The Victorian Court of Appeal handed down an interesting judgment yesterday. In Secretary to the Department of Justice and Regulation v LLF, the applicant Secretary sought leave to appeal on a question of law from VCAT’s decision to grant the first respondent a working with children check under the Working With Children Act 2005 (Vic). The judgment is interesting because of its consideration and synthesis of existing caselaw that deals with how an administrative decision-maker may have regard to the facts surrounding a criminal conviction when the conviction is directly relevant to an administrative decision.
In the mid-1990s, LLF pleaded guilty to and was convicted of multiple counts of rape. The acts that gave rise to the convictions were committed when he was aged 15 years. The material before VCAT indicated that over a period of two days in 1994, LLF and a number of co-offenders had falsely imprisoned another young boy, physically assaulted him and raped him with a variety of foreign objects. In 2016, LLF applied to the Secretary for a working with children check. Because of LLF’s convictions, the Secretary was obliged under s 12 of the Act to refuse his application. LLF sought review of the Secretary’s decision under s 26A of the Act, which provides that VCAT may grant a working with children check that has been refused by the Secretary in accordance with s 12. Before VCAT, LLF gave evidence of the circumstances that gave rise to his convictions for rape. He stated that while he had punched and kicked the victim, and ‘may have’ procured some of the household items used to rape the victim, he had not physically participated in the rapes themselves.
VCAT decided to grant LLF’s working with children check. It accepted that LLF had not physically performed any act of rape on the victim, but stated that he nevertheless bore ‘significant moral responsibility for allowing these disgraceful crimes to occur.’ It noted that LLF had not committed any further offences after the 1994 rape and found that his history of youth offending was explained by the severely abusive home in which he had been raised. In the circumstances, VCAT was therefore satisfied that granting LLF a working with children check would not pose an unjustifiable risk to the safety of children and that a reasonable person would allow LLF to have direct, unsupervised contact with his or her child.
The Secretary sought leave to appeal to the Court of Appeal on a question of law under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The primary question of law identified by the Secretary was whether VCAT had erred by making findings of fact that were inconsistent with LLF’s conviction for rape. In this regard, the Secretary submitted that VCAT had made findings of fact that so ‘watered down’ LLF’s conviction that they were inconsistent with it.
In dismissing the Secretary’s appeal, the Court referred to a range of authorities dealing with the circumstances under which an administrative decision-maker may ‘go behind’ a conviction for an offence and drew from them the following general principle:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
The Court accepted that because both the Secretary’s decision to refuse LLF’s application and VCAT’s jurisdiction to review the Secretary’s decision depended on the existence of LLF’s convictions for rape, LLF’s application for review fell into the first class of case (in which it is not open to the decision-maker to ‘go behind’ the conviction). Nevertheless, it held that it was not inconsistent with the record of LLF’s convictions for VCAT to treat him as having been convicted on the basis of his having aided and abetted, but not physically performed, the acts of rape perpetrated against the victim in 1994. In this regard, the Court did not consider that VCAT’s reference to LLF’s ‘moral responsibility’ for the rapes carried with it a finding that he was not legally responsible for them; rather, the statement emphasised that, on VCAT’s understanding of the documentary evidence relevant to LLF’s convictions, LLF had been convicted as a party to the offences but not as a person had who performed the relevant actus rei.
The judgment of the Court of Appeal is consistent with the views expressed by Weinberg J (after a lengthy consideration of the relevant authorities) in Minh v Minister for Immigration and Multicultural Affairs. In that case, his Honour concluded that it was not open to a person facing deportation as a result of his having been convicted of a criminal offence to lead evidence that he had committed the acts comprising the offence in self-defence, because to do so would have the effect of setting the conviction at nought.
The judgments in LLF and Minh, and the authorities referred to in those judgments, show that where a criminal conviction appears to be relevant to an administrative decision, the decision-maker must give careful consideration to precisely why the conviction is relevant. If the conviction is relevant because its very existence is a consideration that goes to the exercise of the decision-maker’s power, the decision-maker must not allow itself to be influenced by (and ordinarily should not receive) evidence that is inconsistent with the conviction. However, the proper performance of its function will still ordinarily require the decision-maker to have regard to any evidence that goes to the ‘circumstances of the offence, including the moral culpability of the [offender] and the presence or absence of aggravating and mitigating circumstances.’ Whether evidence serves to deny the correctness of a conviction or merely to clarify the circumstances of an offence may – as it was in Minh – be a relatively simple question to answer. In other cases – like LLF – determining whether evidence is inconsistent with the fact of a person’s conviction for an offence will require close attention to the basis on which the conviction was entered. This may require inferences to be drawn from evidence going beyond the charge and record of conviction, such as evidence tendered at trial or material adduced by the prosecution and provided to the accused prior to a guilty plea.
Where, on the other hand, a conviction is relevant only because it provides evidence of underlying facts that are themselves relevant to an administrative decision, the fact of conviction is likely to be relevant but not conclusive evidence before the decision-maker. Nevertheless, in such a case, a person who seeks to lead evidence that is inconsistent with the conviction will – as the Court of Appeal noted in LLF – usually bear a heavy onus of persuading the decision-maker that evidence that is inconsistent with the conviction should be accepted.