Q. The parent wasn't there. There were two nurses near by, did you show those nurses the photograph?
A. WITNESS: No.
87 In her evidence in chief, Ms Revis explained that the child was standing, holding on to the rails, pushing them when Mr Casari approached. In cross examination she explained that the child was facing away from Mr Casari when he approached. Mr Casari and Ms Revis' accounts were entirely consistent, in all of these respects.
88 Ms Revis had also given evidence in the criminal proceedings. She agreed that there her evidence had been that the child was 'sort of playing' in the cot and that when Mr Casari spoke to the child, calling him over, that the child had smiled at Mr Casari when he turned. Ms Revis also agreed that it would be reasonable for Mr Casari to expect that there was somebody behind the curtain at the next bed. She also explained that when sick children were treated in hospital, as their fevers came down, they turned back to their normal selves. She volunteered that: 'While they're sick, they're not very happy, but when we treat them they can be quite happy'.
89 It was submitted that this evidence showed that Ms Revis was an unreliable witness. I am unable to accept the submission. Her evidence that the child was standing in the cot, holding the rails, shaking them, sort of playing, with his back to Mr Casari before he approached him and smiling as he turned, is not evidence that the child was singing and dancing in the cot, 'joyous' as Mr Casari described him.
90 The photo in evidence, did not corroborate Mr Casari's evidence that he was moved to take the photo because he was so impressed by the child's happy demeanour; he wanted to pay the child some attention and thought that the best way of doing this was to take his photo. There was certainly no suggestion that he tried to show the photo to the child, which might have been expected, if he was truly intending only to pay attention to the child. The upshot of Ms Revis' evidence was that the child smiled at Mr Casari when he motioned him over from where he was playing with the rails of the cot with his back turned to Mr Casari, he was not dancing and singing in the cot, in such a way as to attract Mr Casari's attention.
91 The photo does not depict a happy child. It is best described as a pensive shot, consistent with the evidence that the subject was a two year old child who was ill, having been admitted to the Emergency Department suffering with febrile convulsions. These were, no doubt, unfamiliar surroundings. The child was approached by Mr Casari, a stranger, who spoke to him to gain his attention and then took his photo. There was no suggestion that the child was crying or distressed by this, to the contrary, Ms Revis and Mr Casari both observed the child smile at Mr Casari, as it turned towards him.
92 It is certainly possible therefore, that the fleeting image then captured was not consistent with what Mr Casari had earlier observed as the child's extraordinary, happy demeanour. The image was, however, more consistent with what Ms Revis, the nurse caring for the child said that she had observed of his demeanour and not how Mr Casari described the child, as unusually happy, so as to capture his attention and motivate him to take a photo.
93 The image and Ms Revis' evidence tends to lend support to the view reached by the respondent, that in reality, Mr Casari had no proper explanation to advance for what he did on 6 July 2007. Mr Casari's explanation was that he took the photo in order to pay attention to a happy child. Even if the explanation be accepted, it can provide no proper explanation for what, on any view, was serious misbehaviour. As was Mr Casari's own evidence, he would rightly himself object to having his photo taken, if admitted as a patient in hospital and would also object to having a photo of his own child taken, especially if naked.
94 In any event, what cannot be overlooked is that when Mr Casari observed the child and decided to approach to take his photo, he neither sought, nor obtained, the permission of the child's parent, nor did he first ask the nursing staff, who he claimed to have seen on entering the room. On Ms Revis' evidence, when Mr Casari approached, he did not observe her in the nurses station and because the doctor and parent were behind the partially closed curtains, attending to the second child, he did not see any adult present. That also accords with Mr Casari's evidence that the child was alone when he approached and took the photo.
95 That this action involved serious misconduct on Mr Casari's part, cannot be doubted. On Mr Arroyo's evidence, wardorderlies had to take particular care with child patients, so that even transferring a child to another ward required the presence of a nurse. Ms Chies' evidence was to similar effect. Mr Casari had no duties to perform in connection with this child. For Mr Casari's part, it did not take him long to appreciate the seriousness of what he had done and how it might be perceived by his employer. As he explained in his evidence, this was why he told Mr Schembri and Ms Lim that the photo had not been of the child's private parts.
96 On any commonsense view it cannot be doubted that every patient is entitled to be treated with dignity and respect while admitted to a hospital. Every parent is also entitled to expect that photos will not be taken of a sick child admitted to a hospital's emergency department, while the child is left in the care of the nursing staff. This is so, no matter what demeanour the child is displaying. Mr Casari described this child's behaviour as 'joyous'. Nurse Revis did not agree, but accepted that what he was doing in the cot might be described as playing and that he had smiled at Mr Casari, when turning towards him. In either case, that cannot have been a basis upon which Mr Casari concluded that it was in order for him to take the child's photograph, whether or not it included the child's private parts.
97 While it was the case advanced for Mr Casari that there had been an overreaction to what had occurred on the respondent's part, and that all that should have occurred was that Mr Casari should have been taken aside and counselled that he should not take such photographs, because his intentions could be misunderstood, I am unable to accept the submission. It was advanced in opening by reference to an analogy, it being argued that while now there were concerns held in society about naked children being photographed, in 1968 there would have been no such concerns, if, for example, children playing naked under a sprinkler, had been photographed.
98 Perhaps, as the submission infers, those were more innocent times and so a person in Mr Casari's position might have been more readily believed when he said he had no ill intention in taking the photo. Or, perhaps there was then a much lesser appreciation of an unfortunate reality well recognised today, namely that there are some adults in our society, even those working in situations where it would be reasonable to expect that their intentions towards the children in their care, can only spring from the best of intentions, in fact, they have the worst of intentions towards such children. Such intentions of harm towards children are not always readily apparent, or able to be uncovered, by those upon whom society imposes obligations to ensure the safety of children. Thus employers such as the respondent are expected to take great care in dealing with any behaviour which might involve children in their care being put at risk.
99 In this case, Mr Casari always said that he had not taken a photo of the child's 'private parts'. As Ms Lim and Mr Schembri each accepted, and indeed, as was the submission advanced for Mr Casari, had that been the case, the conduct would have been even more serious than it in fact was and he could have no expectation of a favourable conclusion in proceedings such as this. In these proceedings, the respondent did not seek to establish that Mr Casari had a sexual purpose in taking the photo. In Mr Casari's case, it was sought to establish that he had no such purpose. It will be necessary to return to consider that aspect of the case.
100 As to the analogy advanced for Mr Casari, I cannot accept that it was a good one. In my view, even in 1968, had a wardorderlie taken a photo of an ill, naked child, during the child's admission to the Emergency Department of Liverpool Hospital, the benign view urged of Mr Casari's conduct would not have been properly available to be taken, whether or not the person taking the photo had a sexual purpose in taking it.
101 It is of course entirely unlikely to have then been practically possible for such a thing to have occurred, given that in 1968 there were no mobile phones with camera functions in everyday, common use. The temptation to take a photo is thus much less likely to have arisen then. Further, had an orderlie engaged in such conduct, it would not have been a digital image which was created, using a device which enabled the image immediately to be seen and communicated around the world by electronic means, as was possible in 2007. Still, even in 1968, it would have been an entirely wrong thing for an employee in Mr Casari's position to have taken such a photo, had the means been available.
102 It is undeniable, it seems to me, that in 2007, plain commonsense would have informed anyone that an employee of a hospital taking a photo of a naked, ill child, admitted to the emergency department of a hospital, was entirely inappropriate. That there were other adults in the vicinity and that Mr Casari did not seek to hide what he did, does not alter the fact that to take a photo of any patient, let alone a child, is to take improper advantage of a person admitted to a hospital.
103 To take any patient's photo without their prior permission being sought and obtained, is unarguably wrong. A person in that situation is in a particularly vulnerable position, which ought not to be taken advantage of. That is only more so, in the case of a two year old child, who is simply too young to protest, if a stranger seeks to take his or her photograph. The situation is only made worse, when the photo taken is of a naked patient, whether an adult or a child.
104 In 2007, it is unarguable that commonsense also told us that in the case of a child admitted to hospital, no photos should be taken by any stranger, without the parent's permission, or at the least, that of the hospital staff who have the care of the child, if the parent is absent, whether or not the child is clothed.
105 Mr Arroyo gave evidence of his experiences of the care which wardorderlies had to take in their dealings with all patients at the hospital, while unclothed, but particularly children, a matter he also said was one of commonsense, both for the protection of the child and the employee. That evidence was consistent with the evidence of Ms Chies.
106 On Mr Casari's evidence, he had no reason to approach the child on 6 July, having not been asked to perform any work which would require him to do anything for the child. His evidence was that he was in the area to deal with linen, although other witnesses doubted that there was in fact then such a reason for him being there. On his evidence, his attention was drawn to the child by a noise which he made and because he found the child's behaviour fascinating, not because he had any work related need to approach the child.
107 That anyone observing him approach the child's cot, would have anticipated that Mr Casari intended to take a photo of the child, using his mobile phone, is most unlikely. There was a known policy against using mobile phones in place.
108 Ms Revis' evidence was that what she observed Mr Casari doing, happened quickly, as she was taking something, medicine she thought, to the doctor treating the second child in the area. She was concerned by what happened. It was not appropriate for her then to mention it to Dr Milligan, who was treating the second child. She felt, however, that she had to say something to Mr Casari, which she was able to do about 10 minutes later and, given their conversation, then felt that it was necessary to report the incident.
109 It was not in issue that this accorded with Nurse Revis' obligations under the respondent's Code of Conduct and its Child Protection policy. There was no suggestion that Nurse Revis had done anything wrong in her approach to what she was confronted with. On her evidence, she did not say anything to Mr Casari when she first saw what he had done because she was shocked and he left. That evidence must be accepted as reflecting her reaction. Mr Casari was a man many years her senior. Even when giving her evidence she was 25, having then had only two and a half years' nursing experience. On Ms Chies' evidence, Nurse Revis was disturbed by what had happened, as Ms Chies would have been, in her position.
110 It does not require a written policy to warn employees about every obvious commonsense thing that they should not do, in their employment. In this instance, however, the respondent had signs prominently displayed in the Emergency Department, warning that mobile phones were not to be used. On his evidence, Mr Arroyo did not even take his mobile phone to work, because they were not to be used where he and Mr Casari worked. I am unable to accept Mr Casari's evidence that he had not seen such signs and that he was not aware that he ought not to have taken photographs with his phone. Indeed, finally Mr Casari conceded that he was aware of the policy.
111 Plainly, Mr Casari's phone should not have been switched on while he was at work, because it could interfere with hospital equipment. Further, the idea that any hospital employee would take a photo of a naked patient, using a mobile phone, is so unlikely an event, that it cannot have been within the reasonable contemplation of anyone observing Mr Casari's approach to the child.
112 There can be no doubt that what Mr Casari did was a serious breach of the child's privacy, as well as the obligation which the respondent had to care for the child, while his father stepped out of the Emergency Department to get a drink. The conduct was never denied and Mr Casari advanced no plausible explanation for what he had done. I am entirely satisfied that the photo need not have been taken for sexual gratification, in order for its taking to have involved serious misconduct.
113 Mr Casari, however, even in these proceedings, by his explanation and evidence in cross examination, plainly does not accept this reality. He acknowledged that it was stupid and a mistake, but that is really an acceptance of the consequences of his conduct, approached from his own perspective. So far as the child was concerned, his view was that he had not himself done any wrong. Mr Casari was cross examined as to his approach to the naked child. His evidence, in cross examination, was: