Queensland College of Teachers v DYR
[2016] QCAT 427
•14 October 2016
Disciplinary
| CITATION: | Queensland College of Teachers v DYR [2016] QCAT 427 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| DYR (Respondent) |
| APPLICATION NUMBER: | OCR170-15 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 14 July 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard, Presiding Member Member Day Member Rogers |
| DELIVERED ON: | 14 October 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. A disciplinary ground has not been established against DYR. 2. The suspension of the teacher registration of DYR is ended. 3. (i) Publication of information about these proceedings which may identify DYR or any of his family members is prohibited, except as referred to in (ii) below; (ii) DYR may publish a copy of these reasons for decision that identify him to potential employees. |
| CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher charged with indecent treatment of children under 16 years – where acquitted by jury – where applicant conceded evidence does not establish ground for disciplinary action – whether teacher unsuitable to teach. Acts Interpretation Act 1954 (Qld), s 20 |
APPEARANCES and REPRESENTATIVES (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
DYR was first registered as a teacher in 2001. In September 2014, following allegations by family members, he was charged with three counts of indecent treatment of a child under 16 who is a lineal descendent.
His registration as a teacher was suspended on 16 September 2014 by the Queensland College of Teachers.[1] This Tribunal continued the suspension on 28 November 2014.[2] He is now a former approved teacher, his teacher registration having lapsed on 7 April 2015.
[1]Education (Queensland College of Teachers) Act 2003 (Qld) s 48.
[2]Queensland College of Teachers v DJR [2014] QCAT 642.
The criminal charges proceeded to trial in the District Court on two counts only. The jury acquitted DYR.
In 2015, the Queensland College of Teachers made a disciplinary referral to the Tribunal that a ground for disciplinary action exists against DYR, namely, that the teacher is not suitable to teach, and the teacher was charged with a serious offence and the charge has been dealt with.
Under s 92 (2) of the Education (Queensland College of Teachers) Act 2005 (Qld) (the QCT Act), the ground of disciplinary action that the teacher is not suitable to teach,[3] is taken to apply to a teacher charged with a serious offence, which has been dealt with. [4] The QCT was obliged to refer the disciplinary ground to the Tribunal to consider the circumstances of the charge. [5]
[3]QCT Act s 92(1)(h). Subsequent to the hearing, amendments have been made to the QCT Act and in particular s 92(1)(h). However, these proceedings are unaffected: Acts Interpretation Act 1954 (Qld) s 20.
[4]QCT Act, s 92(2)(a)(i) and see also discussion in Queensland College of Teachers v CSK [2016] QCATA 125. Serious offence is defined in the QCT Act, Schedule 3, ‘serious offence’. Dealt with is defined for s 92 in s 92(5) of the QCT Act to include ‘acquitted of the charge.’
[5]QCT Act s 92(3) and see also discussion in Queensland College of Teachers v CSK [2016] QCATA 125.
The Tribunal must determine if the ground for disciplinary action has been established[6] and, if so, decide what disciplinary action should be taken.[7] If a ground for disciplinary action is not established and the teacher registration is suspended, then QCAT must end the suspension. The Tribunal’s determination is limited or constrained by the disciplinary charge which forms the basis for the referral.[8]
[6]QCT Act s 158.
[7]QCT Act s160 and s 161, depending upon whether the teacher is an approved teacher or a former approved teacher respectively.
[8]Queensland College of Teachers v CSK [2016] QCATA 125.
DYR made submissions during the proceeding. These were to the effect that he had ‘insufficient financial and emotional resources to contest any motion being made by the Queensland College of Teachers’ and considered the charges arose ‘out of a complex family matrix’ and ‘conflict which had spiralled out of control’; and further stating that he felt ‘so damaged by the consequences of the charges’ which had destroyed his employment, family and resulted in the loss of his home and was ‘unable to attend the Tribunal as I am now living and working overseas.’[9]
[9]Email DYR to QCAT dated 2 April 2016.
Is DYR ‘not suitable to teach’?
The charges against DYR were that:
On unknown dates between 2004 and 2007, [DYR] has indecently dealt with the complainant ….. by : - commenting on and touching her breasts, discussing sex and masturbation with her, placing her hands on his penis.
The QCT’s submission concedes that, while it is ultimately a matter for the Tribunal, ‘the evidence does not establish the ‘ground for disciplinary action’[10] that the teacher is ‘not suitable to teach.’[11] It submits that the evidence as to the available material is irreconcilable, challenged and is uncorroborated. Further, it submits that the charges arose from family circumstances, they do not go to DYR’s conduct and competency as a teacher and there are no known previous complaints against him.
[10]QCT Act s 92(1).
[11]Ibid, s 92(1)(h).
We have considered the documents produced by the Director of Public Prosecutions, including as follows:
a) Police Court Brief (QP9) and Bench charge Sheets;
b) Transcript of pre-text telephone conversation dated 25.05.2014;
c) Indictment against DYR;
d) Witness statements;
e) Letter to doctor referred to in witness statement;
f) Printouts of text messages referred to in witness statements;
g) Extracts of police notebook No K010512;
h) Maps;
i) Lists of formal admissions between the parties pursuant to section 644 of the Criminal Code; and
j) Transcripts of trial proceedings in District Court.
The charges concerned conduct alleged to have occurred some 11 years before the charges were laid. The evidence of the complainant was not corroborated, although it was supported by her husband, whom the complainant allegedly told about the behaviour closer to the time it occurred. It was supported, to a limited extent, by the evidence of her brother, who described the family sleeping arrangements which demonstrated that there was the opportunity for the conduct to have occurred.
The defence was conducted on the basis that the events did not occur at all. It was further argued that:
a) the allegations were vague;
b) the events could not have occurred as alleged because of errors in dates of the family moving to the farm house, alterations that were made to the house and dates of building works to the American style ‘barn/shed’;
c) there were strained inter-family relationships;
d) there were financial issues between the complainant and her parents; and
e) there are credibility issues of the complainant and her siblings.
In criminal proceedings, a person will be acquitted unless the jury is satisfied beyond reasonable doubt that the alleged offence occurred. That is, the criminal standard of proof applies in criminal proceedings. An acquittal does not equate to a finding of innocence. In disciplinary proceedings, the civil standard of proof applies. The Tribunal must be reasonably satisfied on what is commonly referred to as the Briginshaw standard,[12] that alleged events occurred. DYR’s ability to earn a livelihood in his chosen career of teaching is at stake. This is a serious issue and we must therefore be satisfied there is credible (not mere suspicion or flimsy proofs) evidence.
[12]See Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 as clarified by cases including Rejfek v McElroy (1964-5) 112 CLR 517, 521; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170,171.
We have carefully considered the extensive evidence made available to the Tribunal and the submissions of the QCT. The transcript of the trial shows the witnesses did not maintain their evidence as contained in their written statements under cross examination. The complainant’s evidence in particular is vague and inconsistent. Photographic evidence of the property when the family moved in and over the course of their stay called into question the time and place of the alleged incidents.
As the QCT submits, and we accept, the evidence is uncorroborated, contradictory and irreconcilable. We accept that there is no substantial case having regard to the credibility issues and in the light of the inherently complex family dynamics. We are not satisfied on the Briginshaw standard that the sexualised behaviour complained of took place. The disciplinary ground referred to the Tribunal has not been established.
DYR’s teacher registration is suspended under s48 of the QCT Act. Although DYR’s registration has now lapsed we must nevertheless end the suspension under s159. We make orders to this effect.
The Tribunal has previously made a non-publication order in relation to the proceeding about the continuation of the suspension. We are satisfied that, in the light of the nature of the complaint made which resulted in the criminal charges and our findings, it is in the interests of justice that DYR’s name and names of his family members, as well as other identifying details should not be published. Accordingly, only a de-identified version of these reasons may be published on the Supreme Court library website. However, we do not propose to restrict DYR from publishing an identified version of the reasons to potential employees.
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