Queensland College of Teachers v Morrow
[2011] QCAT 184
•13 May 2011
| CITATION: | Queensland College of Teachers v Morrow [2011] QCAT 184 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Stephen Peter Morrow (Respondent) |
| APPLICATION NUMBER: | OCR006-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 5 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Presiding Member Adrian Ashman, Member Robyn Oliver, Member |
| DELIVERED ON: | 13 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to withdraw the disciplinary proceeding under section 46 of the Queensland Civil and Administrative Tribunal Act 2009 is dismissed; 2. The applicant must file and serve any further statements and other material to be relied upon by it at hearing together with its written submissions by 4pm on 15 June 2011; 3. The respondent must file and serve any statements and other material to be relied upon by him at hearing together with his written submissions by 4pm on 8 July 2011; 4. That the proceeding be listed for hearing on the papers not before 15 July 2011. |
| CATCHWORDS: | DISCIPLINARY PROCEEDING – disqualifying offence – extended definition of excluded person – former registered teacher – application for withdrawal of application –whether offence would have constituted an offence as specified if it had been committed in Queensland Commission for Children and Young People and Child Guardian Act 2000, ss 168, Schedules 4, 5 Education (Queensland College of Teachers) Act 2005, ss 14, 38, 36, Schedule 3 |
APPEARANCES and REPRESENTATION (if any):
This proceeding was heard on the papers pursuant to section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The tribunal has a disciplinary proceeding before it concerning Mr Morrow. The Queensland College of Teachers (QCT) seeks leave to withdraw the referral under section 46 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
In essence, QCT submits that Mr Morrow is now an excluded person under the Education (Queensland College of Teachers) Act 2005 (the Act), who is no longer entitled to apply for teacher registration or permission to teach under the Act. QCT submits that the disciplinary proceedings are therefore unnecessary and that the public interest is protected by his status as an excluded person.
QCT has provided written submissions in support of the application. Mr Morrow has been given notice of the application and the hearing of the application on the papers.
The history of teacher registration and convictions
Mr Morrow obtained registration as a teacher in Queensland in September 2004.
In November 2006, Mr Morrow was charged by the Victorian Police Service with six counts of offences relating to sexual penetration of a child aged 16 or 17 years under his care, supervision or authority.
Within days, his teacher registration was suspended under the Act. He ceased being registered on 13 April 2007.
In April 2008, Mr Morrow was convicted of nine counts of the charge and sentenced to a term of imprisonment.
In 2010, the Victorian Court of Appeal quashed the convictions and listed the matter for retrial. The retrial was listed in October 2010, and Mr Morrow pleaded guilty to five counts of sexual penetration of a 16 or 17 year old child under his care, supervision or authority under section 48 of the Crimes Act 1958 (Vic). Mr Morrow was sentenced to an effective sentence of three years imprisonment, although some fifteen months of the term was suspended.
The legislative provisions
Recent amendments to the definition of an ‘excluded person’ in Schedule 3 of the Act include, as an excluded person, a person who has previously held registration as a teacher or permission to teach under this Act or a former Act; and who, on or after 1 January 2006, has been convicted of a disqualifying offence for which an imprisonment order was made. An excluded person is not entitled to apply for registration or permission to teach under the Act.[1]
[1] Education (Queensland College of Teachers) Act 2005, ss 14, 28, 36.
The Act does not define a disqualifying offence: it refers to section 168 of the Commission for Children and Young People And Child Guardian Act 2000 (the CCYPCG Act). Section 168 of the CCYPCG Act defines disqualifying offence by reference to offences listed in Schedules 4 and 5, subject to any qualification set out in the schedule. Also, under section 168(1)(f), a disqualifying offence includes an offence under a law of another jurisdiction that, if it had been committed in Queensland, would have constituted an offence mentioned in section 168(1)(a) to (e).
Schedule 4 of the CCYPCG Act includes, among other offences, rape under section 349 of the Criminal Code 1899 (the Criminal Code) if the offence was committed against a child, and maintaining a sexual relationship with a child under section 229B of the Criminal Code.
The offences of which Mr Morrow was convicted are provided for in section 48 of the Crimes Act 1958 (Vic) as follows:
48. Sexual penetration of 16 or 17 year old child
(1) A person must not take part in an act of sexual penetration with a 16 or 17 year old child to whom he or she is not married and who is under his or her care, supervision or authority.
Penalty: Level 5 imprisonment (10 years maximum)……….
(4) For the purposes of subsection (1), and without limiting that subsection, a child is under the care, supervision or authority of a person if the person is-
(a) the child's teacher;……
Specifically, under section 48(2), consent is not a defence to the charge unless the accused satisfies the court on the balance of probabilities that at the time of the alleged offence, the accused person reasonably believed that the child was 18 or older or that he or she was married to the child. If consent is relevant, the prosecution must prove lack of consent: section 48(3).
Under section 48(4), a child is deemed to be in the care supervision or authority of other persons including a person who is their foster parent; legal guardian; employer; counsellor and health professional.
The QCT submits that the offences of which Mr Morrow has been convicted are equivalent of rape in the Criminal Code. The Criminal Code provides for the offence of rape as follows:
349 Rape
(1) Any person who rapes another person is guilty of a crime.
Maximum penalty--life imprisonment.
(2) A person rapes another person if--
(a) the person has carnal knowledge with or of the other person without the other person's consent; or
(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or
(c) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.
For the purposes of the section, a child aged under 12 years is incapable of giving consent.[2]
[2] Criminal Code, s 349(3).
For purposes of the chapter dealing with the offence of rape, consent is defined in section 348. Under section 348(2),
(2) ………a person's consent to an act is not freely and voluntarily given if it is obtained-- …..
(d) by exercise of authority; or ………
Section 229B of the Criminal Code provides for an offence relating to maintaining a sexual relationship with a child,[3] but for the purposes of the offence, a child is aged under 16 years,[4] unless a charge of unlawful sodomy could be made, in which case the age is under 18 years.[5]
[3] Criminal Code, s 229B.
[4] Criminal Code, s 229B(10)(b).
[5] Criminal Code, ss 208, 229B(10(a).
In disciplinary proceedings under the Act, once a disciplinary proceeding has been referred to the tribunal, it is for the tribunal to determine whether a disciplinary ground is established under the Act.[6]
[6] Education (Queensland College of Teachers) Act 2005, s158.
The tribunal may give leave to an applicant to withdraw its application or referral under section 46 of the QCAT Act before a proceeding is determined. If it does so, a further application or referral may not be made about the same subject matter without the leave of the tribunal.
Discussion and Determination
Acknowledging that the offence of which Mr Morrow has been convicted has no direct equivalent in Queensland, QCT submits that the offence constitutes the Queensland offence of rape because sections 348(2) and 349 render consensual sexual penetration to be rape if consent is obtained through exercise of authority. QCT contends that the offence involves a complainant who was at least 16 years of age; sexual penetration; acts which were consensual; and occurred in circumstances when Mr Morrow was the child’s teacher.
It submits that the Victorian offence involves carnal knowledge and consent and suggests that the issue for determination in considering whether the offences may be considered equivalent, is whether consent was obtained by ‘exercise of authority’ as referred to in section 348(2) of the Criminal Code. It suggests that the exercise of authority, on the ordinary meaning of ‘exercise,’ would require making use of, or bringing to bear, authority. QCT concedes that more would be required than the mere existence of a relationship of authority, in order to establish the exercise of authority.
The offence of which Mr Morrow has been convicted involves sexual penetration of a child aged 16 or 17 years in circumstances where the child was under his care, supervision or authority, in this case, because he was her teacher. Specifically, consent is irrelevant except in very limited circumstances. The Victorian Crimes Act 1958 specifically provides for the offence for persons who conduct a sexual relationship with a person aged between 16 and under 18 in certain of circumstances, involving a relationship of trust between the persons involved. It deems consent irrelevant to the offence, except in very limited circumstances. It overcomes the necessity for the Crown to prove lack of consent beyond reasonable doubt when the person accused of the offence was, as in Mr Morrow’s case, a person who is a teacher of the child concerned.
Section 168(1)(f) of the CCYPCG Act provides that an offence under a law of another jurisdiction will be a disqualifying offence if it would have constituted an offence specified in section 168(1)(a) to (e), if had been committed in Queensland.
As QCT concedes, there is no direct equivalent in Queensland of the offence of which Mr Morrow has been convicted. A charge of maintaining a sexual relationship with a child under section 229B of the Criminal Code could not be brought against Mr Morrow. The child concerned was aged 16 or 17. There is no suggestion that the offence of which Mr Morrow was convicted involved sodomy as far as the tribunal is aware, and therefore, for the offence under section 229B, the child must be aged under 16 years.
Schedule 4 of the CCYPCG Act provides that rape is a disqualifying offence if it is committed against a child. As the student was aged under 18 years, she was a child. If Mr Morrow was being prosecuted in Queensland, the only possible charge, on the facts as they are known, would be a charge of rape. On the facts as they are known, the Crown would be required, in prosecuting a charge of rape, to establish carnal knowledge without the other person’s consent. The student was over 12 years, and so she was capable of giving consent for the purposes of section 349 of the Criminal Code. Absence of consent is therefore specifically relevant to the offence and must be proved by the Crown, beyond reasonable doubt.
By virtue of section 348(2), consent will be vitiated if obtained by the ‘exercise of authority.’ There does not appear to have been judicial consideration of the phrase ‘exercise of authority’ in section 348(2) of the Criminal Code, since it was inserted in 2000. A teacher does not by virtue of being a teacher, exercise authority over a person, although a relationship of authority exists. Whether or not Mr Morrow would be considered to have exercised authority over the student concerned, thereby vitiating any consent she gave, is unknown. It was not relevant to the charges brought against him in Victoria. Accordingly, it is not known whether Mr Morrow’s actions would have constituted the Queensland offence of rape.
The tribunal must determine whether the offence of which Mr Morrow was convicted would have constituted an offence specified for the purposes of the section if it had been committed in Queensland. His actions would not have constituted the offence of maintaining a sexual relationship with a child. It is not known whether his actions would have constituted the offence of rape. Therefore, the tribunal is unable to be satisfied that Mr Morrow’s actions would have constituted an offence as specified, if committed in Queensland.
In the circumstances, the tribunal does not accept that Mr Morrow is an excluded person within the definition in the Act. Leave is refused for the QCT to withdraw the disciplinary proceedings. That being so, the disciplinary proceeding should be listed for hearing.
The tribunal will direct the QCT to file and serve any material to be relied upon at hearing together with its submissions by 15 June 2011, and Mr Morrow to file and serve any material and his submissions by 8 July 2011. The proceeding will be listed for hearing on the papers on a date to be fixed not before 15 July 2011.
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