Queensland College of Teachers v VPS

[2013] QCAT 179

CITATION: Queensland College of Teachers v VPS [2013] QCAT 179

PARTIES:	Queensland College of Teachers (Applicant)
v
VPS (Respondent)

APPLICATION NUMBER: OCR252-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: 28 November 2012 and 6 February 2013

HEARD AT: Brisbane

DECISION OF: Ms Michelle Howard, Member
Ms Kate Buxton, Member
Mrs Robyn Oliver, Member

DELIVERED ON: 18 April 2013

DELIVERED AT: Brisbane

ORDERS MADE:

1.     The referral from Queensland College of Teachers is dismissed;

2.     Publication of the names of the applicant, witnesses and school staff members is prohibited;

3.     Publication of details which may identify any child, witness, the applicant or school staff member is prohibited;

4.     These reasons for decision may only be published, other than to the parties to the proceeding and the Department of Education, as modified to exclude reference to the names of any child, witness, the applicant, school or school staff member and other details which may tend to identify any of them.

CATCHWORDS:

DISCIPLINARY REFERRAL-TEACHER-Referral regarding approved teacher; whether suitable to teach, standard, sufficiency of evidence

Education (Queensland College of Teachers) Act 2002, s 92(1)(h), s 160(2)(d) and (j)

Briginshaw v Briginshaw (1938) 60 CLR 336

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Queensland College of Teachers represented by Mr Gormley

RESPONDENT: VPS did not appear

REASONS FOR DECISION

1. VPS, the teacher in these disciplinary proceedings, was first registered to teach in 2000. He remains registered as a teacher[1] although he has not worked in that capacity since 2008.

   [1]        s 223 certificate.

2. The Queensland College of Teachers (QCT) referred this disciplinary proceeding to QCAT on the basis that it had formed the reasonable belief that a ground for disciplinary action existed against VPS pursuant to s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005, that: the teacher was not suitable to teach.

3. The College makes two allegations of inapproprate conduct:

   1.That on diverse dates between 1 January 2008 and 15 May 2008 the respondent attempted to procure a dangerous drug, namely Cannibis Sativa, from the parent of a student; and

   2.That on diverse dates between 1 January 2008 and 15 May 2008 the respondent sought to procure a dangerous drug (Cannibis Sativa) from an associate of the parent referred to in 1, and sought to involve the student and the School in the facilitation of the said procurement.

4. QCT’s referral set out some particulars regarding each allegation. In support of its allegations the College relies upon the referral,[2] the affidavit of Mr Gormley sworn 7 November 2011,[3] the submissions filed by the College on 3 July 2012,[4] the College seeks the following disciplinary sanction:

   That under section 160(2)(d) and (j) of the Act, VPS’s teacher registration be cancelled and that he be prohibited from reapplying for registration as a teacher for a period of 12 months from the date of order.

   [2]        Exhibit 2.

   [3]        Filed 17 November 2011, Exhibit 3.

   [4]        Exhibit 4.

5. This proceeding was initially listed for an on the papers Tribunal hearing to take place on 28 November 2012. However, the Tribunal then directed that the proceeding be listed for an oral hearing and directed that witnesses whose statements had been relied upon by the College be made available to give evidence at the date of the oral hearing. VPS was also directed to personally attend at the oral hearing.

6. The oral hearing, which took place on 6 February 2013, proceeded in the absence of VPS who, despite direction, did not appear in person on that date. The Tribunal has considered his affidavit filed on 20 July 2012,[5] together with his submissions filed the same date.[6] The grounds for application annexed to an application for miscellaneous matters filed on 9 January 2012[7] and VPS’s letter to Mr Jarrett of the QCAT Registry dated 1 February 2012[8] have also been taken into account.

   [5]        Exhibit 7.

   [6]        Exhibit 8.

   [7]        Exhibit 9.

   [8]        Exhibit 10.

7. VPS invites the Tribunal to take no further action against him and submits that the Tribunal should decline to conclude that he was not suitable to teach.

8. In determining whether the allegations are established, the Tribunal must be reasonably satisfied of the facts alleged. The degree of satisfaction required varies according to the gravity of the fact to be proved.[9] The gravity of the facts alleged is such that, if the Tribunal is satisfied that the conduct occurred, the teacher may have his teacher registration suspended or terminated. Therefore, a high degree of satisfaction is needed for the Tribunal to be satisfied that the facts occurred as alleged.

   [9]        Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362.

Background

1. During 2008 VPS was employed by the Department of Education and Training at a Queensland state school on a temporary/contract basis. He taught a grade six class at that school and one of his students was the student referred to in the allegations. The student had, at times, been disciplined and internally suspended within the school, including whilst being taught by VPS.

2. On 15 May 2008 a parent of the student, contacted the Deputy Principal of the school by telephone at 7:25am and indicated that he wished to report misconduct of VPS. He requested that the discussion take place at his home.

3. The Principal and Deputy Principal of the school together went to the home of the parent at 7:50am on that day. The Principal’s undated report of that discussion, which she expresses as prepared ‘to the best of my recollection and note taking’ is in the following terms (as amended to delete identifying details):

   §Sometime in term one VPS visited the student’s family home and discussed concern about the student’s Learning Difficulties. The parent says VPS offered to tutor the student for $70 per hour. The parent then said VPS asked the parent if he could get him marijuana and the parent’s reply was no I don’t do or sell drugs. The discussion then involved the parent’s workers on the property and whether they did drugs and the parent responded that what they do is their business but VPS could ask them if he wanted to know where to get some. The parent said that VPS said you look like the type.

   §The parent said VPS has asked him on other occasions about purchasing Marijuana and his reply has always been denial. The parent said he did give VPS the number of a dealer but would not divulge the name.

   §The parent’s associate said VPS entered the shop about a week ago and asked again about Marijuana and suggested that the student could bring them to school in his school bag.  (The associate of the parent was contacted by the parent whilst we were at the home visit and said this information on speaker phone).

   §The parent then showed us the same phone number and some text messages attached all stated to be from VPS . Ph:

   §11/05/08      14:56pm;        14/05/05  11:55am     14/05/08  11:56am; and 14/05/08      16:16pm
   Messages read:      
   2x …still waiting VPS         
   1x Can I catch up VPS

   §The parent then told the Deputy Principal and myself, Principal that yesterday (Wednesday 14 May 2008) at around 5pm VPS on foot, approached him at his workplace and once again asked for marijuana and wanted to know where he could get a pound. The parent said he was angry at the continued asking and told VPS to F… off he did not do or sell drugs. The parent said the discussion became very heated and VPS then started to question the parent’s credibility as a parent and brought into the conversation. The parent said that VPS said all the school staff were onto him and that he was going to be reported to child safety. The parent said he then threatened to hit VPS and drag him to the cop shop. The parent said he chased VPS up the road.

   §The student was internally suspended that day (14/05/08) for disruptive/sometimes defiant behaviour. The student is a student with learning difficulties. His behaviour can be disruptive at times.

   2008 Behaviour History   

   13/02/08 morning suspension for being unsafe with chop sticks.  The student who was hurt confirmed that he believed it was an accident and the student was sent back to class after lunch.

   The student has had 2 playground time outs for being unsafe.

   The student has been buddied a couple of times from the classroom for disruptive behaviour. I was unable to assertain the exact amount as the folder was in VPS’s classroom.

   If behaviour was a high concern the student would have had many more internal suspensions leading to external sutpensions.

   §At no time did the suspenion of the student arise in the conversation between the parent, Deputy Principal or myself.

4. On 21 May 2008 the Director of Ethical Standards within the Department of Education informed the Queensland Police Service of the parent’s complaint. In August, a search warrant was executed at VPS’s residence and Cannibis Sativa and other drug related property was located. Subsequently, VPS pleaded guilty to possessing a dangerous drug. In February 2009 an Assistant Commissioner of Police advised the Director of the Ethical Standards Unit that the search warrant had been executed and that VPS had pleaded guilty as set out above. The Assistant Commissioner also advised that the initial allegation concerning VPS approaching the father of one of his students to purchase drugs was unable to be proven.

5. VPS did not inform his employer of his conviction. As a result, in March 2009, the Department placed a notice requiring further consideration on VPS’s employment record. Despite protestations from VPS, that notice has never been removed.

6. On 21 August 2009 the Professional Practice and Conduct Committee within the College determined to take no disciplinary action against VPS in relation to his conviction for possession of a dangerous drug.

7. In March 2009 the Department commenced an investigation into concerns that VPS had used his position as a teacher to obtain drugs and he had failed to disclose that he had been charged with an indictable offence. That investigation was finalised in March 2010. VPS did not participate in that investigation and the Department found the following allegations ‘substantiated’:

   a)    That VPS attempted to procure a dangerous drug through school related contacts;

   b)    That VPS attempted to arrange the supply of a dangerous drug through an educational facility via a student’s school bag; and

   c)    That VPS failed to meet his statutory obligation to advise the Department that he had been charged with an indictable offence (possession of a dangerous drug).

8. Despite further correspondence, including through VPS’s solicitors, the notice requiring further consideration was not removed from his employment file and VPS has been unable to resume employment within the Department. The Ethical Standards Unit reviewed the matter generally and on 25 August 2010 concluded that VPS’s response to the unit did not alter the position arrived at by the original investigation.

9. VPS also made interlocutory application in these proceedings to have that notice removed from his employment file but has subsequently withdrawn such application from these proceedings.

10. This disciplinary matter was referred to the Tribunal on 17 November 2011 and the Tribunal is now charged with determining whether there is sufficient evidence for this Tribunal to be reasonably satisfied that the events occurred as alleged having regard to the significance and gravity both of those events and of the consequences of such findings.

The evidence

1. The first allegation against VPS concerns a meeting or meetings said to have taken place in the home of the parent in term one of 2008. The second allegation involves meetings between VPS and the parent’s associate.

2. The evidence about these meetings includes:

   a)    The incident report of the Principal dated 15 May 2008 (referred to above).

   b)    An interview by the Ethical Standards Unit investigators (in person) of the parent of 3 June 2009.

   c)    An interview by the Ethical Standards Unit investigators (by telephone) of the parent’s associate on 23 September 2009.

   d)    VPS’s submissions, the truth of which he has deposed to in his affidavit.

   e)    The oral evidence of the parent and the parent’s associate at the hearing.

3. Reference has already been made above to the content of the incident report. It was a report of a telephone conversation and meeting which took place between the Principal, Deputy Principal and the parent. The key points of interest when comparing that incident report with subsequent evidence are as follows:

   The parent said on 15 May 2008:

   §At some point in term one he gave VPS the number of a drug dealer but would not divulge the name of that dealer.

   §About a week before 15 May 2008 VPS entered the parent’s shop and asked his friend (an employee) the parent’s associate for drugs and suggested that the student, the son of the parent, could bring them to school in his bag.

   §Text messages most recently received by the parent were dated 11 May 2008, together with three messages on 14 May 2008 (the day before this conversation took place). These messages read either ‘still waiting. VPS’; or ‘Can I catch up. VPS’.

   §On Wednesday 14 May 2008 at 5pm VPS approached the parent at his workplace asking where he could get drugs. The parent described a heated discussion following which the parent chased VPS away.

4. The parent was subsequently interviewed over a year later by the investigators of the Ethical Standards Unit. At this stage, contrary to the vague time frames about the first event happening ‘sometime in term 1’ which the Principal’s report suggests, he says that all events occurred over a two week period.[10] In the parent’s interview he describes a first meeting with VPS at his home where the topics of conversation lead from the student’s performance at school and his need for tutoring, together with an offer from VPS that he undertake that tutoring, to a request by VPS for drugs.[11] The parent denied, in that interview, ever giving the name of anybody else from whom drugs could be procured. Rather, he said ‘all I said to him in that regard is a couple of my boys might smoke a bit of pot’. The parent also described in that interview a later visit by VPS to his shop where a heated exchange took place between himself and VPS.

   [10]        Transcript of Interview, the parent, 3 June 2009, paragraphs 127-132.

   [11]        Ibid, paragraph 124.

5. The parent’s associate’s interview took place via telephone on 23 September 2009. During the very early parts of that interview, when the Ethical Standards Unit investgators were attempting to establish the dates relevant to this incident, The parent’s associate stated that he would have to ‘have a yak with the parent and work out when it was you know’.[12] The parent’s associate then proceeded to give a version of events where VPS requested drugs and asked that they be put into the student’s school bag on the very first occasion that VPS came into the shop. He then described a subsequent incident where VPS attended at the shop in the presence of the parent and a heated exchange took place between the parent and VPS. The parent’s associate had difficulty describing VPS’s physical attributes, apart from mentioning he seemed fit. The parent’s associate did not recall dates and even described his own recollection as a ‘bit sketchy’.[13]

   [12]        Transcript of Interview, the parent’s associate, 23 September 2009, paragraph 34 .

   [13]        Transcript of Interview, the parent’s associate, 23 September 2009, paragraph 100.

6. Both the parent and the parent’s associate were requested by the Tribunal to attend at the oral hearing and to give evidence on oath. Both gentlemen did attend and did give a version of events on oath. The version of events given by the parent was generally more consistent with his interview transcript than with the version of events recorded contemporaneously by the Principal in 2008. However, his presentation and recollection of detail indicated that his recall of the events could best be described as ‘a bit sketchy’. For example the parent could not recall the time of day that VPS had attended at his house despite being given an opportunity to reflect upon this simple question. The parent also did not recall that his report of this incident took place the day after an internal suspension of his son from VPS’s class and emphatically denied any connection between those two events.

7. The parent’s associate’s oral testimony was inconsistent with his recorded interview in 2009 in certain respects. He described first meeting VPS at the parent’s shop in circumstances where he did not identify himself as the student’s teacher and where he was simply asked by the parent’s associate to leave the shop when the parent’s associate refused his request to supply him with drugs. The parent’s associate then gave oral evidence of a second visit to the shop in the absence of the parent where VPS did identify himself as the student’s teacher and where he again requested that the parent’s associate supply him with drugs. It is the parent’s associate’s evidence that he emphatically refused to do so by stating the word ‘no’. The parent’s associate then gave oral evidence that VPS’s immediate response was ‘if it’s a problem getting it to me, just put it in the student’s school bag’. Despite being questioned during his oral evidence as to whether it seemed suprising to him that VPS would have suggested such a course of action in circumstances where the supply of drugs have been categorically refused by the parent’s associate he seemed reluctant to accept that events had occurred any other way. That reluctance was expressed despite his general lack of recall of detail, dates, times, and other circumstances consistent with his earlier version of events given during the interview in 2009.

8. During his interview on 23 September 2009, the parent’s associate expressed the need to confer with the parent in order to confirm details of the story. This suggestion of the need for witnesses to collude leads to a grave concern as to the reliability of this evidence. Also, the inconsistencies in both the parent’s associate and the parent’s various versions of the events are important and telling and lead to the conclusion of unreliability in them as witnesses of genuine recollection.

9. As a whole, the body of evidence advanced by the College raises more questions than it answers. The following factors seem, in our view, to be surprising:

   §The parent did not initially report VPS’s approach and request for drugs to the school Principal.

   §The parent waited until the day after his son, who was taught by VPS, had been internally suspended before reporting it.

   §VPS is alleged to have asked the parent’s associate to involve the parent’s son, a student of his, in the carriage of drugs to school despite the parent’s associate’s emphatic refusal to so supply him. That request seems a non sequitur departure from the conversation, where the parent’s associate stated that he refused to supply drugs, to another part of the conversation where VPS is alleged to suggest a highly contentious mode of transport, namely, the use of the student’s schoolbag to transport drugs to school. This seems inherently unlikely.

   §Both the parent and the parent’s associate gave clear evidence alleging VPS’s persistence in circumstances where they say they had declined or refused to supply him drugs. Again, this seems inherently unlikley.

10. Against all of this, VPS has sworn to the truth of his submissions in which he denies the allegations that are set out in the referral and particulars and denies that conversations took place with the parent and the parent’s associate in the way they have alleged. VPS was directed by this Tribunal to appear in person. Although he has already deposed to certain facts, it would have been helpful both to allow him the opportunity to cross-examine the witnesses relied upon by the College and also to allow the Tribunal an opportunity to assess his evidence in the way that the Tribunal has been able to assess that of the parent and the parent’s associate.

1. That said, the evidential burden in this case rests with QCT. The evidence produced by QCT must reasonably satisfy the Tribunal of the facts alleged.

2. QCT did not produce evidence of any independent or objective person, for example, a customer in the store who may have overheard such a conversation, any worker or adult family member who may also have been present at a conversation (such individuals are identified in the course of the transcript but have not been interviewed as part of the Ethical Standards Unit investigation) or indeed from anyone unconnected with the parent. The parent is the parent of a child with a history of disruptive behaviour who, at the material time, was being taught by VPS. That child had been suspended on the day before his initial complaint. Although the parent denies any connection between these events the coincidence in timing cannot be overlooked.

3. The evidence presented by the College is inadequate to discharge the significant evidential obligation by Briginshaw v Briginshaw[14], having regard to the seriousness of the allegations made. We are not satisfied that the events occurred as alleged.

   [14] (1938) 60 CLR 336.

4. We note that the circumstances surrounding VPS’s guilty plea to the charge of possessing a dangerous drug was not articulated by QCT as a separate allegation of VPS’s alleged unsuitability to teach.[15]  That said, in any event there is no evidence of any drug-affected behaviour, either whilst teaching or elsewhere or any circumstances other than those discussed which may lead to the conclusion that VPS was unsuitable to teach.

   [15]Although it had been particularised under allegation 1. However as it was unrelated to allegation 1, on 6 February 2013 the Tribunal struck it out at the hearing as a particular of that allegation.

Conclusion

1. We find that the two allegations particularised by the College in the referral have not been established by the evidence. The disciplinary referral is dismissed.

Non-publication order

1. On 13 December 2011, an order was made pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 prohibiting publication of the names, addresses and schools of the children referred to in the proceeding. Section 66 provides that a non-publication order may be made for reasons including to avoid the publication of information which would be contrary to the public interest. Publication of information which would lead to the identification of children mentioned in disciplinary proceedings would be contrary to the public interest.

2. As publication of the names of the parent, the parent’s associate, the Principal and Deputy Principal would lead to identification of the student or the school, an order is also now made prohibiting publication of their names. Further, the publication of details which may lead to the identification of the parent through his residential arrangements or his business (or former business) interests are prohibited.

3. If we had found VPS unsuitable to teach there would be deterrent value in including his name in the published version of the decision.  However, we have dismissed the referral.  VPS has already had several years of interruption to his teaching career at least in part as a result of the allegations arising in the proceeding.  Publication of his name may extend the disruption.  Given our conclusions, this would not be in the interests of justice.  Therefore, we also order that his name must not be published.

4. Other than to the parties to the proceeding and the Department of Education, these reasons for decision may only be published as modified to exclude these names and other details.