District Court New South Wales Medium Neutral Citation: Trad v Department of Education (NSW) [2022] NSWDC 759 Hearing dates: 08 November 2022 Date of orders: 09 November 2022 Decision date: 09 November 2022 Jurisdiction: Criminal Before: McHugh SC DCJ Decision: See paragraph [78] Catchwords: CRIMINAL LAW – appeals and review – conviction appeal from Local Court – offences under the Children (Education and Care Services) National Law (NSW) and Education and Care Services National Regulations (NSW) Legislation Cited: Children (Education and Care Services) National Law (NSW), ss 162, 165, 167 Crimes (Appeal and Review) Act 2001 (NSW) Education and Care Services National Regulations (NSW), cll 78, 79, 81, 103 Cases Cited: The Commonwealth v Introvigne [1982] HCA 40 Inspector Foster v A B John Peel Pty Ltd t/as Valley Machinery Service [2003] NSWIRComm 116 Category: Principal judgment Parties: Faten Trad (Appellant) Department of Education (NSW) (Respondent) Representation: Counsel: Mr Longville for Faten Trad Mr Averre for the Department of Education (NSW) Solicitors: T&S Law Firm for Faten Trad Hunt & Hunt Lawyers for the Department of Education (NSW) File Number(s): 2019/00383115 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Unreported Date of Decision: 14 April 2021 Before: Crompton LCM File Number(s): 2019/00383115 Judgment Ex tempore, revised from transcript 1. HIS HONOUR: The appellant, Faten Trad, was found guilty on 14 April 2021 of three offences, sequences 1, 2 and 3, was convicted and sentenced by way of individual financial penalties on 3 August 2021, and ordered to pay professional costs. 2. The offending related to the operation of a family day care service by Helen Rateau, at Randwick, New South Wales and the events of 4 March 2019 when a baby was found unresponsive in a bassinet in the premises, and was subsequently pronounced dead. 3. Under the relevant statutory regime, the Children (Education and Care Services) National Law (NSW) and Education and Care Services National Regulations (NSW), the appellant was the "nominated supervisor". The child was being educated and cared for by the family day care service. Helen Rateau was a family day care educator at Kidstart Family Day Care Pty Ltd, hereafter "Kidstart". Kidstart was the "approved provider". 4. Ms Trad appeals pursuant to s 11 of Crimes (Appeal and Review) Act 2001 (NSW). The notice of appeal states the appellant is appealing on all grounds. 5. This is a rehearing. In these circumstances a judge such as myself can access the reasons below and findings on credit as well. It is probably unhelpful to describe it being error based, and generally these matters would not be overturned unless the judge hearing it believes that the decision is wrong. Of course, that says nothing about the onus of proof which remains on the prosecution of proving the elements of the offence beyond a reasonable doubt. This was a criminal proceeding. 6. The legislation, which has been referred to as the National Law, a reference to the Children (Education and Care Services) National Law (NSW) and the Education of Care Services National Regulations (NSW). 7. Tendered on the appeal were two folders prepared by the prosecution, Folders 1 and 2. They were marked exhibit A. That includes a coincidence notice, which I will return to. I can say now I did not find it of much assistance. MFI 1, for abundant caution, was the appellant's written submissions. MFI 2 was referred to as the appellant's tender bundle, but what it was, was extracts from the National Law and the Regulations. MFI 3 was the Crown's written submissions. There was a helpful chronology in the appellant's written submissions which I read as well as some other materials off the bench, and then I came and heard submissions. 8. There are three elements of each of the offences. The first two elements are identical. That is, that the appellant was a nominated supervisor, and that the child was being educated and cared for by a family day care service. Neither of those elements, in any of the three charges, were in dispute. What was in dispute was whether the third element of each offence could be established beyond reasonable doubt. 9. I turn to the legislation. Sequence 1 concerns a breach of s 167(2) of the National Law, which is in the following terms: "A nominated supervisor of an education and care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury." 1. The relevant family day care service was an education and care service. The particulars of that were set out in the Court Attendance Notice. The particulars were: there was a "failure to properly train and monitor Ms Rateau" and a "failure to ensure Ms Rateau was aware of best practices for sleeping facilities and sleeping hazards". Short particulars continue, "baby was placed in an unsuitable bassinet instead of cot with bib around his neck, with a loose sheet and pillow." 2. Sequence 2 was a breach of cl 81 of the regulations, which is in the following terms, "A nominated supervisor of an education and care service must take reasonable steps to ensure that the needs for sleep and rest of children being educated and cared for by the service are met, having regard to the ages, development stages and individual needs of the children". 1. I should note that the penalty for that offence is $1,000. The penalty for breach of 167(2), $10,000, both of which I take to be maximum penalties. 2. The particulars for sequence 2 were in almost identical terms to those for s 167, that is the "failure to properly train or monitor Ms Rateau", and a "failure to ensure Ms Rateau was…", this is a little bit different, "… trained, aware of, and implemented best practices for infants sleeping". And again it is repeated, that "baby was placed in an unsuitable bassinet instead of cot with bib around his neck with a loose sheet and pillows", that is cl 81. Sequence 3 was at s 165(2) which provided that: "A nominated supervisor of an education and care service must ensure that all children being educated and cared for by the service are adequately supervised at all times that the children are in the care of that service". 1. The particulars of that sequence did not refer to a failure to train or failure to monitor, or failure to ensure that Ms Rateau was trained. Particulars of sequence 3 were simply that a baby was placed in a bassinet instead of cot with a bib around his neck with a loose sheet and pillows and was not observed for 35 to 45 minutes. So, the concentration there is in the time, which is understandable because s 165(2) is about whether the children under the care were supervised at all relevant times. 2. Now I turn to the appellants short submissions. Mr Longville appeared for the appellant, and I note Mr Averre appeared for the respondent, and the Court is indebted for the assistance they gave me in the best traditions at the Bar. Mr Longville submitted that the appellant cannot be held criminally responsible solely on the basis on the actions of admissions of Ms Rateau on 4 March 2019. This was said to be in respect of all sequences. 3. First the appellant was not present for such acts or omissions and was not required to be present, a matter to which I will return. Secondly, he submitted, "The appellant had not attended 19 Ravenswood Avenue Randwick since 24 January 2019." And thirdly the appellant had no knowledge of the circumstances that existed or the offence that spontaneously unfolded on 4 March 2019. I will return to sequence 1. 4. In respect of sequence 2, it was submitted that the charge was misconceived, and the offence created under cl 81(2), carries a "very low maximum penalty". The same maximum penalty applies to all subsections. 5. A comparison with other provisions, including s 165, s 167 which is in the National Law and cll 78, 79 and 80 in the Regulation, indicates that cl 81 is not concerned with issues of safety at all. I note the safety of equipment was dealt with under cl 103. Rather it was submitted cl 81 is concerned with actual sleep and rest and the provision of appropriate and adequate opportunities for sleep and rest. 6. Having considered the whole matter, including matters which I will return to, I agree that sequence 2 is not applicable. It is not concerned with safety per se in a way that ss 165 and 167 are. Rather it is concerned with actual sleep and rest. In fact, the heading that to cl 81 is sleep and rest, and I would allow the appeal against sequence 2. 7. In respect of sequence 3, it was submitted on behalf of the appellant that this charge, too, was misconceived. Bearing in mind the confined particulars of the charge that is, that it was simply that a baby was placed in the bassinet instead of a cot with a bib around his neck with a loose sheet and pillow and was not observed at 35 to 45 minutes. The appellant submitted that she was not present on 4 March 2019 and the appellant was not required to be present and that the appellant had not been in attendance since 24 January 2019. 8. Submissions continued that the appellant had no knowledge of the circumstances that existed and the events that unfolded on 4 March 2019. In those circumstances it was submitted it was difficult to understand how the appellant could be held criminally liable for spontaneous acts or omissions of Ms Rateau, especially when Ms Rateau at the time possessed full knowledge that such actions or omissions were contrary to the relevant best practices. These are matters I will return to when considering sequence 1. 9. However, I agree with the defence submissions on sequence 3. This offence concerns supervision. There is a requirement for a nominated supervisor to be at certain premises. Pursuant to s 162(1) of the National Law: (1) The approved provider of an education and care service must ensure that one of the following persons is present at all times that the service is educating and caring for children— (a) the approved provider, if the approved provider is an individual or, in any other case, a person with management or control of an education and care service operated by the approved provider; (b) a nominated supervisor of the service; (c) a person in day-to-day charge of the service. 1. However that section does not apply to an approved family day care service and therefore the appellant, that is Ms Trad, was not required to be present at Randwick on 4 March or at any other day for that matter, although she was there from time to time doing inspections, a matter to which I will return. 2. Now in those circumstances s 165 speaks of: "The nominated supervisor must ensure that all children being educated cared for by the service are adequately supervised at all times the children are in care of that service." 1. According to the statutory definitions, a family day care service is part of an education and care service but as they are not required to be there (that is the nominated supervisor), at least for the purposes of a family day care centre, having regard to the terms of s 162(1), then there is a real difficulty to suggest that Ms Trad was in breach of s 165(2) when she was not there. Rather I would interpret or construe the obligation that a nominated supervisor must ensure that all children are being educated and cared for by the service are adequately supervised at all times to mean that a nominated supervisor must ensure that those doing the supervision are doing so to the best of their ability and they would do so through training and the like and having confidence in their qualifications and so on. 2. Particularly when one has regard to the confined particulars, which is simply that a baby was placed in a bassinet on 4 March 2019 instead of a cot, with a bib around his neck with loose sheet and pillow and was not observed for 35 to 45 minutes. It cannot be the intent of the legislation that a nominated supervisor would be absolutely liable for that breach when they were not in a position to do anything about it in the particular circumstances at that time. So, in my view, the offence cannot be made out to the criminal standard and I would allow the appeal against sequence 3. 3. Turning to sequence 1. The Crown or the Prosecutor in this case in their helpful written submissions went through a number of factors about the duties imposed on duty holders. Those duties are only found in the sections themselves, that is, the charge section 165 and so on, that the duties—for instance in s 165—that they must ensure that there is adequate supervision at all times. In s 167, they must ensure that reasonable precaution is taken. In cl 81 of the Regulations, they must take reasonable steps to ensure the needs. Those duties were said to be such duties of care and non-delegable, and they referred me to Commonwealth v Introvigne [1982] HCA 40, where the High Court expanded the concept of duty of care by imposing a direct non-delegable duty on school systems to ensure that reasonable care is taken for the wellbeing and safety of pupils in their care. 4. As I have found, even accepting that these were non delegable duties, they are duties that are to be interpreted in light of the facts and indeed, in light of the charges themselves. So, for instance, in s 165, that they must ensure that children being educated and cared for by the service, are adequately supervised at all times, and they do not have to be there then in that sense. Clearly, they can rely so long as they have ensured that that reliance is reasonable, then they have fulfilled that duty. 5. I had also referred to the case, by way of analogy, Inspector Foster v A B John Peel Pty Ltd t/as Valley Machinery Service [2003] NSWIRCom 116. It was observed: "The cases are replete with examples of persons who have not adopted a safe system of work where such a system was available. It cannot be assumed by an employer that even experienced and mature employees will adopt a safe system of work. Most certainly it cannot be assumed this will be the case where the employees have not received instructions or are not subject to supervision as to the safe system of work." 1. Such an observation is trite law, however, as will be seen when I consider sequence 1 it was in my view a safe system of work, and many examples of that safe system of work, but even experienced and mature employees can make mistakes and tragically that appears to be what has occurred here. Again, a matter to which I will return. 2. The Prosecution submitted that the Magistrate as the Court below accurately observed that there was a positive duty and a specific duty on the appellant and I agree as the duties I have set out just prior and they said it matters not that the appellant was not required to be and indeed was not on the premises at the time of the breaches. Again, so much can be accepted for current purposes although the difficulty with that, in respect of noting that they are adequately supervised at all times, again in my view that can only be through when the nominated supervisor does not have to be present, that they have fulfilled that duty by ensuring that the children being cared and educated for by the family day care educator is properly supervising. Again, a matter to which I will return. 3. Now, the Crown first submitted there can be no dispute that the use of suitable furniture i.e., not a bassinet and compliance with other guidelines concerning sleeping babies would remove or mitigate the risk. Had Ms Rateau been properly trained or monitored and had policies been implemented the same would be true. 4. However, in my view, this does not account for the actual risk, that is a child, a baby was left with a bib on and a loose sheet and a pillow was left in the bed which is contrary to all safe practices. Indeed, Ms Rateau knew that that was contrary to safe practices. Again, a matter to which I will return. 5. I should note that Ms Rateau gave evidence in the Local Court below and following advice obtained a s 128 certificate and for present purposes that certificate would operate in respect of her evidence I refer to here. 6. The appellant submitted, and I set out paragraphs [63] to [66] of MFI 1 which was the appellant's submissions: 63. As at 4 March 2019 Ms Rateau was 43 years of age and the mother of two daughters. She was a suitably qualified family day care educator and had carried out that role for a period of more than five years. Relevantly she had extensive knowledge and experience gained in both private and professional settings over many years in best practices for sleeping babies. 64. The relevant actions or omissions of Ms Rateau can be summarised as follows: placing Jack Loh in a bassinet rather than a cot; placing Jack down whist he was wearing a bib; allowing a loose sheet to remain in the bassinet; allowing a small pillow to remain in the bassinet and not checking on Jack every 10 – 15 minutes. 65. On any objective view, the relevant best practices to be followed were quite basic. There was nothing complex about the practices themselves nor was there any complexity in what needed to be done in order to comply with them. The fundamental point in this case is that on 4 march 2019 Ms Rateau not only had full knowledge of the relevant best practices she had possessed such knowledge for many years. At the times of the actions or omissions she may have unfortunately overlooked a number of things, but that had nothing to do with her state of knowledge. 66. Bearing in mind the particulars of the charged offences (particularly sequences 1 and 2) and therefore the case that the appellant had or has to meet the circumstances of this case beg the following question: in terms of relevant "best practice" what more could Ms Rateau have been taught? On the state of the evidence as at 4 March 2019 Ms Rateau knew everything that needed to be known about the relevant "best practices". 1. The Crown said that the risk identified was the mere presence of the bassinet in which the baby was found and in which a baby died. That bassinet should have alerted the appellant to ensuring that proper procedures were in place. That came from a reference in this safe sleep and rest practices which was in exhibit 21 to which I will now turn. 2. There was quite a bit of evidence about safe practices, safe sleep practices. In exhibit 21 was a document prepared by an organisation having the acronym ACECQA which I was told was the relevant association to provide such advice and titled "Safe sleep and rest practices". 3. It is a printout of an online page, exhibit 21 at the ACECQA website it would appear and it sets out why the requirement, that is policies, procedures about children sleep and rest must be in place at all children's education and care services from October 2017 and sets out principles to inform procedures and those policies and procedures should be based on current research and recommended evidence based principles and guidelines. 4. Red Nose, formally SIDS & Kids, is considered the recognised national authority on safe sleeping practices for infants and children. On p 2 of exhibit 21 there are references there to their services, that is childcare services, they should consult with families about their child's individual needs, be sensitive to differing values of parenting beliefs. 5. However, ultimately, if those are in conflict with current recommended evidence based guidelines the service will need to determine if there are exceptional circumstances that allow for different practices. For example, for some medical conditions it may be necessary for a baby to sleep on his or her stomach or side which is contrary to Red Nose recommendations. 6. A little further down on p 2 at about point 4 of the page the paragraph begins: "In other circumstances nominated supervisors and educators would not be expected to endorse practices requested by a family if they differ with Red Nose recommendations." 1. For example, a parent may request the service wrap or swaddle their baby while they are sleeping. However, according to Red Nose recommendations, this practice should be discontinued when a baby starts showing signs that they can begin to roll (usually around four to six months of age but sometimes earlier). Nominated supervisors and educators should be confident to refer to the services sleep and rest policies and procedures if parents make requests to the contrary to the safety of the child. The child's safety should always be the first priority. 2. There was some evidence about the parents' practices with respect to their baby, the relevant baby here which I have chosen not to name but for present purposes I do not need to consider that any further. 3. On p 177 of the bundle, which appears to be part of that website under the heading current recommended evidence based practices, safe sleep and rest practices and safe environments and equipment, there is a heading "safe cots". That contains detail of all cots sold in Australia that must meet the current mandatory Australian Standard for cots et cetera. Some other matters are set out and then it says "bassinets, hammocks and prams/strollers do not carry safety codes for sleep. Babies should not be left in a bassinet, hammock or pram/stroller to sleep, as these are not safe substitutes for a cot". 4. It was this, the presence of that prohibition, that is what was in exhibit 21 that was relied on by the Crown to, in effect, say that once Ms Trad, the appellant or nominated supervisor, was aware that there was a bassinet in the premises then that should have alerted her to ensure that proper procedures were in place. 5. It is a matter to which I will return. Further the next page of the Safe Sleep and Rest Practices under the heading "Safe Bedding" includes "Remove pillows, doonas, loose bedding or fabric, lamb wool bumpers and soft toys from cots". Under the heading "Safe Placement" it says, "Ensure a safety check of sleep and rest environments is undertaken on a regular basis". It also goes on under that heading "Safe Placement" it says, "Do not place anything (example amber teething necklaces) around the neck of a sleeping child". 6. Clearly leaving a bib on a child, a sleeping baby was contrary to Safe Sleep and Rest Practices. 7. The particulars under s 167 included a failure to properly train and monitor. In breaking that down the Court was informed that inspections, which were in evidence, took place at least every couple of months, it would seem by the nominated supervisor of the relevant family day care centre which were said to be not properly conducted. That is because exhibits 15, 16 and 36 were exhibits to which I will now turn. They were documents entitled "Hazard Reduction Checklist" and the Hazard Reduction Checklist has a number of columns, item number, particular section, what the issue is, what a hazard might be, the level of risk to be filled in as red, amber or green. Another column was 'action required' such as remove risk or control measure and a date of the rectification. This checklist was filled out, the evidence showed, by the appellant at these premises on at least or relevantly on two dates. The first being 22 December 2017 at which time against item 52 the hazard was described as "Do cots comply with the relevant ANZ standard? Does bedding conform to State and Territory legislation?" This was filled in with handwriting, green by the appellant and in the action required control measure were the words, "four portable cots, bassinet on a separate line". From this, the Crown inferred that the appellant was aware that there was a bassinet there and that was contrary to Exhibit 21 that is Safe Sleep and Rest Practices. 8. Exhibit 16 was the most recent health reduction checklist conducted by the appellant at the relevant premises and educator Ms Rateau. That contains, at item 52, although it is not a colour copy, it is a photocopy, they are all photocopies but one can immediately see that it is - back at item exhibit 15 that was signed and dated by Ms Trad on 22 December 2017. 9. It appears that there was "a mix up" in the documents and exhibit 16 which was signed and dated by Ms Trad on 24 January 2019, recalling that the child passed away on 4 March 2019, and that contains a number of pages which are different in form and substance to that which appears at exhibit 15 but that page and some other - when I say that page it has exactly the same page one can immediately see that what is in exhibit 16 is the same page out of exhibit 15. That is the one containing at item 52 that the level of risk was noted as green and the words "four portable cots and bassinet". 10. The Crown relied upon this to show that there was a bassinet there on that date but, having regard to the onus which never shifts to Ms Trad, I could not find beyond reasonable doubt, in fact, I find that that is not the case. That this does not record that there was a bassinet there on that date. However having put that proposition to the Crown, Mr Averre said that there was a bassinet there at some point and that should have alerted the appellant for her to ensure that proper procedures were in place and that would mean moving the bassinet. 11. There was other evidence that there was, actually, another bassinet in the house because this was a family day care centre and there was at least another bassinet there. The particular bassinet was in evidence. That was at p 61 of exhibit A. It was said to be a failure to monitor, that is inspections were not properly conducted, that is because they did not find that the bassinet and that use of the bassinet was contrary to Safe Sleep and Rest Practices. 12. It was also a failure to properly train, that is because she should have been told to remove the bassinet. There is no evidence one way or the other whether that ever occurred. We do know that there was a bassinet or at least a bassinet there at the time and indeed likely another bassinet was in the premises although perhaps not where the babies were sleeping. 13. The final particular in breach of s 167 was that the appellant had failed to ensure Ms Rateau was aware of best practices for sleeping facilities and sleeping hazards. I now turn to the evidence of Ms Rateau. 14. Exhibit 3 was a document entitled "Application to Become an Educator". It was signed by Ms Rateau on or about 15 September 2016 and Ms Trad who took her through, what I would say, was the original induction into Kidstart. Ms Rateau had previously been a family day care provider at premises or with an organisation which must have been an approved provider called Jelly Beans, and so, she had come to Kidstart with that background. 15. The educator application sets out a number of matters including a preliminary safety checklist as to the premises, each of which page has been signed Ms Rateau. It includes on p 86 of exhibit A, above Ms Rateau's name and signature of 15 September 2016, that they have read and fully understand the handbook for family and household members which includes a guideline to procedures on roles and responsibilities of educator's family and household members. It includes some other matters including the educator's responsibility for adhering to the Education and Care Services National Regulation and Law and Kidstart Family Day Care Guidelines and Procedures, and that they are aware that there are penalties for not adhering to the requirements of the regulation and the educator is also responsible for ensuring public liability insurance is kept current and that training requirements are met and safety and presentation of the home is to be maintained both internally and externally and that they agree to support this. 16. The reference to the guidelines and procedures on roles and responsibilities is a reference to exhibit 26 which is a fulsome document. It runs for some 40 pages of close typed material and a number of sections on health and safety, et cetera. In fact, it starts after introduction on health and safety at p 2 of the document. That continues in paragraph [2.5] which is headed 'Sleep and Rest' which sets out a number of matters that the educator must take reasonable steps to ensure et cetera. That includes that sleeping babies and toddlers will be checked every 10 to 20 minutes during the day in line with current SIDS guidelines. It includes a reference to cots, that they must comply with the ANZ safety standard, et cetera, and be maintained in a clean and safe condition taking into account in consideration of the following, and there are listed matters there, including: "Never put pillows or an extra mattress or toys in cots as a child can become trapped and suffocate between these items or can use these items as a foothold to climb out of the cot." 1. It continues: "Kidstart will provide educators with up to date information from recognised safety authorities on a selection and use of cots, beds and bedding and safe sleeping practices." 1. However, it would seem that that was done. The evidence included from Ms Rateau, and I will just give it in brief summary, at T25 that she did not actually check the email materials that she received and that in respect of the visits by Ms Trad she was asked: "Q. In chief what is it that generally occurred during those visits?" 1. That is at T26 about line 40. "A. She would come in and we'd have a chat and she would make sure everything was okay and she would sign and she would leave, and she would say that that would happen once every few weeks. I wouldn't be able to say a regular time." 1. This is over the page at T27: Q. There were cots, is that correct? A. Yes. Q. There was also a bassinet? A. Yes. Q. In relation to the bassinet how long had you had that bassinet at the premises? A. Since I started so from the opening date." 1. And it was clarified that by bassinet the question was referring to the bassinet in which the baby was placed on 4 March 2019. She was asked: "Q. Where you ever provided with any policies in relation to? A. Well as I said I did receive emails so I think there was. There might have been a policy that was sent by email along with other documentation." 1. She was asked about putting the baby down. This is summary at T28. "Q. He was wrapped when you put him down? A. He was but he woke up and I unwrapped him. Q. Was the baby wrapped. Did you take the wrap off? A. Yes. Q. Then did you-- A. Yes he was. He woke up, I unwrapped him and put him back down. Q. Then was the wrap loose? A. Yes. Q. When he was put down in the bassinet was he wearing his bib? A. I didn't think he was because it's one thing I use to take was the bibs off but it's come up that he was but as far as I recall he wasn't." 1. Pausing there, the evidence was that the baby had the bib on and that was contrary to the safe sleep and rest practices to have something around a baby's neck and indeed pausing there Ms Rateau knew that. "Q. Was there a pillow in the bassinet? A. A very, very tiny pillow" was the answer. 1. She was then taken to some photographs that no doubt was very distressing for Ms Rateau. I should say that it was an Agreed Fact, certainly from the Bar table, that Ms Rateau was not criminally responsible for the death of the child. 2. In any event, in cross-examination, at T34 and following she was asked about her practices, for example: "Q. You know in your practice, that is raising your own children that it's more than a rule of thumb that once a baby starts to move they should be moved to a cot, you know that don't you? A. Yes, yes I do. Q. You've known that for a long time haven't you? A. Well it depends on the child. Some children sleep better in different. Q. But even with your own children you knew that once they're a moving baby in their bedding they should be moved to a cot, you knew that didn't you? A. Yes. 1. Of course recall in the Safe and Rest Practices had referred to once a baby starts to move different considerations apply. She gave evidence about Jelly Beans. Q. You were given handbooks and that sort of things with Jelly Beans? A. From what I could remember yes. Q. You were given induction documents with them?" 1. Then at T43: Q. Ms Trad gave you what was known as a starter pack around this time 15 September, do you agree? A. Yes. Q. It included laminated documents if I can put it that way, to be posted up in your home, for example post-its? A. Yes. Q. An example might be a contact list, is that right? A. Yes. Q. You were given a lot of documents you accept that? A. Yes and I was emailed a lot of documents yes. Q. In terms of the starting point you were given a starter pack and that included the handbook, the educator's handbook didn't it? A. Not that I recall. I probably did but yes." 1. Of course that is the document that Ms Rateau had signed saying that she had read it and understood it in exhibit 23 and 26, a part of which I referred to. 2. At T47 she was taken through, that is in cross-examination, Ms Rateau was taken through that she had read the policies and procedures as part of the application process, yes. At line 45: Q. Ms Trad took you through parts of that handbook didn't she? A. Not that I recall but she probably - she might have yes." 1. Of course this was some three years earlier, but it does appear Ms Rateau acknowledged that she was probably or she might have been taken through that. She certainly had that knowledge and indeed it would appear that Ms Trad knew that she had that knowledge and it had come from having inducted her, and having come across from Jelly Beans and so on. 2. Now she was asked questions about what was called the Red Nose documents. "Q. Ms Trad provided you with brochures and leaflets didn't she? A. Yes. Q. They included the Red Nose documents, you accept that? A. Yes. Q. And those documents are about sleeping babies? A. Yes. Q. She provided you those didn't she? A. Yes she did. 1. She said over the page at line 51: "I know provided me with documents. I can't say specifically what she provided me the safe sleeping one. I know that there were documents. I don't specifically remember receiving this one but that's not to say she didn't give it to me. Q. Is it your position certainly you received a Red Nose document or some Red Nose documents from her, is that right? A. Not necessarily Red Nose. I know I've received over the years documents and like you said leaflets and pamphlets and laminated posters and things like that so. Q. I'm just focussing on Red Nose for a moment." 1. There were some objections and so on but it went back to her earlier answer where she said they include the Red Nose documents and she answered yes, that was at T50 line 36. At 54 she accepts that she knew the policies. She was talking there about an assistant educator. "Q. And that was in effect Ms Rateau making sure that someone who was assisting her had all of the correct training she needed to assist you as an educator correct? A. Yes. Q. Including sleeping babies? A. Yes. Q. And all the protocols in that regard? A. Yes. Q. Including things like no sheets, correct? A. Yes. Q. No loose objects? A. (No verbal reply) Q. Proper bedding, correct? A. Yes. Q. Indeed again rolling babies you've got to move them into a cot, you understand that don't you? A. Yes. Q. You made sure that they were aware of these things both Lucy and Gisana(?), correct? A. Yes. Q. And you also check in at regular routine intervals? A. Yes. 1. Now, the evidence in this case was that the child was not inspected for some 30 plus minutes. Ms Rateau was making telephone calls in another room. 2. Turning now again to the legislation and s 167, the offence was that a nominated supervisor and education care service must ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury. In my view the word 'reasonable precaution' must be given meaning and indeed in the circumstances where Ms Rateau was qualified, she had been given training either by documentation or with discussions with Ms Trad, which she did not or may not have read. She certainly had the knowledge and she admitted that she had the knowledge and it would appear that Ms Trad knew that she had the knowledge, so in the circumstances this tragedy still occurred and it happened apparently through the momentary inadvertence or failure to monitor in accordance with proper procedure. That is, the baby was left with a bib as is particularised, with a bib and a loose sheet in the bassinet and no doubt the fact that it occurred - that those defaults, that is leaving a bib around a baby's neck and with a loose sheet, whether that occurred in a bassinet or cot was in breach of the safe sleep and rest proper procedures, as was the failure to monitor the child. 3. In those circumstances the nominated supervisor here, Ms Trad, had in my view ensured that every reasonable precaution was taken to protect children, that is that she made sure that Ms Rateau was qualified, she had the training and documentation and in my view she could not be held criminally liable for the momentary inadvertence, if that is what is was, of Ms Rateau in breaching the Safe Care and Rest policies in both not removing the bib and sheets and pillow in the bassinet or in the failure to monitor in accordance with proper procedures. So, in my view, it cannot be a failure of the duty imposed under s 167(2) and in those circumstances I would allow the appeal on that s 167(2). 4. In the premises, I determine the appeal against conviction by setting aside the conviction imposed by the Local Court under s 20(1)(a) of the Crimes (Appeal and Review) Act. I quash the orders of the Local Court including the findings of guilt, the convictions and the fines. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 January 2024