Queensland College of Teachers v A Teacher
[2011] QCAT 225
•16 May 2011
| CITATION: | Queensland College of Teachers v A Teacher [2010] QCAT 225 | |
| PARTIES: | Queensland College of Teachers | |
| v | ||
| A Teacher | ||
| APPLICATION NUMBER: | OCR001-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 21 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Margaret McLennan, Presiding Member Michelle Howard, Member Robyn Oliver, Member |
| DELIVERED ON: | 16 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1) The teacher’s registration or permission to teach is cancelled; 2) She is prohibited from reapplying for registration or permission to teach for a period of three years; 3) The orders in 1. and 2. are retrospective to the suspension of the teacher’s teacher registration on 17 May 2006. 4) The following conditions are imposed: A. should, after the expiry of the prohibition period, the teacher reapply for registration as a teacher, such application must include a psychologist’s report. B. The report must include reference to the psychologist being provided with copies of: (a) the facts and circumstances leading to the disciplinary action; and (b) a copy of these reasons and the final decision. C. The report must include an indication by the psychologist as to his or her level of satisfaction with the teacher’s understanding of the following: (a) awareness of appropriate boundary issues with students; (b) awareness of the power imbalance inherent to the teacher/student relationship including the obligations that flow from this; (c) an in-depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher; (d) awareness of the power and trust granted to a teacher; (e) awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching; and (f) understanding and full adherence to the Queensland College of Teachers Code of Ethics. 5) Publication of the teacher’s name, the name of the complainant, his brother, the Year 12 student who formerly resided in the teacher’s house, and the name of the school is prohibited. 6) These reasons are to be published in a de-identified format in compliance with this order. 7) Any person who has access to the file of material in this case is prohibited from publishing the information contained in 5) of this order. |
| CATCHWORDS: | Approved teacher – not suitable to teach – prohibited from reapplication for three year period Education (Queensland College of Teachers) Act 2005 Briginshaw v Briginshaw (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J Gormley, Principal Legal Officer, Queensland College Of Teachers |
| RESPONDENT: | Mr A Knott, Macrossans Lawyers |
REASONS FOR DECISION
The teacher in these proceedings is an approved teacher who was first registered to teach in Queensland on 23 January 1997. At the time of this hearing she was 38 years of age.
In a letter dated 17 May 2006 the Queensland Police Service notified the Queensland College of Teachers (“QCT”) that the teacher had been charged with five (5) counts of indecent treatment of a child under 16 under section 210(1)(a) of the Criminal Code (Qld). It was alleged that between 30 May 2003 and 1 June 2004 the teacher unlawfully and indecently dealt with a male child under the age of 16 years.
Between 1997 and 2006 the teacher was employed as a music teacher at a regional State High School. She taught the complainant child, whose date of birth is 31 May 1988, between 2001 to 2005 in various capacities.
On 17 May 2006 the QCT suspended the teacher’s registration to teach pursuant to section 48 of the Education (Queensland College of Teachers) Act 2005 (“the Act”). The basis of the suspension was that the offence is a “disqualifying offence”. “Disqualifying offence” is cross referenced in Schedule 3 of the Act to the meaning of that term in section 120B of the Commission for Children and Young People and Child Guardian Act 2000.
On 11 August 2008 the QCT pursuant to section 80 of the Act, received notice from the Director of Public Prosecutions of the teacher’s acquittal.
After a nine day criminal trial in the District Court the teacher was acquitted of all charges on 7 August 2008. As stated in the applicant’s written submission:
“In her defence, [the teacher] denied all the charged and uncharged acts but led that she did perform oral sex on [the complainant] on 22 April 2006. [The complainant] was not a student at this time, having completed school the previous November.”
On 6 September 2010 pursuant to section 97 of the Act and the requirement to commence disciplinary proceedings, the QCT referred the matter to the Queensland Civil and Administrative Tribunal (“the tribunal”) on the basis that a reasonable belief was formed that a ground for disciplinary action exists against the teacher under section 92(1)(h) of the Act: “the teacher is not suitable to teach.”
The tribunal notes that included in the large file material provided by the QCT are the transcripts of R v [the Teacher].[1]
[1] References to the trial are intentionally de-identified.
Evidence
In a Statement of Agreed and Disputed Facts dated 2 February 2011 paragraph 1 consists of a statement of facts agreed by both the QCT and the teacher. Paragraph 1 details a friendship between the teacher and the complainant. This commenced as part of the music activities within the high school and advanced to visits by the complainant and his brother to the teacher’s and her husband’s house. These house visits were in furtherance of a friendship with an older Year 12 student who resided in the teacher’s house and was under the care and protection of the teacher and her husband. The complainant and his brother were regular visitors at the teacher’s house where sometimes she was present.
From Christmas Day 2003 the complainant usually hugged the teacher on meeting and departing the house. There was an escalating friendship which developed between the complainant and the teacher:
·towards the end of 2004, the complainant confided certain problems to the teacher in relation to his girlfriend and his parents;
·Christmas 2004, the three residents of the house jointly gave gifts of aftershave to both the complainant and his brother;
·in approximately April or May 2005, the teacher was informed by the resident Year 12 student that the complainant had a deteriorating relationship with his parents whom he had told that after year 12, he wanted to live with the teacher and her husband because they cared about him;
·on or about 23 December 2004 , the complainant disclosed to the teacher his realisation that he cared less about his friendship with the Year 12 student who had left in September 2004 than he did for the teacher; and
·in 2005 when in year 12, the complainant texted messages to the teacher containing the words “love you”.
In 2002 all staff at the high school had been instructed not to discuss family issues with the complainant or his brother and the teacher was aware that in 2004 the complainant attended a psychologist. The complainant stated that he used to confide in the teacher about his “spate of personal problems.”[2] There is evidence that the two brothers and the resident Year 12 student were favoured by the teacher for example when in September 2003, she drove them to the Gold Coast. to attend the Dracula’s theatre restaurant.
[2] References to the trial are intentionally de-identified.
There was a significant student/teacher relationship which existed and had developed in extra curricular contexts.
Conceded by the teacher is that on 22 April 2006 the complainant attended her residence in company with approximately four other former students who all, in the course of the evening, and in the company of the teacher, viewed a pornographic movie broadcast on satellite television. It was after the other former students left and then the complainant was leaving, that the incident of the teacher performing oral sex on the complainant occurred.
In dispute between the parties in Paragraph 2 of the Statement of Agreed and Disputed Facts are five other alleged instances in the period from approximately 30 May 2003 and 1 June 2004 that the teacher allegedly performed oral sex on the complainant at her house.
Assessment of evidence and application of law
In these disciplinary proceedings, the standard of proof is on the balance of probabilities where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved.[3]
“As Dixon J. commented in Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; and see, also, Helton v. Allen (1940) 63 CLR, at p 711): ‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...’.”[4]
[3] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-62.
[4] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171.
There are serious employment consequences for the teacher arising from the grave allegations.
In the assessment of suitability to teach pursuant to sections 11 and 12 of the Act, there are criteria set out to which the QCT must have regard. Section 11 provides that the QCT must have regard to criminal history. Schedule 3 of the Act defines “criminal history” to include every charge of an offence made against the person, in Queensland or elsewhere. Subsection 11(3) requires:
“(3) In having regard to the person’s criminal history, the college must consider the following matters relating to information about the commission, or alleged or possible commission, of an offence by the person—
(a)when the offence was committed, is alleged to have been committed or may possibly have been committed;
(b)the nature of the offence and its relevance to the duties of a teacher;
(c)anything else the college considers relevant to deciding whether the person is suitable to teach.”
Particular in this matter is section 12(1)(b) where there is the requirement to consider if the person is “suitable to work in a child related field.” Subsection 12(3) of the Act provides that a person is not suitable to teach if:
“(a) the person behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
(b) otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.”
The tribunal is guided in its assessment by these criteria.
Mr Gormley conceded in the hearing that it was clear that the complainant was inconsistent in his capacity as a witness in the criminal hearing and that the inconsistencies primarily related to timing, when the alleged behaviour occurred and dates as to whether the alleged behaviour occurred. He stated that the focus of the cross-examination at the trial was the timing and whether the behaviour had occurred after the complainant had finished school.
There was, however, no independent corroboration and there was nothing to which he could direct the tribunal to assist it to find that another person had noticed the alleged behaviour. The sexual event that the teacher admitted, occurred in 2006 and was consensual. In relation to the other alleged instances, the complainant reported them as initiated by the teacher. The teacher denied all other incidents occurred except that incident in 2006 which she reported as having been initiated by the complainant.
Mr Gormley submitted that the broader circumstances favoured the complainant: he was mild and not overbearing as borne out by his testimony in court where the transcript shows he could barely be heard. Thus, the teacher was not overwhelmed by the force of his personality. He further submitted that the admitted incident of 2006 would be an extraordinary event if it were not preceded by the other alleged instances. The tribunal notes that it was argued by the prosecution in the criminal trial that the 2006 incident only made sense if it was accepted that there had been a history of intimate contact between the complainant and the teacher.[5] As pointed out by the presiding Judge at the criminal trial in his summing-up to the jury,[6] however, the 22 April 2006 incident which the teacher admitted occurred, was three years later than the earlier alleged incidents. The QCT concedes in its written submission however that the “primary evidence is that of statements, testimony and interviews from both [the complainant] and the teacher. There is peripheral evidence from a number of other witnesses, though none directly relate to the allegation.”
[5] References to the trial are intentionally de-identified.
[6] References to the trial are intentionally de-identified.
The pretext telephone call on 15 May 2006 between the complainant and the teacher and recorded by the police, the transcript of which was before the tribunal was of little assistance in the tribunal’s assessment of the alleged incidents’ occurrence.
For every alleged detail for example the “Kill Bill” movies;[7] the big pillows;[8] the timing of the incidents in relation to the visit to “Dracula’s;[9] the massage incident, the double bed and how it happened[10]; the teacher’s husband’s laptop[11], there were countering inconsistencies in chronology and occurrence. In the absence of corroborative evidence, the tribunal is unable to be satisfied that the relevant “ground for disciplinary action” is established to the requisite standard in relation to the alleged five indecent acts with a child under 16 years of age.
[7] References to the trial are intentionally de-identified.
[8] References to the trial are intentionally de-identified.
[9] References to the trial are intentionally de-identified.
[10] References to the trial are intentionally de-identified.
[11] References to the trial are intentionally de-identified.
In relation to the consensual oral sex incident on 22 April 2006, it is noted that this occurred only five months after the complainant had finished school. Given the brief time between the complainant’s leaving school and the incident, the tribunal considers it likely that the student/teacher differences in age, maturity and power imbalance still remained at this time.
There is a public interest in ensuring that teachers retain a professional distance from their students and do not cross the boundary which is necessary for the maintenance of a good teacher/student relationship. The tribunal accepts the QCT submission that “the more recent, the longer, the closer, the more vulnerable the student or more significant the teacher/student relationship was, the more likely that substantial time must pass or significant intervening events must occur to extinguish that power imbalance.” The tribunal notes the QCT submission in relation to previous but similar breaches of the teacher/student relationship: Novosel[12], McNamara[13] and Borchardt[14], cases which “illustrate that sexual conduct with a former student even nine months after the end of the professional relationship can establish 'unsuitability'”.
[12]Matter of Jason William Novosel. Decided by Teachers Disciplinary Committee on 30 September 2009.
[13] QCT v McNamara [2010] QCAT 442.
[14] QCT v Borchardt [2010] QCAT 432.
The tribunal considers that the evidence supports the proposition that the teacher did have a close friendship over the relevant period with the complainant at a vulnerable period of his life and when she had been directed not to discuss family matters with him. He was a troubled young person and her behaviour was inappropriate. The teacher was on actual notice that the complainant was a vulnerable child. There was a dangerous level of familiarity in the relationship and apparent emotional reliance by the complainant on his teacher. The tribunal considers it is likely that these factors continued to influence the relationship in the period after the complainant finished school.
The tribunal is satisfied that, pursuant to section 12(3)(a) of the Act, the teacher has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher. The tribunal is further satisfied that, prima facie, the teacher is “not suitable to teach” within the meaning of section 92(1)(h) of the Act and that grounds for disciplinary action pursuant to section 158(1) of the Act exist.
Sanction
The tribunal considers that although acquitted of five charges, the teacher’s admitted 2006 incident of oral sex with a former student only five months after he had finished school warrants a serious sanction.
Pursuant to section 160(2)(d) the tribunal cancels the teacher’s registration or permission to teach and pursuant to section 160(2)(j) prohibits the teacher from reapplying for registration or permission to teach for a period of three years.
The tribunal accepts the QCT submission that the period of cancellation should be retrospective to take into account the suspension of the teacher’s teacher registration since 17 May 2006.
Section 160(2)(h) permits the tribunal to impose conditions on a teacher’s registration or permission to teach. In view of the objects of the Act[15] to uphold the standards of and to maintain public confidence in the teaching profession, the tribunal orders the following conditions be included on the Register of Approved Teachers:
[15] Section 3.
1)Should, after the expiry of the prohibition period, the teacher reapply for registration as a teacher, such application must include a psychologist’s report.
2)The report must include reference to the psychologist being provided with copies of:
a)the facts and circumstances leading to the disciplinary action; and
b)a copy of these reasons and the final decision.
3)The report must include an indication by the psychologist as to his or her level of satisfaction with the teacher’s understanding of the following:
a)awareness of appropriate boundary issues with students;
b)awareness of the power imbalance inherent to the teacher/student relationship including the obligations that flow from this;
c)an in depth examination of the extent and nature of the student, colleague, parent and community trust inherently invested in a teacher;
d)awareness of power and trust granted to a teacher;
e)awareness of behaviour which may compromise the professional standing of a teacher and the profession of teaching; and
f)understanding and full adherence to the Queensland College of Teachers Code of Ethics.
Non-Publication
The teacher has sought a non-publication order pursuant to section 66 of Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”) which would prohibit publication of information which may enable her to be identified. In support of the application, the teacher, her husband and the Year 12 student who resided in the teacher’s house[16] have provided statements. They each raise concerns that publication may lead to identification of the complainant and mistaken identification of his brother, and the formerly resident Year 12 student as the complainant in the regional centre where they reside. Further, the teacher raises concerns that her husband’s health may be affected, although no medical evidence was provided in support of this concern. Her husband raises concerns about the effect on his reputation and employment. The formerly resident Year 12 student raises some general concerns that the mental and physical health of himself and his mother may be adversely affected. Again, medical evidence is not provided.
[16] Paragraph 9 above.
The QCT supports the application to the extent of non-publication of the respondent’s name; the name of the school; and that it was a state school. It concedes that there is a genuine risk that publication may lead to identification of the complainant, and in the circumstances of the case, mistaken identification of other persons as the complainant. However, it submits that as there are 15 schools in the regional area, and that the events occurred some years ago, that de-identification of the regional centre is not required.
Section 66 of the QCAT Act provides that the tribunal may make a non-publication order prohibiting, among other things, the publication of evidence given before the tribunal[17] and information that may enable a person affected by a proceeding to be identified,[18] only if it considers it is necessary for reasons including, to avoid endangering the physical or mental health or safety of a person,[19] and for any other reason in the interests of justice.[20]
[17] Section 66(1)(b).
[18] Section 66(1)(c).
[19] Section 66(2)(b).
[20] Section 66 (2)(e).
There is considerable deterrent effect in publicly naming professional persons whose conduct attracts disciplinary sanction. In this regard, the tribunal notes the approach and comments made in QCT v Stark.[21] A non-publication order is not appropriate if its real purpose is to avoid the consequences of one’s behaviour.[22] In the ordinary course, publication will occur.
[21] [2010] QCAT 592.
[22] See Queensland College of Teachers v Stark [2010] QCAT 592.
The respondent and her husband reside in a large regional centre, as do the complainant and the other persons who may mistakenly be identified as the complainant. The tribunal accepts, given the time spent at the home of the teacher, by the formerly resident Year 12 student and the complainant’s brother, as well as the complainant, that if publication occurs, there is a real risk of identification of the complainant or mistaken identification of other persons as the complainant.
In the absence of any medical evidence, the tribunal is not satisfied on the balance of probabilities that publication is likely to have an adverse effect on the health of the teacher’s husband, or the formerly resident Year 12 student and his mother. The concerns of the teacher’s husband about his reputation do not fall within those matters for which a non-publication order may be granted.
The tribunal accepts the submission of the QCT that it is appropriate to make an order to protect the identity of the complainant and the others who may be mistakenly identified as the complainant. In the interest of consistency the tribunal considers it is also necessary to prohibit publication of the teacher’s name. She was acquitted of the criminal charges and publication of her name might lead to identification or mistaken identification of other persons. The tribunal further prohibits the publication of the name of the school. Given the size of the regional centre in which the persons concerned reside however, the tribunal does identify the school as a state school.
The tribunal pursuant to subsection 66(1) of the QCAT Act makes a non-publication order. This non-publication order includes the teacher’s name, the name of the complainant, his brother, the Year 12 student who formerly resided in the teacher’s house, and the name of the school. Publication is prohibited.
These reasons are to be published in a de-identified format in compliance with this order.
Any person who accesses the file of material in this case is prohibited from publishing the information contained in paragraph 40 of these reasons for decision.
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