Queensland College of Teachers v Brady
[2011] QCAT 464
•4 October 2011
| CITATION: | Queensland College of Teachers v Brady [2011] QCAT 464 |
| PARTIES: | Queensland College of Teachers |
| v | |
| James Peter Brady |
| APPLICATION NUMBER: | OCR002-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 26 September 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member A Ashman, Member J Lindgren, Member |
| DELIVERED ON: | 4 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. James Peter Brady is prohibited from applying for registration or permission to teach until 26 November 2013. 2. Publication of the name and address of student X and student Z and the name and address of the school attended by those students disclosed in evidence before the tribunal is prohibited. |
| CATCHWORDS: | TEACHER – whether suitable to teach –where teacher engaged in inappropriate relationships with two students NON-PUBLICATION – of identifying information about students – in interests of justice Education (Queensland College of Teachers) Act 2005, ss 11, 12(2), 92(1)(h), 161(2)(c) Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland College of Teachers appearing by J Gormley, Principal Legal Officer from the Queensland College of Teachers |
| RESPONDENT: | James Peter Brady |
REASONS FOR DECISION
James Brady was a teacher employed in a school in a regional Queensland town in 2006 and for part of 2007. From Term 1, 2006, Mr Brady’s behaviour in the presence of his students came to the attention of the school administration. A series of events over 12 months ultimately led to a complaint and criminal charges being laid against him. A complete chronology of the events is unnecessary. Several of these appear benign in their presentation but taken as a collection, they established the basis for the concerns expressed by the Principal, Deputy Principal, and other senior staff. A number of these are given in the following paragraphs.
In Term 1 of 2006, complaints were made to the Deputy Principal about Mr Brady’s use of offensive language and about his making inappropriate remarks to students in his year 10 science class.
About a week prior to these complaints being made, three female students had gone to Mr Brady’s residence on their own initiative and engaged him in conversation in front of his residence. Mr Brady gave one of the students (X) his jacket to wear that evening at a local festival. Other students from the school who were also attending the festival had recognised the jacket as belonging to Mr Brady. The student returned to Mr Brady’s residence the following day to return the jacket.
At a meeting on 13 March 2006 with the Principal and Deputy Principal, Mr Brady was informed that his behaviours in these matters had been inappropriate.
In 2006 Mr Brady was the supervisor of a female Year 11 student (Z) who was undertaking a school based traineeship. Mr Brady and the student/trainee worked together in the school science laboratories. On 23 March 2006 Mr Brady walked the student/trainee from the school to his residence and then drove her to the place where her mother was to pick her up. The following month Mr Brady sat next to the student/trainee while on a bus excursion, grabbed her diary and read it.
In Term 1 of 2006, Mr Brady provided tutoring sessions in mathematics to a female student (X) on a one-on-one basis after school on two days a week. During the tutoring sessions, Mr Brady and the student discussed personal matters. They exchanged letters and notes at other times. The notes included some sexual content and the letters contained references to Mr Brady and the student being friends outside the teacher/student relationship. The student revealed that she had thoughts of self-harming.
Mr Brady encouraged the student to seek help but she declined to do so. Mr Brady gave the student his mobile telephone number and they exchanged text messages very frequently over about a three-month period to August 2006.
Mr Brady and the student walked together from the school into town on 4 April 2006. The Principal shortly afterwards informed Mr Brady that this behaviour was not appropriate.
On 15 August 2006 the student went to Mr Brady’s residence and after leaving there, she sent a text message to him stating that she was thinking about jumping off a building. Mr Brady met up with the student and drove her to her home.
[10] By this time, stories were circulating at the school that the student had performed oral sex on Mr Brady. On 23 August 2006 Mr Brady met with representatives of his employer and denied the allegations of sexual misconduct. Mr Brady acknowledged that he had sent text messages to the student, he had met her alone, and that he had overstepped some teacher/student boundaries. He agreed not to respond to future text messages from the student, to have a third person present at future discussions with the student, and to notify the Principal, Deputy Principal, or the police immediately if he became aware that the student was in danger of self-harm.
[11] In early March 2007 the student gave Mr Brady a plush toy as a gift. He declined to accept it but placed it on a shelf in the science laboratory. He did not report to the school that the student had given him the toy.
[12] In August or September 2006 the student/trainee (Z) gave Mr Brady a number of love letters. They would regularly hug and kiss during the time Mr Brady was conducting traineeship supervision of this student.
[13] On or about 5 December 2006 Mr Brady was alone in a science classroom with the student/trainee with the door of the classroom closed. He drove the student/trainee to her home after finishing her traineeship at 6pm. Mr Brady later acknowledged that he should not have driven the student/trainee to her home.
[14] On 7 March 2007 Mr Brady was suspended from his employment. He was directed on 7 March 2007 not to have any contact with any student at the school. Mr Brady resigned from his employment on 26 March 2007. He was charged in 2008 with five counts of sexual assault and was acquitted after a trial in February 2010.
[15] Over the course of the months during which these events took place, Mr Brady was involved in several meetings with his school’s administrators and also in correspondence with regional staff officers in relation to his behaviour.
Disciplinary action
[16] In April 2007, the Queensland College of Teachers received information about a disciplinary matter concerning Mr Brady from his former employer. QCT appointed an officer to conduct an investigation into the disciplinary matter. The investigation by QCT was suspended while criminal proceedings against Mr Brady were current but continued after his acquittal.
[17] The disciplinary matter in which it was alleged that Mr Brady was not suitable to teach was referred to QCAT for determination. Mr Brady agreed to the facts as set out in paragraphs 2 to 14 of these reasons.
Disputed facts
[18] The QCT has included facts additional to those set out in paragraphs 2 to 14 of these reasons in the disciplinary matter referred to QCAT. Those additional facts relate to allegations that Mr Brady had a sexual relationship with student X, that he breached the direction not to have contact with students at the school when he spoke with student X on 8 March 2007, that there was some sexual content in text messages sent between himself and student X in 2006 and that he was aware that student X was consuming alcohol at school in November 2006.
Findings on fact
[19] Considerable evidence was provided to QCAT about the facts that have been alleged in this discipline matter. That evidence was contained in written statements from students and staff at the school, transcripts of recorded interviews with students and staff at the school, copies of letters from Mr Brady and from student X, copies of notes and emails from student X, and a transcript of evidence and addresses to the jury from the District Court hearing of the criminal proceedings brought against Mr Brady. At the QCAT hearing, the QCT investigator was cross-examined as was a police officer engaged in electronic analysis of computers.
[20] At the centre of the disciplinary matter are students X and Z. Student X was 15 years of age and in Year 10 during 2006. Student Z turned 16 years of age in May 2006 and was in Year 11 in 2006. Neither X or Z was called to give evidence in person before QCAT.
[21] The facts relied on by the QCT in the disciplinary matter about student Z are admitted by Mr Brady and are not in dispute. After examining the evidence provided to QCAT and in view of the admissions made by Mr Brady, the tribunal found that the facts relied on in the disciplinary matter relating to student Z are substantiated.
[22] The facts relating to allegations not specifically relating to either student X or student Z have also been admitted by Mr Brady. Those facts relate to the use of inappropriate sexual remarks in class, not complying with non-contact directives given by the Principal and/or Deputy Principal (other than on 8 March 2007), not complying with directives given by the Principal and Deputy Principal about his professional conduct and breaching policies of his employer and professional registration authority. After examining the evidence provided to QCAT and in view of the admissions made by Mr Brady, the tribunal found that the facts relied on in the disciplinary matter relating to these matters are substantiated.
[23] The tribunal is in quite a different position when considering the facts about student X relied on by the QCT. Many of the alleged facts about student X are not disputed but are admitted by Mr Brady. Other facts are disputed. At the core of the dispute are the allegations that Mr Brady and student X had engaged in sexual conduct on five or six occasions. Those allegations are denied by Mr Brady.
Allegations of sexual conduct made by student X
[24] From an examination of the evidence, it is clear that student X is an untruthful witness. On several occasions in 2006 and 2007 she denied that any sexual conduct had occurred with Mr Brady. Those denials were made to school authorities, to the police, and to the QCT investigators. Then in November 2007 she made allegations to the QCT investigators that sexual conduct had taken place. She subsequently repeated those allegations to the police and gave sworn evidence during criminal proceedings about the occasions when she and Mr Brady engaged in sexual conduct.
[25] It is trite to state that student X was either being untruthful when she denied the allegations of sexual conduct or she was being untruthful when she made the allegations that sexual conduct took place. The tribunal did not have the opportunity to see student X in person or to ask her questions about the inconsistencies in her various accounts of what happened in 2006 and 2007. No satisfactory explanation was provided for the change in her evidence some eight months after she left school. The tribunal cannot resort to speculation as to why student X changed her evidence.
[26] In this case, there is no direct corroboration of the allegations that sexual conduct took place apart from the evidence of student X. There was no witness who saw any of the incidents claimed by student X. There was no evidence as to who was the initial source of the rumours of sexual conduct that swept around the school in 2006 but a reasonable inference could be drawn that student X was the source as she had told one of her friends at the school that she had engaged in sexual acts with Mr Brady.
[27] At around the same time, student X had denied the rumours when raised by other students. Letters written by student X to Mr Brady and his letters in reply do not make any reference to sexual conduct having occurred or suggested as part of any future relationship. The letters reveal more of a friendship or supportive role being offered by Mr Brady to a troubled young girl. No witness gave evidence that they had seen student X and Mr Brady acting in public in a familiar manner that could lead to a reasonable inference being drawn that they were engaged in a sexual relationship.
[28] There was evidence that student X had published a story on a website that could be seen as an admission by her of some type of sexual relationship with a teacher. A copy of the story was not produced to the tribunal.
[29] The tribunal was provided with copies of emails between student X and a person from the United States of America sent between November 2006 and January 2007. In those emails student X makes allegations of having engaged in some sexual conduct with Mr Brady. Student X discontinued the email exchange after she was contacted by police investigating the allegations. She denied the allegations when questioned by the police.
[30] The final evidence provided in support of the allegations consists of copies of MSN chat room exchanges and email messages sent in 2008 before Mr Brady was charged with criminal offences by the police. Student X alleges that she was one of the authors of the messages and that Mr Brady was the other author communicating with her. Mr Brady denies that he was the person electronically communicating with student X in 2008.
[31] The authors of the messages had user names but none of the names used was clearly linked to Mr Brady. He has not acknowledged that any of the names were his user names. The messages were not presented as part of the disciplinary matter taken against Mr Brady by the QCT but are presented as evidence that seeks to corroborate the sexual conduct alleged to have taken place in 2006 and 2007. The person with the user name attributed to Mr Brady by student X does not admit the specifics of the sexual conduct that is alleged to have taken place in 2006 or 2007. At best QCAT is asked to draw inferences of admissions from the messages.
[32] The police computer analyst gave evidence that over one thousand traces of the user name for student X were found on the hard drive of Mr Brady’s computer. It could not be established when all of the traces came onto his computer. In addition, some words were found in the traces on Mr Brady’s computer that were common to wording used in emails send by student X in the period from 29 April 2008 to 9 May 2008. No evidence of the MSN messages was found on Mr Brady’s computer.
[33] The computer analyst could not provide a definite explanation as to how the traces of the emails sent in April and May 2008 came to be on Mr Brady’s computer. It could be inferred that they were sent to Mr Brady’s computer by student X but it is not inevitably the case that it must also be inferred that any part of the emails were sent by Mr Brady. Evidence was given that a trace of an email could be found on a computer if a forwarded email is merely opened and then closed.
[34] After considering all of the evidence, the tribunal was left without an actual persuasion that the sexual conduct alleged by student X had occurred. Under the civil standard of proof, an actual proof of a fact is not required; proof on the balance of probabilities is all that is required. The words of Dixon J (as he then was) in Briginshaw v Briginshaw[1] are helpful here:
“Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the facts or facts to be proved. 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 to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[35] In the case of the allegations of sexual conduct made by student X, all the evidence provided to the tribunal could be said to fall within the categories of inexact proofs and indirect inferences. All of the evidence ultimately rests on what student X has said. She has not been a truthful witness. There is no satisfactory corroborating evidence independent of student X. The evidence independent of student X, such as the letters written by Mr Brady in 2006 at the time when a sexual relationship was alleged to be occurring, do not support a finding of sexual misconduct but rather a finding of friendship and support for a troubled girl.
[36] The tribunal cannot come to a reasonable satisfaction that the allegations made by student X have been proved given the gravity of the consequences flowing from a finding that sexual conduct on five or six occasions had taken place between a student aged 15 and her teacher.
The remaining agreed facts about student X
[37] Mr Brady admits that he behaved in an inappropriate way by being alone with student X on a number of occasions, that he engaged in inappropriate texting with student X, that he failed to report receiving an inappropriate gift of a plush toy from student X and that he maintained an inappropriate relationship with student X.
[38] After examining the evidence provided to QCAT and in view of the admissions made by Mr Brady, the tribunal found that the facts relied on in the disciplinary matter relating to the matters in paragraph 35 are substantiated.
The remaining disputed facts
[39] Mr Brady disputed facts relied on by the QCT that underpin three of the allegations in the disciplinary matter referred to QCAT: that Mr Brady disobeyed a directive given by the Principal not to have contact with student X after 7 March 2007; that Mr Brady had sent text messages to student X containing sexual content; and that Mr Brady had permitted student X to drink alcohol on school grounds.
[40] The tribunal considers that it is not necessary to make findings on the remaining disputed facts set out above. Both the QCT and Mr Brady submitted that should QCAT find that the admitted facts were proven, those facts alone would provide a valid basis for QCAT to conclude that a ground for disciplinary action exists under section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005. The tribunal accepts the cogency of those submissions. Making a finding either that facts have been proven or have not been proven in relation to a further three allegations has in the circumstances no practical impact on the conclusion that QCAT is being invited to make, namely that Mr Brady is not suitable to teach, given the serious nature of the admitted conduct.
Whether ground for disciplinary matter exists
[41] QCAT must consider in this disciplinary matter whether Mr Brady is not suitable to teach.[2] The phrase “suitable to teach” is not defined in the dictionary in schedule 3 of the Act. The phrase is given meaning to some extent in sections 11, 12 and 12A of the Act and the tribunal has had regard, where relevant, to those sections.
[2] Section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005.
[42] Dealing now with the matters in sections 11 and 12 of the Act, QCAT must consider Mr Brady’s criminal history. As a result of the definition of criminal history in schedule 3 of the Act[3], it is the case that Mr Brady has a criminal history as he had been charged with several criminal offences. Although he was acquitted of all charges, being charged with those offences is sufficient to constitute a criminal history in terms of section 11.
[3] Criminal history means, inter alia, every charge of an offence made against a person.
[43] The offences were based on allegations of unlawful sexual conduct between Mr Brady and student X. Conduct of that type, if proven, is directly relevant to the duties of a teacher who is in a position of trust with children and who has an obligation to exercise care to protect children from harm. However, the prosecution did not prove beyond reasonable doubt that the offences had occurred as Mr Brady was acquitted of all charges.
[44] In this case, Mr Brady had denied that any sexual conduct had occurred. It was not a case where the accused admits that some actions took place but that the actions had been misinterpreted or exaggerated. The only inference that QCAT can reasonably draw is that the jury was not satisfied that Mr Brady had engaged in any sexual conduct with student X.
[45] This is the same result that the tribunal reached on examination of the evidence. As the charges were ultimately not proven and as the tribunal was not satisfied that the alleged sexual conduct took place, the tribunal considers that Mr Brady’s criminal history does not compel a finding that he is not suitable to teach.
[46] The QCT has submitted that Mr Brady is not suited to work in a child related field.[4] It was submitted that the facts found to have been proven establish that Mr Brady’s behaviour posed an unacceptable risk of harm to children. Certain behaviour by Mr Brady, such as being alone with a student (at school, at his residence, or in his car), hugging and kissing a student, maintaining an inappropriate friendship with a student, exchanging letters, notes and text messages with a student, demonstrate to the tribunal that he crossed teacher-student boundaries.
[4] Section 12(1)(b) of the Education (Queensland College of Teachers) Act 2005.
[47] Both student X and student Z professed love for him in 2006. They were impressionable young women, one of whom was only 15 years old and the other student had turned 16 years of age mid-2006. As their teacher, Mr Brady occupied a position of trust and had a responsibility to look out for their welfare and best interests.
[48] His responses to their attentions ignored his responsibilities and were ultimately a betrayal of their trust. His irresponsible behaviour towards these students gave rise to a real risk of emotional harm being caused to these impressionable young women. The tribunal is satisfied that Mr Brady had posed an unacceptable risk of harm to his students in 2006.[5]
[5]The tribunal considers apposite the discussion of unacceptable risk of harm found in M v M [1988] HCA 68 and in Re OAA [2006] QCST 14.
[49] The position at the time of the hearing of the disciplinary matter in 2011 appears to remain the same. Mr Brady did not give any evidence that he had undertaken education in boundary setting or that he had gained any insight into the risks that his behaviour had generated. He did not provide any explanation for his behaviour or seek in any way to allay the concerns raised by his professional registration authority about the risks of harm that his behaviour had caused in the past.
[50] In the absence of any evidence that Mr Brady has gained insight into the deleterious and harmful effects of his past behaviour or that he now appreciates the extent of his professional responsibilities as a teacher, the tribunal is left in the position where it remains of the view that Mr Brady poses an unacceptable risk of harm to children. This position is the result of the tribunal weighing up the risks of harm likely to emanate from Mr Brady’s unchanged attitudes and behaviour with the welfare and best interests of children. The tribunal concludes that Mr Brady is not suitable to work in a child-related field.
[51] In view of that conclusion, the tribunal is satisfied that it has been established that there are grounds for disciplinary action to be taken against Mr Brady in that the tribunal considers he is not suitable to teach.
Sanction to be imposed
[52] Sections 160 and 161 of the Education (Queensland College of Teachers) Act 2005 provide QCAT with a range of sanctions that can be applied once grounds for disciplinary action have been established. Mr Brady is a former approved teacher as he is not currently registered as a teacher. The provisions as to sanction in section 161 apply to him.
[53] By way of sanction, the QCT seeks an order prohibiting Mr Brady from re-applying for registration for three years. This sanction is not contested by Mr Brady. He has not provided any information designed to convince the tribunal that some lesser sanction should be imposed.
[54] Sanctions imposed by the tribunal after a finding is made that a person is not suitable to teach are not imposed as a punishment for the conduct that was found to warrant disciplinary action. A sanction in a disciplinary matter is imposed in the interests of the protection of children and of the community.
[55] The sanction to be imposed must be of some general deterrence to teachers as well as being responsive to the particular circumstances of each case. The correct approach of a sanction must seek to give both a general deterrence to the members of the teaching profession and a specific deterrence to further irresponsible conduct by the teacher in question.
[56] In this case, the tribunal has taken several factors into account when determining the appropriate sanction. Those factors include the protracted nature of the conduct through 2006 and early 2007, the development of inappropriate relationships with two students, extensive exchange of personal communications between Mr Brady and student X, inappropriate use of swearing and sexualised comments to his class and continuing this behaviour despite repeated intervention, warnings and guidance by administration personnel at his school. These factors would warrant a strong deterrence element to the sanction.
[57] There are, however, some mitigating features that should temper a strong response by way of sanction such as the youth and relative inexperience of Mr Brady at the relevant time, the evidence that he was suffering from depression at the time and his co-operation in this current disciplinary action.
[58] The tribunal considers that both general and specific deterrence would be achieved by an order prohibiting Mr Brady from reapplying for registration as a teacher for a significant period of time. At the same time, the period set for the prohibition must also acknowledge the mitigating factors found by the tribunal. The QCT has provided details of some comparative sanctions that have been helpful when determining the sanction in this case.
[59] The circumstances of the case and the earlier comparative sanctions lead the tribunal to be satisfied that a three-year prohibition for re-applying for registration is warranted and appropriate. In addition the tribunal notes that Mr Brady’s registration was suspended for 10 months (from 3 June 2008 to 8 April 2009). That period of suspension should be taken into account and 10 months should be offset against the three-year period during which Mr Brady cannot re-apply for registration as a teacher.
Non publication of identifying information
[60] Student X was the complainant about matters that eventually became the subject of criminal charges brought against Mr Brady. In most circumstances, the provisions in the Criminal Law (Sexual Offences) Act 1978 would require steps to be taken to prohibit the publication of details about her name, address, school, and place of employment, or of any other detail that is likely to lead to the identification of student X. Such a prohibition might not automatically apply to publication of these reasons due to the effect of section 10A of that Act.[6]
[6]Sections 6, 7 and 10 of the Criminal Law (Sexual Offences) Act 1978 are not intended to prevent a person from giving information that is permitted or required to be given under another law.
[61] However, the tribunal considers that it is not appropriate to permit disclosure of information that would identify student X who has moved on with her life since the events in 2006 when she was 15 years of age. It is also appropriate to apply a similar sentiment about student Z. It is in the interests of justice that children and young people are confident that their personal particulars will be kept private when they are caught up in disciplinary action taken against their teachers so that the objects of the Education (Queensland College of Teachers) Act 2005 are achieved.
[62] The tribunal has power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit publication of information that may enable a person affected by the proceeding to be identified. It is necessary to make an order under that section to prohibit the publication of the names of the student X and student Z and the name and address of the school attended by those students.
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