Queensland College of Teachers v RJ
[2010] QCAT 627
•4 November 2010
| CITATION: | Queensland College of Teachers v RJ [2010] QCAT 627 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| RJ (Respondent) |
| APPLICATION NUMBER: | OCR011-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 27 October 2010 |
| DECISION DATE: | 4 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Susan Booth, Senior Member Michelle Howard, Member Beverly Day, Member |
| REASONS DELIVERED ON: | 12 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal orders that the suspension of the Respondent end pursuant to section 159 of the Education (Queensland College of Teachers) Act 2005. 2. Pursuant to section 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the teachers name and employing school. |
| CATCHWORDS : | Disciplinary proceeding – suspension – where charges dismissed – no other evidence of improper behaviour Education (Queensland College of Teachers) Act 2005 Sections 48, 92,159 Briginshaw v Briginshaw (1938) 60 CLR applied |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
The Respondent, RJ is a 53 year old teacher who was first registered as a teacher on 31 January 1990.
The Queensland College of Teachers (QCT) suspended the Respondent’s registration on 12 January 2010 under section 48 of the Education (Queensland College of Teachers) Act 2005 (the Act) because he had been charged with a disqualifying offence.
The charge was indecent treatment of children under 16, children under 12 years.
As required under the Act, the QCT referred the suspension to the Queensland Civil and Administrative Tribunal (the Tribunal) for consideration of the continuation of the suspension. On 26 February 2010 the Tribunal was not satisfied that this was an exceptional case in which it would not harm the best interests of children for the suspension of the registration to be ended. Additionally, the Tribunal made an order pursuant to section 66(1)(c) prohibiting the publication of identifying information.
On 7 July 2010 the charge against the Respondent was dismissed in the Gympie Magistrates Court.
The charge relates to alleged conduct by the Respondent towards his step granddaughter who was aged 6 years at the time of the alleged conduct. The charges alleged that the Respondent abused his granddaughter by rubbing her chest and placing her hand on his penis on the outside of his clothing.
On 3 September 2010 the QCT, pursuant to s97 of the Act, referred the matter to the Tribunal. The reason for referral was that there was a relevant ground for disciplinary action because the Respondent had been charged with a disqualifying offence and that this charge had been dismissed. The QCT submits that under section 92(2)(a) and (3) of the Act, the Tribunal must review a matter where charges have been “dealt with”. The words “dealt with” include where a charge has been dismissed.
The Tribunal is required to examine the circumstances of the charge and then make a determination whether a disciplinary ground is established.
The evidence before the Tribunal consisted of the complete Police brief of evidence and the transcripts (dated 29/06/2010 and 6/07/2010) of the committal proceedings.
10. As well, written submissions were provided by the QCT and the Respondent’s solicitor, Ms Chelsea Emery of Chelsea Emery & Associates. An additional oral submission was also provided by the Respondent’s solicitor.
11. The principal evidence was from the complainant child. In addition there were statements from child’s mother and aunt. The complainant’s child’s evidence contained allegations of sexual abuse by the Respondent.
12. In its submissions the QCT acknowledged numerous difficulties with the evidence of the complainant child. In particular, some aspects of the complainant child’s evidence are inconsistent or untenable. These include that she was unable to identify a specific transaction; she was unable to distinguish between the singular and plural; and she made assertions about the Respondent’s behaviour when she was asleep.
13. The QCT noted “These difficulties appear to have been at the forefront on the decision of the Magistrate to dismiss the charge”
And further that:
“The evidence has been found by the Magistrates Court to be unable to support adequate particularisation. QCT concede that same difficulty confronts the Tribunal in the instant case.”
14. The QCT submitted that:
“41 Ultimately, the QCT does not hold a ‘reasonable belief …that a ground for disciplinary action against the Respondent exists’.
42 It follows, that the QCT do not contend, that the evidence establishes the allegations to the requisite standard.”
15. The Respondent agreed with the submissions as set out in paragraphs 41 and 42 of the QCT submission. Further the respondent sought an order from the Tribunal, in accordance with s159 of the Education (Queensland College of Teachers) Act 2005, to end the Respondent’s suspension under the Act.
16. Other than the police brief and transcript, no other evidence was provided to the Tribunal. The Tribunal notes that the allegations, if established, are very serious and would constitute disgraceful or improper behaviour that would establish that the Respondent was not fit to remain a teacher.
17. The standard of proof to be applied to the evidence is civil and not criminal. However, given the serious consequences of an adverse finding the standard of proof rises as the issues become more serious and the consequences of an adverse finding more onerous.[1]
[1] Per Dickson J in Brigginshaw v Brigginshaw [1938] HCA 31
18. The Tribunal examined the circumstances of the charge having regard to the serious consequences for the Respondent of any adverse findings.
19. Having considered the evidence before it, the Tribunal concluded that the allegations made by the complainant child were inconsistent and unsubstantiated. The lack of particularisation and inconsistencies within the evidence do not support a reasonable belief that a ground for disciplinary action against the Respondent exists. Therefore, the evidence does not establish the allegations to the standard required.
20. The Tribunal therefore finds that a ground for disciplinary action against the Respondent is not established and the suspension should end.
Orders
The Tribunal orders that the suspension of the Respondent end pursuant to section 159 of the Education (Queensland College of Teachers) Act 2005.
Pursuant to section 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the teacher’s name and employing school.
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