so misdirected himself on a matter of law as to result in a miscarriage of justice.[114]
[113] The State of Western Australia v Olive [2011] WASCA 25; (2011) 57 MVR 269 [44] (Buss JA).
[114] S v The State of Western Australia [2021] WASCA 154 (S v The State of Western Australia) [61] (Quinlan CJ, Mazza & Mitchell JJA).
The ultimate question for the appellate court in a case such as this is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the magistrate, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.[115]
[115] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ); MEN v The State of Western Australia [2020] WASCA 118 [403] - [406], [408] (Quinlan CJ & Beech JA); S v The State of Western Australia [66] (Quinlan CJ, Mazza & Mitchell JJA).
In determining that question it is necessary to recognise the 'natural limitations' that exist in the case of any appellate court that proceeds wholly or substantially on the record.[116] This is particularly so in relation to findings of fact made by the court below that are likely to have been affected by its advantage in having seen and heard the witnesses give their evidence. As the High Court said in Lee v Lee:[117]
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (footnotes omitted)
[116] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23] (Gleeson CJ, Gummow & Kirby JJ).
[117] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 [55] (Bell, Gageler, Nettle, Edelman JJ).
In the present case, the appellant submitted that, as the finding challenged in the appeal was ultimately as to the proper inferences available on the evidence, I was in as good a position as the learned magistrate to determine whether, on all of the evidence, the only reasonable inference was that the appellant formed the requisite belief pursuant to s 124B(1) of the Act.
As a general proposition I accept that submission. There are ultimately few findings of fact relevant to the determination of the appeal that are likely to have been affected by his Honour's impressions in having seen and heard the witnesses. The one exception to that is the conclusion reached by the learned magistrate that '[AB] did tell [the appellant] that his anus had been penetrated with a carrot, or words to that effect, very shortly [after the fine session], either while everyone was leaving or once they had left'.[118]
[118] See [91] above.
That finding, in my view, was a finding likely to have been affected by the learned magistrate's impressions in having seen and heard AB give evidence. I will return to that finding momentarily.
The nature of the challenge to the factual finding
At the hearing of the appeal, the precise nature of the appellant's challenge to the learned magistrate's finding that the appellant believed that AB had been the subject of sexual abuse proved to be somewhat elusive.
The appellant's submissions shifted between two distinct senses in which that finding might be challenged:
(a)first, it might be understood as a challenge to the finding that what AB reported to the appellant had happened to AB was a report of sexual abuse; or
(b)alternatively, it might be understood as a challenge to the finding that the appellant believed AB when AB reported what had happened to him.
The first of these matters relates to what the appellant was told (or perhaps more accurately, what the appellant understood he had been told), and the second relates to whether the appellant believed what he was told.
Initially the appellant submitted that he only challenged the latter; that is whether the appellant believed what AB had told him. The appellant submitted, in that regard, that 'one inference reasonably open was that the appellant simply did not believe the boy at all'.[119]
[119] Appeal ts 5.
Later in his submissions, the appellant expanded the challenge to the first of the matters identified in [132] above. Senior counsel for the appellant confirmed that it was part of the appellant's case that 'if a child says: "Some other boys shoved a carrot up my arse," that is not a complaint of sexual abuse within the meaning of the Act'.[120]
[120] Appeal ts 7.
It is best that I set out in counsel's own words why that was said to be so:[121]
Because there was no detail given as to what had happened. The boy could have been wearing, for all the – for all the appellant knew, the boy could have been wearing shorts or trousers. And having a carrot shoved up his arse might have meant no more than pushing it against his trousers. So in that sense in the crack, and therefore shoving up his arse. He asked him for clarification and he wouldn't give it.
[121] Appeal ts 7.
It is therefore necessary for me to deal with each of the matters identified in [132] above.
Did AB tell the appellant that he had been the subject of sexual abuse?
Dealing with the first matter: was it open to the learned magistrate to find that '[AB] did tell [the appellant] that his anus had been penetrated with a carrot, or words to that effect'?[122]
[122] See [91] above.
I am left in no doubt whatsoever that the learned magistrate's finding in this regard was open to him and, indeed, that it was correct.
First, as a matter of fact, AB was clear in his evidence, and was not challenged on this point in cross‑examination, that what he said to the appellant was: 'I had a carrot shoved up my arse'.
It was clearly open to the learned magistrate, who saw and heard AB give that evidence, to accept that evidence as credible and reliable.
The statement must also be seen in its context. It was made in response to a direct question by the appellant of AB as to why AB had 'nominated everyone who was in my room last night'. The context makes clear that AB was reporting something done to him, by a number of other boys, that was contrary to his wishes and about which he was aggrieved.
With great respect to counsel, there is, in my view, simply no way that AB's report to the appellant was capable of being understood to mean 'no more than pushing it against his trousers'. The learned magistrate clearly accepted that the effect of what AB said to the appellant was that his anus had been penetrated with a carrot. So do I. Frankly, I find it difficult to see that, in the circumstances in which they were said, AB's words could have meant anything else.
In that regard, the appellant's emphasis at trial, and on appeal, on the fact that AB didn't use the word 'penetration',[123] or that there was some significance in the difference between the words 'shoved', 'forced' and 'inserted'[124] was, with respect, an exercise in sophistry. AB explained to the appellant what had happened to him in idiom of a 16‑year‑old boy; not in the language of a parliamentary draftsperson. AB made abundantly clear, in the words that he used, what had been done to him and the learned magistrate correctly understood the meaning of what AB had said.
[123] See [33] above; Appeal ts 38 ‑ 39.
[124] See [47], [55] above; Appeal ts 8.
Secondly, and even more importantly, the evidence supported the finding that the learned magistrate's understanding of AB's complaint was precisely how the appellant understood it.
In this regard, there was evidence at trial of four accounts that the appellant gave as to what he was told by AB.
The first was the appellant's oral account to Mr Norman on 7 September 2017, that 'AB had told him that he had been held down by a group of boys and had a carrot forced into his anus'.[125] I will return to the issue of AB being 'held down' in a moment. It is sufficient to note that this first report to Mr Norman included the appellant reporting that AB told him that a carrot had been forced into his anus. This was entirely consistent with AB's evidence. As noted above, in my view, there is no relevant difference, in the appellant's reported understanding, between the word 'shoved' and the word 'forced' or between the word 'arse' and the word 'anus'. Insofar as those different expressions were used by witnesses, any such variation reflected nothing more than unremarkable, and predictable, variations in different people's memories.
[125] See [47] above.
The second account was the appellant's oral account to Mr Norman on 11 September 2017, that the boys 'had been mucking around, play fighting and then [AB] had been held down by a number of him [sic – them], and had a carrot forced into his anus'.[126] That account was to the same effect as the account on 7 September 2017.
[126] See [49] above.
Each of these oral accounts to Mr Norman was challenged by the appellant in cross‑examination. It was not suggested to Mr Norman that the conversations did not take place. He was, rather, cross‑examined as to precisely what the appellant had said. Nor were those reports expressly referred to by the learned magistrate in his reasons for decision. Nevertheless, in conducting a complete review of the trial record, as I am required to do, Mr Norman's evidence (as to the appellant's understanding of AB's complaint as being that a carrot was forced into his anus) must be regarded, at least, as evidence capable of supporting a finding to that effect.
In any event, there can be no doubt as to the precise words used by the appellant in his third account of what AB had told him. That account, which was in the 13 September 2017 statement, was in writing. The learned magistrate referred to, and accepted, that account as being an accurate reflection of the appellant's knowledge.[127] The 13 September 2017 statement included the following:[128]
He initially didn't wish to tell us anything other than they were all playing at wrestling each other in their room. I am not sure who was in the room at the time as the boys went from room to room until it was lights out time. On further questioning, as to his well‑being he opened up about the object (a carrot) being put into his anus. (emphasis added)
[127] See [92] above.
[128] See [51] above.
This account, which clearly supports the finding that the appellant's understanding was that AB had told him that his anus had been penetrated, was accepted by the learned magistrate as an accurate reflection of the appellant's knowledge. It was open to the learned magistrate to accept that account as accurate. Indeed, based on the record alone, in my view, the learned magistrate was correct to conclude that the 13 September 2017 statement was reliable and accurate.
The following matters support that conclusion:
(a)the 13 September 2017 statement was made within days of the issue first being raised by Mr Norman with the appellant;
(b)other than the conversations with Mr Norman on 7 and 11 September 2017 there was no evidence that the appellant discussed, or obtained any further information in relation to, the incident between 12 April 2017 and him making the 13 September 2017 statement;
(c)there was no evidence that the account provided by the appellant in the 13 September 2017 statement could have, or did, come from any other source than the appellant's own recollection of his interaction with AB on 12 April 2017;
(d)the account is consistent with Mr Norman's account of the conversations with the appellant on 7 and 11 September 2017; and
(e)there is no reason whatsoever to suppose that the appellant's account was otherwise influenced by the surrounding circumstances in which it was made.[129]
[129] I note that, in the 15 August 2018 interview, Ms Webb (and to a lesser extent the appellant) said that a subsequent letter dated 22 September 2017 was not reliable, as it had been prepared by 'the union' (15 August 2018 interview, 22 ‑ 25). That letter was not produced in evidence at trial. There was no similar suggestion in relation to the 13 September 2017 statement.
The fourth, and final, account by the appellant was in the 15 August 2018 interview. The learned magistrate rejected the appellant's account in that interview, insofar as the appellant suggested that he did not believe that the incident occurred. I will deal with that issue under the next heading.
For present purposes, I am only concerned with what the appellant said that he was told by AB.
In the 15 August 2018 interview the expression used by the appellant was that AB had said 'they put a carrot in my bum'.[130] That expression is to the same effect as AB's initial complaint (that he had a carrot 'shoved up his arse') and the appellant's earlier accounts (that AB reported having a carrot 'put into his anus'). It is simply expressed in less explicit and less evocative terms. Nevertheless, the meaning is the same.
[130] See [71] above.
In any event, for reasons I discuss in more detail below, it was clearly open to the learned magistrate to conclude, and in my view it was the correct conclusion, that by the time of the 15 August 2018 interview, the appellant's account of the events, including as to his state of mind in April 2017, had been (consciously or unconsciously) watered down. The less evocative language used in the 15 August 2018 interview is an example of that 'watering down'.
For these reasons, in my view, taken as a whole, the evidence of the four accounts that the appellant gave as to what he was told by AB, supported the finding by the learned magistrate that AB had told the appellant that his anus had been penetrated and that his complaint was one of sexual abuse. The most reliable of those accounts, for the reasons I have given and which are developed further below, was the account contained in the 13 September 2017 statement.
While it is related to the next issue (to which I will shortly turn), I should deal in this context with the appellant's statement in the 15 August 2018 interview that he was not aware that AB had been 'held down' prior to the appellant receiving the letter of allegation on or about 15 September 2017.[131] In that regard, Mr Norman was cross‑examined to the effect that the appellant had not said to him that AB had been held down.[132]
[131] See [75] above.
[132] See [147] - [150] above.
The learned magistrate did not make an express finding that the appellant told Mr Norman that AB reported being held down. Nevertheless, it was, on the basis of Mr Norman's evidence, open to find that the appellant did tell him that AB had been 'held down'. Mr Norman's evidence to that effect was consistent with contemporaneous file notes dated 7 and 11 September 2017 respectively,[133] that were admitted for the purposes of rebutting the suggestion of recent invention.[134]
[133] Exhibits 4 and 5.
[134] See [56] above; Trial ts 424 (22 May 2020).
In that context, I note that AB agreed in cross‑examination that he did not expressly tell the appellant that he had been held down.[135] That evidence was not necessarily inconsistent with Mr Norman's evidence that the appellant said that AB had been held down. Given what AB did say to the appellant, and the circumstances in which it was said, it would have been the obvious inference for the appellant to draw that the AB was restrained in the course of the assault. All of the circumstances made clear that what had happened to AB was against his will and his wishes. It would not be glaringly improbable that, when recounting the incident to Mr Norman, the appellant would include such an obvious inference in his account of his understanding of what had occurred.
[135] See [33] above.
In any event, however, it was not necessary for the learned magistrate to determine whether Mr Norman's evidence in that respect was reliable or not. Nor is it necessary for me to do so. AB's report that he had a carrot 'shoved up his arse' and the appellant's account of that report, that he was told that AB had a carrot 'put in his anus', was, in its context, clearly a report of sexual abuse regardless of whether it included reference to AB having been held down by the other boys.
In the context in which AB's disclosure had been made there could be no doubt that what he was describing to the appellant was behaviour that amounted to sexual abuse, that is, that it was sexual behaviour in circumstances (at least) of coercion. The entire context of AB's disclosure was that the conduct occurred contrary to his will and his wishes and that he was aggrieved by it. It was not necessary for the appellant to be explicitly told that AB had been held down, for AB's complaint to clearly be a complaint of 'sexual abuse' as defined in the Act.
I turn then to whether it was open to the learned magistrate to conclude beyond reasonable doubt that the appellant believed what AB had told him.
Did the appellant believe what AB had told him?
Both the appellant and the respondent accepted that, whether the learned magistrate could be satisfied that the appellant believed AB had been the subject of sexual abuse was a matter of inference. Indeed, as has been said, the existence of a 'belief', being a state of mind, will almost always be a matter of inference from all of the circumstances.[136]
[136] R v Pangilinan [1999] QCA 528; [2001] 1 Qd R 56 [25] (McMurdo P, Davies & Thomas JJA).
In addition, as the parties also accepted, the prosecution's burden in relation to establishing the appellant's belief required it to exclude all reasonable inferences consistent with innocence. That is, the learned magistrate was required to be satisfied that the inference of guilt (and relevantly, in this case, the inference that the appellant believed that AB had been subject to sexual abuse) was the only reasonable inference available on the evidence.[137]
[137] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579 ‑ 580 (Dawson J).
For that reason, it was necessary for the prosecution to exclude, as a reasonable or rational inference, the hypothesis that the appellant did not believe what AB had told him and, therefore, did not believe that AB had been the subject of sexual abuse.
In this context, the appellant sought to emphasise that the issue as to whether the appellant 'believed' that AB had been sexually abused, was not simply a binary choice between belief and disbelief. It was also necessary to consider the possible inference that the appellant might have been, as the appellant's submissions put it, 'agnostic – i.e. uncertain whether to believe or not'. In oral submissions, the appellant drew an analogy with a person who is agnostic in the sense of being 'uncertain as to whether there is a God'.[138]
[138] Appeal ts 10.
The analogy is, with respect, particularly unhelpful.[139] Agnosticism as to the existence of God concerns a person's fundamental orientation towards the meaning and mystery of existence. That orientation takes place at the very limits of human rationality. Millennia of philosophical and theological thought make clear that one may, even after much consideration, arrive at a relatively stable state of indecision or indifference in relation to that question.
[139] Even etymologically, the analogy misses the mark: 'agnostic' derives from a combination of the Ancient Greek a- (without) and gnosis (knowledge). Strictly speaking agnosticism is a matter of not 'knowing' rather than a matter of not 'believing', which as the discussion at [106] ‑ [115] above confirms, are two quite different mental states.
The present case, however, is concerned with something altogether different. It concerns a particular school teacher faced with a particular concrete phenomenon (that is, a child telling him that the child had been the subject of sexual abuse) and whether that teacher, who had a direct interest in the welfare of that child, believed what the child had told him. It is not a matter of philosophical speculation; it is a matter of the real‑world response by that teacher to a real‑world situation. That concrete reality is relevant to the assessment of whether it is a reasonable inference that such a teacher, particularly one with the appellant's experience, would simply suspend judgement in relation to the reality of the child's allegation.
In determining whether the only reasonable inference on all of the evidence was that the appellant believed that what AB had told him had occurred, 'all of the circumstances established by the evidence are to be considered and weighted'. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[140]
[140] R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47] (French CJ, Kiefel, Bell, Keane & Gordon JJ).
In my view, the combined effect of all of the circumstances was such as to exclude any reasonable inference that the appellant did not believe (or that he was agnostic) that some other boy or boys had penetrated AB's anus with a carrot, against his will. I agree with the learned magistrate that the only reasonable inference was that the appellant did believe that what AB said had happened to him, had in fact happened to him.
I will summarise the effect of those circumstances chronologically. In doing so, however, I do not lose sight of the fact that it is the combined effect of these circumstances that leave me with no reasonable doubt as to the appellant's positive belief. In addition, as I have discussed separately below, the following summary proceeds upon my acceptance, as emphasised by the appellant in his submissions, that the appellant was a very experienced teacher with decades of experience and a person of good character.
First, I turn to the circumstances in which AB made the disclosure to the appellant on 12 April 2017. AB first raised the issue obliquely by his reference in the fine session to what a number of the other boys 'did' in his room the previous night. For a boy to raise a matter in this way would lead a person in the appellant's position to conclude that, first, there was a matter of significant concern to the boy and, secondly, it was a matter of sufficient sensitivity that the boy wished to raise the issue in the oblique way that he did.
That was, of course, precisely what the appellant did conclude. In that regard, on any view of the evidence, it was the appellant who sought out AB to find out what it was that he was referring to. The appellant's actions indicate a genuine concern arising from AB having raised the matter in the fine session in the way that he did. In that context, in the appellant's own accounts (both the 13 September 2017 statement and the 15 August 2018 interview), AB was reluctant to disclose what had been done to him. That is consistent with AB's own evidence that he was looking down, he was ashamed and he was embarrassed. Again, all of this would indicate to a person in the appellant's position that what had happened to AB was a matter of genuine and real concern. In that context it is significant that the appellant described AB as 'open[ing] up' about what had occurred.
In those circumstances, a teacher with the appellant's experience and good character, would be expected to listen to the child receptively and not sceptically or suspiciously. There was no evidence to suggest that AB was anything other than a genuine and trustworthy 16‑year‑old boy. While I will deal with the 15 August 2018 interview later, even in that interview the appellant said that AB was 'a bit of a loner' and that he 'would say he was a trustworthy kid'. The situation was one in which a person in the appellant's position would be predisposed to accept what AB said at face value and to believe that what he was saying was true.
These circumstances, on their own, might not be such as to exclude a reasonable inference that when the appellant was told by AB that he had 'had a carrot shoved up his arse', the appellant either positively disbelieved AB or remained in a state of neutral 'agnosticism'. They do, however, make such responses in my view far less likely. Far more likely is that the appellant would have done what would be expected of a teacher of his experience and character; and form the belief that what AB had said was true.
The circumstances, however, go further.
The appellant's response to what he was told by AB was one that was consistent with the appellant having believed AB. He responded with concern as to AB's welfare. There were, in the evidence before the learned magistrate, varying accounts as to precisely what the appellant said and did in response. At the very least, the appellant asked AB if he wanted the appellant to follow‑up the matter.[141] On his own accounts, the appellant asked AB whether he wanted to see a doctor, whether he was in pain, whether there was anything wrong with him and which boys had been involved.[142] That conduct is the conduct of a person who believed what AB had said was true. The appellant's conduct was, in my view, positively inconsistent with the appellant having disbelieved AB.
[141] See [27] above.
[142] See [51], [71] above.
Next, and very significantly, are the appellant's responses to Mr Norman in early September 2017. Those responses are only consistent with the appellant having formed the belief that what AB had said to him was true. Given that the appellant, in cross‑examination, challenged the accuracy of Mr Norman's account of the discussions with the appellant on 7 and 11 September 2017, I will confined myself to the 13 September 2017 statement, the accuracy of which is not in dispute.
Everything about the 13 September 2017 statement supports the only inference being that the appellant believed that AB had been the subject of sexual abuse.
I have already summarised, at [152] above, why the 13 September 2017 statement was a reliable and accurate record of the appellant's state of mind. In addition to the matters referred to there, I would also note that the 13 September 2017 statement was made in the context of Mr Norman's early assessment of the issues. While it may be inferred that the appellant may, at that time, have had some apprehension about the fact that he had not reported the incident, the statement was not made in the context of either a disciplinary or criminal investigation. The statement, as a whole, is both candid and in no way defensive.
In that context, it is clear that the appellant refers to the incident on 11 April 2017 in terms which indicate that he believed that it had occurred and that what AB had said to him was true. For example, the statement consistently refers to 'the incident', when the incident 'happened' and what 'happened to' AB; language which is referring to an actual event (not a mere allegation). In these references, and indeed in the statement as a whole, there is not the barest hint or suggestion that the appellant was in any doubt about whether he believed what AB had said to him was true. Quite the contrary.
Take for example, the following sentences:[143]
We asked who was the person/s who did this and he refused to give us any names. We asked what he would want us to do about the incident and he said he wanted nothing done about it. (emphasis added)
[143] See [51] above.
These are not the words of a teacher who did not believe the child or was remaining 'agnostic'. They are the words of an experienced teacher who believed what he had been told.
In addition, significantly, the appellant explained in the 13 September 2017 statement why he did not report the incident. He said that '[w]e respected his wishes in the matter and didn't take it any further'. This sentence reveals that, to that point in time, the appellant clearly believed, subjectively, that not taking any action (including reporting the incident) was the right thing to do because he was respecting AB's wishes. And there can be no doubt from AB's evidence (whether it was as a result of embarrassment, fear or otherwise), that AB did express to the appellant the wish that the appellant not follow‑up the incident.
Of course, the effect of pt 4 div 9 of the Act is that a teacher is legally required to report a belief falling within s 124B(1), whether the child wants them to or not and even against the express wishes of the child. It is clear, however, that the appellant was not adverting to his legal obligations under the Act in the 13 September 2017 statement, but to what he understood to be the proper moral response when faced with AB's desire not to take the matter further. Mandatory reporting requirements such as those in pt 4 div 9 of the Act, of course, reflect the contemporary approach and societal values in relation to the proper response to child sexual abuse. Nevertheless, it does not take much historical awareness to recognise that a response such as that described by the appellant in the 13 September 2017 statement would once have been not uncommon and genuinely, if mistakenly, regarded as appropriate.
This is significant for two reasons.
First, it makes clear that the reason that the appellant did not report the incident was because he wanted to respect AB's wishes and not because he did not believe AB. There is no suggestion in the 13 September 2017 statement that any doubt about AB's complaint formed part of his reason for not reporting it.
Secondly, it serves to explain how the drawing of the inference, beyond reasonable doubt, that the appellant formed the requisite belief (and so was guilty of the charge) can be readily reconciled, in this case, with the appellant's good character.
Previous good character, as the learned magistrate correctly directed himself, is relevant both to whether the accused would commit the offence charged and to the credibility of the accused's statements (either as a witness or in out‑of‑court statements). Nevertheless, the weight to be afforded to those matters is a matter for the tribunal of fact and will depend upon the logical connection between the accused's good character and the elements of the offence.[144]
[144] See generally ZHA v The State of Western Australia[2020] WASCA 101 [183] ‑ [197] (Buss P, Mazza & Beech JJA).
While the appellant's experience and good character were certainly relevant to whether he would be likely to commit the offence charged, in the present case the appellant's good character may, at least in part, explain why he did not take any action: because subjectively, although mistakenly, he considered that not taking any action (including reporting the incident) was the right thing to do.
In this regard, there was a certain paradox in the appellant's case. While the appellant submitted that his 'impeccable background and good character' made it less likely that he would commit an offence, it must be recalled that the element that was in issue at trial was whether the appellant believed AB when AB reported that he had been abused. The inferences that the appellant contended were reasonable were inferences that the appellant simply 'disbelieved' the child or remained 'agnostic' about the matter. It is not immediately apparent that those inferences would be consistent with an impeccable character. Indeed, they are arguably less consistent with the appellant's good character than the inference that the appellant believed the child but took no action out of a genuine, but misguided, view that by following the child's wishes he was doing the right thing.
In any event, even giving full weight to the appellant's good character, in my view the circumstances of AB's disclosure, the appellant's response to that disclosure and the appellant's responses to Mr Norman in early September, taken together, leave no room for doubt that the appellant believed that AB had been the subject of sexual abuse as defined in the Act. The only reasonable inference was that the appellant did have such a belief.
The final matter to consider, then, is the 15 August 2018 interview.
Having considered the 15 August 2018 interview as a whole, I find (as did the learned magistrate) that the appellant's statements to the effect that he did not believe that AB had been subject to sexual abuse were unreliable and must be rejected. The 15 August 2018 interview generally, in my view, was inconsistent with the appellant's earlier, more reliable account in the 13 September 2017 statement and, indeed, was internally inconsistent and implausible.
The explanation for the unreliability of the 15 August 2018 interview is readily apparent. By the time of that interview, the appellant had been the subject of a disciplinary process and his employment had been terminated. His long career as a teacher was essentially over. It is clear from the interview as a whole that the appellant was both aggrieved and bewildered at the situation in which he had found himself. Now he was being formally interviewed in relation to an alleged breach of the criminal law. And all of this was in circumstances in which, according to his earliest recorded account, he felt that he had done the right thing.
In that context, it would not be surprising to find that the appellant's account of the events, including as to his own state of mind, had undergone revision and reconstruction in his own mind (either consciously or unconsciously). Indeed it would be surprising were it otherwise.
This revision by the appellant is evident in the watering down of his account of the conversation with AB that I have referred to at [155] to [156] above. In addition to the less evocative language as to what AB had said was done to him, the appellant makes a number of references to AB having said that they (the boys) were 'just mucking around'. Whether deliberate or not, the appellant avoided the kind of clear reference to sexual abuse that appeared in the 13 September 2017 statement (having a carrot 'put into his anus') in a manner that understates the seriousness of what he had earlier acknowledged.
As the learned magistrate also concluded, the appellant's denial of the requisite belief in the 15 August 2018 interview was inconsistent with his actions in response to AB's disclosure and his account of that response.[145]
[145] See [178] above.
It is also apparent from the 15 August 2018 interview that the appellant had considerable difficulty in giving a coherent account of his state of mind and equivocated when he attempted to do so. A good example is the passage:[146]
It's not that I didn't believe him, but I just didn't – I couldn't [believe] – I just didn't think that the group would – that that could have happened.
[146] 15 August 2018 interview, 17.
The fact that the appellant evidently could not bring himself to say that he did not believe AB, reflects the difficulty that the appellant had in giving a coherent account that both reflected his belief in, and of, AB and his attempt to distance himself from (and rationalise) his failure to report the incident.
In the end, the appellant's efforts to distance himself from his belief of AB, appear to come down to his 'not thinking that is something the boys would do' and that he 'didn't think that the group would have done it'. At one level those passages might just be expressions of 'disbelief' in the colloquial sense that the appellant was shocked or surprised that the boys would behave in that way (as in, 'I can't believe you just did that!'). If, however, those references were intended to suggest that, because of his assessment of the other boys, the appellant reached the view that AB's allegation was not true and that he should therefore take no further action, that suggestion must be rejected as wholly implausible. No experienced and capable teacher, faced with an apparently credible complaint of an assault from a child would conclude, based simply on his or her views of the 'character' of the group concerned, that the complaint could not be believed.
A telling feature of the 15 August 2018 interview in this regard are the appellant's efforts to suggest that there was somehow information that was not available to him, that had he known of it, he would have reported the incident.[147]
[147] See [75] - [76] above.
As I have explained at [158] to [162] above, however, there was no additional information, that was not available to the appellant from what he was told by AB, that was required for him to know that what was being described to him was 'sexual abuse' as defined in the Act. The only matter that the appellant referred to in this context was that he said that he did not know that AB had been 'held down'. While that was inconsistent with Mr Norman's evidence of the appellant's account on 7 and 11 September 2017, I will assume in the appellant's favour that he did not know that AB had been 'held down'.
What the appellant did know, however (because he recorded it in the 13 September 2017 statement) was that AB said that he had an object 'put into his anus' where it was clear that was done contrary to his wishes. That knowledge was enough to give the appellant all the information he needed in order to know that AB was saying that he had been sexually abused. The additional information that AB was 'held down', while perhaps presenting a more vivid image of the abuse that AB had been subjected to, was not information that could reasonably be thought to change the substance of AB's complaint. Nor in the circumstances could such information reasonably make a difference to whether AB's statement was 'believable'. The appellant's, probably unconscious, rationalisation in the 15 August 2018 interview as to why he did not make a report of AB's complaint was wholly implausible and must be rejected.
For all of these reasons, to the extent that the 15 August 2018 interview contains denials of the appellant's positive belief, those denials must be rejected in light of all of the circumstances. Those denials could not, when considered in light of all of the circumstances, give rise to a reasonable inference consistent with innocence.
Rather, in all of the circumstances, there was only one rational inference.
The learned magistrate was therefore correct to conclude that the only reasonable inference was that the appellant formed the requisite belief and that it was on reasonable grounds.
I am not satisfied that ground 1 has a reasonable prospect of success. Leave to appeal on that ground must be refused.
Ground 2 – inadequate reasons?
Ground 2 contends that the learned magistrate failed to give adequate reasons for his decision, thereby occasioning a miscarriage of justice.
Little attention was given to this ground of appeal at the hearing before me. The focus of the appellant's submissions was on ground 1. That is not surprising. Indeed, given the issues raised by ground 1, it may reasonably be observed that ground 2 has little work to do in the resolution of the appeal.
In that regard, as the authorities make clear, inadequacy of reasons does not necessarily amount to appealable error.[148] In addition, as Meagher JA observed in Beale v Government Insurance Office of NSW:[149]
[A]n appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter, and if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial.
[148] Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [29] (Steytler, Templeman & Simmonds JJ); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (Beale v Government Insurance Office of NSW), 444 (Meagher JA).
[149] Beale v Government Insurance Office of NSW, 444 (Meagher JA).
In the present case, as ground 1 was developed, the issue for me was whether the inference that the appellant 'believed' AB had been the subject of sexual abuse was the only reasonable inference in light of all of the circumstances. The appellant ran the appeal on the basis that I was in as good a position as the magistrate to determine that question. As set out above, I am comfortably satisfied that, in light of all of the evidence, that inference was the only reasonable inference in the circumstances.
In those circumstances, even if the learned magistrate had failed to give adequate reasons for drawing that inference, a real question would arise as to whether a miscarriage of justice had resulted. As I am satisfied that the only reasonable inference on the evidence was that the appellant formed the requisite belief, any inadequacies in the learned magistrate's reasons for reaching the same conclusion could not affect the outcome of the appeal.
In any event, I am not satisfied that the learned magistrate's reasons for decision did fail to adequately set out the basis for his Honour's decision to convict the appellant.
The applicable principles in assessing the adequacy of reasons include the following.[150]
[150] See generally the cases cited in Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222 [112] (Quinlan CJ, Murphy & Beech JJA).
Reasons for decision need not be lengthy or elaborate. The reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable a litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence, to determine if they give the sense of what was intended in a way that achieves their required purpose and function. In that regard, the question as to whether reasons are adequate may involve a consideration of what can be legitimately inferred from the reasons.
In the case of the Magistrates Court, s 31(1) of the Magistrates Court Act 2004 (WA) expressly provides that the reasons for judgment need only identify the facts that the court has accepted, and the law that the court has applied in coming to its decision and give the reasons for doing so. The reasons need not canvass all of the evidence given in the case, or all of the factual and legal issues that arose.
In the present case, I am not satisfied that the learned magistrate's reasons failed to set out the intellectual process that led to his decision. As I noted at the commencement of these reasons, his Honour's reasons:
(a)found that AB told the appellant words to the effect that his anus had been penetrated with a carrot;
(b)found that the 13 September 2017 statement was intended to be, and was, an accurate reflection of the appellant's knowledge;
(c)rejected the appellant's account on 15 August 2018 that he did not believe that the assault had occurred; and
(d)gave logical reasons for why his Honour rejected that account, including the fact that the appellant asked AB if he wanted to see a doctor, said that he had kept an eye on him during the rest of the tour and decided to respect his wishes.
I accept that, in relation to this logical process of reasoning, the learned magistrate could have gone into greater detail as to why, for example, once the 13 September 2017 statement was accepted as an accurate account of the appellant's state of mind, it provided compelling evidence in support of the conclusion that the only reasonable inference was that the appellant believed what AB had told him. To that extent his Honour's reasons were perhaps a little too condensed. It is difficult, however, to criticise his Honour in that regard. After nine separate sitting days over the course of seven months, no doubt the learned magistrate had limited time within which to prepare his reasons for decision.[151] It goes without saying that the 'hearing time to writing time' ratio available to his Honour would have been the inverse of that which has produced these reasons.
[151] As to the approach to be taken generally to the assessment of reasons in a busy court of summary jurisdiction, see generally Strahan v Brennan [2014] WASC 190 [89] ‑ [92] (Martin CJ).
In all of the circumstances I am not satisfied that the learned magistrate failed to give adequate reasons or that any miscarriage of justice was occasioned by his Honour's reasons.
I am not satisfied that ground 2 has a reasonable prospect of success. Leave to appeal on ground 2 must be refused.
Conclusion
Leave to appeal is refused on both grounds of appeal.
The appeal must be dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
13 OCTOBER 2021
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