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Webb v Tang

Webb v Tang

Case [2021] WASC 344 13 October 2021

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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 –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Webb v Tang

Details

AGLC: Webb v Tang [2021] WASC 344
Case: [2021] WASC 344
Decision Date

CaseChat Overview and Summary

This is an appeal against conviction from the Magistrates Court. The appellant was convicted of one charge that, being a teacher, he failed to report a belief on reasonable grounds that a child had been the subject of sexual abuse, contrary to s 124B of the Children and Community Services Act 2004 (WA). The circumstances giving rise to the conviction were that the appellant, while on a school rugby trip to Japan, was told by one of the students that he had been sexually abused by a group of other students. The appellant did not report the incident. The issue at trial was whether the appellant believed that what the student had told him had occurred. The learned magistrate was satisfied that the only reasonable inference was that the appellant had formed the requisite belief and that it was on reasonable grounds. The appellant appeals on two grounds: (a) that the verdict was unsafe and unsupported by the evidence, occasioning a miscarriage of justice; and (b) that the learned magistrate failed to give adequate reasons for his decision. 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. The appellant's challenge to the learned magistrate's finding that he believed that the student 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 the student reported to the appellant had happened to him was a report of sexual abuse; or (b) alternatively, it might be understood as a challenge to the finding that the appellant believed the student when he reported what had happened to him. The appellant's submissions, however, did not challenge the finding that the student did tell the appellant that his anus had been penetrated with a carrot, or words to that effect. In any event, that finding was open to the learned magistrate and, in my view, it was correct. The appellant's submissions did, however, challenge the finding that the appellant believed what the student had told him. The appellant submitted that it was a reasonable inference that the appellant simply did not believe the student at all. I am not satisfied that ground 1 has a reasonable prospect of success. Leave to appeal on that ground must be refused. 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. 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. 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 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. I am not satisfied that ground 2 has a reasonable prospect of success. Leave to appeal on ground 2 must be refused. Leave to appeal is refused on both grounds of appeal. The appeal must be dismissed.

Orders