Kourlas v Teacher's Registration Board of South Australia
[2024] SADC 5
•8 February 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KOURLAS v TEACHER'S REGISTRATION BOARD OF SOUTH AUSTRALIA
[2024] SADC 5
Reasons for Decision of her Honour Judge Deuter
8 February 2024
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
The applicant brings an appeal against a decision of the Teachers Registration Board of SA (the Board) that he was not a fit and proper person to be registered as a teacher, pursuant to s21(1)(e) of the Teachers Registration and Standards Act 2004 (SA).
The applicant had been charged by police with trafficking in a controlled drug pursuant to s32(3) of the Controlled Substances Act 1984 (SA). Those charges were not proceeded with. An alternative charge of possession of a controlled drug was later withdrawn.
The Board sought documentation from police and conducted its own investigation of the circumstances. They determined that despite the withdrawal of charges, that the applicant had been involved in the undefined conduct of ‘drug dealing’.
Issue regarding the use of improperly or illegally obtained evidence; the propriety of the Board conducting its own separate investigation; and the Board’s disregard of character evidence provided on behalf of the applicant, and of his Statutory Declaration sworn on oath denying any criminal offending.
Held: Appeal allowed.
Teachers Registration and Standards Act 2004 (SA) s 4; s 21(1)(e); 22(2)(c); 49(1); District Court Act 1991 (SA) s 42E; Controlled Substances Act 1984 (SA) s 32(3); Oaths Act 1936 (SA); Evidence Act 1929 (SA) s 34A; Summary Offences Act 1953 (SA) 79A, referred to.
Medical Board of Australia v Singh [2019] SACAT 66; Bunning v Cross (1978) 141 CLR 54, applied.
Registrar of Firearms v Marksman Training Systems Pty Ltd (No.2) [2016] SASCFC 72; Commissioner for Consumer Affairs v McMurray (2017) 128 SASR 1; House v The King (1936) 55 CLR 499; Pateras v The Queen [2021] SASCA 107; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Matter of An Application for Admission as a Legal Practitioner [2004] SASC 426; DPW v Secretary, Department of Education [2018] NSWCATAD 257; Southern Equities Corporation Ltd (in liquidator) & Ors v Bond & Ors [2001] SASC 70; T v The Medical Board of South Australia (1992) 58 SASR 382; Martin v Medical Complaints Tribunal [2006] TASSC 73; Paull v Queensland All Codes Racing Industry Board [2016] QCAT 74; ACMA v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; CJF v The Department of Human Services [2020] SACAT 38; Gibson v Ellis (1992) 59 SASR 420; Health Complaints Commissioner v Litchfield (1997) 41 NSWLTR 630; Teachers Registration Board of South Australia v Edwards [2013] SASCFC 80; Hughes & Vale Pty Ltd v The State of NSW (No 2) (1955) 93 CLR 127; Hardcastle v Commissioner of Federal Police 1984) 53 ALR 593; Re Siedler [1986] 1 Qd R 486; New South Wales Bar Association v Evatt (1968) 117 CLR 177; Police Service Board v Morris (1985) 156 CLR 397; Bhoola v Optometry Board of Australia [2022] SASCA 20; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Martin v Medical Complaints Tribunal [2066] 15 Tas R 413; R v Ireland (1970) 126 CLR 321; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 ; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; Sudath Health Care Complaints Commissioner [2012] NSWCA 171; Minister for Immigration v Li (2013) 249 CLR 332; Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; Craig v South Australia (1995) 184 CLR 163; Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630, considered.
KOURLAS v TEACHER'S REGISTRATION BOARD OF SOUTH AUSTRALIA
[2024] SADC 5Introduction
Cogent Reasons
Background Facts
(i) Criminal Charges
(ii) Wrong Answer in Application
(iii) Board Investigations
Procedural History
(i) Board Decision – to Convene a Sub-Committee
(ii) Proceedings before the Panel
(a) The initial hearing
(b) Panel’s Decision
Hearing of the Board - 7 February 2022
(i) Evidence at the Hearing
(ii) Submissions
(a) The Applicant’s Submissions
(b) Submissions of Counsel Assisting
(c) Submissions in Reply
The Board’s Reasons for Decision
Appeal
(i) Summary of Applicant’s Appeal
(ii) Detailed Review of Submissions
(a) Submissions of the Applicant
(b) Submissions of the Board
Nature of the Proceedings
Board’s discretion to exclude evidence
The relevant standard of proof
Rebuttal of Applicant’s submissions
Consideration
(i) Scheme of the TRS Act
(ii) The Standard of Proof
(iii) The Evidence relied on by the Board
(iv) The Discretion to be Applied
(v) The Board’s use of evidence
Decision
Civil
Introduction
This is an appeal within the Administrative and Disciplinary division of the District Court. Dimosthenis Kourlas (the applicant) appeals against a decision of the Teacher’s Registration Board of South Australia (the Board) of 14 June 2022. The Board determined that the applicant was not a fit and proper person to be registered as a teacher pursuant to s 21(1)(e) of the Teachers Registration and Standards Act 2004 (SA) (TRS Act).[1]
[1] The Board was constituted by a sub‑committee of five members in making its determination regarding the applicant’s fitness to be registered as a teacher in South Australia.
The appellant jurisdiction of the Court is conferred by s 49(1) of the TRS Act. That section provides a right of appeal against a decision of the Board in exercising a power under Part 5 or Part 7 of the Act.
The nature of the appeal is contained in s 42E of the District Court Act 1991 (SA) (the District Court Act) which states:
42E—Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
Section 42F of the District Court Act sets out the orders that may be made on an appeal:
42F—Decision on appeal
The Court may, on an appeal—
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c) remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The starting point for the court is to examine both the decision and the decision-making process of the Board, as well as any material that was before it. The court can allow further evidence or material to be presented to it, and can also inform itself as it thinks fit, but is not to depart from the original decision, except for cogent reasons. This was confirmed by Justice Stanley in Registrar of Firearms v Marksman Training Systems Pty Ltd (No.2), when he said[2]:
I consider that the purpose of s 42E(3) is to indicate that the appeal, while it is to be conducted in accordance with the terms of s 42E(2), it is not an ordinary merit review of the decision that is the subject of the appeal. The Court on appeal is not to merely substitute its view for the original decision maker. It is only to depart from that decision where cogent reasons exist.
[2] [2016] SASCFC 72 at [315].
Cogent Reasons
A reason is considered as cogent if it is “compelling, convincing or powerful.”[3]
[3] Ibid, with Gray J. agreeing.
The Full Court, in Commissioner for Consumer Affairs v McMurray (McMurray)[4], set out the principles to be applied in determining appeals pursuant to s 42E. Justice Blue, with Hinton and Parker JJ agreeing, stated that: [5]
[4] (2017) 128 SASR 1.
[5] (2017) 128 SASR 1 at [45].
Where the asserted error relates to the exercise of a discretion or the making of an evaluative judgment or policy decision, it will be necessary for the appellant to establish a process or outcome error of the type identified by the High Court in House v The King[6], and the mere establishment of a process error will not avail the appellant unless the appellant also demonstrates there should have been a different outcome.
[6] (1936) 55 CLR 499.
House v The King errors in exercising a discretion have been determined to be:[7]
[7] Bleby JA in Pateras v The Queen [2021] SASCA 107 [15]-[16].
·acting upon a wrong principle;
·allowing extraneous or irrelevant matters to guide or affect the decision making;
·making a material error as to the facts;
·failing to take into account, or give sufficient weight to, a material (or relevant) consideration.
The High Court added in House v The King that: [8]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
(emphasis added)[8] Ibid at 505-506.
The decision of the Board that the applicant was not a fit and proper person to be registered as a teacher, was a discretionary one. I cannot substitute a decision which turns on my exercise of the discretion, simply because I would have exercised the original discretion in a different way. To do so, I must find a process error or alternatively, that the decision was unreasonable or unjust.
Background Facts
The applicant is a young man who completed his Bachelor of Education (Primary and Middle) at the University of South Australia in August 2020. At that time, he was 21 years of age.
On 21 May 2020, in anticipation of completing his studies, the applicant applied to the Board for registration as a teacher. That application was amended on 1 September 2020. In completing his application form, the applicant answered “No” to question 7.8 which asked if he had ever been ‘charged with or convicted of an offence/offences’ within several categories. One such category was any offence involving illicit drugs. This was not correct.
(i) Criminal Charges
A National Criminal History check obtained by the Board, set out that the applicant had been the subject of two criminal charges arising out of an incident that occurred on Saturday 10 March 2018, when he was 18 years of age (the March incident). These charges related to 20 capsules suspected of containing the illicit drug methylenedioxymethamphetamine (MDMA).
A complaint was laid in April 2018 charging the applicant with a basic level offence of Traffic in a Controlled Drug (type unknown), pursuant to s 32(3) of the Controlled Substances Act 1984 (SA) (CSA). The charges were not proceeded with, and the applicant was excused from attending court on 25 October 2018.[9]
[9] Page 198 of Case Book (FDN9) (Case Book).
At about the same time, a second complaint was laid, charging the applicant with the offence of Possessing a Controlled Drug, pursuant to s 33L(a) of the CSA. This charge related to the same drugs which had formed the basis of the trafficking charge. At a hearing before Magistrate Smart on 14 March 2019, this complaint was also withdrawn, with no plea being recorded.[10]
[10] Page 195 of Case Book.
The Registrar of the Board (the Registar) sought an explanation from the applicant in relation to these charges and his failure to correctly answer question 7.8 of his application. The applicant’s solicitor, by letter of 26 October 2020, responded advising that the charges both related to the one incident, and had been discontinued over a year before the applicant had made his application. The prosecution was not able to establish that the applicant had a case to answer in respect of either charged offence. The applicant maintained his innocence in respect of all allegations.
(ii) Wrong Answer in Application
The applicant’s solicitor advised that:
Was neither convicted nor dealt with without conviction for that matter in respect of any charge. He was charged as you have rightly pointed out with an offence, but ultimately all offences arising from the circumstances that occurred on 10 March 2018 were discontinued and/or withdrawn. Thereby my client apologises for his failure to properly consider the question before responding to it in his application for registration.
That explanation is noted in the Board’s reasons for its decision (the Board’s reasons). The Board does not comment further.[11] The explanation was not rejected.
(iii) Board Investigations
[11] Page 9 of the reasons.
When the Board became aware of the charges laid against the applicant, the Registrar utilised s 50 of the TRS Act to request documents from the South Australian Police (SAPOL).
SAPOL provided the Registrar with the original Apprehension Report, affidavits of several police officers, and a transcript of an interview with the applicant. Having reviewed those documents, the Registrar sought and was provided with further documentation including photographs; copies of body worn camera footage and a disc containing the Record of Interview with the applicant. The Registrar was also provided with documents relating to the forensic science examination of plastic bags which had been seized from the applicant’s home.
The SAPOL material included CCTV footage of the applicant in a laneway near the Dog & Duck Hotel just off Hindley Street. The officers monitoring the CCTV cameras alerted police in the area to an incident nearby that may have involved the sale of an illicit substance. Senior Constable Broadbent (Broadbent) and Senior Constable Capponi (Capponi) were tasked to the scene. Broadbent later became the investigating officer in relation to the prosecution of the applicant.
The applicant was stopped by Broadbent as he walked along Hindley Street. He was told that he was suspected of being in possession of illicit substances, and that he would be searched pursuant to s 52 of the CSA. Cash in the amount of $150 was found in the applicant’s wallet together with his phone. Broadbent checked the ground around where the applicant was located and saw nothing of interest.[12] Brevet Sergeant Slape (Slape) then attended Hindley Street and located a plastic bag containing 20 capsules of an unknown substance near the wall where the applicant was standing. Broadbent advised the applicant that he was under arrest and placed him in handcuffs. He was conveyed to the City Watchhouse. It was not until the applicant arrived at the watchhouse, sometime later, that he was given his arrest rights.
[12] Casebook at p20.
Approximately two hours after the police first spoke to the applicant, his home at Goodwood was searched pursuant to a warrant. In his bedroom police located and seized a plastic resealable bag containing eight smaller plastic bags.
Handwritten notes of Broadbent and Capponi record that, under caution, the applicant told them that he had been holding the plastic bag found in Hindley Street for someone else.[13] He declined to answer any further questions.
[13] Page 231 of the Case book.
Whilst the applicant was inside the holding cell, Capponi looked through the applicant’s phone and asked for the password to his Wickr application. This was provided and several messages were found within that application (the Wickr messages).[14]
[14] Pages 228, and 284-288 of the Case Book.
Upon reading the applicant’s Wickr messages, Capponi recorded in her affidavit that Wickr was a ‘well known application used widely by drug dealers’.[15]
[15] Page 227 of the Case Book.
On 30 November 2020, after receiving the police material, the Registrar sought further information from the applicant’s solicitor pursuant to s 22(2)(c) of the TRS Act, as follows:[16]
·An explanation as to what took place in the laneway near Hindley Street between your client and the male person that was recorded on CCTV.
·A description of what was in the plastic bag located at your client’s feet that he stated he was holding for another person, and the reason why he refused to disclose who that person was.
·A detailed description/explanation of the exchange of messages located on your client’s phone between himself and a user named “gunit 96”.
I further request pursuant to s 22(2)(c) of the Act provision of the forensic analysis report conducted on the capsules/substance found in possession of your client from Forensic Science SA.
[16] Pages 282-283 of the Case Book.
In response, a sworn Statutory Declaration was provided by the applicant on 4 May 2021 (the Statutory Declaration).[17] The applicant swore on oath that:
1. Nothing illegal or unlawful took place in the lane way near Hindley Street as was recorded on CCTV. I met a person in the laneway and spoke with him before moving off. He was an acquaintance from my former soccer playing days.
2. I do not know what was in the plastic bag referred to. The plastic bag was not located at my feet. I did not say that I was holding anything for another person and I did not therefore refuse to disclose who that person was.
3. I was not a participant in the messages you refer to. As such I do not know of their content.
[17] Pages 140-141 of the Case Book.
The Statutory Declaration was signed pursuant to the provisions of the Oaths Act 1936 (SA), and was forwarded to the Registrar on 10 May 2021, with a copy of an analysis report and Certificate prepared by Forensic Science Centre SA (FSC).[18]
[18] Page 274-275 of the Case Book (the first FSC Certificate).
The first FSC Certificate, dated 17 April 2018, provided the test results for the 20 capsules found in the plastic bag in Hindley Street. Eighteen contained crystals and two were empty. The total weight of capsules in the bag was 1.5 grams. There was a positive presumptive test for MDA or MDMA in relation to crystals found in 10 of the capsules. Only two of the capsules were tested further. They were positive for MDMA, weighing .06 grams and .03 grams respectively.
Upon receiving the Statutory Declaration and the first FSC Certificate from the applicant, the Registrar advised him that, the seriousness of the offences with which he had been charged, and the information contained within the police material, meant she would not exercise her delegated authority to grant him registration. She intended to obtain advice from the Crown Solicitors Office (CSO). On 19 August 2021, the Registrar confirmed that she would not grant registration, and she intended to refer the applicant’s application to the Board for determination.
Procedural History
(i) Board Decision – to Convene a Sub-Committee
The Registrar empanelled a sub‑committee comprising five Board and/or Deputy Board members (the Panel) for the purpose of determining whether the applicant could satisfy the Board that he was a fit and proper person to be registered as a teacher. An initial hearing was set for Monday 27 September 2021.
An Investigations Officer employed by the Board, Sheree Zuvich (Zuvich), was tasked by the CSO to further investigate the March incident. On 27 August 2021, she emailed Broadbent seeking further information regarding the bags seized from the applicant’s home and any FSC analysis.
Whilst Broadbent ultimately prepared his own affidavit on this topic, and forwarded it to Zuvich, the offer by Zuvich to prepare a police affidavit that was to be used by the CSO and the Board in their determinations is highly irregular. It could suggest that Zuvich was not acting as an independent investigator, but in a more partisan role. Her evidence must be closely assessed.
Broadbent provided an addendum affidavit, sworn on 31 August 2021 (the second Broadbent affidavit).[19] His first affidavit had been sworn on 22 May 2018 (the first Broadbent affidavit).[20] The second Broadbent affidavit contained more detail of what occurred on 10 March 2018 involving the applicant. By the second Broadbent affidavit it was ascertained that a further FSC certificate had been obtained dated 31 July 2018 (the second FSC certificate).[21]
[19] Page 204 of the Case Book.
[20] Page 199 of the Case Book.
[21] Page 272 of the Case Book.
The second FSC certificate contained analysis of nine of the resealable bags found at the applicant’s home. There were trace amounts of a substance in eight bags. Only two of those were analysed. One tested positive for MDMA and one for THC (cannabis).
Zuvich, at the request of the CSO, sought further information from Senior Constable Craig Murphy (Murphy) regarding his search of the applicant’s home, and where the bags were found. This was additional to his affidavit signed, of 15 May 2018 (the first Murphy affidavit).[22]
[22] Page 239 of the Case Book.
Murphy produced a further affidavit as requested, dated 31 August 2021 (the second Murphy affidavit).[23] Murphy was not at the applicant’s arrest in Hindley Street. His statement in his second affidavit that drugs ‘were found on the applicant earlier that night in Hindley Street’ is hearsay. He has no knowledge of that fact, and his statement could not be used as truth that the applicant was in possession of drugs in Hindley Street. The second Murphy affidavit is only relevant to him finding plastic bags in a drawer in the applicant’s bedroom.
[23] Page 241 of the Case Book.
Very little can be made of Murphy’s evidence without knowing how long the bags had been in the drawer. There was no other usual indicia of drug trafficking found, such as scales, tick lists, or bundles of cash.
Zuvich provided two signed statements to the Panel. Neither statement was sworn on oath. The first statement, dated 7 July 2021, simply set out her summary of what she believed the CCTV depicted.[24] She describes the applicant putting his left hand into the pocket of his pants; and then discarding ‘what appears to be a plastic bag onto the ground behind his right foot, just in front of the wall’. She describes that the applicant then put his right foot over the plastic bag.[25]
[24] Page 258 of the Case Book.
[25] Page 259 of the Case Book.
Zuvich’s second statement was signed on 30 September 2021,[26] and deals with Zuvich’s Google searches of a name on the applicant’s Wickr account. She used the Twitter and Snapchat applications to trace the applicant’s activity to confirm that the applicant was ‘dilldog2468’, a person who frequently appeared in the Wickr messages.
(ii) Proceedings before the Panel
[26] Page 266 of the Case Book.
The Panel was tasked with reviewing the applicant’s application for registration pursuant to s 22 of the TRS Act.
(a) The initial hearing
An initial hearing was conducted on 29 November 2021. The applicant was represented by legal counsel Mrs Marie Shaw KC. Mr Matthew Boisseau from the CSO attended as counsel assisting the Board. At this hearing, Mrs Shaw raised a myriad of issues regarding the admissibility of the evidence to be considered. Particularly, she argued that s 43 of the TRS Act limited the material that the Board could obtain in relation to the proceedings:
43—Evidence and findings in other proceedings
The Teachers Registration Board may, in the course of proceedings—
(a)receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or any other place and draw conclusions of fact from the evidence that it considers proper;
(b)adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.
Counsel submitted that it was not the function of the Board to conduct a hearing, and receive evidence, of alleged criminal offending pursuant to any statute, including the CSA. The Board lacked jurisdiction to do so. The Panel was taken through several sections of the TRS Act, to argue that it did not have power to obtain and receive the Certificate from the FSC, under the CSA. That Certificate was prepared solely for the purpose of a police prosecution that did not proceed. Thus, the Certificate never attained evidentiary status in any proceeding before a court or tribunal.
The applicant’s counsel also objected to the Registrar, through the Board’s investigator, seeking addendum statements from police, in circumstances where the charges against the applicant had been finalised by withdrawal. These submissions were made in support of the underlying principles put by counsel for the applicant that:
… this is not a criminal court and quite rightly a person should not be called upon at Board level to answer a very serious criminal allegation about which no evidence has been taken in another proceeding, or importantly, where the charge was dismissed.[27]
It was submitted that there were never ‘any proceedings before a court’, as both charges were withdrawn at first instance and without any evidence being taken.
[27] Page 89 of the Case Book.
Concern was also raised regarding documents which had been provided by SAPOL, referencing s 50 of the TRS Act:
50—Provision of information by Commissioner of Police
(1)The Commissioner of Police—
(a)must, at the request of the Teachers Registration Board; and
(b)may, at the Commissioner's own initiative,
make available to the Teachers Registration Board information about criminal convictions and other information to which the Commissioner has access relevant to the question of a person's fitness to be, or continue to be, registered as a teacher, or to hold a special authority to teach under Part 6.
(emphasis added)It was argued that s 50 did not allow the Board to seek further statements from Broadbent and Murphy after the criminal charges had been withdrawn. There had been no criminal conviction and no steps taken by SAPOL to obtain further information. As a result, the information sought by Zuvich from SAPOL, on behalf of the Board, was additional and new information.
Counsel submitted that seeking additional information from SAPOL regarding the investigation of possible drug offending, could only be in the context of a determination of whether the applicant’s conduct was deemed unlawful under the CSA. This was particularly so in relation to any analysis in the Certificates provided by the FSC. They were only relevant to determination of a criminal offence pursuant to the CSA. Counsel also argued that there was nothing pursuant to any offence under the CSA that allowed the Board to obtain information from SAPOL using s 50 of the TRS Act.
Counsel assisting the Panel, submitted that s 43 abrogated the hearsay rule, and provided a permissive power to the Board to receive evidence of written findings from other government agencies, including SAPOL, and evidence of the kind obtained by Zuvich. The Board was not bound by the rules of evidence, and by s 43 could have regard to any evidence tending to establish that the applicant was not fit to be registered as a teacher. The second limb of s 50, enables SAPOL to provide information relevant to the issue of a person’s fitness to be registered as a teacher. Interestingly, Zuvich never sought information from SAPOL regarding the withdrawal of the charges.
The Panel Chair, following submissions, determined that she should consider the documents provided pursuant to Zuvich’s investigation and determine whether they could be considered by the Panel. After the Panel Chair had made her decision, the parties would return for further argument on the application for registration, based upon the documents that the Panel would have before them.
(b) Panel’s Decision
The Panel handed down its decision on 16 December 2021. In brief reasons they dealt with the several documents that the applicant argued should be excluded from the Board’s deliberations. The three of relevance are:
1. The affidavits of Broadbent and Murphy obtained by Zuvich;
2.Documents prepared pursuant to the CSA, in particular the FSC Certificates of Analysis of 17 April 2018 and 31 July 2018; and
3.Documents that had not been tested in previous proceedings as required by s 43 of the TRS Act.
The Panel concluded that the additional statements of the police officers were not obtained by the Registrar pursuant to s 50 of the TRS Act, and that Zuvich had only obtained further assistance from potential witnesses relevant to the matters which had already been raised in documents provided to the Registrar. This was enough to satisfy them that they could take into account the further statements obtained by Zuvich. In reaching this decision, the Panel did not explain which section of the TRS Act was utilised to obtain the police affidavits. They did not set out what the relevant matters were which had already been raised in the documents before them, or why they were not sufficient to determine the matters in issue.
The Panel relied upon the evidentiary provisions in s 61 of the CSA, to accept the FSC documents. Section 61(2) provides that ‘in any proceedings for an offence against this Act’ … a court can accept analysis contained in FSC reports as proof of any facts stated therein. The Panel concluded that the provisions of ss 53 and 61 of the CSA do not limit the use of information prepared, but rather simplify the process by which evidence can be received in matters under that Act.[28] It was determined that the Panel was not precluded from receiving documents prepared pursuant to the CSA, although it was accepted that the applicant may be able to argue that the Board would not be afforded the benefit of the presumptions of the utility as set out in s 61, without further proof.
[28] Section 53 of the CSA allows an authorised officer, including a police officer, to ‘cause any substance seized or taken pursuant to [Part 7 of the CSA] to be analysed …’. Where the analysis is sought by a police officer, the FSC certificate is to be sent to SAPOL.
The various provisions of the TRS Act which allow the Board to request the provision of documents held by SAPOL, were described as a power “the Registrar has to compel the Commissioner of Police to provide documents related to fitness and proprietary”. The Panel rejected the argument that s 43 of the TRS Act restricted the documents which could be received by the Board to only those documents tested in other proceedings, including a criminal court. They raised concern that this interpretation would preclude evidence regularly obtained by the Registrar. This included statements and affidavits relevant to the issue of fitness and proprietary. The applicant’s argument was inconsistent with s 45 of the TRS Act which provides:
45—Principles governing proceedings
In proceedings, the Teachers Registration Board—
(a)is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and
(b)may, of its own motion or on the application of a party, direct that the proceedings or a part of the proceedings be held in private; and
(c)may, subject to this Act, determine its own procedures.
The Panel relied upon the concept of fitness and proprietary, as defined in s 22, to provide it with a basis upon which to obtain any information it required, noting that it was not limited in s 22 to only matters that are subject of a criminal conviction, or involve illegality.
In relation to the principles set out in s 45, the Panel concluded that s 43 was included in the Act for similar reasons as the insertion of similar provisions in other Acts including the Evidence Act 1929 (SA) (Evidence Act).[29] This was to allow material to come before the sub‑committee or similar body, without needing to re‑litigate issues that had already resulted in findings, or without requiring the further re-taking of evidence, or re‑determination of issues by any ‘…court, tribunal or body’.
[29] Section 34A of the Evidence Act.
The sub‑committee concluded that it was: ‘… of the view that s 43, in allowing them to adopt findings and receive transcript from other proceedings, is not intended to otherwise [restrict the] evidence they can receive.’[30]
[30] Page 23 of the Case Book. This conclusion appears to have been typed in error as ‘… receive transcript from other proceedings, is intended to otherwise evidence they can receive’.
The Panel’s decision also took into account the object of the TRS Act:
4—Object of Act
The object of this Act is to establish and maintain a teacher registration system and professional standards for teachers to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children.
While noting that the Board must observe the rules of natural justice, it was the Panel’s view that in doing so, and pursuant to s 45(a), they were not bound by the rules of evidence. They could inform themselves on any matter they thought fit, and could determine their own procedures (subject to the Act).[31]
[31] Section 45(c) of the TRS Act.
Whilst the sub-committee found that it was not bound by the rules of evidence, it was their view that:
… the paramount consideration of the Board being the welfare and best interests of children and its object ensuring registrants are fit and proper persons is inconsistent with the limits that are submitted by the Applicant should be put on evidence to be received by the Board.[32]
[32] Page 24 of the Case Book.
The Panel concluded that the Board was able to receive the documents sought to be excluded by the applicant. The applicant was invited to make submissions in relation to the probative value or weight that should be given to the material.
Hearing of the Board - 7 February 2022
The Board, constituted by the same five members convened on 7 February 2022 to determine the applicant’s application for registration pursuant to s 22 of the TRS Act. The primary issue for the Board was whether the Applicant was a fit and proper person to be registered as a teacher, in light of him having been previously charged with offences pursuant to the CSA.
All material obtained by the Board, as determined by the Panel, was tendered into evidence. In addition, Broadbent, and an analyst from the FSC, Ms Wall, were called to give evidence.[33] The Board also reviewed the CCTV footage of the March incident.
[33] The evidence of both witnesses was given on oath.
Mrs Shaw KC again appeared as counsel for the applicant, and Mr Boisseau from the CSO, as counsel assisting. In addition to the material obtained by the Board, the applicant tendered 11 documents. These consisted of university assessment reports for pre‑service placements, and personal references. These were tendered as evidence in support of the application of being a fit and proper person to be registered as a teacher.
(i) Evidence at the Hearing
Mrs Shaw raised with Broadbent that he had not sufficiently, or at all, informed the applicant of his rights pursuant to s 79A of the Summary Offences Act 1953 and/or s 52 of the CSA after arresting him on Hindley Street.[34] There was some uncertainty as to when, or whether, the applicant was ever given his rights, and as a result, whether information obtained from him, or from his phone, was legally obtained and could be used by the Panel in their deliberations.
[34] Line 5-7 of Broadbent’s evidence on p35 of the Casebook.
Broadbent confirmed that contrary to his obligations, he did not take notes when speaking to the applicant in Hindley Street, nor did he see Capponi taking notes. Body worn cameras were not used. Broadbent did not record, on a later video interview, what he had said to the applicant. Broadbent was unsure whether Capponi, without giving the applicant his rights, had asked him for the passcode to his phone. He confirmed however, that despite asking three times, the applicant who was then only 18 years old was not allowed to telephone his parents. He also asked for a solicitor but this was not actioned.
In relation to Broadbent’s role as the investigating officer, he confirmed that no DNA testing was conducted on the plastic bag found in Hindley Street nor the items found at the applicant’s home. No fingerprint analysis was done. He also agreed that deal bags were commonly found on Hindley Street.[35] Broadbent also made the concession that he had detained the applicant in Hindley Street for the purpose of a search, but that he was not read his rights until he was in the City Watchhouse. This was after Capponi had requested and obtained the password for the applicant’s phone, and after he had been questioned. Broadbent agreed that the police had no power to search the applicant’s phone before his rights had been given; and that the applicant had asked to telephone his parents, and if he could have a solicitor present.
(ii) Submissions
[35] Page 35 of the Case Book.
It was agreed that submissions would be provided to the Board in writing. The Board was to have access to the CCTV footage in considering the submissions.
(a) The Applicant’s Submissions
The applicant’s submissions concentrated upon the issue of whether he was a fit and proper person to be registered as a teacher. It was stressed that he came before the Board as a person with no criminal record whatsoever, and otherwise there was evidence to support a finding that he was a person of good character. Counsel relied upon seven references from various sources, and the applicant’s Statutory Declaration to support that submission, noting that counsel assisting had not sought to cross‑examine the applicant on the contents of that declaration.
Acknowledging that the issues before the Board were focussed on the events of 10 March 2018, counsel for the applicant submitted that any allegation of criminal conduct must be proved to a standard higher than on the balance of probabilities. She relied upon the High Court decision in Briginshaw v Briginshaw (Bringinshaw).[36] In applying that higher standard to the applicant’s alleged offending, counsel pointed to a number of concessions said to have been made by Broadbent in his evidence at the hearing on 7 February 2022. In particular, he agreed that the applicant had always denied knowledge and possession of any drugs.
[36] (1938) 60 CLR 336.
By reference to Broadbent’s evidence, the applicant’s counsel submitted that the Board should exclude from its consideration the evidence unlawfully obtained by police. The Board, in its discretion, should disregard evidence obtained from the search of the applicant’s phone (including the Wickr messages), or from his interviews with police before he had been granted the right to speak to a solicitor or make a telephone call. Counsel argued that the administration of justice, including administrative processes, should be protected by ensuring that proceedings are not tainted by illegalities in the evidence relied upon. It bears upon the cogency of the evidence that the Board is required to evaluate.
The applicant’s position was that when all the evidence illegally obtained by police was excluded, the Board was only left with evidence of good character. However, if the Board did exercise its discretion to admit all of the SAPOL and FSC evidence, that evidence did not establish that the applicant was in possession of drugs, or had ever been involved ‘in any drug transaction’. This included any drug dealing related to the Wickr messages, that had never been proved.
It was also submitted that it should be taken into account that the evidence of Ms Wall confirmed that only 18 of the capsules found in the plastic bag in Hindley Street contained a crystalised substance, of which only 10 were spot tested. Then only two were further analysed. All contained traces of MDMA. However, that MDMA was not tested for purity, meaning that there was no evidence of the actual amount of MDMA present in each capsule. Counsel raised the possibility that there could have been only a very slight amount of MDMA in the capsules.
It was argued that even if the Board did have regard to the unproved March incident, then it should be taken into account that it occurred some four years previously, and that the issue of fitness and propriety is not a static concept. The applicant relied upon the statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond that:[37]
The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[38]
[37] (1990) 170 CLR 321.
[38] Ibid at [36].
It was submitted that the evidence of good character and general reputation in the character references was significant. It bore upon likely future conduct and perception, and supported the case that the applicant was a fit and proper person to be registered as a teacher.
(b) Submissions of Counsel Assisting
Mr Boisseau confirmed that in exercising their discretion, the Board had to determine whether they gave consideration to, and used, material said to have been obtained unlawfully.[39] In resolving that issue, it was submitted the Board was required to work within the statutory framework of the TRS Act and particularly the object of the Act as set out in s 4. The object of the TRS Act was reiterated in s 7 which provides that:
The welfare and best interests of children is the paramount consideration in relation to the operation, administration and enforcement of this Act.
[39] The illegality of the evidence was not conceded by Counsel Assisting.
It was submitted that the Board in making its decision was obliged to apply the objects in sections 4 and 7 with their paramount consideration being the welfare and best interest of children. If the Board concluded that the applicant had been trafficking in drugs then he would not be:
…. Possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further enquiry as a person to be entrusted [to be a teacher].[40]
[40] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 (Sobey) at 76.
Counsel also took the Board to what was said further in Sobey in relation to considering the licencing of Commercial and Private Agents:[41]
I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance.
(emphasis added)
[41] Ibid at 75.
The applicant has never been convicted of any offence. In my view this takes the case outside of the factual scenario in Sobey. There was no proved propensity towards unlawful behaviour. Walters J at page 75 continued to state:
I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a prerequisite for a licence under the Act. But, in the present case, I think the appellant's past conduct exposes an intrinsic defect of character which is incompatible with his being entrusted with a licence, either as a process server or a commercial sub-agent.
(emphasis added)
In making that statement, Walters J noted that the applicant had offended seven times as a juvenile, including being convicted of breaking and entering and three times for larceny. In the three years before his application, he had been convicted of carnal knowledge of a person under 13 years and possessing Indian Hemp. Even then, it was said that the lapse of time from any offending, may mean that weight can then be given to subsequent good behaviour.[42]
[42] Sobey at pp75-76.
The factual circumstances of the case before this court can be distinguished from Sobey, in that the applicant’s conduct, although investigated by police, was not completed, the charges were withdrawn and no conviction was recorded. There was therefore no evidence given at trial from which adverse conclusions could be drawn as to fitness of character. Unlike the facts in Sobey, the Board could not consider the fact of charges being laid as impacting the fitness and propriety of the applicant.
It was argued however by counsel assisting that the SAPOL evidence before the Board could be considered afresh and, the Board could come to its own conclusion regarding the applicant’s ‘propensity towards offending’. Mr Boisseau submitted that the Board should be satisfied on the balance of probabilities that on 10 March 2018, the applicant was in possession of MDMA for the purpose of selling that illicit substance, and that he did so conduct a sale as captured on the CCTV footage. He then disposed of the plastic bag of capsules whilst being searched by police. In addition, the plastic bags found at his home in combination with the Wickr messages were strongly suggestive of the applicant being in the business of selling drugs.
Counsel assisting argued that Board had a discretion to exclude improperly obtained evidence when making their ultimate decision. However, the evidence in dispute had not been improperly obtained. Counsel ultimately submitted that even if the applicant should have been given his arrest rights before he was searched, there was no causal link between the failure to afford arrest rights and the finding of the bag containing 20 capsules at the applicant’s feet.
It was similarly submitted that any failure to record the discussions with the applicant in Hindley Street was not causally linked to the location of the drugs. In relation to the Wickr messages, it was argued that Cappoini’s evidence by affidavit was clear that she had given the applicant his arrest rights before opening his phone.
It was submitted that even if the Panel had adopted the approach of a criminal court in exercising their discretion:
1.the evidence was highly probative, as it strongly suggested that the applicant was in the business of selling illicit substances.
2.any prejudice to the applicant was not significant. It would not lead to serious criminal charges. The applicant could seek work in other fields or reapply to the Board for registration at a later stage.
3.any illegality was not pervasive or intentional. The failure to provide arrest rights, if accepted, was not a calculated disregard for the common law.
4.there was no indication that the evidence before the Board was unreliable or inaccurate. Any illegality did not undermine the reliability of the evidence.
Counsel assisting submitted that if the Board was to find that the applicant had participated in the conduct of selling illicit drugs, then it was open to them to find that he was not a fit and proper person. Although agreeing that persons can rehabilitate, nothing was put before the Board in that regard. The applicant has not acknowledged his improper behaviour nor shown remorse. There was nothing before the Board to suggest any change in behaviour.
(c) Submissions in Reply
It was submitted that Counsel assisting had argued against the applicant’s registration as a teacher upon the basis that he had committed a criminal act, relying upon evidence from Broadbent and Capponi. It was argued however that Broadbent’s evidence did not disclose any direct evidence of any offending by the applicant. His evidence only dealt with an arrest on Hindley Street and what occurred thereafter.
Mrs Shaw submitted that the CCTV footage did not show evidence of any offending, and it would be wrong for the Board to reason backwards from an allegation made to find evidence to support the narrative promoted by counsel assisting. It was submitted that the Board could not be satisfied on the evidence before them, to the relevant standard, that there had been any criminal offending on the part of the applicant.
Mrs Shaw took the Board to Broadbent’s evidence, arguing that as it was on oath, it should take precedence over other tendered materials where the authors did not give evidence. The important, unchallenged evidence of Broadbent was that:
1.the original charge against the applicant did not proceed, and the second charge was withdrawn;
2.what was shown on the CCTV footage was the applicant immediately protesting upon the plastic bag being found;
3.the applicant was denied legislative rights regarding his right to remain silent, and having a solicitor present;
4.it was equally possible that the plastic bag found in Hindley Street could have been there before the applicant was taken over to the wall. It was police who took him over to that area before he was arrested;
5.there was no DNA or fingerprint testing of the plastic bag in which the capsules were located;
6.the drugs were not found on the applicant’s person but on the ground;
7.the applicant’s phone was not looked at on Hindley Stret, as Broadbent wanted to give him his rights first;
8.there is a clear conflict as to whether Broadbent or Capponi gave the applicant his rights, and when. Capponi in her affidavit clearly said it was Broadbent who gave the arrest rights;
9.upon that scenario Capponi unlawfully asked for, and gained access to, the applicant’s phone;
10.Broadbent said that he would not have asked for the applicant’s phone password until his rights were given. It cannot be inferred from the evidence that this had occurred.
It was submitted that the investigation of the applicant’s conduct was tainted at all stages by unlawful and illegal actions of police. There was also no evidence before the Board as to the ‘meaning and purpose’ of the phone messages. Such evidence would usually be led by a police expert in illegal drug transactions. It was submitted that the Board should not engage in speculation in an area of specialist knowledge.
Counsel addressed the lack of the applicant’s remorse and/or rehabilitation, noting that in the face of no prosecution, and an ongoing denial of any criminal conduct, the applicant had nothing to be remorseful for. The applicant had not been charged with any offending since 2018. Mrs Shaw put before the Board a number of decisions where earlier criminal offending had not stopped a person from being found to be a fit and proper person to be a legal practitioner. In the Matter of An Application for Admission as a Legal Practitioner, it was said:[43]
I am therefore prepared to treat the offending conduct as the product of immaturity and some difficulties that he was facing in his personal life at the time. The material before the Board and before the Court indicates that since early 1998 there have been no blemishes in the applicant’s record. He has completed the academic and practical requirements for admission, and along the way has had responsible employment in which he appears to have given his employers every satisfaction. He appears to be well regarded by those who know him. In the light of all that I find that the offending conduct is not, of itself, an obstacle to a conclusion that the applicant is of good character and so is a fit person to be admitted.
[43] [2004] SASC 426 at [32].
Mrs Shaw submitted that even if the Board found that the alleged offending had occurred, they could still be satisfied that it was an isolated incident, that the applicant was a person of good character and now had the maturity level to be granted registration as a teacher.
The Board’s Reasons for Decision
The Board handed down their decision on 14 June 2022 (the Board’s reasons).[44] It first considered the evidence sought to be excluded by the applicant and determined that:
(1)there was no arrest of the applicant at the time police searched him in Hindley Street;
(2)the plastic bag containing 20 capsules was found by police during the search, whilst the applicant was putting his shoes back on. He was arrested after the plastic bag was found;
(3)they preferred the evidence of Capponi, as provided in her signed statements, and confirmed by her handwritten notes, that she gave the applicant his arrest rights before requesting his phone password. This was even though this conflicted with Broadbent’s evidence on oath at the hearing on 7 February 2022;
(4)to the extent of any inconsistencies in Broadbent’s oral evidence, Capponi’s version contained in her written statements, was preferred. No explanation was given, even though the Board was not adhering to the best evidence rule.
(5)the evidence collected by SAPOL was not obtained unlawfully;
(6)the Board had a discretion to exclude improperly obtained evidence in the proceedings before them;[45]
(7)it would not have applied its discretion in favour of the applicant in any event.
[44] Pages 1 to 17 of the Case Book.
[45] Relying on Southern Equities Corporation Ltd (in liquidator) & Ors v Bond & Ors [2001] SASC 70 at [112]-[113], per Land J.; DPW v Secretary, Department of Education [2018] NSWCATAD 257.
The Board adopted the approach taken by the NSW Civil and Administrative Tribunal (NCAT) in DPW v Secretary, Department of Education,[46] where it was said that weight must be given to:
…. the guiding principles that rights and best interests of the child are paramount and that best practice is expected in the provision of education and care services.
These principles were said by NCAT to outweigh the public policy of protecting the applicant from unlawful and improper police conduct. The Board found that the paramount consideration of the welfare and safety of children outweighed any consideration of unlawfully obtained evidence being before them.[47]
[46] Ibid at [51].
[47] This finding was in direct contradiction to what the Board found in relation to the evidence having been obtained lawfully by police.
The Board therefore considered the police evidence in its entirety, including the statements prepared by Zurich. They found, on the balance of probabilities, that:
(1)the CCTV footage showed a transaction between the applicant and another male in a laneway off Hindley Street;
(2)after the applicant was stopped by police, a plastic bag was found behind his left foot, containing 20 capsules;
(3)the CCTV footage showed ‘the applicant reach into his left front pocket and discard an item onto the ground behind his foot, which he is then seen to cover with his foot. This occurred whilst you could see that the present police officers were momentarily distracted.’[48]
(4)ten of the capsules in the plastic bag contained some level of MDMA on a presumptive test;
(5)trace amounts of MDMA and cannabis were found in the small plastic bags located in the applicant’s bedroom;
(6)when the applicant was taken to the City Watch House he was read his arrest rights by Capponi;
(7)thereafter, the applicant provided the password to his phone. Wickr messages were found and they were indicative of drug dealing.
[48] Page 10 of the Case Book.
The Board accepted that given the serious allegations being considered, and the ‘grave consequences flowing from their findings’, the Briginshaw standard should be applied.[49]
[49] Page 13 of the Case Book.
Applying the Briginshaw standard, the Board found that there was clear and cogent evidence that the applicant was involved in ‘drug dealing’ during the March incident. That finding formed the basis of their decision that he was not a fit and proper person to be registered as a teacher. The character evidence provided in the references was taken into account. However, it was determined that this carried little weight in the context of all the referees stating that they understood all criminal charges had been withdrawn, and had provided that statement in identical terms in their references.
Appeal
(i) Summary of Applicant’s Appeal
The applicant brings his appeal based upon five errors of reasoning which amount to cogent reasons to depart from the finding that he was not a fit and proper person to be registered as a teacher. Namely, that the Board:
(1)erroneously construed Part 8 of the TRS Act to allow them to receive material that had not attained evidentiary status and had not been prepared for the purpose of ‘other proceedings’.
(2)erroneously admitted evidence unlawfully obtained by police regarding the applicant’s behaviour in Hindley Street, on 10 March 2018, in contravention of ss 74D and 79A of the Summary Offences Act 1953.
(3)erroneously found that the applicant had been engaged in ‘drug dealing’; a finding that was unsupportable, having regard to the evidence.
(4)erred in its approach to the character references provided by the applicant denying him procedural fairness by using the character references against him.
(5)In concluding that the applicant was not a fit and proper person committed an error of the type identified in House v The King. The finding was unreasonable or plainly unjust.[50]
[50] Applicant’s skeleton of Oral Argument, paragraph 1(a)-(c); and Written Submissions (FDN10).
Counsel for the applicant, submitted that there were two preliminary misconceptions that impacted upon all errors. These were that the Board:[51]
(a)had reasoned, and made its findings solely, or primarily based on contentions made by counsel assisting. In making the finding of ‘drug dealing’, there was no regard had to the applicant’s statutory declaration denying that he had engaged in any unlawful conduct;
(b)in determining that the applicant was involved in ‘drug dealing’, had no regard to the evidence of the applicant’s good character.
[51] T4-6.
It was submitted that these two errors were fundamental flaws in the Board’s reasoning and formed cogent reasons for interference by the court on appeal.[52] The Board had made a finding that the applicant had engaged in illegal drug dealing in 2018, and was therefore not a fit and proper person. However, it failed to articulate how their finding fitted within the test of ‘impropriety’ contained in s 22 of the TRS Act.[53] It was argued that there were several considerations which demonstrate that this was not a finding that was open to the Board to make.
[52] T4.
[53] T7.
Firstly, the concept of fitness and propriety under s 22 of the TRS Act is not limited to matters that are the subject of criminal conviction or matters of illegality. The allegation of undefined ‘drug dealing’ could only be improper if it fell within the scope of the CSA.[54]
[54] T6-7.
In this regard, it was argued that the Board was not entitled to receive material that was created for the purpose of other proceedings when that material had not obtained evidentiary status.[55] It was submitted that the Board misunderstood that the evidence before them was not obtained lawfully as it did not comply with the demands of ss 74 and 79 of the Summary Offences Act.[56] These contraventions included that the applicant was not given his rights at the time of his arrest; his initial interview occurred before he had been provided a phone call; and that the arrest was not audio or video recorded. In relation to the applicant being asked to provide the password for his phone, and the subsequent identification of communications on the Wickr application, it was agreed that the Board had no expert opinion as to what those communications meant, and instead merely relied upon the lay opinion of Broadbent, Capponi and Zuvich, none of whom had any proven expertise on that topic.[57]
[55] T7.
[56] T9.
[57] Ibid.
It was further argued that the reasoning underpinning the Board’s finding that the applicant had engaged in drug dealing was unsupported by the evidence. The Board failed to have regard to:[58]
·the sworn denial of wrongdoing made by the applicant, and the good character evidence;
·the evidence of the analyst from the FSC that only two of the capsules found contained trace amounts of MDMA, which had not be ruled out as being contaminant;
·that in the absence of any expert evidence as to what the Wickr messages meant, they could not be proved to be connected to the applicant, and/or to any transaction involving illicit drugs.
[58] T10-11.
It was submitted that the Board was required to find breaches of the CSA in order to support any finding of impropriety. They had not done so using any acceptable pathway to guilt, including:
1.section 43 of the TRS Act (i.e., if there had been proceedings and there was evidence in those proceedings that could be received to prove a breach of the CSA);
2.a judgment or Certificate of Record proving a breach of the CSA;
Without such evidence, there was a fundamental flaw in the Board’s decision‑making process. It attempted to prove a breach of the CSA using provisions of the TRS Act, namely ss 53 and 61, which it was argued they were not permitted to do.[59] There was legislative scope for a particular Act to have provisions to the effect of ‘there is power to receive certificates under the CSA’. However, there is no such provision in the TRS Act. Rather, s 43 of the TRS Act operates in a way that only allows the Board to admit material that is evidence adduced in other courts. It is a prescriptive provision, and its intention is to allow the Board to accept transcripts of evidence in proceedings or adopt proper findings. This was not the case in this matter.[60]
[59] T12.
[60] T13.
The applicant also argued that the Board erred in failing to have regard to the character references in determining whether there was proof of drug dealing. They instead used the references against the applicant, undermining the principle of procedural fairness.[61]
(ii) Detailed Review of Submissions
(a) Submissions of the Applicant
[61] Ibid.
Counsel for the applicant took the court to the decision of the Supreme Court in T v The Medical Board of South Australia[62] to argue that where the conduct under consideration by an administrative tribunal is conduct that constitutes a criminal offence, the level of scrutiny to be applied to the evidence must be higher than in other cases. She submitted that this was especially so in relation to drug transactions where, unless the drug dealing is a criminal offence pursuant to the CSA, it is not unlawful and would not suggest impropriety. Applying some undefined version of the Briginshaw test, as occurred in the Board’s reasoning, was not sufficient.[63]
[62] (1992) 58 SASR 382.
[63] Ibid.
It was argued that the Board had incorrectly construed the function of s 43 of the TRS Act, in that it provided a mechanism for an exception to the hearsay rule by allowing the tender of material and transcription of other proceedings in order to avoid relitigating the same controversies.[64] Counsel submitted that s 43 must be construed in light of the Harman undertaking, thus only allowing the Board to have regard to collateral material if it attains evidentiary status in other proceedings. The applicant argued that sections 50 and 45 of the TRS Act do not compromise or extend the operation of s 43.[65]
[64] T16.
[65] T16.
Counsel again submitted that the Board’s finding that it was not precluded from receiving material obtained pursuant to the CSA was fundamentally incorrect. The functions and powers of the TRS Act do not permit the Board to adjudicate on contraventions of the CSA, unless the material upon which it relies is received in accordance with s 43 of the TRS Act; and the material has first obtained evidentiary status pursuant to the CSA.[66] This did not occur in the case at bar. There were no criminal court proceedings, and no determinations made pursuant to the CSA.
[66] T17.
It was further argued that the Board’s finding that an arrest had not occurred at the time of the search of the applicant in Hindley Street was incorrect. The operation of s 79 of the Summary Offences Act, is that once a police officer apprehends a potential suspect, this is regarded as an arrest. It is then incumbent upon them to administer s 79A rights, otherwise the arrest is unlawful.[67] There was an additional breach of s 79A when the applicant was not permitted to have his phone call until after he had been at the charge counter and an interview had already occurred.[68]
[67] T18.
[68] T22.
The applicant’s counsel submitted that the Board had misapprehended the meaning of arrest and apprehension and the relevant obligations of the police in that respect. The court was taken to the unreported decision of Justice Cox in R v Turner where, once a person is apprehended or detained they must be given their full rights under s 79A.[69]
[69] Supreme Court of South Australia, Cox J, 9 November 1987 (CB307-CB311).
Counsel for the applicant again relied upon the evidence given by Broadbent at the first hearing before the Board, as summarised above in the section ‘Hearing of the Board’.[70] Broadbent confirmed that pursuant to s 79A of the Summary Offences Act, the applicant should have been given his rights immediately, but this did not occur. The Board ought to have taken this portion of Broadbent’s evidence into account during their deliberations.
[70] Case Book page 32-33.
In relation to the prosecution of the applicant, his counsel submitted that it was important that if he had been originally charged with the possession charge, then the outcome would have likely been no more than a police diversion.[71] Relevantly, police diversions under the CSA do not result in an official criminal conviction, and are provided for young people, first time offenders, where guidance and rehabilitation are the primary focus.
[71] T23.
It was argued that the Board by ignoring the CSA provisions, and divining their own offence of ‘drug dealing’, misconceived the statutory nature of drug offending. They did not consider that the charge that was eventually laid was one for possession, not trafficking (selling). Often in the Magistrates Court, if a charge is reduced to that category, the police will withdraw it, as occurred in this case.[72]
[72] Ibid.
The third concern articulated by the applicant was that the Board had misconceived its obligations in relation to the factual findings of ‘drug dealing’. The Board contended that the applicant had failed to declare his criminal charges in his initial application paperwork.[73] The applicant, in his sworn statutory declaration, proffered an explanation, namely, that he had failed to read the question properly, and had mistakenly understood it as being limited to matters where he had been convicted, and not merely charged.[74] As a result, the Board ought to have accepted or at least afforded due consideration to the applicant’s explanation, and not used it for the purpose of adversely impinging his credibility.[75]
[73] T25.
[74] Ibid.
[75] T26.
It was further submitted that the Board failed to give any and/or proper consideration to the evidence that:[76]
·the applicant denied on oath in his statutory declaration that he was a participant in the Wickr messages;
·the character evidence in multiple references;
·the FSC evidence in relation to the trace amounts of MDMA;
·Broadbent’s evidence that it was quite common to see ‘deal bags’ similar to the plastic bag in issue, in Hindley Street. This was important in relation to inferences to be drawn from the CCTV footage.
[76] Ibid.
Counsel also raised issue with the Board relying on Capponi’s evidence regarding the Wickr messages. It had not established that she held any particular expertise or qualification in assessing such messages.[77] The Board was being asked to draw an inference in 2021, by looking at the name on the phone as being the applicant, and find as a result it must be the applicant doing the communicating. However, in the face of a sworn denial by the applicant, the ordinary course to resolve the evidentiary dispute would be to apply the burden of proof to the conflict between a sworn denial (by the applicant), and inferences that were sought to be drawn.[78] The Board did not engage in that process. As a result, there were no evidentiary reason why the Board arrived at the view that the applicant was drug dealing in the context of the Wickr messages.[79] By failing to undergo the proper process for evaluating the evidence, the court on appeal is unable to assess whether the process of reasoning adopted by the Board was indeed permissible.[80]
[77] T27.
[78] T28.
[79] Ibid.
[80] T29.
The applicant’s counsel reiterated that the Board erred by simply adopting the submissions put to them by counsel assisting. It was incumbent upon the Board to deal with, and exclude, the matters that undermined to the requisite degree, any finding that the applicant’s conduct was a breach of the CSA.[81] The conclusions of the Board were not supported by the evidence, and the Board’s reasons were inadequate insofar as they did not deal with any of the exculpatory material, or any of the material that undermined the inferences that the Board sought to draw. This reasoning must have informed the Board’s viewing of the CCTV footage, and what they concluded it showed.[82] The lack of a finding by the Board that the applicant’s drug dealing was in fact a contravention of the CSA meant that there was in fact no finding at law that he had engaged in illegal conduct.[83] It was necessary for the Board to identify the manner by which the applicant’s conduct breached the CSA. There was no other basis upon which the Board could find that the applicant was not a fit and proper person.[84]
[81] T30-31.
[82] T31.
[83] Ibid.
[84] T32.
The fourth error made by the Board was their failure firstly to have regard to the character references in arriving at the factual finding that the applicant was drug dealing, and secondly in criticising the content of those references.[85] Consideration of the applicant’s character references was important as the consequences of the Board’s decision was that a person who has completed all of his university studies, and had undertaken various placements successfully was to be precluded from working in his profession as a teacher.[86]
[85] T33.
[86] T34.
As to the suggestion that the character evidence was obtained by way of collusion, counsel argued that this allegation was wholly unfounded, and demonstrated a lack of experience of criminal proceedings amongst the Board members.[87] Mrs Shaw set out that character evidence is a methodical process that includes four questions that are asked of every character witness: how long they have known a person, and in what circumstances; whether they know people who know him; and his general reputation amongst people who know him. A degree of similarity between the references is an indication that the law only recognises character evidence if it satisfies these preconditions.[88] By their reasoning, it was evident that the Board had rejected the contents of the character evidence and used them to make adverse findings about the applicant. There was therefore no acceptance of the fact that, at the time of his application, the applicant was a young man who had commended himself, not just to those he knew, but also those in the work place. He had shown great commitment in applying himself in his various placements.[89]
[87] T37.
[88] Ibid.
[89] T38.
It was submitted that the finding in relation to the character references undermined the applicant’s right to procedural fairness and natural justice.[90]
[90] T40.
It was also put that the Board had failed to afford natural justice in the proceedings for two additional reasons:[91]
1.Precluding the applicant from presenting his case due to their failure to draw to the applicant’s attention the concern that the references had been written on the basis that he had not committed any drug dealing; and
2. Procedural fairness was not afforded to the applicant by using the references against the applicant’s case that he was a fit and proper person. It was a serious accusation to imply that the applicant was somehow complicit in obtaining colluded character references, hence the seriousness of the failure to afford procedural fairness to him.
[91] Ibid.
Counsel for the applicant submitted that the Board’s adverse finding against him were exacerbated by it failing to address the applicant’s affidavit which contained his tertiary achievements and his successful placements, as well as their omission in addressing the significance of the applicant’s entitlement to diversion under the CSA in their reasons.[92]
[92] T48.
Finally, there was no material before the Board which would suggest that the applicant’s character was anything other than impeccable, and one that would make him a fit and proper person to teach young children.[93]
(b) Submissions of the Board
[93] Ibid.
Mr Withers for the Board addressed the court on three issues:
1. The context in which the proceedings sit;
2. The discretion of the Board to exclude evidence;
3. The standard of proof that the Board is required to find in determining an application given the nature of the proceedings.
Nature of the Proceedings
The proceedings were of an administrative nature and as such must be distinguished from criminal proceedings.[94] Notable differences between administrative and criminal proceedings were said to include the parties; the evidence; the standard of proof; and importantly, their respective underlying purposes.
[94] T51.
Administrative proceedings of the type before the court, which include disciplinary proceedings, are not focussed on the punishment of an applicant. The primary focus of such proceedings was rather the protection of the public and in this context, the protection of children.[95] The TRS Act has the object, as set out in s 4, to:
…maintain a teacher registration system, and professional standards for teachers to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children.
[95] Ibid.
It was submitted that in addition, section 7 of the TRS Act stipulates that the paramount consideration in the performance of the Board’s functions is to ensure that the welfare and best interests of children are protected. The proceedings in this matter are entirely protective in nature, and are not aimed at punishing the applicant for past improper or illegal conduct.[96]
[96] T52.
In relation to the test of ‘fit and proper’, counsel for the Board submitted that the concept is not assisted by any provision within the TRS Act, but rather by case law, which stipulates that the term takes its meaning contextually.[97] It involves an analysis of the activities the person will be engaged in; whether improper conduct has occurred, and whether it is likely to occur, or whether the general community will have confidence that it will not occur. The submission was that this is the context in which these proceedings sit.[98]
[97] T52.
[98] T53.
Board’s discretion to exclude evidence
The respondent submitted that administrative boards are not bound by the strict rules of evidence, and that they may have regard to evidence that is logically probative, regardless of whether it was legally admissible.[99]
[99] Martin v Medical Complaints Tribunal [2006] TASSC 73 at [14].
Counsel relied upon the decision in Medical Board of Australia v Singh[100] (Singh) where the President reflected on several evidentiary provisions of the SACAT Act and observed that the Tribunal was not bound by the rules of evidence. It was submitted that this is mirrored in the TRS Act at s 45.[101] In the matter of Singh, the President also observed that the Tribunal may adopt, as in its discretion it considers appropriate, any findings, decisions, or judgment of a court.[102] He argued that once again, this is akin to ss 43 and 45 of the TRS Act.
[100] [2019] SACAT 66.
[101] T54.
[102] Ibid at [35].
It was submitted that the filters that are applied in relation to the procedure for the production of material in tribunals of the nature of the Teachers Registration Board, are not rules of evidence, and thus the authorities regarding criminal courts’ discretion to exclude evidence do not apply.[103] A person appearing before a Board or Tribunal must be afforded natural justice and provided fairness. That can be regarded as their right to have a hearing; have the case against put to them; and an opportunity to respond.[104]
[103] Written Submissions, paragraph 8.
[104] T56.
It was submitted that procedural fairness had been afforded to the applicant in that the material that was provided by SAPOL was provided to him prior to both hearings, and he was adequately represented by senior counsel.[105] A reference was made to paragraph 50 in the decision of Singh where it was said that where there is a suggestion that evidence was obtained unlawfully, and if it does not appear to affect the cogency or the reliability of the evidence, then it will be difficult for an applicant to establish that unfairness has been imposed upon him.[106] This is the situation in this matter. Any illegality, although not admitted, was said not to have impacted the cogency of the evidence.
[105] Ibid.
[106] T58.
Relying upon what was said in Singh, it was for the applicant to establish that the manner in which any evidence was obtained had impacted its reliability, or had led to unfairness in the Board’s reliance on that evidence. Counsel for the respondent in written submissions set out how it had not.[107] It was also important to take into account that the Board does not have oversight of SAPOL and there was no suggestion that any officer or employee of the Board had been involved in any improper conduct in the obtaining of the evidence.[108]
[107] FDN 11 at [38].
[108] FDN 11 at [39] relying upon Paull v Queensland All Codes Racing Industry Board [2016] QCAT 74.
The Board’s counsel submitted that the following should be taken into account in determining whether the SAPOL and FSC evidence should be excluded:[109]
(1)the evidence was highly probative;
(2)the prejudice to the applicant in admitting the evidence was outweighed by its significant probative value;
(3)any illegality, if it had occurred in relation to the obtaining of the evidence, was not persuasive or intentional;
(4)there was no indication that the evidence before the Board was unreliable or inaccurate. Any illegality did not undermine the reliability of the evidence.
[109] FDN 11 at [40].
The relevant standard of proof
The Board’s position is that the relevant standard of proof in the proceedings was the balance of probabilities.[110] Counsel assisting relied upon the decision of the High Court in ACMA v Today FM (Sydney) Pty Ltd[111] (ACMA v Today FM) where it was observed that, ‘not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime’ and that ‘it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.[112]
[110] Ibid.
[111] (2015) 255 CLR 352.
[112] Ibid at page 371.
Counsel argued that this is analogous to the task of the Board in the present proceedings, and it follows that the evidence procured by SAPOL concerning the issue of alleged drug offending by the applicant should have been considered by the Board as it was highly probative.[113]
[113] Written Submissions of Respondent, paragraph 11, T59-63.
I find that this is the approach that the Board was required to apply in its determination of the applicant’s conduct. The applicant was initially charged with trafficking in illicit drugs. This was the conduct that the Board must have found proven that he had engaged in. The Board found that the applicant was involved in serious criminal offending. As stated above, the evidence relied upon by the Board to support that finding needed to be compelling and cogent.
The Board set out in its decision that it had had regard to the Briginshaw standard to find that there was clear and cogent evidence that the applicant was ‘drug dealing’. The Board’s reasons do not however set out in what regard they had found the evidence before it clear and cogent. Whether this has led the Board into a House v The King error of reasoning is to be determined by reviewing the evidence before the Board. This involves a consideration of both the admissibility and weight of the evidence. A reviewable legal error will have occurred if weight was placed upon evidence that led to the Board making a decision so unreasonable that no reasonable decision maker could have arrived at it.
(iii) The Evidence relied on by the Board
The evidence relied on by the Board, and the applicant’s position that this evidence was either unlawfully obtained by police and/or improperly provided to the Board by SAPOL pursuant to s 43 of the TRS Act, has been set out in detail. The applicant also argues that Capponi’s evidence regarding the nature of the Wickr messages should not have been considered by the Board.
In determining whether the evidence relied on by the Board was obtained improperly, it is again important to note that these are not criminal proceedings. The Board conducted an assessment to determine their obligations pursuant to Part 5 of the TRS Act. In making its decision, the Board had an obligation to ensure that all relevant material was before them. As noted above by s 50(1) this included:
Information about criminal convictions and other information to which the Commissioner of Police has access relevant to the question of a person’s fitness to be, or continue to be, registered as a teacher …
Section 50(3) of the TRS Act sets out that this material is to be provided:
…whether or not the person to whom the information relates has consented to the provision of the information.
The purpose of this section is to assist the Board in assessing an applicant’s fitness to be, or continue to be, registered as a teacher. It is not disputed that police material relating to criminal convictions, is relevant to the decision of whether a person is a fit and proper person to teach children. It may not ultimately mean they are not fit, but it is a relevant factor.
My assessment of the TRS Act leads to a conclusion that s 50 overrides s 43, which I find only relates to material that has gained to the status of evidence in other proceedings before a court or other body.[150] This limits the documents to be provided to transcripts of evidence, tendered exhibits and findings/decisions made by courts or other properly constituted bodies. In my view, this does not extend to findings of police, or transcripts of evidence never used in courts. This would include police statements or affidavits. Section 50 however provides broader powers to the Board to seek information from police that extends beyond matters that proceeded before a court and/or other body.
[150] That is the court or other body may be constituted outside of South Australia. See s 43(a) of the TRS Act.
I find that s 23 of the TRS Act does not place any limits upon the information provided by SAPOL following a request by the Board pursuant to s 50. I adopt the statement of President Hughes in Singh that the Board in considering the registration of the applicant had a mandate to:[151]
… receive relevant material, evaluate it and deploy it to the purposes of the task at hand, unconstrained by the rules of evidence directed at filtering the material for reliability (such as the rules regarding hearsay) or at imposing a filter that acts as a supervisor of the criminal justice system (such as the exclusionary rules regarding unlawfully obtained evidence).
(emphasis added)
[151] Ibid at [38].
President Hughes adopted the statement by Logan J in Sullivan that an administrative decision-maker must act reasonably. Where there are grave consequences of the decision:
… to act on “inexact proofs, indefinite testimony or indirect references” (to borrow from Briginshaw at 362) may not be reasonable.[152]
[152] Sullivan, Ibid, at [16]; quoted in Singh at [48].
In Singh, President Hughes set out that one of the relevant filters of an administrative decision maker is to provide fairness. She questioned whether it was fair for a Tribunal to rely on unlawfully obtained evidence. She adopted the view of Evans J of the Supreme Court of Tasmania in Martin v Medical Complaints Tribunal[153] that any discretion to exclude unlawfully obtained evidence should be exercised taking into account the function being performed by the tribunal.[154]
[153] [2066] 15 Tas R 413.
[154] Singh at [55] – [56].
In relation to the SAPOL evidence, the issue in dispute is whether all evidence obtained in investigating the applicant’s activities during the March incident, should have been provided to and / or used by the Board. Particularly, if the evidence had been illegally obtained as alleged by the applicant. Illegality is not admitted by the Board, and relates primarily to the evidence collected before the applicant was read his rights, and the Certificates provided by FSC.
The police evidence obtained by Zuvich by way of the affidavits of Broadbent and Murphy is also in dispute, as this was not evidence which had previously been in police possession. There was no basis for evidence to have been provided to the Board by these two police officers, outside of a police investigation. Section 50 of the TRS Act does not provide the Board with power to create new police documents in addition to those in their possession.
The Board had an obligation to ensure all relevant material was provided to them pursuant to s 50 of the TRS Act. Does fairness dictate that the Board should have excluded evidence where allegations of police misconduct was before them? This was so, as the Board had itself no expertise or experience in police matters.
The issue raised is whether, if there had been a police breach of the Summary Offences Act or the CSA, that the Board should have excluded the evidence.[155] Counsel for the applicant focussed her objection to the inclusion of the police evidence on the unlawfulness underpinning the manner it was obtained. The submissions did not make reference to the ‘reliability’ of the evidence. That was not the case in relation to the failure to prove the expertise of Capponi and Zuvich regarding the Wickr messages, and sheeting them home to the applicant.
[155] Applying Bunning v Cross (1978) 141 CLR 54.
Improperly or illegally obtained evidence is not automatically rendered inadmissible. As set out in R v Ireland[156] and Bunning v Cross,[157] there is a balance to be determined when improperly obtained evidence is relevant, reliable, or highly probative. The High Court in Bunning v Cross described the discretion to admit evidence unlawfully or illegally detained as:[158]
Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.
[156] (1970) 126 CLR 321.
[157] (1978) 141 CLR 54.
[158] Ibid at p66.
The case at bar is not a criminal prosecution. This leads to a different application of the discretion to exclude evidence. The Board is not bound by the rules of evidence and can inform themselves as they see fit.[159] In making all decisions the welfare and best interests of children is the paramount consideration.[160]
[159] Section 45(a) of the TRS Act.
[160] Section 7 of the TRS Act.
In reviewing the evidence before the Board, I do not find that the manner in which any of the CCTV footage; the bag of capsules; access to the applicant’s phone; the bags from the applicant’s bedroom, or further police statements were obtained denied the applicant procedural fairness or natural justice. His counsel did not submit that any of that evidence was inaccurate in its content, or in any other way unreliable.
In relation to the CCTV footage and the phone messages, the applicant provided a sworn Statutory Declaration denying any unlawful behaviour in Hindley Street on 10 May 2018. This declaration of 4 May 2021 was before the Board. It provided an explanation of what was seen on the CCTV footage and a denial that the messages on his phone related to drugs. Again, by this Statutory Declaration, there was no suggestion that the CCTV footage was inaccurate, but simply that it did not show unlawful conduct. While reliability may not be in dispute, in the face of the applicant’s denial, an issue is raised regarding how the CCTV footage was used by the Board. Namely, was the CCTV footage clear and cogent evidence?
In this regard, I am of the view that Zuvich’s opinions regarding the CCTV footage should not have been used by the Board in its considerations. There is no evidence that Zuvich provided any detail to the Board of her background, and expertise in CCTV footage analysis. In any event, the Panel members could view the footage and make their own determination without the influence of Zuvich’s opinions.
The applicant denied being a participant in the Wickr messages. This immediately put into issue the reliability of those messages. This would include the process by which they were obtained by police, and the manner in which they were interpreted before being put before the Board.
Zuvich’s evidence in general via unsworn statements could never be accepted as evidence in a court, as they were not best evidence. Zuvich has not had her expertise established to provide opinion evidence, and the statements contain information which has not been proved. By s 45 of the TRS Act, the Board is not bound by the rules of evidence and can inform itself as it sees fit. This is an accepted principle in relation to the manner in which most administrative bodies conduct proceedings. It has also been said however that, in the conduct of administrative proceedings, there remains an ‘…overriding obligation to accord procedural fairness’.[161]
[161] Sudath Health Care Complaints Commissioner [2012] NSWCA 171 at [75].
Chief Justice French referred to this principle in Kostas v HIA Insurance Services Pty Ltd when he stated:[162]
The exercise of the tribunal’s freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott that those rules “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to “creep back through a domestic procedural rule”.
(emphasis added)
[162] (2010) 241 CLR 390 at [17].
In Sullivan v Civil Aviation Safety Authority (Sullivan), Flick and Perry JJ summarised the principle as follows:[163]
The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.
[163] (2014) 226 FCR 555 at [97].
I take these statements into account, and apply them, when considering the submissions on this appeal, and the approach taken by the Board to the evidence before it.
In relation to the Wickr messages, Zuvich did not provide her expertise to find and analyse data from the internet. There is no evidence that she provided any detail to the Board of her background, and expertise in this regard.
There was no expert evidence before the Board regarding the nature of the messages. Capponi in her affidavit, after setting out that the ‘Wickr’ application is known to be used by drug dealers, stated:[164]
The accused provided me with those details and I accessed the application. I saw messages in the application in relation to what I believed to be drug dealing between the accused and other people.
[164] Capponi’s affidavit of 19 May 2018 at [13] (p228 of the Casebook).
In their decision, the Board relied upon this statement. The Board however wrongly stated that Broadbent also expressed a view that the messages indicated drug dealing.[165] He did not. It is clear from Broadbent’s affidavit that he was simply repeating what he had been told by Capponi.[166]
[165] See p12 and p13 (at sub-paragraph 9) of the Casebook.
[166] Paragraphs [7] and [19] of Broadbent’s affidavit of 22 May 2018 (pp 200 and 203 of the Casebook.
The reliance upon Zuvich’s and Capponi’s evidence regarding the Wickr messages was an error. No evidence was before the Board as to Capponi’s background in SAPOL and her experience in the investigation of illegal drug offending, and this included her expertise in assessing the content of Wickr messages. There was no evidence before the Board of the meaning and precise purpose of the phone messages. In the absence of more expert evidence, the phone messages could not be probative of any fact in issue. The weight of the evidence, in the absence of any expert evidence, was insignificant.
I have similar concerns in relation to the first Murphy affidavit.[167] Murphy explains that he was tasked to the applicant’s home for a search ‘in relation to drugs found on’ the applicant.[168] This was hearsay evidence, and could not be used by the Board to prove any aspect of the applicant’s alleged dealing in illegal drugs.
[167] Pages 239-240 of the Casebook.
[168] Paragraph 4 of Murphy’s Affidavit at page 242 of the Casebook.
Another significant piece of evidence, that the applicant argued should not have been before the Board, was the plastic resealable bags found at his home. I do not agree that the fact of these bags was not admissible for the reasons I have already set out. That evidence had very little probative value in circumstances where there is no evidence of how long the bags had been there, who they belonged to, and that there was no other indicia of drug use or trafficking found.
Finally, in relation to the FSC certificates, although provided for the purpose of a police prosecution pursuant to the CSA, in my view they still fall within S 50 of the TRS Act. They were not improperly provided to the Board. Even if they were, the interpretation of the drug testing and results was explained in detail by Ms Wall at the Board Hearing. The applicant’s counsel was able to cross‑examine her on the accuracy of the certificates. Again, there was no submission that the certificates were inaccurate of that Ms Wall’s evidence was not reliable. The Board did not err in accepting the FSC certificate as evidence before it.
I do not agree that the FSC evidence could be used however to make findings of ‘drug dealing’. The evidence of what was found in the two bags was of little weight. There was no evidence that the bag found at the applicant’s home belonged to him, or had been used to sell drugs to others. The applicant denied that he was involved in selling drugs.
(iv) The Discretion to be Applied
The Board’s discretion to grant registration as a teacher arises from ss 21 and 23 of the TRS Act. In determining any issue the Board must observe the rules of natural justice,[169] but is not bound by the rules of evidence, and can inform itself as it thinks fit.[170]
[169] Section 42(1) of the TRS Act.
[170] Section 45(9) of the TRS Act.
The High Court in Minister for Immigration v Li[171] (Li), found that the power to adjourn, being a statutory discretionary power, was one which Parliament had intended should be exercised ‘reasonably’.[172] In a joint judgment, Hayne, Kiefel and Bell JJ reasoned that where the tribunal had a discretion to delay its decision (to grant citizenship), it was bound by the legal standard of ‘reasonableness’. This was then determined by the scope and purpose of the legislation that granted the discretion.[173]
[171] (2013) 249 CLR 332.
[172] Ibid at p351 [29] (French CJ), p362 [63] (Hayne J, Kiefel and Bell JJ) and p370 [88]-[89] (Gageler J)
[173] Ibid at [66]-[67].
This finding by the High Court contrasts with the way administrative decisions were considered in the past, applying the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corp (Wednesbury), where Lord Green MR stated.[174]
It is clear that the local authority is entrusted by Parliament with the decision on a matter which the knowledge and experience of that authority can best be trusted to deal with. …It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. … but to prove a case of that kind would require something overwhelming,…
[174] [1948] 1 KB 223.
The test in Wednesbury of unreasonableness is similar to the inferred error discussed in House v The King, when a decision is said to be ‘unreasonable and plainly unjust’. It is still necessary to identify a House v The King error for the applicant to succeed. However, the reasonableness or otherwise of the decision may lead to such an error.
I proceed on the basis that the test set out in both Li and Wednesbury leads to an inquiry that is in essence identical. It relates to the circumstances in which a court should interfere with the exercise of an administrative discretion as part of its supervisory role. In its consideration, it must review whether the decision made was reasonable in the context of the statute that is being applied. That is, whether the Board acted upon reasonable grounds, in making a decision based upon admissible and sufficient evidence.
The Board in applying its discretion to the evidence referenced the importance of the protection of the welfare of children. This was clearly the correct approach having regard to ss 4 and 7 of the TRS Act.[175] However, in exercising its discretion it was important that the evidence upon which the Board proceeded was cogent, relevant, probative and accurate, and that the Board assessed the evidence taking into account those issues.[176] The important consideration is whether the Board in exercising its discretion acted reasonably and fairly in the manner in which it assessed the evidence before it.
(v) The Board’s use of evidence
[175] The High Court in Bunning v Cross (Ibid at pp 78 and 80) said that the discretion to exclude evidence had to be exercised following an examination of the legislation in issue and its purpose.
[176] See Craig v South Australia (1995) 184 CLR 163.
The Board by its use of the evidence before it, concluded that the applicant was involved in drug dealing in 2018.[177] They did not determine whether this was dealing that contravened the provisions of the CSA. Having regard to the evidence upon which they relied, particularly the FSC certificates, the Board must have considered the ‘drug dealing’ to be in some way unlawful. The Board referred to the applicant’s ‘wrongdoing’ when considering the fitness and propriety provisions of the TRS Act, and in their conclusion, he should not be registered as a teacher.[178]
[177] Page 14 of the Board’s reasons (at p14 of the Case Book).
[178] See page 16 of the Board’s reasons (at p16 of the Casebook).
The Board’s finding was that the applicant had engaged in a transaction before being arrested on Hindley Street. It was agreed by their counsel that the Board had not found that this transaction involved drugs. The CCTV footage did not capture any offending.[179] He submitted that the Board had made:[180]
… findings of fact based on evidence that was obtained from a criminal jurisdiction that inferred unlawful behaviour or conduct of the applicant.
[179] T59-62.
[180] T58.24 – 27.
The Board could only identify ‘a transaction’ on the CCTV footage, and thus inferred the applicant was involved in drug dealing because of the weight of the other evidence before it.
The issue for the court is whether there are cogent reasons in the way the Board used the evidence that has led it into error in its reasoning process. Relevantly, this includes the lack of any expertise established to prove the meaning of the Wickr messages and the applicant’s involvement in them. I have also dealt with the extent of the probity of the other evidence.
The other aspect of the evidence where error is alleged by the applicant, is the Board’s failure to address his sworn denial of any involvement in unlawful drug offending; and the evidence of good character. Whilst the Board did not analyse the applicant’s statutory declaration in detail, it was clear from their reasons that they had considered it, as they did the references. The Board did not accept the applicant’s denial. There was no error in them doing so. However, I find there was error in them not identifying the basis for not accepting the denial. It is not clear in the Board’s reason why they did not accept the sworn statement. Simply preferring the evidence of Zuvich and Capponi is not enough.
I do not find that the references were used against the applicant. The Board’s primary focus was a determination of the evidence and what was established by it. There was no fundamental error in approaching the evidence in this way.
Decision
In exercising its discretion to grant the applicant registration as a teacher, the Board was required to take into account the objects of the TRS Act set out in ss 4 and 7. Gray J in Edwards confirmed that the welfare and best interests of children must be the Board’s primary consideration in the performance of its functions. In this regard, there is no dispute that if the applicant had been found guilty of drug trafficking by a court, then he would not have been a fit and proper person to be registered as a teacher.
The applicant has always denied such offending and all criminal charges were withdrawn at an early stage of the prosecution. The Board’s approach in determining whether the applicant was a fit and proper person required them to consider the evidence held by SAPOL. This was not an error in the exercise of their discretion in the context of ss 4 and 7 of the TRS Act.
The applicant’s argument is that the Board was in error in finding that he had been in possession of 20 capsules, some containing MDMA; and that he was involved in drug dealing. That finding was made with no reference to any criminal offence, and depends upon inferences made by the Board in relation to the SAPOL evidence. No elements of any offence of ‘drug dealing’ were stated. Whilst it was open to the Board to reach its own conclusion on the evidence, fairness and natural justice was still to be provided to the applicant. [181] Not to do so would be a House v The King type of error. I find that it was forensically unfair for the Board to create an offence of ‘drug dealing’ to support their findings on the evidence, and their approach that evidence obtained illegally or improperly could still be used by them in their deliberations.
[181] Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630.
The applicant has not been prosecuted by SAPOL, beyond the initial charges which were withdrawn. There was no verdict of guilty. The Board in determining fitness and propriety conducted its own investigation of the facts. This included instructing an investigator, whose qualifications were not provided, to seek more information and detail. Whilst the Board has the right to inform itself as it thinks fit,[182] there is no provision in the TRS Act that provides a right to the Board to conduct its own investigation, based upon material provided by SAPOL.
[182] Section 45(9) of the TRS Act.
This issue has serious consequences for a person who may have been prosecuted for a criminal offence but found not guilty by a Judge sitting alone or a jury. Whilst it is arguable that the Board could consider that evidence, it would be very unfair for the Board to conduct its own investigation of the circumstances and factual basis for the unsuccessful prosecution.
The Board in reaching its decision was heavily influenced by the information obtained by Zuvich. Her statement of 7 July 2021 sets out in detail her observations, particularly of the CCTV footage.[183] Whilst the Board also reviewed the CCTV footage, it was likely that its members were heavily informed by Zuvich’s interpretation while watching it. They had already been told what to look for. There was a risk that there was no, or limited, independent assessment of the material before the Board. In fact, the Board’s findings of what the CCTV footage showed were almost identical to Zuvich’s.
[183] Pages 258-265 of the Casebook.
The Board’s finding that the applicant was involved in ‘drug dealing’ was not a finding that was open to the Board. If the Board was to find that the applicant had engaged in unlawful conduct they were restricted by the provisions of the CSA. I am of the view that there is no provision in the TRS Act that gives the Board the power to make their own determination as to what constitutes a criminal offence (for the purpose of establishing impropriety and unfitness).
I find that the Board should not be able to use its discretion in order to obtain an unfair forensic advantage as a result of the criminal charges against the applicant not being pursued or withdrawn. If those charges had proceeded to court, then the Board would have only had access to the police documents relating to the investigation and the documents arising from the court proceedings. They would not have been entitled to conduct their own investigation and create additional information in order to arrive at a separate and/or different conclusion. The Board proceeded to conduct their own quasi‑criminal investigation. This is not an aspect of their power under the TRS Act.
I find that it was highly irregular for the Board to generate new evidence, by the investigations of Zuvich, after police had concluded their investigation. It was also plainly unjust to accept Zuvich’s evidence without scrutiny. In relation to the illegality or impropriety of the police evidence and the finding that the prejudice to the applicant in admitting that evidence was outweighed by its probative value, the Board only applied that principle to the evidence obtained by the Board. They did not apply the same principle to the Statutory Declaration of the applicant or the character references he provided in support of his registration as a teacher.
I find that this inconsistent application of the rules of evidence was a procedural error. All evidence should have been assessed in the same manner, and if not, an explanation should have been provided.
I also find that the prejudice of the illegally obtained police evidence heavily outweighs its probative value. The inferences drawn from the evidence about the applicant’s involvement in ‘drug dealing’ were not conclusive. It was the only evidence used to convince the Board that the applicant was not a fit and proper person to be registered as a teacher.
The finding of the Board that the applicant had committed an undefined offence of ‘drug dealing’ was a House v the King type error. The finding was based upon an unproved allegation that never proceeded in the criminal court. I find that the Board cherry picked the evidence before it to make their finding. In several aspects as set out in these reasons, the Board did not set out clear and cogent reasons for their findings. They did not demonstrate an understanding of criminal proceedings.
In this regard, if the criminal proceedings had proceeded to trial, and the applicant had been acquitted, the Board would have been limited to the findings of the court in that respect, i.e., whether the offence had occurred or had been proven. None of the evidence before the Board was sufficient to prove the elements of the offence of trafficking in, or possession of, a controlled drug without relevant experts giving evidence as to the provenance/content of the evidence. There is no power in the TRS Act to essentially convict a person of an offence.
On my review of all the material, I find that there are cogent reasons to depart form the Board’s decision. The Board’s use of police evidence, as put before it by an unqualified investigator was not a use open to them. They have cherry picked the evidence and as set out by the applicant’s counsel not applied rules of evidence to the material before them. The Board did not give any regard to the applicant’s sworn evidence nor his character evidence. I find on the facts that the decision of the Board, in the face of police withdrawing all charges, was plainly unjust and unreasonable, even taking account of the fundamental objects of the TRS Act. I find that the Board have failed to properly exercise their discretion and there are compelling and cogent reasons for the Board’s decision to be rescinded, and the appeal to be allowed.
I will hear the parties on remission and costs.
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