Webb v Tang [2023] WASCA 119 (on JADE).
This matter concerned an appeal against a conviction. The prosecution had alleged that the accused, being a teacher and having 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, failed to report that belief as soon as practicable after forming the belief, contrary to s 124B(1) of the Children and Community Services Act 2004 (WA) (the Children Act).
The facts concerned an overseas school sporting trip where a student AB had reported an assault by other students. The issue at the trial was whether at the material time the appellant ‘believe[d] on reasonable grounds’, within s 124B(1) of the Children Act, that AB had been the subject of sexual abuse. Ultimately, the teacher said that he did not believe that the Incident had occurred.
The magistrate fined the appellant $1,200 and ordered him to pay the respondent’s costs of the proceedings.
Three grounds of appeal were argued.
Ground 1 alleges that Quinlan CJ erred in law in holding that the required belief under s 124B(1) of the Children Act ‘may leave something to surmise or conjecture’; in holding that the required belief may be established even if an accused has some ‘uncertainty or doubt’ as to the truth of the complaint; and by rejecting the appellant’s submission that ‘if there is uncertainty there is not the [required] belief’.
Ground 2 alleges that his Honour erred in law in reaching his decision that the appellant held the required belief under s 124B(1) by effectively substituting the civil standard of proof for the criminal standard of proof in stating that the appellant’s conduct made his holding the required belief ‘far more likely’ and was ‘consistent’ with his holding it.
Ground 3 alleges that his Honour erred in law in deciding that the evidence at the trial established, beyond reasonable doubt, that the appellant actually held the required belief and his Honour should have held that, although the evidence provided ‘reasonable grounds’ for the appellant to form the required belief, the evidence did not exclude a reasonable alternative inference consistent with innocence, namely that the appellant did not actually form the required belief, but either disbelieved AB or was unsure whether or not to believe him.
Leave to appeal was granted on two grounds (1 and 3 above), but the appeal was ultimately dismissed. There was a joint judgment by Buss P & Vaughan JA and a separate judgment by Mazza JA.
In relation to ground 1 the court in the joint judgment held at [89] and [96]:
In our opinion, on the proper construction of the phrase ‘believes on reasonable grounds’ in s 124B(1), having regard to s 124B and related provisions considered as a whole, a teacher’s duty to report will not arise unless, first, the teacher has an actual subjective belief that a child has been sexually abused and, secondly, there are objectively reasonable grounds for that belief having regard to the information available to the teacher.
A ‘belief’ is more than a ‘suspicion’ and is ordinarily less than ‘positive knowledge’. The intermediate position of ‘belief’ in this spectrum between ‘suspicion’ and ‘positive knowledge’ recognises that the information available to a person who forms a belief may be from external sources, including hearsay, which the person may be unable independently to verify.
The court in the joint judgment went on to say that the existence of some uncertainty or doubt about whether a child has been the subject of sexual abuse is not necessarily inconsistent with the formation by the person of the requisite belief and held (in relation to ground 1 and 3) at [114]:
In any event, even if Quinlan CJ made a material error as alleged in ground 1, it is plain from the magistrate’s reasons that his Honour found that the appellant believed AB’s account of the sexual abuse and that the appellant believed, on reasonable grounds, that AB had been the subject of sexual abuse. In other words, the magistrate held in substance that the appellant formed a positive inclination in his mind, based on information available to him (in particular, the information supplied to him by AB), that AB had been the subject of sexual abuse and that there were reasonable grounds for that belief. Further, as we will explain, the magistrate did not err in law, as alleged in ground 3, in deciding that the evidence at the trial established, beyond reasonable doubt, that at the material time the appellant held the required belief.
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