Queensland College of Teachers v MD
[2014] QCAT 278
| CITATION: | Queensland College of Teachers v MD [2014] QCAT 278 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| MD (Respondent) |
| APPLICATION NUMBER: | OCR301-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Ford Member MacDonald |
| DELIVERED ON: | 17 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The referral from the Queensland College of Teachers is dismissed. 2. The publication of the name MD, the complainant, witnesses and the school is prohibited. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – TEACHER – where teacher charged and acquitted of serious offences – whether evidence establishes ground for taking disciplinary action – not suitable to teach Education (Queensland College of Teachers) Act 2005 (Qld) ss 48, 92, Schedule 3 Briginshaw v Briginshaw (1938) 60 CLR 336 |
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 (Qld) (QCAT Act).
REASONS FOR DECISION
MD is an approved teacher. On 25 July 2012 he was charged with ‘serious offences’ namely two counts of indecent treatment of a child under 14 years.[1]
[1]Two charges under s 210(1)(a) of the Criminal Code see Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’), Schedule 3.
The charges arose from allegations of criminal conduct said to have occurred on or about December 1983. MD teacher’s registration was suspended as a result of the charges on 27 July 2012.[2]
[2]Section 48 of the Act requires immediate suspension when a teacher is charged with a serious offence.
On 9 October 2013 MD was acquitted of the charges, his teaching registration was reinstated on 16 December 2013.
Where a relevant teacher has been charged with a serious offence and acquitted the Act provides that the disciplinary ground not suitable to teach is taken to apply.
It is explained in the legislation that the object of this provision is to ensure that the circumstances of the charge are examined by a disciplinary committee.[3]
[3]The Act, s 92(2)(a)(i).
Accordingly the Queensland College of Teachers (‘QCT’) has referred the matter to QCAT to determine whether there are grounds for disciplinary action against MD.
In such cases it is a matter for the Tribunal to determine whether despite the acquittal, a substantial case remains against MD such that he is ‘not suitable to teach’.[4]
[4]See Queensland College of Teachers v CST [2013] 545 citing Hardingham v Chief Executive Officer, Department of Child Protection [2011] WASC 86.
The Tribunal accepts the QCT submission (adopted by MD) that a ‘substantial case’ may remain against a person where:
a) the evidence is sufficient to establish the allegations to the civil standard;
b) there is other evidence of improper conduct that is not criminal conduct but is relevant for ‘suitability’;
c) the prosecution failed for purely technical reasons.
It is accepted by QCT that (c) does not apply. They also accept that in relation to (b) there is no evidence of any misconduct outside the criminal allegations.
Consequently, in order to find that a ground for disciplinary action that MD is ‘unsuitable to teach’, the Tribunal would need to be satisfied that the evidence establishes the allegations to the requisite civil standard.
In making the determination the appropriate standard of proof is to the reasonable satisfaction of the Tribunal with the degree of satisfaction varying according to the gravity of the facts to be proven.[5]
[5]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2.
The gravity of the facts alleged is such that if the Tribunal is satisfied that the conduct occurred, MD’s registration may again be suspended or cancelled. A higher degree of satisfaction is therefore needed for the Tribunal to be satisfied that the alleged facts occurred.
It is noted that QCT concedes that whilst ultimately a matter for the Tribunal, the evidence does not establish the ‘ground for disciplinary action’, not suitable to teach.
The Criminal Allegations
The allegations which support the charges were that MD had sexually assaulted the complainant in 1983 when he was the complainant’s Year 5 teacher at a Catholic primary boarding school.
It was alleged that:
· MD asked the complainant to stay back after class;
· He closed and locked the door and drew the curtains;
· He put the complainant on the desk, pulled his pants down fondled his penis and performed oral sex on him.[6]
[6]See Submission of QCT at [4].
MD was acquitted of both charges following a two-day jury trial in the District Court.
The Tribunal has been provided with the transcript of these proceedings.
It is noted by the QCT in their submission, that the primary evidence supporting the allegations is the evidence given by the complainant.
The complainant’s evidence around the alleged event was:
I guess it was a normal day. Went to class. Did the lessons and everything like that, and then at the end of the day I stayed back in the class and (MD) kept me there alone. He closed the door. Locked the door. Drew the curtain on the class. Picked me up onto the desk. Pulled down my shorts. Fondled my penis and then bent down and performed oral sex on me.[7]
[7]Transcript 8 October 2013 1-10.
The complainant was unclear in his evidence about some of the surrounding circumstances for example he could not recall whether he was asked to stay back after class and whether or not other students were present when he may have been asked to stay back.[8]
[8]Transcript 1-16.
The complainant had made a complaint to his mother in 1984. His mother gave evidence at the trial. There were inconsistencies in the evidence of the mother and the complainant about what the complainant had told his mother in particular about the person who allegedly committed the offences.
In this regard, another teacher at the school had been convicted of committing sexual offences against the complainant in 1983.
At MD’s trial, there was a suggestion by the defence that the confusion in the evidence of the mother and the complainant as to whether the complainant named MD to his mother may have meant that the complaint made to his mother was in fact about the other teacher.[9]
[9]Transcript 9 October 2013 – page 8, line 20.
It is noted by the QCT that the 30 year passage of time between the alleged offences and the trial resulted in difficulty in obtaining any corroborative evidence. They note the absence of corroborative evidence as including the following:
· No documentary evidence showing the complainant was at school on the relevant day.[10]
· No evidence from any other student or other witnesses that the complainant remained after class on the relevant day.[11]
· No evidence from any other teacher or member of the staff as to scheduled or random activities around the time either generally or on the relevant day.[12]
· No forensic evidence or photographs of the classroom, desk, windows or curtains.
· No evidence from any other student at the complainant’s subsequent school to whom disclosures were first purportedly made.
· No clear evidence about what was occurring on or around the classroom at the relevant time such as to indicate whether MD had the opportunity to commit the alleged offences.
[10]Transcript 8 October 2013, 1-49.
[11]Ibid, 1-47
[12]Ibid, 1-48.
MD in his submissions points out the following:
· He denied all of the allegations.
· At the trial he gave evidence and made himself available for cross-examination.
· There were significant evidentiary discrepancies in the Crown case which are apparent on the face of the transcript.
· The jury in the District Court had the advantage of hearing evidence from the complainant and MD in person and as such was in a position to make assessments of their relative credibility and reliability.
· The jury returned unanimous verdicts of not guilty after deliberating for less than 30 minutes.
Is MD unsuitable to teach
QCT concedes that the evidence does not establish the allegations to the requisite civil standard and as such does not establish that ground for disciplinary action ‘not suitable to teach’.[13]
[13]Submissions of QCT page 5 at [26].
The Tribunal agrees with that submission.
The evidence in the material before the Tribunal, in particular the transcript of evidence in the trial does not establish the ground.
The inconsistencies in the complainant and the mother’s evidence, the possibility of confusion/mistake identifying MD in the absence of corroborative evidence means that the evidence falls short of establishing the allegations to the requisite Briginshaw standard.
The QCT has acknowledged that there have been not other allegations of improper conduct against MD.
In those circumstances the application for a referral is therefore dismissed.
Non-Publication Order
The respondent has been acquitted of the charges and the Tribunal is not satisfied that a ground for disciplinary action exists. The Tribunal has the power under the QCAT Act[14] to prohibit the publication of information that might enable MD, the complainant and witnesses who gave evidence in the criminal proceedings to be identified in circumstances where it would not be in the interests of justice to identify them.
[14]QCAT Act s 66.
The Tribunal finds it is not in the public interest to disclose that information. The publication of the name of MD, the complainant, witnesses and the school is prohibited.
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