Queensland College of Teachers v Cst
[2013] QCAT 545
| CITATION: | Queensland College of Teachers v CST [2013] QCAT 545 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| CST (Respondent) |
| APPLICATION NUMBER: | OCR293-11 |
| MATTER TYPE: | Occupation regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Joanne Browne, Presiding Member Murray Green, Member Stuart MacDonald, Member |
| DELIVERED ON: | 8 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The referral from Queensland College of Teachers is dismissed. 2. Publication of the names of the respondent, the complainant child and all witnesses referred to in these proceedings is prohibited. |
| CATCHWORDS: | TEACHER – suitability to teach – where teacher charged and acquitted of serious offences – where complainant child’s credibility was an issue – whether evidence establishes that teacher is unsuitable to teach NON-PUBLICATION ORDER – where contrary to the public interest to identify names of teacher and complainant child Education (Queensland College of Teachers) Act 2005 ss 3, 12(3), 12A, 92(1)(h), 160(2)(d) Briginshaw v Briginshaw (1938) 60 CLR 336, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
CST is an approved teacher with some 26 years experience. He identifies as an Indigenous teacher and has held many positions in the Department of Education Queensland including, for example, Year Coordinator, Head of Learning Community, Dean of Students and Acting Deputy Principal.
CST has professional and personal references that attest to his dedication as a teacher and his ‘genuine concern for the wellbeing of the Aboriginal and Torres Strait Islander students within his school’.[1]
[1] Submissions of the respondent filed 24 April 2013.
On 7 December 2011 CST was charged with 3 counts of ‘serious offences’ concerning allegations made in 2010 in relation to his 14 year old stepdaughter. It is alleged CST had tickled or massaged her body, moved or ‘assisted’ her shirt exposing her breasts and underwear, and exposed his penis to the complainant child.[2]
[2]Referral of Disciplinary Matter to QCAT pursuant to s 97 of the Education (Queensland College of Teachers) Act 2005, dated 15 February 2013.
CST was suspended from teaching as a result of the charges from 9 December 2011 to 14 January 2013, inclusive, under s 48 of the Education (Queensland College of Teachers) Act 2005.[3]
[3]There is an immediate suspension under s 48 of the Education (Queensland College of Teachers) Act 2005 where there is a charge for a ‘serious offence’.
On 7 November 2012, CST was acquitted of all charges following a trial in the District Court of Queensland.
The Queensland College of Teachers (QCT) has referred the matter concerning CST and the circumstances of the allegations to the Tribunal to determine whether there are grounds for disciplinary action on the basis that CST is unsuitable to teach.
The allegations made by the complainant child are serious and the consequences of a finding, by the Tribunal, that CST is unsuitable to teach are also serious in that he may have his registration suspended or terminated.
It is a matter for the Tribunal to determine whether in all of the circumstances and having considered the material relating to the ‘serious offence’ charges, a ‘substantial case remains’ against CST.[4] The standard upon which the Tribunal must be satisfied in considering all of the evidence is the civil standard on the balance of probabilities as set out in the decision of Briginshaw v Briginshaw.[5]
[4]See Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86.
[5] (1938) 60 CLR 336.
The circumstances surrounding the “serious offence” charges
CST was acquitted of all charges following a unanimous verdict by a jury, in the District Court after less than one hour’s deliberation.[6] The Tribunal has obtained a copy of the relevant material in relation to the allegations giving rise to the charges and the transcripts of pre-recorded evidence of the complainant child and her friend in the District Court, from the Director of Public Prosecutions.
[6] Submissions of the respondent filed 24 April 2013, [7].
The material before the Tribunal includes transcripts of police interviews (section 93A interview) of the complainant child, the complainant child’s sister and friends; and witness statements of the complainant child’s mother, CST; and investigating police officers.
The complainant child was not a student of CST. The circumstances giving rise to the allegations and the charges presented against CST took place in the background of conflict between him and the complainant child, his step-daughter. This included forms of punishment introduced by CST such as, for example, removal of internet and phone privileges from the complainant child. There is evidence before the Tribunal to indicate that the ‘rules’ imposed by CST caused the complainant child ‘distress’.[7]
[7] Submissions of the respondent filed 24 April 2013, [6].
The complainant child, during the interview with police, was questioned about ‘the best thing about staying at [her] Dad’s [place]’ and she replied: ‘Um I don’t know. Don’t have as many rules’.[8] The complainant child also states during the interview that she has Skype and Facebook accounts and that she keeps them ‘hidden’ from CST because he does not let her have ‘Skype or anything’.[9]
[8]Notice to produce documents (Office of the Director of Public Prosecutions), transcript of section 93A interview with the complainant child dated 7 December 2011, p 7.
[9] Ibid 28.
The complainant child was questioned at the hearing of the criminal charges (pre-recorded evidence) in relation to the ‘rules’ imposed by CST. The complainant child confirmed that her iPhone and internet use were the cause of ‘fights’ between her, her mother and CST.[10] The complainant child also confirmed that she had told her friends that CST and her mother would take her phone away for ‘no reason’. However, she later answered ‘No’ when asked: ‘But that’s not the case, is it?’[11]
[10]Notice to produce documents (Office of the Director of Public Prosecutions), transcript of pre-recorded evidence (complainant child), 9 August 2012, p 17 line 20.
[11]Ibid p 25 line 40.
One of the complainant child’s friends (FE), during a police interview, referred to ‘fights’ between the complainant child and CST. FE states that the complainant child would ‘run away from home.’[12] In the same interview she told police that the complainant child wanted to ‘go live with her Dad’.[13]
[12]Notice to produce documents (Office of the Director of Public Prosecutions), transcript of section 93A interview with FE [the complainant child’s friend] dated 19 December 2011, p 9.
[13]Notice to produce documents (Office of the Director of Public Prosecutions), transcript of section 93A interview (complainant child) dated 7 December 2011, p 13.
Another relevant factor to be considered by the Tribunal is the complainant child’s credibility in that there were inconsistencies in her evidence about certain events. The complainant child was questioned in her pre-recorded evidence about the “inconsistencies” in the allegations made by her and what she had previously told police about the allegations. For example, the complainant child stated that on one occasion ‘in the car’ CST ‘wanted to touch [her] leg above [her] knee’ and that he ‘did [touch her] at one point’. The following is an extract from the transcript:
Did he actually do them to you in the car?—He did at one point, but I told him to stop, and then he did [sic] it anymore because he was angry [because] I told him to stop.
You say he did at one point?—Yes
What did he do?—Have his hand above my knee on my thigh.
So he actually touched you?—Yes, he just had his hand resting there.
Do you remember talking to police last week?—Yes.
Did you tell the police that, “He didn’t end up doing it in the end because he knew I didn’t want to”?—Yes, I told them that, but he didn’t do it in the end because I told him to stop.
He didn’t touch you in the car, did he?—Yes, he did.[14]
[14]Notice to produce documents (Office of the Director of Public Prosecutions), transcript of pre-recorded evidence (complainant child) dated 9 August 2012, pp 332, 333.
In the police (section 93A) interview the complainant child refers to telling her mother about one of the incidents involving CST on “Skype”. The complainant child states:
And then I told her but I didn’t have my phone to contact, and I couldn’t say it to her face [because] CST’s always there.
And so I told her. And she was just like um ah saying that she hated him and that she can’t trust him any more and that um if, asking if I want CST to know.
And I kept saying no. But I guess in a way, [because] I want him gone but I don’t, [because] I still want Mum to be happy.[15]
[15]Notice to produce documents (Office of the Director of Public Prosecutions), transcript of section 93A interview (complainant child) dated 7 December 2011, pp 23, 24.
The Tribunal has also considered the fact that CST has consistently denied the allegations and he gave evidence at the District Court trial and was subjected to cross-examination about the allegations.
CST’s denial of the allegations is supported by the evidence of BE who was his partner at that time and the mother of the complainant child. In BE’s witness statement she refers to discussing the allegations with CST. She states that CST told her the following in response to the allegations:
CST said words to the effect of, “It happened in November the previous year. Something had gone on, on that day but not to the extent that [the complainant child] had made out. I swear I didn’t take my private part out and play with it. [The complainant child] had been acting in a provocative way towards me…”.[16]
[16]Notice to produce documents (Office of the Director of Public Prosecutions), witness statement of BE, [19].
There is also evidence before the Tribunal in relation to the complainant child’s sister who told police that the complainant child told her to ‘say bad things about CST’ and when asked by police whether she (the complainant child) said why she wanted her to ‘say bad things’, the complainant child’s sister responded: ‘No. Just to get him out of the house, that’s all’.[17]
[17]Notice to produce documents (Office of the Director of Public Prosecutions), transcript of section 93A interview with [the complainant child’s sister] dated 16 February 2012, pp 6, 7.
Is CST unsuitable to teach?
The QCT concedes, in written submissions filed, that “the evidence does not establish that ‘ground for disciplinary action’ ‘not suitable to teach’”.[18] The Tribunal agrees with the QCT’s submission.
[18]Submissions of QCT dated 16 April 2013, [8].
The material concerning the allegations has been carefully considered. The Tribunal finds that it cannot be satisfied based on all of the material that grounds exist for disciplinary action to be taken against CST. The only basis for disciplinary action is the allegations made by the complainant child.
The allegations made by the complainant child have taken place in the background of family conflict in particular the enforcement of ‘rules’ by CST against the complainant child. The allegations have been consistently denied by CST; and there are inconsistencies in the complainant child’s evidence about the allegations. The evidence of the complainant child’s sister, amongst other evidence, suggests the complainant child was motivated to say things designed to get CST out of the house.
The Tribunal has also considered that in the absence of any further evidence or submissions made by the QCT as to CST’s conduct since the charges were dismissed, that there are no other relevant factors to be considered in determining whether he is unsuitable to teach. The application for referral is to be dismissed.
Non-publication order
The Tribunal has the power under section 66 of the QCAT Act to prohibit the publication of information that might enable a person or people such as the complainant child and witnesses who have given evidence in relation to the criminal proceedings to be identified in circumstances where it would not be in the interests of justice to identify their names.
The Tribunal has determined that the application for referral be dismissed. The complainant child was of school age at the time the allegations were made. There is no public interest served by disclosing the names of CST, the complainant child and witnesses in relation to the criminal proceedings. The Tribunal therefore prohibits the publication of the names of the respondent (CST), the complainant child and all witnesses in relation to the criminal proceedings.
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