Police v Hayes
[2009] QMC 13
•1 December 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Hayes [2009] QMC 13
PARTIES:
POLICE
(prosecution)
v
TERENCE MICHAEL HAYES
(defendant)
FILE NO/S:
MAG85302/09(4)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Toowoomba
DELIVERED ON:
1 December 2009
DELIVERED AT:
Toowoomba
HEARING DATE:
16 November 2009
MAGISTRATE:
Stjernqvist H
ORDER:
Not guilty, charge dismissed and the defendant discharged
CATCHWORDS:
CRIMINAL LAW – REPORTING OF SEXUAL OFFENCES – SCHOOLS - whether defendant had responsibility to report suspected abuse to police
Education (General Provisions) Act 2006 (Qld), s 366(4)
COUNSEL:
R Devlin for defendant
SOLICITORS:
Prosecution on their own behalf
Macrossans Lawyers for defendant
Charge
That on or about the 7th day of September 2007 at Toowoomba in the Magistrates Court district of Toowoomba in the State of Queensland Terence Michael Hayes failed to give written report pursuant to section 366 of the Education (General Provisions Act) 2006.
Further particulars
The prosecution provided the following further particulars:
“The defendant failed to give a copy of a written report to police, of the suspected sexual abuse of ZRJ, pursuant to section 366 subsection 4, Education (General Provisions) Act 2006.”
Exhibits
1. Agreed facts.
2. Solicitors letter to investigating officer.
3. Notes of meeting taken by Cathey Long
4. Email exchange between Hayes and Fry dated 10/9/2007.
5. Email exchange between Hayes and Fry dated 10/9/2007.
6. Email exchange between Hayes and Fry dated 11/9/2007.
Agreed Facts
Pursuant to section 644 of the Criminal Code Qld the defendant tendered a statement of agreed facts.
The defendant made the following admissions[1] to the prosecution case relevant to the potential witness – PCSC Penberthy:
[1] Exhibit 1.
1. On 20 November 2008, Plain Clothes Senior Constable Penberthy received a complaint from ZRJ, a child, relating to sexual abuse.
2. The complaint was made against her teacher, BGV.
3. The complaint related to alleged sexual abuse suffered by her in 2007.
4. During the taking of the complaint, it was revealed that in 2007 the child had made certain disclosures to her father, and her father had informed the defendant of the disclosures.
The defendant made further admissions to the prosecution case relevant to the potential witness – Ms Evette Hartley an employee at the Catholic Education Office:
1. On 1 January 2001, Terence Michael Hayes commenced employment as the Principal at a primary school in Toowoomba, and remains employed in that position.
2. He was the Principal throughout the 2007 school year.
3. BGV was employed as a teacher at the primary school in Toowoomba, from 25 January 2001 until 14 November 2008.
And further:
1. On Thursday, 6th September 2007 ZCC, the father of ZRJ made disclosures to the defendant relating to matters told to him by his daughter ZRJ.
2. On the same date, in the presence of the defendant, Cathey Long and ZCC, ZRJ made disclosures to the defendant which would give rise to a reasonable suspicion that sexual abuse had occurred by BGV.
Evidence
Detective Senior Sergeant P.F. McCusker was tasked to investigate the 2007 incident at the primary school, in particular and relevant to this matter – what had staff at the school and or the Catholic Education Office (CEO) done or not done in reporting the incident to police. McCusker started his investigation in February 2009. He took a statement from Ms Cathey Long whilst the defendant, as was his right, declined to be interviewed.
Detective Senior Sergeant McCusker made a search of Queensland Police Service (QPS) records between September 2007 and November 2008. The search showed that no record, that is no PAC number relevant to a report of the allegations was ever received by police.
On 22 April 2009, Detective Senior Sergeant P.F. McCusker served on the defendant, a Notice to Appear for the 2007 offence.
Catherine lee Long was and is, the learning support teacher at the primary school. Ms Long is also a student protection officer.
Relevant to the meeting held on 6 September 2007, Ms Long attended at the request of the defendant to take notes.[2] Ms Long then typed up her hand written notes for ease of reading. The typed notes were emailed by her to the defendant. This occurred right after the meeting.
[2] Exhibit 3.
Ms Long recalls that after the meeting, the defendant informed her and ZCC, that he would be contacting Mr Chris Fry at the Catholic Education Office regarding the allegations. Further that the defendant informed ZCC that he had every right to go to the police. Ms Long recalls that ZCC stated that he did not intend to do that and that he had just come to the meeting to alert the defendant to the allegations being made by ZRJ.
Ms Long gave evidence that she understood Mr Chris Fry to be one of three senior officers in ‘line management’, in charge of three different groups of Catholic Schools in the Diocese.
Terence Michael Hayes was and is the Principal of the primary school and it is one of 33 schools in the Diocese governed by the Catholic Education Office in Toowoomba. The 33 schools are divided into three groups.
It appears there are three senior education officers within the Toowoomba Catholic Education Office responsible for the management of the schools. Mr Chris Fry is the senior education officer responsible for directing the defendant in the running of the school.
Ian Hunter is another of the three senior education officers – he also fulfils the role of student protection officer within the Catholic Education Office. It is the evidence of the defendant – that in the matter of student protection, he is required to take directions from Mr Hunter.
The evidence of the defendant can be adequately stated in the following chronology:
3 September 2007
At about 1.45pm, the father of the child, ZCC contacted the defendant on and told him of allegations being made by his daughter ZRJ, against her teacher BGV.
ZCC wanted to meet with the defendant.
The defendant then formed the view that the allegations were potentially – of a sexual nature.
4 September 2007
At 9.00am, the defendant phoned the Catholic Education Office to speak to Mr Chris Fry. Mr Fry was not available.
The defendant asked to speak to another senior education officer as the matter was urgent. The defendant spoke to Mr Peter Lynam – Mr Lynam is not a direct line manager for the defendant’s school. Notwithstanding, the defendant informed Mr Lynam of the allegations.
Mr Lynam agreed the allegations were serious. Mr Lynam advised the defendant to take dot point notes of the allegations and also that he should meet with the teacher, BGV and make it known to him the nature of the allegations. The defendant went to the class room to see BGV. BGV was then engaged in teaching. A meeting was arranged for the following day.
No disclosures were made by the defendant at this stage.
5 September 2007
BGV attended at the defendant’s office where the allegations were outlined. The defendant informed BGV the allegations were serious and as such being treated seriously. The defendant informed BGV he would be meeting the parent the following day. The identity of the parent was not revealed.
6 September 2007
At 3.30pm a meeting was held. Attending at the meeting was ZCC, his daughter ZRJ, Ms Long and the defendant.
Prior to ZRJ being bought into the meeting ZCC outlined the nature of his daughters disclosures. ZRJ was then bought in and informed by the defendant she was to tell everything and that she would not get into trouble.
The dot points contained in the notes[3] accurately reflect ZRJ’s disclosures. ZRJ demonstrated the allegations by using her father’s hand.
[3] Exhibit 3.
The meeting concluded in the absence of ZRJ.
The defendant informed ZCC he would be contacting the Catholic Education Office regarding the allegations and that he had every right to go to the police to which ZCC replied he did not need to – that he just came to alert the defendant to the allegations.
The defendant instructed Ms Long to type up her notes and send them to him. The defendant contacted Mr Chris Fry by phone and informed him of the phone call from ZCC on 4 September 2007 and of the substance, of the meeting just held. Mr Fry indicated to the defendant that the student protection officer, Mr Hunter, should be involved.
Arrangements were made to contact the defendant on his mobile the following day.
7 September 2007
The defendant is away from school attending a medical appointment. Mr Hunter and Mr Fry via speaker phone, contact the defendant on his mobile.
The defendant was instructed to meet with the teacher, BGV.
Further – to write him a letter outlining the allegations and attach documents from the Diocesan Student Protection kit and invite him to provide a written response.
The defendant informed Mr Hunter and Mr Fry that he would formulate a letter over the weekend and email it to Mr Fry on Monday.
10 September 2007
The defendant attached a draft of the letter in an email[4] to Mr Fry. The email and attachment detail additional allegations received by the school on the Friday prior. A later email informs Mr Fry that the defendant intends to meet with BGV the following day.
[4] Exhibit 4.
11 September 2007
The defendant emailed[5] to Mr Fry the amended letter. The amended letter is approved by Mr Fry.
12 September 2007
The defendant presented the letter to the teacher, BGV. The letter and additional material were given by Mr Hayes on the instructions of Mr Fry.
[5] Exhibit 5.
Prosecution Case
The prosecution contend that the defendant failed to comply with the legislation in that he did not provide a written report pursuant to section 366 of the Education (General Provisions) Act 2006. Specifically, that he did not report in the way prescribed by section 68 of the Education (General Provisions) Regulations 2006 and ultimately, that he did not give a copy of the written report to police.
Legislation – (Where relevant)
Education (General Provisions) Act 2006
Section 366 – Obligation to report sexual abuse of student under 18 years attending non-State school
(1) Subsection (2) applies if a staff member of a non-State school (the first person) becomes aware, or reasonably suspects, that a student under 18 years attending the school has been sexually abused by someone else who is an employee of the school.
(2) The first person must give a written report about the abuse, or suspected abuse, to the school’s principal or a director of the school’s governing body—
(a) immediately; and
(b) if a regulation is in force under subsection (3), as provided under the regulation.
Maximum penalty—20 penalty units.
(3) A regulation may prescribe the particulars the report must include.
(4) A non-State school’s principal or a director of a non-State school’s governing body must immediately give a copy of a report given to the principal or director under subsection (2) to a police officer.
Maximum penalty—20 penalty units.
(7) In this section— director, of a non-State school’s governing body, means—
(a) if the governing body is a company under the Corporations Act—a person appointed as a director of the governing body; or
(b) otherwise—a person who is, or is a member of, the executive or management entity, by whatever name called, of the governing body.
Education (General Provisions) Regulations 2006
Section 68 – Report about sexual abuse, Act, ss 365(3) and 366(3)
A report under section 365(3) or 366(3) of the Act must include the following particulars;
(a) the name of the person giving the report (the first person);
(b) the student’s name and sex;
(c) details of the basis for the first person becoming aware, or reasonably suspecting, that the student has been sexually abused by an employee of the school;
(d) details of the abuse or suspected abuse;
(e) any of the following information of which the first person is aware—
(i) the student’s age;
(ii) the identity of the employee who has abused, or is suspected to have abused, the student;
(iii) the identity of anyone else who may have information about the abuse or suspected abuse.
Findings
Relevant to section 68 of the Regulations, the form and content of the written communications by the defendant to Mr Hunter and Mr Fry regarding the allegations are worthy of some scrutiny.
Certainly it could not be said that the content of the emails and letter, mirror exactly, the particulars of section 68 of the Regulation that must be included in a written report. In other words – it could not be said that there was prepared by Mr Hayes, one neat formal written report.
However, upon a consideration of the information conveyed in the emails I accept the following:
· Mr Hayes name is particularised.
· The material reflects the sex of the student as being female and although not particularised in the written report I will accept that the name of the student was communicated by Mr Hayes in the course of the several phone conversations. In effect, I find the Senior Education Officers were aware of the identity of the student involved.
· The material reports that the allegations emanate from staff and parents of the children in the year 4 class.
· The details of the alleged abuse are provided in dot point form.
· The age of the student, although not specifically particularised, may be inferred by reference to being in year 4.
· BGV is nominated as the employee who is suspected as having abused the student.
· Other persons with information are particularised in the email as being other parents having called Megan (APRE) regarding this matter.
Having regard to the written material I find that the substance of what was needed to be communicated in a written report by the first person has been complied with.
I will accept further that in the circumstances that existed, that is the process of receiving the information from the father of the child, organising the meeting and communication of the disclosures made at the meeting to the Catholic Education Office, that the reporting occurred with as little delay as possible, thereby satisfying the element of ‘immediately‘ contained within subsection (2) of section 366 of the Act.
I will also accept, that the giving of the information to the Senior Education Officers, particularly the contents of the emails to Mr Fry, that the defendant has given the written report to a person who is a member of, the executive or management entity, by whatever name called, of the governing body pursuant to subsection (7)(b) of section 366 – that is to say, I find the Senior Education Officers fall within the definition of director.
In my opinion, the Catholic Education Office is the governing body of Saint Saviours Primary School and Mr Fry is one of their Senior Education Officers in direct line management of the school and for that matter in a position to give the defendant directions. It is not disputed that the defendant reports to Mr Fry.
There has in my view been substantial compliance by the defendant in respect of subsections (1), (2) & (3) of section 366 of the Education Act.
I am, however, not inclined to agree with the evidence of Mr Hayes that he complied, mindful of his obligations under the act. In fact I feel he did so, that is comply, completely oblivious to his obligations under section 366 in the Act. This view I hold is derived from the content of his email[6] (attaching an amended version of a letter intended for BGV) to Chris Fry at 12.15pm on 11 September 2007 within which he writes:
“Here is the amended version of the letter following our conversation this morning. Just a couple of queries:
How do I reply to Gerry if he questions the fact that I am sending a cc copy to you? He would be hoping, I assume, that as few people know about this the better so why should you (or CEO) know at this stage.”
[6] Exhibit 6.
The contents of the reply email from Mr Chris Fry is equally indicative of an ignorance within the governing body, that is within the Catholic Education Office of their legislative obligations in these sort of matters. Mr Fry replies:
“I suggest that you inform Gerry that your letter is written on the advice of the CEO, in particular, your SEO. As part of the procedure the employing authority has a responsibility to maintain records in these matters. Hence, a copy of the correspondence will be filled (sic) at the CEO.”
Nowhere is there any indication or acknowledgement that the matter ultimately needs to be, and will be passed on to police – and it never was. If history has taught us anything relative to allegations of sexual abuse, it taught us that it is the vulnerable in our community that need protecting – in this case the vulnerable were the children at the school.
The failure of the Catholic Education Office to pass on the report to police on this occasion is the very practice the government sought to eliminate by their amendment to the Education Act in 2003.
The second reading
The Act was amended on 14 October 2003. The second reading of the Amendment Bill by the Hon A.M. Bligh and then Minister for Education, provided;
“Historically, complaints of sexual abuse against staff made by parents or students have frequently been dismissed or ignored by school authorities. To ensure that there will be an appropriate response to such complaints, the Bill additionally amends the Education (General Provisions) Act 1988 to provide that, if a school staff member becomes aware, or reasonably suspects, that a student has been sexually abused by another school employee, it must be reported to specified persons within the school system who must then pass it on to the police. The Bill creates legal protections for complying with the reporting requirements.”
As I have mentioned, the prosecution at first instance contended the defendant failed to report as required in section 366(2) of the Act and section 68 of the Regulation. However, even if I were minded to agree, and I have not, I do not feel that would help their substantive case. The basis for this statement stems from the wording of the charge and the further particulars relied upon by the prosecution – (previously read into the record):
That on or about the 7th day of September 2007 at Toowoomba in the Magistrates Court district of Toowoomba in the State of Queensland Terence Michael Hayes Failed to give written report pursuant to section 366 of the Education (General Provisions Act) 2006.
The prosecution provided the following further particulars:
“The defendant failed to give a copy of a written report to police, of the suspected sexual abuse of ZRJ, pursuant to section 366 subsection 4, Education (General Provisions) Act 2006.”
The failure to report the matter to police is the offence for which the defendant has been tried – not that he failed to provide a written report, in the appropriate manner.
As I have stated, it is clear and not contested, that the allegation of sexual abuse made to the defendant by ZRJ was never reported to police by the school.
It follows and is clear then that a person in the school or the school’s governing body has committed an offence and in my view no independent inquiry into the matter could possibly conclude otherwise.
That person in my view is not Mr Hayes.
Section 366, as I read it, sets up a two stage process. That is, when a staff member becomes aware or reasonably suspects – a student under the age of 18 has been sexually abused, that staff member must give a written report to the principal or to the director of the governing body. Failure to do so is an offence – but not the offence as I have said, for which the defendant has been tried.
The staff member is – the first person, and in this instance just happens to be the principal. Once given, it is the person who receives the report from the first person, in this case someone in the schools governing body, that must give the report, that is the written report, to police.
It follows then that I find the prosecution have not proved to me to the required standard that Mr Hayes was the person who was required to report the matter to police.
I find the defendant not guilty.
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