Queensland College of Teachers v Napier
[2010] QCAT 626
•2 DECEMBER 2010
| CITATION: | Queensland College of Teachers v Napier [2010] QCAT 626 | |
| PARTIES: | QUEENSLAND COLLEGE OF TEACHERS | |
| v | ||
| MR ROBERT JAMES NAPIER | ||
| APPLICATION NUMBER: | OCR007 - 09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 24 NOVEMBER 2010 |
| HEARD AT: | BRISBANE |
| DECISION OF: | M MCLENNAN – Presiding Member B DAY - Member P STILGOE - Member |
| DELIVERED ON: | 2 DECEMBER 2010 |
| DELIVERED AT: | BRISBANE |
ORDERS MADE: | 1. Pursuant to s.161(2)(c) of the Act Mr Napier is prohibited from reapplying for registration or permission to teach for three years from the date of this order. 2. Pursuant to s.161(2)(d) in the event that Mr Napier seeks registration as a teacher in Queensland, the following notation about Mr Napier be entered in the register: Within 12 months of applying for registration, Mr Napier obtain referral for treatment to a registered psychologist and that he participate in therapy, such therapy to include the following: (a) Risk assessment and early issue identification of potentially problematic situations and venues, as well as initiating realistic solutions for avoiding risk of harm to young persons in his care. (b) An in-depth examination of the extent and nature of the parent and community trust inherently invested in a teacher; (c) Personal and social behaviour that will compromise the professional standing of a teacher and the profession of teaching. (d) The legal obligation of teachers and tutors. (e) Understanding the effect of inappropriate behaviour with young persons in his care. (f) The awareness of trust and power granted to a teacher. (g) How to deal with personal issues and develop a strong support structure. (h) Understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics. 3. At the conclusion of the therapy, the timing to be determined by the psychologist, but no later than 12 months from the commencement of treatment, a psychologist’s report should be obtained by Mr Napier and provided to the QCT, such report to include an indication by the psychologist as to whether the psychologist is satisfied that Mr Napier has adequately understood and addressed each of the points specified in this order. |
| CATCHWORDS : | Education (Queensland College of Teachers) Act 2005; former approved teacher; not suitable to teach; prohibited from re-application for three year period; |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J Gormley, Principal Legal Officer Queensland College of Teachers |
| RESPONDENT: | No Appearance |
REASONS FOR DECISION
Background
The teacher in these proceedings is Mr Robert James Napier. Mr Napier was first registered as a teacher in Queensland on 30 January 2006 and at the time of this hearing he was 37 years of age. His name was removed on 8 August 2008 from the Register of Approved Teachers for non-payment of fees. He is a former approved teacher.
On 21 January 2008 the Queensland Police Service notified the Queensland College of Teachers (“QCT”) pursuant to s.75 of the Education (Queensland College of Teachers) Act 2005 (“the Act”) that Mr Napier was charged with the following offence:
“Indecent treatment of children under 16; child under 12 years” under s.210(1)(a) and (3) of the Criminal Code 1899 (Qld)
In a letter dated 22 January 2008 the QCT notified Mr Napier of the suspension of his teacher registration pursuant to s.48 of the Act. The basis of the suspension is that the offence is a “disqualifying offence”. “Disqualifying offence” is cross referenced in Schedule 3 of the Act to the meaning of that term in s.120B of the Commission for Children and Young People and Child Guardian Act 2000. On 2 April 2008 the then Teachers Disciplinary Committee continued the suspension pursuant to s.55(1) of the Act.
In a letter dated 27 January 2010 the Office of the Director of Public Prosecutions notified the QCT pursuant to s.80 of the Act that on 21 April 2008 Mr Napier was committed for trial in the Hervey Bay District Court. On 14 July 2009, a nolle prosequi was entered and the two charges of rape indicted against Mr Napier were dismissed on the grounds that there were no reasonable prospects of securing a conviction.
On 29 March 2010 the Queensland Civil and Administrative Tribunal (“the tribunal”) directed that pursuant to s.66 of the Queensland Civil and Administrative Tribunal Act 2009 the names, addresses and schools of the child complainant and child witnesses not be published.
In brief, the circumstance giving rise to the charge is as follows: on 22 November 2007 the six year old female complainant child slept overnight at the house of Mr Napier and his partner. The complainant slept in the bedroom of the child of Mr Napier’s partner. The two children shared the one bed. It was alleged that during the night, Mr Napier entered the girls’ bedroom and placed his hand under the complainant child’s nightie, inside her pants and touched her in the area of her vagina.
The Evidence
10. The complainant child reported the incident to her mother 12 days after the event. In her witness statement dated 4 January 2008 the mother of the complainant child recalled that her daughter had contacted her on 23 November 2007 and seemed unusually upset and anxious that her mother would be picking her up from school and that she would be taken home. The mother reported that the child had said that Mr Napier had touched her on the bottom and when her mother asked where that was, the child answered “Where the wee comes from.” The mother reported the child describing two occasions: a short time and then a longer time when Mr Napier touched her.
11. An interview was conducted with the complainant child pursuant to s.93A of the Evidence Act 1977. The child stated that Mr Napier put his hand through the side of her knickers; “up my bottom” which referred to her front; that she turned around but he kept doing it. She used the word “inside” in describing the action. In that interview the child spoke of one occasion when she was touched by Mr Napier whereas the child’s mother reported the child as describing two occasions.
12. In her witness statement dated 6 December 2007, Mr Napier’s partner recalled that night being woken by Mr Napier returning to bed. She assumed he had checked on the children and she asked if they were all right and he had replied that they were asleep.
Assessment of evidence and application of law
13. In these civil proceedings, the standard of proof is on the balance of probabilities where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved.[1] In this disciplinary proceeding there are serious consequences for Mr Napier arising from the serious allegations and so, as submitted by Mr Gormley, the evidence must be exact and definite.
[1] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-62
14. The fact that the criminal prosecution was discontinued does not support discontinuation of disciplinary proceedings nor does it establish the innocence of a person the subject of an indictment.[2] In the assessment of suitability to teach pursuant to s.11 and s.12 of the Act, there are criteria set out to which the QCT must have regard. Particular in this matter is s.12(1)(b) where there is the requirement to consider if the person is suitable to work in a child related field. Subsection 12(3) of the Act provides that a person is not suitable to teach if the person behaves in a way that does not satisfy the standard of behaviour generally expected of a teacher. The tribunal is also guided in its assessment by these criteria. Schedule 3 of the Act defines criminal history to include every charge of an offence made against the person, in Queensland or elsewhere.
[2] Davis v Gell (1924) 35CLR275 per Isaacs ACJ: “But though so far absolved, it does not follow that the termination by way of nolle prosequi in any way establishes innocence. "The effect of a nolle prosequi when obtained" (Chitty's Criminal Law, vol. i., p. 480) ‘is to put the defendant without day, but it does not at all operate as an acquittal.’ “
15. The tribunal agrees with the QCT’s submission that the “mechanics of the touching” were consistently reported to the child’s mother and to the police. The QCT submitted that the apparent inconsistency as to the number of times of the touching is partly a result of the protocol associated with s.93A Evidence Act interviews with child witnesses where the interviewer did not ask how many times Mr Napier entered the room. There is circumstantial corroboration from the recollections of the child’s mother and Mr Napier’s partner. Though the child’s disclosure to her mother occurred 12 days after the event it was spontaneous and there was no doubt on the child’s part to her mother or the police interviewer as to the identity of Mr Napier as the person who touched her.
16. There are problems in the evidence which inevitably arise from the age of the six year old child witness. The QCT conceded that there had been no other complaints and the issue of whether Mr Napier is suitable to teach rests on this single allegation. Nevertheless, the tribunal considers that there is a consistent degree of verisimilitude in the child’s report of the touching.
17. The police subsequently conducted an interview with the partner’s child and set up a taped telephone conversation between Mr Napier and his partner but neither of these corroborated the allegation.
18. The alleged incident is dissociated from Mr Napier’s teaching duties however the complainant child was under the care of Mr Napier at the relevant time. Mr Napier was in a position of trust in relation to the child. Therefore it arises for the tribunal to consider Mr Napier’s suitability to work in a child related field.
19. The tribunal must assess pursuant to s.158 of the Act whether a ground for disciplinary action against Mr Napier has been established. The QCT submitted s.92(1)(h) that Mr Napier is not suitable to teach which is a general matter.[3]
[3] Section 96 and Schedule 3 of the Act
20. The tribunal has not been assisted in any way by Mr Napier who elected not to appear or make any submission.
21. The tribunal is satisfied that, pursuant to section 12(3)(a) of the Act Mr Napier has behaved in a way that does not satisfy a standard of behaviour generally expected of a teacher. The tribunal is further satisfied that, prima facie, Mr Napier is “not suitable to teach” within the meaning of section 92(1)(h) of the Act and that grounds for disciplinary action pursuant to s.158(1) has been established.
22. QCT submitted the matter was an “all or nothing case” and the appropriate penalty is that Mr Napier be prohibited from reapplying for registration or permission to teach for the period of five years.
23. The tribunal considers that the behaviour of Mr Napier is serious and warrants a penalty suspension of three years. From an evidentiary perspective this matter is problematic and borderline. There was no criminal proceeding or conviction in this case and there was some discrepancy in the six year old child’s evidence.
Order
24. Pursuant to s.161(2)(c) of the Act Mr Napier is prohibited from reapplying for registration or permission to teach for three years from the date of this order.
25. Pursuant to s.161(2)(d) in the event that Mr Napier seeks registration as a teacher in Queensland, the following notation about Mr Napier be entered in the register:
Within 12 months of applying for registration, Mr Napier obtain referral for treatment to a registered psychologist and that he participate in therapy, such therapy to include the following:
(i)Risk assessment and early issue identification of potentially problematic situations and venues, as well as initiating realistic solutions for avoiding risk of harm to young persons in his care.
(j)An in-depth examination of the extent and nature of the parent and community trust inherently invested in a teacher;
(k)Personal and social behaviour that will compromise the professional standing of a teacher and the profession of teaching.
(l)The legal obligation of teachers and tutors.
(m)Understanding the effect of inappropriate behaviour with young persons in his care.
(n)The awareness of trust and power granted to a teacher.
(o)How to deal with personal issues and develop a strong support structure.
(p)Understanding of, and full adherence to, the Queensland College of Teachers Code of Ethics.
26. At the conclusion of the therapy, the timing to be determined by the psychologist, but no later than 12 months from the commencement of treatment, a psychologist’s report should be obtained by Mr Napier and provided to the QCT, such report to include an indication by the psychologist as to whether the psychologist is satisfied that Mr Napier has adequately understood and addressed each of the points specified in this order.
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