Teachers Registration Board of South Australia v Kourlas

[2025] SASCA 13

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA v KOURLAS

[2025] SASCA 13

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Auxiliary Justice Hall)

13 February 2025

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - FUNCTIONS OF TRIBUNALS

ADMINISTRATIVE LAW - REASONS FOR ADMINISTRATIVE DECISIONS - PROCEDURE AND OTHER MATTERS

Appeal from two decisions of a judge of the District Court of South Australia.

The judge allowed an appeal from a decision of Teachers Registration Board of South Australia (‘the Board’) and remitted the matter to the Board. The Board had declined to grant the respondent’s registration as a teacher.

The respondent was charged with offences contrary to the Controlled Substances Act 1984 (SA) (‘CSA’) in respect of an incident on Hindley Street on 10 March 2018. These charges were later withdrawn. He did not disclose those charges on his initial application to be a teacher. When considering his application for registration, a Special Sub-Committee of the Board conducted their own investigation and determined that the respondent had been involved in ‘drug dealing’ in respect of the incident in 2018. The Special Sub-Committee determined that the Respondent did not meet the minimum requirements for registration as a teacher on the basis that he was not a fit and proper person to be a registered teacher under s 21(1)(e) of the Teachers Registration and Standards Act 2004 (SA) (‘TRS Act’).

On remitting the matter to the Board, the judge directed that the panel, differently constituted, was not to take into account the respondent's involvement in any incident on Hindley Street on 10 March 2018.

The Board raised the following grounds of appeal:

1.The judge misconstrued the nature of the proceedings before the Board and, in doing so, wrongly found that the Board had erred in refusing the respondent’s registration.

2.The judge erred in finding that the Board was heavily influenced by, and adopted, the observations of the Board investigator without scrutinising the evidence independently.

3.In the alternative, the judge erred in directing, on remittal, that the panel was not to take into account the respondent’s involvement in any incident on Hindley Street.

In respect of Ground 1, the Board raised several sub-issues including whether: the Board was entitled to conduct its own investigation (Ground 1.1); the Board was prevented from gathering evidence beyond documents provided by SAPOL for the purposes of its criminal investigation (Ground 1.2); any finding by the Board that the respondent had engaged in unlawful conduct was restricted by the provisions of the CSA (Ground 1.3); the Board was bound by the outcome of criminal proceedings (Ground 1.4); the judge erred in finding that the Board should not have considered evidence said to have been illegally obtained (Ground 1.5).

Held (by the Court) allowing the appeal:

1.The following errors established on Grounds 1.1–1.5 strongly support the conclusion that the judge misconstrued the nature of the proceedings before the Board.

1.1 The judge’s conclusion that the Panel had no right to conduct its own investigation based on material provided by SAPOL was erroneous given the power of Board to inform itself on any matter it sees fit under s 45(a) of the TRS Act, in conjunction with s 50(1).

1.2 Section 50(1) of the TRS Act empowers the Board to require the Commissioner of Police to ‘make available’ to it ‘other [relevant] information to which the Commissioner has access’. The judge erred in holding the Board was not entitled to conduct its own investigation and ‘create additional documents’ in the form of affidavit evidence of the police officers.

1.3    In holding that the finding that the applicant was involved in ‘drug dealing’ was not a finding open to the Board, the judge erred.

1.4    The Board was not bound by the outcome of criminal proceedings.

1.5    The judge failed to identify what she meant by ‘illegally obtained evidence’ and failed to explain her finding that ‘the prejudice of the illegally obtained police evidence heavily outweighs its probative value’.

2.There was no basis for the judge’s criticism that the Board relied on the investigator’s evidence without scrutiny.

By an Amended Notice of Alternative Contention the respondent contended the decision of the primary judge should also have been made on four grounds:

1.The finding of the Board that the respondent had engaged in ‘drug dealing at the time of his arrest in 2018’ was unreasonable or plainly unjust;

2.The finding of the Board that the respondent was not a fit and proper person to be registered as a teacher was unreasonable or plainly unjust;

3.The respondent was a fit and proper person to be registered as a teacher; and

4.The way in which the Board dealt with the respondent’s character references constituted cogent reasons to depart from the Board’s finding that the respondent was not a fit and proper person to be registered as a teacher.

Alternative Contention 4 contained further particulars. In oral submissions, the respondent made a further submission that the Court understood to be in support of the first alternative contention. The respondent argued he was denied procedural fairness with respect to the finding of ‘drug dealing’.

Held (by the Court), upholding the respondent’s Alternative Contention 1 (as amended) in part and remitting the matter to a Sub-Committee of the Board, differently constituted, to consider the respondent’s application for registration:

1.Having regard to the entire matrix of evidence, the evidence was capable of supporting the Board’s conclusion that the Applicant was involved in ‘drug dealing’ at the time of his arrest in 2018.

2.In relation to the further submission in support of Alternative Contention 1, in circumstances where the Panel does not appear to have brought certain relevant considerations, including the respondents’ denials, the withdrawal of the charges and the character evidence to account at the fact-finding stage, and where there is some doubt as to the stage at which it paid due regard to Briginshaw, the Panel’s fact-finding process miscarried.

3.This Court is not in a position to conclude that the Respondent is a fit and proper person to be a registered teacher. Alternative Contentions 2 and 3 fail.

4.Subject to the finding on Alternative Contention 1, the Panel’s ultimate determination to accord the references little weight was open to it.

Controlled Substances Act 1984 (SA) ss 32(3), 33L(a); Teachers Registration and Standards Act 2004 (SA) ss 4, 5, 6, 7, 16, 20, 21(1), 22(2)(c), 42(1), 43, 44, 45, 49, 50, 54, 56; District Court Act 1991 (SA) ss 42E, 42F, pt 6 div 2; Summary Offences Act 1953 (SA), referred to.
Kourlas v Teacher’s Registration Board of South Australia [2024] SADC 5; Kourlas v Teacher’s Registration Board of South Australia (No 2) [2024] SADC 74; Teachers Registration Board of South Australia v Kourlas [2024] SASCA 88; Briginshaw v Briginshaw (1938) 60 CLR 336; Craig v Medical Board of South Australia (2001) 79 SASR 545; Rajagopalan v Medical Board of South Australia [1998] SASC 6667; The Law Society of South Australia v Neville John Jordan (1998) 198 LSJS 434; Weinstein v Medical Practitioners Board of Victoria (2008) 21 VR 29; The King v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Martin v Medical Complaints Tribunal (2006) 15 Tas R 413; Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; Helton v Allen (1940) 63 CLR 691; Miller v Miller (2011) 242 CLR 446; White v Director of Public Prosecutions (WA) (2011) 243 CLR 478; Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67; Olbers Co Ltd v The Commonwealth (2004) 143 FCR 449; Habib v The Commonwealth (2010) 183 FCR 62; Hocking v Bell (1945) 71 CLR 430; Rejfek v McElroy (1965) 112 CLR 517; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140; Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350; Jackson (formerly Subramaniam) v Legal Practitioners Admissions Board [2007] NSWCA 289; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Prothonotary of the Supreme Court of New South Wales v Castillo [2001] NSWCA 75; Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630; Honeysett v The Queen (2014) 253 CLR 122; Smith v The Queen (2001) 206 CLR 650; R v Tropeano (2015) 122 SASR 298; Shah (A Pseudonym) v Medical Board of South Australia [2022] SASC 140; R v Williams [2018] SASCFC 14; Bhoola v Optometry Board of Australia [2022] SASCA 20, considered.

TEACHERS REGISTRATION BOARD OF SOUTH AUSTRALIA v KOURLAS
[2025] SASCA 13

Court of Appeal – Civil:  Livesey P, Bleby JA and Hall AJA

1. THE COURT:   This is an appeal from two decisions of a District Court judge allowing an appeal from a decision of the Teachers Registration Board of South Australia (‘the Board’). The Board had declined to grant the respondent’s registration as a teacher.

2. Briefly put, the respondent was charged with offences contrary to the Controlled Substances Act 1984 (SA) (‘CSA’) that were later withdrawn. He did not disclose those charges on his initial application for registration as a teacher. Following an investigation of its own, a Special Sub-Committee of the Board determined that the respondent had been involved in ‘drug dealing’. The Special Sub-Committee determined that the respondent did not meet the requirements for registration as a teacher on the basis that he was not a fit and proper person to be a registered teacher as described in s 21(1)(e) of the Teachers Registration and Standards Act 2004 (SA) (‘TRS Act’).

3. The primary judge allowed the respondent’s appeal and ordered that the matter be remitted to the Board.[1] She directed that on the remittal, there should be a new panel constituted to consider the application, the panel was not to take into account the respondent’s involvement in any incident on Hindley Street on 10 March 2018 and that the panel’s deliberations should occur as soon as possible. Subsequently, this Court directed that there be a stay pending the hearing and determination of this appeal.[2]

   [1]     Kourlas v Teacher’s Registration Board of South Australia [2024] SADC 5; Kourlas v Teacher’s Registration Board of South Australia (No 2) [2024] SADC 74.

   [2]     Teachers Registration Board of South Australia v Kourlas [2024] SASCA 88.

4. Ground 1 of the Board’s appeal complains that the judge misconstrued the nature of the proceedings before the Board and, in so doing, wrongly found that the Board had erred in refusing the respondent’s registration. This Ground raises the following issues:

   ·whether the Board was entitled to conduct its own investigation of the facts, based on material provided by SAPOL (Ground 1.1);

   ·whether the Board was prevented from gathering evidence beyond the documents created or obtained by SAPOL for the purposes of its criminal investigation (Ground 1.2);

   ·whether any finding by the Board that the respondent had engaged in unlawful conduct was restricted by the provisions of the CSA, such that it was not open to the Board to find that the respondent was involved in ‘drug dealing’ (Ground 1.3);

   ·whether the Board was bound by the outcome of criminal proceedings (Ground 1.4);

   ·whether the judge erred in finding that the Board should not have taken into consideration evidence said to have been illegally obtained. In this regard, the Board complains that the judge did not identify the evidence, that evidence was collected lawfully and that if any evidence was not, the evidence should have been admitted in any event (Ground 1.5).

5. Ground 2 complains that the judge erred in finding that the Board was heavily influenced by, and adopted, the observations of the Board investigator without scrutinising the evidence independently. Ground 3 complains, in the alternative, that the judge erred in directing on remittal that the panel was not to take into account the respondent’s involvement in any incident on Hindley Street.

   Background

6. The respondent completed a Bachelor of Education (Primary and Middle) at the University of South Australia in August 2020. At that time, he was 21 years old. On 18 August 2020, just prior to completing his studies, he applied to the Board for registration as a teacher.

7. The respondent asserted in his application that he had not been charged with any offence involving illicit drugs. However, a National Criminal History Check obtained by the Board disclosed that the respondent had been the subject of two criminal charges arising out of an incident occurring on 10 March 2018

   
   

   when the respondent was 18 years of age, concerning capsules of methylenedioxymethamphetamine (‘MDMA’).

8. The charges were as follows. Police laid a complaint in April 2018 charging the respondent with a basic offence of Traffic in a Controlled Drug, contrary to s 32(3) of the CSA. Those charges were not proceeded with. Police then laid a second complaint, charging the respondent with Possessing a Controlled Drug contrary to s 33L(a) of the CSA. That charge related to the same drugs. The complaint was withdrawn on 14 March 2019, with no plea being recorded.

   The Registrar’s investigation

9. The Registrar of the Board sought an explanation from the respondent pursuant to s 22(2)(c) of the TRS Act about the charges and why the respondent had failed to correctly answer the relevant question in his application. The respondent’s solicitor, by letter dated 26 October 2020, advised that the charges related to one incident and had been discontinued over a year before the application, and that the respondent maintained his innocence in respect of all allegations.

10. Upon becoming aware of the charges, the Board requested documents from SAPOL pursuant to s 50 of the TRS Act. SAPOL provided the Registrar with an original Apprehension Report, affidavits of police officers, a disc containing the Record of Interview with the respondent and a transcript of an interview with the respondent. The affidavits included an affidavit of Senior Constable Nathan Broadbent sworn on 22 May 2018 (‘the first Broadbent affidavit’) and an affidavit of Senior Constable Craig Murphy dated 15 May 2018 (‘the first Murphy affidavit’). SAPOL subsequently provided further documentation at the Registrar’s request. This included photographs and handwritten notes of the police officers. The respondent’s solicitor provided a document relating to the forensic science examination of the 20 capsules found in the plastic bag in Hindley Street. The Board subsequently obtained a further FSC certificate relating to the plastic bags that had been seized from the respondent’s home.

11. The material provided by SAPOL included CCTV footage of the respondent in a laneway near the Dog & Duck Hotel, just off Hindley Street, on Saturday 10 March 2018. The primary judge summarised the events of that evening as follows:[3]

    The officers monitoring the CCTV cameras alerted police in the area to an incident nearby that may have involved the sale of an illicit substance. Senior Constable Broadbent (Broadbent) and Senior Constable Capponi (Capponi) were tasked to the scene. Broadbent later became the investigating officer in relation to the prosecution of the applicant.

    The applicant was stopped by Broadbent as he walked along Hindley Street. He was told that he was suspected of being in possession of illicit substances, and that he would be searched pursuant to s 52 of the CSA. Cash in the amount of $150 was found in the applicant’s wallet together with his phone. Broadbent checked the ground around where the applicant was located and saw nothing of interest. Brevet Sergeant Slape (Slape) then attended Hindley Street and located a plastic bag containing 20 capsules of an unknown substance near the wall where the applicant was standing. Broadbent advised the applicant that he was under arrest and placed him in handcuffs. He was conveyed to the City Watchhouse. It was not until the applicant arrived at the watchhouse, sometime later, that he was given his arrest rights.

    Approximately two hours after the police first spoke to the applicant, his home at Goodwood was searched pursuant to a warrant. In his bedroom police located and seized a plastic resealable bag containing eight smaller plastic bags.

    Handwritten notes of Broadbent and Capponi record that, under caution, the applicant told them that he had been holding the plastic bag found in Hindley Street for someone else. He declined to answer any further questions.

    Whilst the applicant was inside the holding cell, Capponi looked through the applicant’s phone and asked for the password to his Wickr application. This was provided and several messages were found within that application (the Wickr messages).

    (Footnotes omitted)

    [3] [2024] SADC 5 at [19]-[23].

12. The judge noted that upon reading these messages, Capponi recorded in her affidavit that Wickr was a ‘well known application used widely by drug dealers’.[4]

    [4] [2024] SADC 5 at [24].

13. On 30 November 2020, the Registrar sought further information from the Respondent’s solicitors pursuant to s 22(2)(c) of the TRS Act in the following terms:

    An explanation as to what took place in the laneway near Hindley Street between your client and the male person that was recorded on CCTV.

    A description of what was in the plastic bag located at your client’s feet that he stated he was holding for another person, and the reason why he refused to disclose who that person was.

    A detailed description/explanation of the exchange of messages located on your client’s phone between himself and username “gunit 96”.

    I further request pursuant to s 22(2)(c) of the Act provision of the forensic analysis report conducted on the capsules/substance found in the possession of your client from Forensic Science SA.

14. The respondent provided a sworn Statutory Declaration that contained the following:

    Nothing illegal or unlawful took place in the lane way near Hindley Street as was recorded on CCTV. I met a person in the laneway and spoke with him before moving off. He was an acquaintance from my former soccer playing days.

    I do not know what was in the plastic bag referred to. The plastic bag was not located at my feet. I did not say that I was holding anything for another person and I did not therefore refuse to disclose who that person was.

    I was not a participant in the messages you refer to. As such I do not know of their content.

15. The Statutory Declaration was forwarded to the Registrar together with a copy of an analysis report and Certificate prepared by Forensic Science Centre SA (‘FSC’).

16. The FSC Certificate indicated the test results for the 20 capsules. Eighteen contained crystals and two were empty. The total weight of the capsules was 1.5 grams. There was a positive presumptive test for MDA or MDMA in relation to the crystals found in 10 capsules. Two of the capsules were tested further. They were positive for MDMA, weighing .06 grams and .03 grams respectively.

1. Following receipt of this information, the Registrar sought advice from the Crown Solicitor and advised the respondent that she intended to refer his application to the Board for determination.

   The Board’s investigation and decision

2. The Board engaged Ms Sheree Zuvich to investigate the March incident further. On 27 August 2021, Ms Zuvich emailed Broadbent seeking further information regarding the bags seized from the respondent’s home and any FSC analysis.

3. Broadbent provided an addendum affidavit, sworn on 31 August 2021 (‘the second Broadbent affidavit’). In that affidavit he indicated that he sought forensic analysis of nine of the resealable bags found at the respondent’s home. A further FSC certificate dated 31 July 2018 (‘the second FSC certificate’) identified that there were trace amounts of substance in eight of the bags. Of the

   
   

   nine bags discovered, only two were tested. One tested positive for methylenedioxyamphetamine (‘MDA’) and one tested positive for THC (‘cannabis’).

4. Ms Zuvich sought further information from Senior Constable Craig Murphy regarding his search of the respondent’s home and, particularly, where the bags were found. Murphy produced a second affidavit, dated 31 August 2021 (‘the second Murphy affidavit’). The judge noted that there no other indicia of trafficking were found at the house and expressed the view that ‘very little’ could be made of Murphy’s evidence without knowing how long the bags had been in the drawer.[5]

   [5] [2024] SADC 5 at [37].

5. Ms Zuvich provided two signed statements to the Panel. The first statement, dated 7 July 2021, set out her summary of what she believed the CCTV depicted. Ms Zuvich described the respondent putting his left hand into the pocket of his pants before discarding ‘what appears to be a plastic bag onto the ground behind his right foot, just in front of the wall’. She described that the respondent then put his right foot over the plastic bag. Ms Zuvich’s second statement, signed on 30 September 2021, addressed her Google searches of a name on the respondent’s Wickr account. She used the Twitter, Snapchat and Facebook applications to trace the respondent’s activity to confirm that the respondent was ‘dilldog2468’, a person who frequently appeared in the Wickr messages.

6. The Registrar empanelled a sub-committee comprising five Board or Deputy Board members (‘the Panel’) for the purpose of determining whether the respondent could satisfy the Board that he was a fit and proper person to be registered as a teacher. The Panel conducted two hearings. The first occurred on 29 November 2021 following which, on 16 December 2021, the Panel determined that it would not exclude evidence provided to it in a pre-reading bundle, including the addendum affidavits of the police officers and the FSC certificates.

7. The Panel held a second hearing on 7 February 2022. This was a substantive hearing as to the respondent’s fitness and propriety to be registered as a teacher. The Panel received evidence and heard submissions.

8. On 14 June 2022, the Panel found that the respondent was not a fit and proper person to be registered a teacher. In reaching that conclusion, it made the following factual findings:

   The Panel finds on the balance of probabilities the following facts/conduct proven:

   1.The Applicant was filmed during an exchange/transaction with another male behind the Dog & Duck Hotel in a laneway off Hindley Street following which he placed a small plastic bag in his left pocket.

   2.The Applicant was stopped and searched by a SAPOL foot patrol (comprising Officers Broadbent and Capponi and later joined by Officers Dutschke and Slape) in Hindley Street.

   3.The stop and search was captured on CCTV and upon consideration of the footage the Panel finds that it shows the Applicant taking an item from his left front jeans pocket and dropping it near his left foot whilst Officers Broadbent and Capponi were momentarily distracted.

   4.Once Officer Slape arrived, he identified a small plastic bag containing a number of capsules behind the Applicant’s left foot.

   5.Officer Broadbent delivered the located plastic bag containing 20 capsules to Forensic Science SA for analysis.

   6.Ms Wall analysed the capsules, finding that 10 of the capsules were shown to contain MDMA in a presumptive test. Crystals from two of the capsules were then subjected to Gas Chromatography with Mass Spectral Detection which confirmed the presence of MDMA in the capsules.

   7.The Applicant was taken by the Police cage vehicle to the City Watch House and attended on there by Officers Broadbent and Capponi.

   8.Whilst at the City Watch House the Applicant was read his arrest rights and asked for the password to the Wickr App on his phone by Officer Capponi. Officer Capponi identifies the Wickr App as a phone application which is widely used by drug dealers.

   9.After the Applicant provided the password to Officer Capponi, the messages found on the Applicant’s mobile phone Wickr App were, in the view of Officers Broadbent and Capponi, indicative of drug dealing.

   10.A search of the Applicant’s bedroom conducted by police reveals a large resealable plastic bag and 9 small resealable plastic bags. Analysis by Forensic Science SA, of two of the bags, revealed trace amounts of MDMA and cannabis.

9. The Panel went on to discuss application of the Briginshaw v Briginshaw[6] (‘Briginshaw’) standard of proof and found:

   As a result of the factual findings listed above and having regard to the Briginshaw standard, the Panel find that there is clear and cogent evidence that the Applicant was involved in drug dealing at the time of his arrest in 2018.

   [6] (1938) 60 CLR 336.

10. The Panel then addressed the legal framework for considering whether the respondent was ‘fit and proper’ to be registered as a teacher. In its application of that framework to the respondent’s case, it found that the references provided by the respondent could not be given significant weight, given that they were written ‘in the context’ that there was no wrongdoing by the respondent in 2018. The Panel considered that given that the respondent continued to deny any wrongdoing, the references were unlikely to have been provided in the knowledge of the circumstances relevant to the charges.

11. The Panel found that the respondent had not met his onus of showing that he was a fit and proper person to be registered as a teacher. It continued:

    Given the enduring denials of any wrongdoing, there has been no evidence or submissions given to explain or in any way negate the conduct. Further, the denials of wrongdoing have not allowed the Panel to make an assessment as to the Applicant’s insight into the impropriety of his conduct in 2018 and, accordingly, whether such conduct could be repeated in the future.

12. The Panel concluded that the respondent did not meet the requirements for registration as a teacher as he was not a fit and proper person to be a registered teacher as described in s 21(1)(e) of the TRS Act.

    The appeal to the District Court

13. On 12 July 2022, the respondent appealed to the Administrative and Disciplinary Division of the District Court, pursuant to s 49(1) of the TRS Act and Part 6, Division 2 of the District Court Act 1991 (SA). On 8 February 2024, the primary judge allowed the appeal and published her primary reasons for judgment.[7] On 2 July 2024, the judge published reasons for ordering that the respondent’s application be remitted to the Board, in the terms set out above.[8]

    [7] [2024] SADC 5.

    [8] [2024] SADC 74.

14. The judge’s reasons are lengthy. For the purposes of the present appeal, it will be sufficient to address the operative parts of the reasons when considering the grounds of appeal. Before doing that, it is helpful to summarise the scheme of registration provided for by the TRS Act and the nature and purpose of professional regulatory proceedings.

    The TRS Act

15. Section 4 of the TRS Act sets out the object of the Act:

    4—Object of Act

    The object of this Act is to establish and maintain a teacher registration system and professional standards for teachers to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children.

16. Section 5 establishes the Board. Section 6 provides for the functions of the Board, which include administering the provisions of the Act for the regulation of the teaching profession (s 6(a)) and promoting and implementing professional standards for teachers (s 6(b)).

17. Section 7 provides that the welfare and best interests of children is the paramount consideration in relation to the operation, administration and enforcement of the Act.

18. Section 16 empowers the Board to establish committees to advise the Board on any matter or to carry out functions on behalf of the Board. The procedures to be observed in the conduct of the business of a committee are as determined by the Board and, subject to that, as determined by the relevant committee.

19. Section 20 creates the requirement for teachers to be registered. Part 5 of the Act governs registration. Within that Part, s 21 sets out eligibility for registration:

    Part 5—Registration

    21—Eligibility for registration

    (1)Subject to this Act, a person is eligible for registration as a teacher if—

    (a)the person has qualifications and experience—

    (i)prescribed by regulation; or

    (ii)determined by the Teachers Registration Board to be appropriate for registration; and

    (b)the person has met any other requirements for registration—

    (i)prescribed by regulation or contained in professional standards for teachers; or

    (ii)determined by the Teachers Registration Board to be necessary for registration; and

    (c)     a working with children check has been conducted in relation to the person within the preceding 5 years; and

    (d)the person is not a prohibited person; and

    (e)the person is otherwise a fit and proper person to be a registered teacher.

    (2)Subject to this Act, a person is eligible for provisional registration as a teacher if the person does not have the necessary experience but is otherwise eligible for registration under subsection (1).

20. The Board in the present case relied on s 21(1)(e).

21. Part 7 is concerned with action that the Board can take to deal with unprofessional conduct or incapacity of teachers. Part 8 then contains provisions relating to proceedings of the Board, including with respect to an application for registration under Part 5.

22. Within Part 8, s 42(1) provides that the Board must observe the rules of natural justice in proceedings. Section 43 then governs the approach that the Board may take in respect of evidence taken in other proceedings:

    43—Evidence and findings in other proceedings

    The Teachers Registration Board may, in the course of proceedings—

    (a)     receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or any other place and draw conclusions of fact from the evidence that it considers proper;

    (b)     adopt, as in its discretion it considers proper, any findings, decision, judgment, or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.

23. On its terms, this section is facilitative. It does not purport to exhaust the Board’s capacity to receive evidence or information received in, or relevant to, other proceedings.

24. Section 44 empowers the Board to issue summonses, inspect material produced to it, require a person appearing to make an oath or affirmation to answer all questions truthfully and to require a person to answer any relevant question. Section 45 then sets out the principles governing proceedings before the Board:

    45—Principles governing proceedings

    In proceedings, the Teachers Registration Board—

    (a)     is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and

    (b)     may, of its own motion or on the application of a party, direct that the proceedings or a part of the proceedings be held in private; and

    (c)may, subject to this Act, determine its own procedures.

25. Part 10 of the TRA is headed ‘Miscellaneous’. Within that Part, s 50 provides for the provision of information by the Commissioner of Police:

    50—Provision of information by Commissioner of Police

    (1)The Commissioner of Police—

    (a)must, at the request of the Teachers Registration Board; and

    (b)may, at the Commissioner's own initiative,

    make available to the Teachers Registration Board information about criminal convictions and other information to which the Commissioner has access relevant to the question of a person's fitness to be, or continue to be, registered as a teacher, or to hold a special authority to teach under Part 6.

    (2)The Commissioner of Police is not required to provide information under subsection (1) that the Commissioner considers—

    (a)     may prejudice or otherwise hinder an investigation to which the information may be relevant; or

    (b)may lead to the identification of an informant; or

    (c)may affect the safety of a police officer, complainant or other person.

    (3)Subsection (1) applies whether or not the person to whom the information relates has consented to the provision of the information.

26. Still within Part 10, s 54 makes it an offence for a person to make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided under the Act. Section 56 then addresses self-incrimination by the provision of required information:

    56—Self-incrimination

    If a person is required to provide information or produce material under this Act and the information or material would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide information or material, but the information or material so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than an offence against this or any other Act relating to the provision of false or misleading information.

27. This regulatory framework provides the specific legislative context for the application of the principles governing professional regulatory proceedings.

    The nature and purpose of professional regulatory proceedings

28. It is well understood that proceedings relating to the regulation of a profession are concerned with the protection of the public. They do not have a punitive function. In Craig v Medical Board of South Australia, Doyle CJ said:[9]

    The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

    [9]     Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553-554.

29. This purpose necessarily extends to proceedings concerning admission to a profession. The TRS Act reinforces that purpose of protecting the public by making, in s 7, the welfare and best interests of children the paramount consideration in relation to the administration of the Act.

30. The applicable standard of proof in disciplinary proceedings alleging misconduct by a professional practitioner is the balance of probabilities.[10] The nature of allegations of misconduct requires satisfaction of that standard to be reached with due consideration to the approach in Briginshaw.[11]

    [10]   Rajagopalan v Medical Board of South Australia [1998] SASC 6667.

    [11] (1938) 60 CLR 336.

31. It is generally understood that the function of a tribunal of deciding whether a person is fit to practise as a member of a profession may mean that the appropriate procedure is one that would not be followed in civil or criminal proceedings.[12] In the case of proceedings of the Board, that necessity is given prescriptive content by s 45 of the TRS Act. Specifically, pursuant to s 45(a), the Board in proceedings is not bound by the rules of evidence and ‘may inform itself on any matter as it thinks fit’. In respect of these last words, which form a relatively commonplace grant of power to administrative tribunals, the Victorian Court of Appeal said in Weinstein v Medical Practitioners Board of Victoria:[13]

    The words “may inform itself…” were plainly intended to have work to do. They have a meaning and a purpose quite distinct from the meaning and purpose of the words “not bound by rules of evidence”. Far from the phrase “may inform itself” being negated or neutralised by other provisions, these words play a necessary part in defining the character of the formal hearing which the panel conducts. For the purposes of “determining the matter before it”, the panel is authorised to “inform itself in any way it thinks fit” subject always to the overriding obligation to accord procedural fairness.

    (Footnotes omitted)

    [12]   The Law Society of South Australia v Neville John Jordan (1998) 198 LSJS 434 at 465.

    [13] (2008) 21 VR 29 at 37-38. See further, The King v The War Pensions Entitlement Appeal Tribunal;Ex parte Bott (1933) 50 CLR 228 at 249-250.

32. That does not mean that the rules of evidence are of no account.[14] The rules of evidence that might otherwise have excluded logically probative evidence may nevertheless assist in assessing the reliability of and weight to be given to that evidence before an administrative tribunal.[15]

    [14]   The King v The War Pensions Entitlement Appeal Tribunal;Ex Parte Bott (1933) 50 CLR 228 at 256 (Evatt J).

    [15]   Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 at [14].

33. The Board, in submissions, gave examples of the receipt of evidence in professional regulatory proceedings where the relevant tribunal was not bound by the rules of evidence and empowered to inform itself as it thinks fit. Ultimately, the question concerns the application of the relevant legislation to the evidence in question. Nevertheless, the Board pointed to where it has been held that:

    ·the law with respect to the inadmissibility of similar fact evidence in criminal trials has been held to be not applicable in disciplinary proceedings;[16] and

    ·a disciplinary tribunal which was ‘not bound by the rules of evidence but may inform itself on any matter in any way it considers appropriate’ could have regard to evidence disclosed in breach of forensic procedures legislation.[17]

    [16]   Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82.

    [17]   Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 at [17].

34. These are conclusions from specific legislative regimes giving effect, in particular circumstances, to the legislature’s fashioning of professional regulatory regimes designed to protect the public. They may commend like reasoning under a different but comparable regime.

35. Whether a person is a ‘fit and proper person’ to be a registered as a member of a particular profession directs attention to the nature of the profession and the activities that will be required of the person:[18]

    … what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.

    (Footnote omitted)

    [18]   Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76.

1. The concept invites consideration of several factors, including the character of the person, as assessed by reference to their past conduct:[19]

   The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

   [19]   Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.

2. Such past conduct may well be conduct that, if particularised and proved beyond reasonable doubt in criminal proceedings, is capable of supporting a conviction for a criminal offence. However, that does not mean that the person must have been convicted of a crime before the matter can be taken into account, or that where the conduct in question is capable of constituting a crime, a different standard of proof applies in the administrative tribunal. It is not the function of an administrative tribunal to engage in the adjudication and punishment of criminal guilt.[20] However, in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (‘ACMA’), the High Court observed:[21]

   Not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime[22].  Satisfaction in such a case is upon the balance of probability[23].  In Helton v Allen, Mr Helton's acquittal of the murder of the testatrix was no bar, on the trial of the civil suit arising out of the will, to the finding that he had unlawfully killed her[24].

   More generally, and contrary to the "normal expectation" stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.  The decisions of this Court in Attorney‑General (Cth) v Alinta Ltd[25] and Albarran v Companies Auditors and Liquidators Disciplinary Board[26] accept so much[27].  There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant's use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use.

   (Footnotes in original; emphasis added)

   [20]   Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27;

   [21] (2015) 255 CLR 352 at [32]-[33].

   [22]   Helton v Allen (1940) 63 CLR 691; Miller v Miller (2011) 242 CLR 446 at 464 [47], 483 [106] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; White v Director of Public Prosecutions (WA) (2011) 243 CLR 478; Olbers Co Ltd v The Commonwealth (2004) 136 FCR 67, upheld on appeal at Olbers Co Ltd v The Commonwealth (2004) 143 FCR 449; Habib v The Commonwealth (2010) 183 FCR 62 at 66 [3] per Black CJ, at 70-71 [21]-[22] per Perram J.

   [23]   Hocking v Bell (1945) 71 CLR 430 at 500 per Dixon J; Rejfek v McElroy (1965) 112 CLR 517 at 521.

   [24] (1940) 63 CLR 691.

   [25] (2008) 233 CLR 542 at 576 [90], 578-579 [96] per Hayne J; at 594-595 [160] per Crennan and Kiefel JJ, citing Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149 per Mason CJ, Brennan, Deane, Dawson and Toohey JJ.

   [26] (2007) 231 CLR 350 at 361 [28] per Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ.

   [27]   In its written submissions, Queensland instanced a number of legislative schemes that condition administrative action on satisfaction that a person has committed an offence:  Corrective Services Act2006 (Qld) ss 200(1)(f), 201(1)(a), 205(2)(a)(i); Liquor Act1992 (Qld) ss 134(1)(a), 136(1)(a); Mineral Resources Act1989 (Qld) s 267(a).

3. As the Board submitted, the focus is not on whether a criminal offence has been committed, but on the underlying conduct and the impact of that on the regulatory body’s assessment of the person’s fitness and propriety to be registered as a member of the profession in question. Thus in Jackson (formerly Subramaniam) v Legal Practitioners Admissions Board,[28] the New South Wales Court of Appeal said:[29]

   Because of the different burdens of proof, an acquittal does not bar civil proceedings arising out of the same facts.  For the same reason and because of the different “purpose and focus of the proceedings”, an acquittal does not inhibit disciplinary proceedings arising out of the same facts:  Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635-6. No res judicata, issue estoppel, doctrine of autrefois acquit or other rule of law prevents examination of the conduct relied on for the crime: Prothonotary of the Supreme Court of New South Wales v Castillo [2001] NSWCA 75 at [32]. The facts can be investigated and determined adversely to the defendant or the person subject to the disciplinary proceedings, and the court or tribunal is not confined to the evidence in the criminal proceedings, let alone to an examination of the “findings” – a difficult task in the case of a jury’s verdict.

   The reasons for this are equally material when the court or tribunal is addressing admission to the practice of a trade or profession, rather than discipline of a practitioner.  If the conduct the subject of the criminal proceedings is relevant to the admission, just as it would be relevant to the disciplinary proceedings, because going to the fitness of the practitioner to practise, it can be investigated and findings can be made.  Indeed, it would be quite wrong for the court or tribunal not to address the conduct and make findings, turning its back on what might in the public interest be significant in relation to the admission of the practitioner.

   (Emphasis added)

   [28] [2007] NSWCA 289.

   [29]   Jackson (formerly Subramaniam) v Legal Practitioners Admissions Board [2007] NSWCA 289 at [34]‑[35].

4. These principles are given effect in the present case by the information gathering powers in ss 43 and 50, set out above. In particular, pursuant to s 50(1)(a), the Board may require the Commissioner of Police to ‘make available’ to it information not just about criminal convictions, but also ‘other information to which the Commissioner has access relevant to the question of a person's fitness to be, or continue to be, registered as a teacher’.

5. This background informs the approach to be taken to the primary judge’s reasons for judgments and the complaints made on appeal.

   The appeal

6. Section 49 of the TRA, in Part 9, provides for a right of appeal to the Administrative and Disciplinary Division of the District Court. The conduct of an appeal in that Division of the Court is governed by s 42E of the District Court Act 1991 (SA):

   42E—Conduct of appeal

   (1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.

   (2)The Court, on an appeal—

   (a)     is not bound by the rules of evidence but may inform itself as it thinks fit; and

   (b)     must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

   (3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.

7. Pursuant to s 42F of that Act, the Court may affirm the decision appealed against, rescind the decision and substitute a decision that the Court considers appropriate or remit the matter to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.

8. The judge made a number of intermediate findings that the Board characterised as critical to the decision to allow the appeal. First, the judge found that the Panel did not err in approaching the task of considering whether the respondent was a fit and proper person by referencing the objects of the TRS Act and, in particular, the welfare of children.[30] Secondly, she found that the Panel was required to make its findings of conduct the respondent was alleged to have engaged in by reference to the Briginshaw test, that is, the evidence had to be compelling and cogent.[31]

   [30] [2024] SADC 5 at [163].

   [31] [2024] SADC 5 at [170].

9. The judge then held that s 50 ‘overrides’ s 43, in that the facility to receive material under s 43 relates only to evidence in other proceedings before a court, tribunal or other body. Section 50, by contrast, empowers the Board to obtain from the Commissioner of Police information that is not so limited.[32] However, the judge found that this power in s 50 did not extend to having Broadbent and Murphy create new affidavits as s 50 ‘does not provide the Board with power to create new police documents in addition to those in their possession’.[33]

   [32] [2024] SADC 5 at [176].

   [33] [2024] SADC 5 at [181].

10. The judge then found that the evidence was not obtained in a manner that denied the respondent procedural fairness.[34]

    [34] [2024] SADC 5 at [186].

11. Next, the judge held that the Panel should not have relied on the opinions expressed by Ms Zuvich about the contents of the CCTV footage:[35]

    There is no evidence that Zuvich provided any detail to the Board of her background, and expertise in CCTV footage analysis. In any event, the Panel members could view the footage and make their own determination without the influence of Zuvich’s opinions.

    [35] [2024] SADC 5 at [188].

12. The judge also held that it was an error for the Panel to rely on the police officers’ evidence about the Wickr messages:[36]

    No evidence was before the Board as to Capponi’s background in SAPOL and her experience in the investigation of illegal drug offending, and this included her expertise in assessing the content of the Wickr messages. There was no evidence before the Board of the meaning and precise purpose of the phone messages. In the absence of more expert evidence, the phone messages could not be probative of any fact in issue. The weight of the evidence, in the absence of any expert evidence, was insignificant.

    [36] [2024] SADC 5 at [197].

13. The judge also found that other pieces of evidence had little probative value or could not be used. This included hearsay statements by Murphy as to drugs being found on the respondent[37] and the probative value of the bags found at the respondent’s house, as discussed above.[38] The judge found that the FSC certificates were properly provided to the Panel ‘as evidence before it’.[39] However, she held that the FSC certificates could not be used to make findings of ‘drug dealing’:[40]

    The evidence of what was found in the two bags was of little weight. There was no evidence that the bag found at the applicant’s home belonged to him, or had been used to sell drugs to others. The applicant denied that he was involved in selling drugs.

    [37] [2024] SADC 5 at [198].

    [38] [2024] SADC 5 at [199].

    [39] [2024] SADC 5 at [200].

    [40] [2024] SADC 5 at [201].

14. The judge then turned to the Panel’s finding that the respondent had been involved in ‘drug dealing’. She observed that the Panel did not determine whether this contravened the provisions of the CSA, but she considered that the Panel must have regarded it to be in some way unlawful, having regard to the evidence on which it relied, and in particular the FSC certificates. She considered that the Panel could only identify a ‘transaction’ on the CCTV footage and inferred that the respondent was involved in ‘drug dealing’ because of the weight of the other evidence.[41]

    [41] [2024] SADC 5 at [208]-[210].

15. These intermediate findings then informed the judge’s decision. The judge accepted that if the respondent had been found guilty of drug trafficking, then he would not be a fit and proper person to be registered as a teacher.[42] She continued:[43]

    The applicant has always denied such offending and all criminal charges were withdrawn at an early stage of the prosecution. The Board’s approach in determining whether the applicant was a fit and proper person required them to consider the evidence held by SAPOL. This was not an error in the exercise of their discretion in the context of ss 4 and 7 of the TRS Act.

    The applicant’s argument is that the Board was in error in finding that he had been in possession of 20 capsules, some containing MDMA; and that he was involved in drug dealing. That finding was made with no reference to any criminal offence, and depends upon inferences made by the Board in relation to the SAPOL evidence. No elements of any offence of ‘drug dealing’ were stated. Whilst it was open to the Board to reach its own conclusion on the evidence, fairness and natural justice was still to be provided to the applicant.[44] Not to do so would be a House v The King type of error. I find that it was forensically unfair for the Board to create an offence of ‘drug dealing’ to support their findings on the evidence, and their approach that evidence obtained illegally or improperly could still be used by them in their deliberations.

    The applicant has not been prosecuted by SAPOL, beyond the initial charges which were withdrawn. There was no verdict of guilty. The Board in determining fitness and propriety conducted its own investigation of the facts. This included instructing an investigator, whose qualifications were not provided, to seek more information and detail. Whilst the Board has the right to inform itself as it thinks fit,[45] there is no provision in the TRS Act that provides a right to the Board to conduct its own investigation, based upon material provided by SAPOL.

    (Footnotes in original; emphasis added)

    [42] [2024] SADC 5 at [214].

    [43] [2024] SADC 5 at [215]-[217].

    [44]   Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630.

    [45] Section 45(9) of the TRS Act.

16. An overarching complaint of the Board on this appeal, from which the various grounds of appeal stem, is that these passages proceed from a premise that limited the permissible approach of the Panel to considering the conduct of an applicant related to drugs by reference to the criminal process invoked by the police. The complaints on appeal are, in significant part, complaints of applications of that asserted erroneous premise in the judge’s disposition of the appeal.

17. The Board’s complaints were also grounded in the judge’s treatment of key authorities discussed above. First, in regard to the statement by the High Court in ACMA[46] that it is not ‘offensive to principle’ that administrative bodies are empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary ‘or other’ action, the judge said:[47]

    However, the case of ACMA v Today FM is distinguishable as it involved the extent of disciplinary action to be taken against a radio station if criminal behaviour was proved. The case to be determined does not involve disciplinary proceedings. Rather, the Board is making determination of fitness and propriety where the prosecuting authorities have determined there was no criminal behaviour. The task was not the same as that which faced ACMA, where the police prosecution had already reached its determination.

    [46] (2015) 255 CLR 352 at [32]-[33].

    [47] [2024] SADC 5 at [136].

18. In our view, this passage misunderstands the principle for which ACMA stands. The statement by High Court, quoted earlier, is not limited in its terms or effect to where a person has already been convicted. Indeed, the Court expressly gave an example of where a person had not been convicted of a criminal offence. ACMA simply confirms the well-understood principle that civil courts and administrative tribunals are, within their respective jurisdictions, entitled to make findings about actions of persons that may well also constitute criminal conduct. In doing so they are not purporting to exercise criminal jurisdiction. The Board, for its part, exercises a specific professional regulatory function, the paramount purpose of which is the protection of the welfare and best interests of children.

19. In this regard, the judge’s erroneous focus on limiting the scope of the Board’s powers to the confines of the processes conducted by the police is illustrated by her comment about the present case that the prosecuting authorities had ‘determined there was no criminal behaviour’.[48] The prosecuting authorities had not done that. They had merely withdrawn the charges.

    [48] [2024] SADC 5 at [136].

20. Moreover, the judge was wrong to distinguish ACMA on the basis that this case does not involve disciplinary proceedings. Authority,[49] as discussed above, and logic require that there is no relevant distinction here between disciplinary proceedings and proceedings regulating admission or registration to a profession. Each is a different aspect of the relevant body’s role in maintaining professional standards for the benefit of the public.

    [49]   Jackson (formerly Subramaniam) v Legal Practitioners Admissions Board [2007] NSWCA 289 at [34]‑[35].

21. We turn to the complaints on the appeal.

    Whether the judge misconstrued the nature of the proceedings before the Board (Ground 1)

    Whether the Board was entitled to conduct its own investigation of the facts, based on material provided by SAPOL (Ground 1.1);

22. The judge found, as set out above, that the Panel had no right to conduct its own investigation, based on material provided by SAPOL. This finding was couched in terms of the absence of an express power in the TRS Act for the Board to do so.

23. As discussed above, s 45(a) provides that the Board may inform itself on any matter as it thinks fit. That power exists in conjunction with its power in s 50(1)(a) to require the Commissioner of Police to ‘make available’ information about criminal convictions ‘and other information to which the Commissioner has access relevant to the question of a person’s fitness to be … registered as a teacher’.

24. The judge did not explain why the power of the Board to inform itself on any matter as it thinks fit was not a sufficient power to authorise the Panel to engage in an investigation based on police material. Section 45 establishes that proceedings before the Board are, subject to the requirements of procedural fairness, inquisitorial. That inquisitorial function is, relevantly, directed at assessing the fitness and propriety of a person to be registered as a teacher, the paramount consideration of which, in doing so, is the welfare and best interests of children. The Board does not exercise any sort of criminal jurisdiction in this regard.

25. In pursuit of this inquisitorial function, a member of the Board can, pursuant to s 44(2) issue a summons on behalf of the Board. The only possible function of such a summons is for the Board to obtain further information, which in many if not all cases will be on account of information already gathered. It follows that the Board can, for example, require information from the Commissioner of Police and then, if it wishes, issue a summons to a person on the basis of information so obtained.

26. When that facility is read together with the power of the Board to inform itself on any matter as it thinks fit, the judge’s conclusion that ‘there is no provision in the TRS Act that provides a right to the Board to conduct its own investigation, based upon material provided by SAPOL’ is difficult to understand. The statutory facilities at the Board’s disposal manifestly allow it to conduct an investigation based on material provided by SAPOL.

1. In this case, the Panel informed itself via the investigations of Ms Zuvich, following the receipt of information by SAPOL. Ms Zuvich provided two signed statements about her observations of the CCTV footage and her internet searches that linked the respondent to the Wickr account user ‘dilldog2468’. The respondent was given an opportunity to respond to the information so obtained.

2. The judge’s conclusion that the Panel had no right to conduct its own investigation, based on material provided by SAPOL, was erroneous. Ground 1.1 is established.

   Whether the Board was prevented from gathering evidence beyond the documents created or obtained by SAPOL for the purposes of its criminal investigation (Ground 1.2)

3. This complaint relates to the judge’s treatment of the Panel’s procurement of the second Broadbent affidavit and the second Murphy affidavit. The judge’s difficulty with these affidavits was that they had not already been in the possession of the police. Rather, Ms Zuvich procured them. The judge held:[50]

   There was no basis for evidence to have been provided to the Board by these two police officers, outside of a police investigation. Section 50 of the TRS Act does not provide the Board with power to create new police documents in addition to those in their possession.

   [50] [2024] SADC 5 at [181].

4. This passage seems again to have been informed by the judge’s assumption that the Board was confined to information that had been generated by the police in pursuit of the police investigation. The judge later went on to say:[51]

   I find that the Board should not be able to use its discretion in order to obtain an unfair forensic advantage as a result of the criminal charges against the applicant not being pursued or withdrawn. If those charges had proceeded to court, then the Board would have only had access to the police documents relating to the investigation and the documents arising from the court proceedings. They would not have been entitled to conduct their own investigation and create additional information in order to arrive at a separate and/or different conclusion. The Board proceeded to conduct their own quasi‑criminal investigation. This is not an aspect of their power under the TRS Act.

   I find that it was highly irregular for the Board to generate new evidence, by the investigations of Zuvich, after police had concluded their investigation. …

   [51] [2024] SADC 5 at [221]-[222].

5. As the authorities discussed above show, the first part of these paragraphs is not correct. The mere fact that a charge has not proceeded to trial does not absolve the Board of its obligations to assess the fitness and propriety of a person to be registered as a teacher, let alone quarantine certain subject matter from its attention.

6. Secondly, the judge’s reference to an ‘unfair forensic advantage’ was misplaced. The Panel was not a prosecutor. Neither would it only have had access to police documents relating to the investigation and the documents arising from the court proceedings. The Board has power under s 50 to require the Commissioner to ‘make available’ to it ‘other information to which the Commissioner has access’ that is relevant to the question of a person’s fitness and propriety. There is no reason to read that section down to exclude information within the knowledge of a member of SAPOL drawn from their role in an investigation, whatever the fate of that investigation. Indeed, the phrase ‘make available’ supports that this section is not simply limited to existing documentary evidence.

7. The judge’s finding that it was ‘highly irregular’ for the Board to generate new evidence by Zuvich’s investigations is, consequently, unsustainable. The Panel was entitled to engage Ms Zuvich to undertake an investigation and for Ms Zuvich to do so by way of obtaining further affidavits from the two police officers. The respondent was able to test the contents of those affidavits in proceedings before the Panel.

8. This approach by the judge again appears to have been based on an understanding of the Board’s proceedings as an adversarial quasi-prosecution, confined in scope by the result of any prosecution based on events relevant to the Board’s consideration. There is no reason to read the TRS Act as confining the Board’s powers in this way. To do so is contrary not only to authority but is also contrary to a purposive reading of the Act. The Board’s inquisitorial function of assessing whether a person is a fit and proper person to be a registered teacher is conferred in service of the protective object of the Act. It serves a public policy function that is entirely different from that served by the adjudication and punishment of criminal guilt.

9. It follows that in holding that the Board was not entitled to conduct its own investigation and ‘create additional documents’ in the form of the affidavit evidence of the police officers, the judge erred.

   Whether any prospective finding by the Board that the respondent had engaged in unlawful conduct was restricted by the provisions of the CSA, such that it was not open to the Board to find that the respondent was involved in ‘drug dealing’ (Ground 1.3)

10. As noted above, the Panel found that that there was clear and cogent evidence that the Applicant was involved in ‘drug dealing’ at the time of his arrest in 2018. The judge addressed this finding as follows:[52]

    The applicant’s argument is that the Board was in error in finding that he had been in possession of 20 capsules, some containing MDMA; and that he was involved in drug dealing. That finding was made with no reference to any criminal offence, and depends upon inferences made by the Board in relation to the SAPOL evidence. No elements of any offence of ‘drug dealing’ were stated. Whilst it was open to the Board to reach its own conclusion on the evidence, fairness and natural justice was still to be provided to the applicant. [53] Not to do so would be a House v The King type of error. I find that it was forensically unfair for the Board to create an offence of ‘drug dealing’ to support their findings on the evidence, and their approach that evidence obtained illegally or improperly could still be used by them in their deliberations.

    (Footnote in original)

    [52] [2024] SADC 5 at [216].

    [53]   Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630.

11. Critical to this passage was the conclusion that the Board had ‘create[d] an offence’ of ‘drug dealing’. The judge explained what she meant by the forensic unfairness of this in a further passage:[54]

    The Board’s finding that the applicant was involved in ‘drug dealing’ was not a finding that was open to the Board. If the Board was to find that the applicant had engaged in unlawful conduct they were restricted by the provisions of the CSA. I am of the view that there is no provision in the TRS Act that gives the Board the power to make their own determination as to what constitutes a criminal offence (for the purpose of establishing impropriety and unfitness).

    [54] [2024] SADC 5 at [220].

12. With respect to the judge, at no point did the Panel purport to make its own determination as to what constitutes a criminal offence or otherwise ‘create an offence’ of ‘drug dealing’. It found that there was clear and cogent evidence that the respondent was involved in ‘drug dealing’ at the time of his arrest. That was nothing more than a descriptive term of conduct that the Panel found the applicant to be undertaking, on the balance of probabilities.

13. For the reasons discussed above, the Panel was entitled to make that enquiry and reach a conclusion, without traversing the elements of any offence under the CSA. Again, the Panel was not purporting to exercise criminal jurisdiction or ‘create an offence’. It was entitled to use a descriptive phrase of ordinary understanding to encapsulate what it found to be the respondent’s involvement with illicit drugs in 2018. It was also entitled to conclude that this involvement, whether or not the subject of concluded criminal proceedings, was relevant to the question of the respondent’s fitness and propriety to be a registered teacher, as was the respondent’s ongoing denial of that involvement.

14. In holding that the finding that the applicant was involved in ‘drug dealing’ was not a finding open to the Board, the judge erred. Ground 1.3 is established.

    Whether the Board was bound by the outcome of criminal proceedings (Ground 1.4)

15. The judge, having found that the Board erred in finding that the applicant had committed ‘an undefined offence of ‘drug dealing’’, went on to find that the Board ‘did not demonstrate an understanding of criminal proceedings’.[55] She then went on to express the view that the Board would have been bound by the outcome of any criminal proceedings:[56]

    In this regard, if the criminal proceedings had proceeded to trial, and the applicant had been acquitted, the Board would have been limited to the findings of the court in that respect, i.e., whether the offence had occurred or had been proven. None of the evidence before the Board was sufficient to prove the elements of the offence of trafficking in, or possession of, a controlled drug without relevant experts giving evidence as to the provenance/content of the evidence. There is no power in the TRS Act to essentially convict a person of an offence.

    [55] [2024] SADC 5 at [225].

    [56] [2024] SADC 5 at [226].

16. For the reasons discussed above, this passage is also premised on the judge’s misunderstanding of the nature of the proceedings before the Board. The Board would not have been limited to the findings of the Court in the event of an acquittal. Whether the evidence before the Panel was sufficient to prove the elements of the offence of trafficking is beside the point. The Panel was not purporting to try the respondent for an offence. It was not bound by the rules of evidence. To suggest that it was purporting ‘to essentially convict a person of an offence’ again fundamentally misunderstands the relevance of the evidence of the respondent’s involvement with illicit drugs to the task of the Panel.

17. The respondent submitted that the judge’s comments here should be characterised as no more than an acknowledgment that the Board would be required to consider the fact of an acquittal and the findings of the court. That is manifestly not what the judge said. Ground 1.4 is established.

    Whether the judge erred in finding that the Board should not have taken into consideration evidence said to have been illegally obtained (Ground 1.5)

18. As quoted above in the context of considering Ground 1.3, the judge referred to evidence ‘obtained illegally or improperly’.[57] She went on to find:[58]

    I also find that the prejudice of the illegally obtained police evidence heavily outweighs its probative value. The inferences drawn from the evidence about the applicant’s involvement in ‘drug dealing’ were not conclusive. It was the only evidence used to convince the Board that the applicant was not a fit and proper person to be registered as a teacher.

    [57] [2024] SADC 5 at [216].

    [58] [2024] SADC 5 at [224].

19. The judge did not identify what the ‘illegally obtained police evidence’ was, or why it was thought to have been illegally obtained. If she was referring to the second Broadbent and Murphy affidavits, for the reasons explained above, these were not illegally obtained. Otherwise, there is no indication of what was illegally obtained.

20. The respondent had submitted that evidence had been ‘illegally obtained’ before he had been given his arrest rights and the FSC Certificates. However, there is no apparent finding by the judge that this evidence had been illegally obtained. The judge discussed the issue in the context of whether the Board should have excluded evidence if there had been a breach by police of the Summary Offences Act 1953 (SA) or the CSA but her Honour did not make any finding as to this.[59] No court exercising criminal jurisdiction ruled any of the evidence to have been illegally obtained. Neither, it appears, did the judge. The judge admitted the evidence of the plastic bags and the FSC Certificates.[60]

    [59] [2004] SADC 5 at [183].

    [60] [2024] SADC 5 at [199]-[200].

21. The respondent accepted that the judge did not identify what she meant by ‘illegally obtained police evidence’. He simply submitted in this regard that while the judge’s reasons were inadequate, ‘her conclusion that the evidence does not prove ‘drug dealing’ is not’. We have addressed the Board’s use of the phrase ‘drug dealing’ above. The judge failed to identify what she meant by illegally obtained police evidence and why it was illegally obtained. It follows that she failed to explain, whether adequately or at all, her finding that ‘the prejudice of the illegally obtained police evidence heavily outweighs its probative value’.

22. It follows that Ground 1.5 is established.

    Conclusion on Ground 1

23. The errors established in Grounds 1.1-1.5 support strongly the conclusion that the judge misconstrued the nature of the proceedings before the Board. The TRS Act imposes no prohibition on the Board considering and making findings of fact, relevant to the fitness and propriety of a person being a registered teacher, where the facts in question may also constitute a criminal offence. That remains the case if there has been an acquittal, or if the charges have not been proceeded with. Neither is the Board bound by the outcome of criminal proceedings. The judge erred in distinguishing the statements of principle in ACMA.

24. The judge also misapprehended the powers of the Board under s 50, having regard to the principles governing proceedings as set out in s 45. The Panel was entitled to obtain the further affidavits from the police officers. The functions and powers of the Board are conferred in service of its role as professional regulator. That role serves a public function of maintaining the professional standards of the teaching profession by the mechanism of registration, the paramount consideration of which, under the TRS Act, is the welfare and best interests of children.

    Whether the judge erred in finding that the Board was heavily influenced by, and adopted, the observations of the Board investigator without scrutinising the evidence independently (Ground 2)

25. Ground 2 is a complaint of a finding of fact and, as such, requires leave. The judge posed the question whether the CCTV footage constituted clear and cogent evidence. The judge said:[61]

    In this regard, I am of the view that Zuvich’s opinions regarding the CCTV footage should not have been used by the Board in its considerations. There is no evidence that Zuvich provided any detail to the Board of her background, and expertise in CCTV footage analysis. In any event, the Panel members could view the footage and make their own determination without the influence of Zuvich’s opinions.

    [61] [2024] SADC 5 at [188].

26. This paragraph is not strictly the concern of the ground of appeal, but it informs the passage of the judgment that is. The judge’s apparent insistence that the Panel was prohibited from having regard to Ms Zuvich’s observations about the CCTV footage, without Ms Zuvich being qualified as an expert, is questionable. First, as discussed, the Board is not bound by the rules of evidence and may inform itself as it thinks fit. Secondly, counsel did not object to Ms Zuvich’s statement on the basis that it was impermissible for the Panel to receive Ms Zuvich’s commentary on the CCTV footage.

27. In that regard, counsel at the hearing before the Panel objected to the tender of all material concerning the incident in Hindley Street on the basis that the evidence had been illegally obtained. The statement of Ms Zuvich was derivative from that material and, had the Board excluded the primary material, that statement would necessarily have been excluded as well.

28. However, it follows that once the primary material was received, and where the rules of evidence did not apply, in the absence of any objection it is difficult to see that there was any absolute obstacle to the Board receiving Ms Zuvich’s account of the contents of the CCTV footage.[62] How it treated that evidence is, of course, another matter. There is a recognised danger in a tribunal of fact receiving evidence of that kind.[63] The Board was required to form its own opinions from the CCTV footage itself.

    [62]   Cf Honeysett v The Queen (2014) 253 CLR 122; Smith v The Queen (2001) 206 CLR 650.

    [63]   R v Tropeano (2015) 122 SASR 298 at [58].

29. The judge held further, however:[64]

    The Board in reaching its decision was heavily influenced by the information obtained by Zuvich. Her statement of 7 July 2021 sets out in detail her observations, particularly of the CCTV footage.[65] Whilst the Board also reviewed the CCTV footage, it was likely that its members were heavily informed by Zuvich’s interpretation while watching it. They had already been told what to look for. There was a risk that there was no, or limited, independent assessment of the material before the Board. In fact, the Board’s findings of what the CCTV footage showed were almost identical to Zuvich’s.

    (Footnote in original)

    [64] [2024] SADC 5 at [219].

    [65]   Pages 258-265 of the Casebook.

30. With respect to the judge, this constituted speculation without apparent regard to the Panel’s reasons. It is difficult to separate this passage from the judge’s conclusion that the Panel should not have received Zuvich’s statement at all. The judge then went further, however, moving from a view that it was ‘likely’ that the Panel members were ‘heavily influenced’ by Zuvich’s interpretation to an effective finding that the Panel brought no independent assessment to the contents of the CCTV footage beyond Zuvich’s account:[66]

    It was plainly unjust to accept Zuvich’s evidence without scrutiny.

    [66] [2024] SADC 5 at [222].

31. The judge did not identify the passages from the Panel’s reasons on which she relied to reach this conclusion. It is also difficult to know what the judge meant by this. Once the statement was admitted, it was open to the respondent to subject the statement to the scrutiny he wished. However, there was no application to cross-examine Ms Zuvich. Presumably, this was a considered forensic decision. The respondent was not forced to proceed in that way. Counsel’s written submission before the Board focused on the legality of the police actions and urged that the evidence be excluded on that account. Otherwise, the submissions noted Broadbent’s acceptance in cross-examination that it is common for ‘deal bags’ to be found in Hindley Street and submitted:

    In the event that the Board exercises its discretion to admit this evidence, it is submitted that the evidence presented does not go to establish that the applicant was in possession of the drugs, nor show there was an involvement in any drug transaction.

32. As to the Panel’s treatment of the CCTV footage and Ms Zuvich’s statement, the Panel commenced:

    The Panel have had the opportunity to consider CCTV video provided to the Board by SAPOL.

33. It then went on to describe what the CCTV footage depicts, in the context of the broader events of the evening. The Panel’s description, which is consistent with parts of Ms Zuvich’s account but does not simply reproduce it, was as follows:

    Having had the benefit of viewing the CCTV footage of the stop and search in Hindley Street on a large screen television on several occasions, the Panel finds that the CCTV footage shows the Applicant reach into his left front pants pocket and discard an item onto the ground behind his foot which he is then seen to cover with his foot. This occurred whilst you could see that the present police officers were momentarily distracted. Officer Slape is then seen to arrive at the scene and he is seen to indicate an item on the ground near the applicant’s left foot whilst Officers Broadbent and Capponi were searching his shoes.

34. This summary does not quote, directly or indirectly, Ms Zuvich’s evidence. The reasons make no reference to Ms Zuvich’s account of the CCTV footage at all. They make it clear that these conclusions of fact were drawn from repeated watching of the CCTV footage. In those circumstances, the judge’s speculation that it was ‘likely’ that the members of the Panel were ‘heavily informed’ by Zuvich’s ‘interpretation’ while watching the footage is without foundation.

1. Evidence of the kind contained in Ms Zuvich’s statement should, obviously, be treated with caution. It would not be admissible in a court bound by the rules of evidence. However, in this case, the rules of evidence did not apply to the Board, senior counsel for the respondent did not object to or even comment on Ms Zuvich’s statement, and the Board gave a clear account that it drew its conclusions from the CCTV footage by watching it on several occasions. In those circumstances, there is no foundation for the judge’s criticisms that the Board relied on Ms Zuvich’s statement without scrutiny.

2. Ground 2 is established. We grant leave to appeal on this ground.

   Conclusion on the appeal

3. It is not necessary to consider Ground 3, which was expressed in the alternative to Grounds 1 and 2. These conclusions warrant an order allowing the appeal. However, whether the appeal should be allowed, and if so, what orders should be made, is subject to consideration of a Notice of Alternative Contention filed by the respondent.

   The Notice of Alternative Contention

4. Following the oral hearing, the respondent amended his Notice of Alternative Contention, without objection from the Board, to provide a foundation for certain oral submissions. The Amended Notice of Alternative Contention identified four grounds on which the respondent contended that the decision of the primary judge should also have been made:

   1.The learned Judge ought to have found that the finding of the Board that the respondent had engaged in “drug dealing at the time of his arrest in 2018” was unreasonable or plainly unjust;

   2.The learned Judge ought to have found that the finding of the Board that the respondent was not a fit and proper person to be registered as a teacher was unreasonable or plainly unjust;

   3.The learned Judge ought to have found that the respondent was a fit and proper person to be registered as a teacher; and

   4.The learned Judge ought to have found the way in which the Board dealt with the respondent’s character references constituted cogent reason to depart from the Board’s finding that the respondent was not a fit and proper person to be registered as a teacher:

   a.     The Board failed to consider the character references in determining whether the respondent had engaged in “drug dealing”;

   b.    The Board failed to consider the character references in determining whether the respondent was a fit and proper person to be registered as a teacher, particularly insofar as the references shed light on the respondent’s rehabilitation since 2018; and

   c.     The respondent was denied procedural fairness as a result of the Board having regard to the fact that the character references contained a similarly worded paragraph.

5. We address the issues raised by each alternative contention in turn.

   Whether the finding of the Board that the respondent had engaged in ‘drug dealing at the time of his arrest in 2018’ was unreasonable or plainly unjust

6. The respondent relied on several matters in support of his contention that the finding of ‘drug dealing’ was unreasonable or plainly unjust. First, he submitted that the material before the Panel did not have the capacity to prove the respondent’s possession of the plastic resealable bag in Hindley Street, a fact which the respondent described as an ‘indispensable intermediate link to proof’ of his involvement in the sale of drugs more broadly.

7. In this regard, the respondent pointed to the evidence of Broadbent that it was common for plastic resealable bags to be found in the vicinity of Hindley Street, which supported the possibility that it was already there when the respondent was moved to the area where the bag was located. In support of this possibility, the respondent relied on limitations inherent in the CCTV footage, including the obscuring of footage by Capponi’s body and the grainy quality of the footage. These limitations gave rise, in the respondent’s submission, to the ‘distinct possibility’ that the bag containing the drugs was already on the footpath. There was no DNA or fingerprint evidence found.

8. The footage of the respondent’s exchange with the male, said to be of a transaction, did not capture what occurred between them, as the respondent’s back was to the camera.

9. In addition, the respondent relied on his statutory declaration denying any involvement in the sale of controlled substances, his possession of the plastic bag and his participation in the Wickr messages. He submitted that the evidence of his good character raised the improbability of him engaging in the alleged conduct. He submitted, as the primary judge found, that the plastic resealable bags found at his home lacked probative value. No other indica of trafficking were found.

10. The respondent further submitted that only two capsules of MDMA were found. That is not entirely correct. As set out above, The FSC Certificate indicated the test results for the 20 capsules. Eighteen contained crystals and two were empty. The total weight of the capsules was 1.5 grams. There was a positive presumptive test for MDA or MDMA in relation to the crystals found in 10 capsules. Two of the capsules were tested further. They were positive for MDMA, weighing .06 grams and .03 grams respectively.

11. The respondent also submitted that there was ‘no admissible evidence’ as to the meaning of the Wickr messages. Finally, he submitted that the fact that SAPOL withdrew the charges was relevant to an assessment of whether the material was capable of proving to the ‘requisite standard’ that the respondent engaged in the sale of drugs.

12. These submissions addressed the limits of the evidence against the respondent comprehensively. However, they were more than a little focused on the inability of the evidence to prove a criminal offence to the necessary standard of beyond reasonable doubt. In this regard they were also focused on the admissibility of evidence, notwithstanding the dispensation from the rules of evidence in the TRS Act.

13. The key findings of the Board are set out earlier in these reasons. The infirmities in the evidence listed by the respondent were, by and large, relevant to the Board’s assessment. However, having regard to the standard of proof being the balance of probabilities, with due application of Briginshaw,[67] we do not accept that those infirmities necessarily rendered the Board’s ultimate conclusion unjust or unreasonable.

    [67] (1938) 60 CLR 336.

14. The Panel clearly reviewed the CCTV footage carefully. They concluded that it showed an exchange between the respondent and an unknown male in a laneway off Hindley Street. That conclusion was clearly open. They further concluded that the CCTV footage then showed the respondent, having been stopped by the police in Hindley Street, subsequently dropping a bag at his feet, which Officer Slape indicated. We have viewed the footage closely. In our view, this finding of fact was open. 

15. Ten of the capsules tested presumptively for MDMA, a controlled drug. The two that were then tested further returned positive results. The bags seized from the respondent’s bedroom contained trace amounts of MDA and cannabis. It can be accepted that there was no evidence as to how long the bags had been in the respondent’s bedroom. However, those bags provided a further circumstantial connection between the respondent and illicit drugs. That circumstantial connection fell to be considered together with the respondent’s denials.

16. The evidence of the Wickr messages and their interpretation was relevant and able to be considered by the Board.

17. The respondent accepted that he bore the onus of showing that he was a fit and proper person to be registered as a teacher. His denial, in his statutory declaration, of having anything to do with the bag in Hindley Street, that the bag was even located near his feet and that he was not a participant in the messages on his phone, fell to be considered together with the evidence linking him to MDMA. He elected not to give evidence. He did not offer any explanation for the presence of the Wickr messages on his phone.

18. With respect to the withdrawal of the charges, the respondent referred to Shah (A Pseudonym) v Medical Board of South Australia.[68] That case concerned a suspension by the Medical Board of the registration of a practitioner, following the practitioner’s arrest and charge of offences of indecent assault and serious criminal trespass in a place of residence. The practitioner filed an application for review of the suspension decision. The Tribunal reserved its decision, following which the charges were withdrawn. The Tribunal received further written submissions on that account, and subsequently delivered a statement of reasons confirming the decision.

    [68] [2022] SASC 140.

19. Blue J held that the Tribunal was required to take into account the fact of the withdrawal of the charges and the reasons for that. The most likely explanation for the withdrawal was the assessment that there was no reasonable prospect of conviction. Relevant to this was the assessment of the police that the complainant’s credibility was not reliable.[69]

    [69]   Shah (A Pseudonym) v Medical Board of South Australia [2022] SASC 140 at [233]-[245].

20. Here, the withdrawal of the charges (which occurred before the proceedings before the Board commenced) was most likely on account of an assessment that there were poor prospects of conviction. Broadbent was not asked in cross‑examination about the reason. We accept that the fact of and any identified reason for the withdrawal of the charge was relevant. However, it was required to be assessed together with all the other evidence in the context of the Board’s function of determining fitness and propriety. That evidence includes the CCTV footage, the FSC certificates and the Wickr messages.

21. Having regard to that entire matrix of evidence, the evidence was capable of supporting the Board’s conclusion that ‘the Applicant was involved in drug dealing at the time of his arrest in 2018’.

22. The respondent in oral submissions made a further submission, which we understood to be in support of this alternative contention, that he was denied procedural fairness with respect to the finding of ‘drug dealing’. First, he relied on his statutory declaration that contained the denials. This was presented by counsel assisting as part of the evidence to be considered before the Board. He submitted that the Board reached its findings of fact, listed above, without taking into account his denials, his evidence of good character or the fact of the withdrawal of the charges.

23. Related to this was a contention that the Board purported to apply the Briginshaw standard to its ultimate conclusion only after it had made findings of fact on the balance of probabilities. The respondent contended that the Board manifestly failed to make those findings of fact by reference to the Briginshaw standard.

24. This submission was developed only in oral argument. Counsel for the Board did not assert prejudice on account of its late formulation. The respondent filed the Amended Notice of Contention to complain specifically about a want of procedural fairness in the Board’s treatment of the good character evidence, without objection.

25. In those circumstances we are prepared to entertain the respondent’s submission, notwithstanding the unsatisfactory way in which it was raised. Part of this submission is the subject of Alternative Contention 4, but it is convenient to address the entire submission here.

26. Reading the Board’s reasons as a whole, it is clear that the Board was well aware of the respondent’s denials. On the face of the reasons, however, it only brought the denials to account when considering how to address the conduct it found to have occurred. That is to say, the Board said:

    Given the enduring denials of any wrongdoing, there has been no evidence or submissions given to explain or in any way negate the conduct. Further, the denials of wrongdoing have not allowed the Panel to make an assessment as to the Applicant’s insight into the impropriety of his conduct in 2018 and, accordingly, whether such conduct could be repeated in the future.

27. While this passage does come after the findings of fact that the respondent had engaged in ‘drug dealing’, reading the reasons as a whole, the Board appears here to have taken into account the absence of any explanation that might have caused it to conclude otherwise. However, the complaint, as we understand it, is that the Board did not take into account the very fact of the denials before reaching its conclusion of fact.

28. As to this, we reject the respondent’s contention that the denials were ‘unchallenged’. It was a necessary obligation of counsel assisting to present the fact of the denials. It was not for counsel assisting to cross-examine the respondent: that the denials were in issue was made manifest by the presentation of the evidence of the respondent’s association with illicit drugs. The onus always lay on the respondent to show that he was a fit and proper person: he elected not to give evidence. That was his forensic choice.

29. Nevertheless, the reasons do not, on their face, show that the Board took into account the respondent’s denials, such as they were, when making its findings of fact.

30. Next, it appears that the Board did not take into account the fact of the withdrawal of the charges when making its findings of fact. For the reasons given above, we accept that this was a relevant consideration. There was no evidence as to the reasons for the withdrawal of the charges, but it may be inferred that the police determined that there was no reasonable prospect of conviction.

31. As to the Board’s treatment of the character evidence, the Panel’s statement that ‘the references are unlikely to have been provided in the knowledge of the circumstances relevant to the drug charge’ is difficult to understand, given the statement in each that the deponent is aware of the circumstances. Perhaps more fundamentally, the Panel appears to have used the character references in its consideration of the question of the respondent’s fitness and propriety, not on the question of whether it was satisfied that the contested events had occurred. The respondent’s character was relevant to whether he had been involved with illicit drugs in 2018.

32. The Board submitted that the character evidence could not assist with whether the respondent had engaged in ‘drug dealing’, in that the references could not contradict what is observable or capable of inference from the CCTV evidence and police statements. There is some force in this submission insofar as the merits of the application are concerned. However, as that submission necessarily acknowledges, it is necessary to draw inferences from what is seen on the CCTV. We do not accept that the good character evidence was incapable of affecting those inferences. This is not to say that the evidence would necessarily have caused a different conclusion to be reached. However, it should have been taken into account when assessing the inferences to be drawn by reference to the Briginshaw standard.

33. We are satisfied that the respondent has shown that the Panel did not take these matters into account at the point of making its findings of fact. These matters were relevant considerations at that stage.

34. We accept that the matter is complicated by the fact that in submissions before the Board, the respondent focused on his efforts to have all evidence relevant to ‘drug dealing’ excluded, rather than expressly bringing to account these matters in drawing inferences from that evidence.

35. The respondent’s submissions here have a character of recasting his case differently from his approach before the Board and the primary judge. However, the apparent failure to bring these matters to account in the fact‑finding process is overlaid by a further consideration. The Board’s reasons suggest that it found the facts listed above, and then applied the Briginshaw standard only when considering whether those facts warranted a conclusion that the respondent had been involved in ‘drug dealing’:

    As a result of the factual findings listed above and having regard to the Briginshaw standard, the Panel find that there is clear and cogent evidence that the Applicant was involved in drug dealing at the time of his arrest in 2019.

36. As the respondent submitted, the Board was required to consider the finding of the facts themselves with due regard to the Briginshaw standard. The structure of its reasons raises the possibility that it did not do this.

37. Those allegations of fact were what carried the threat of serious consequences to the respondent:[70]

    But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

    [70]   Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

38. For the reasons already discussed, the evidence was capable of supporting the conclusion that the Panel reached. However, the fact-finding process required consideration of the respondent’s denials, the withdrawal of the charges and the good character references. The Panel was required to consider these matters when making its findings of fact, with due regard to the Briginshaw standard.

39. We would not hold that an administrative tribunal in the position of the Panel is necessarily required to make express reference to the Briginshaw standard before, or when, finding facts. The conclusion that a tribunal has approached the task giving due consideration to that standard may well be available from the record without an express statement. In most cases it will be sufficient to preface the fact-finding with a statement that the facts will be found having regard to the Briginshaw standard, provided of course the fact finder then adheres to that statement. However, in this case, the Panel’s reasons suggest that it paid consideration to the Briginshaw standard only after it made the various findings of fact.

40. We accept that it might be said to be implicit from the Panel’s reasons, when read as a whole, that the Panel had approached the fact-finding task with due regard to the Briginshaw standard. However, in circumstances where the Panel does not appear to have brought certain relevant considerations to account at the fact‑finding stage, and where there is some doubt in our mind as to the stage at which it paid due regard to Briginshaw, we consider that the Panel’s fact-finding process miscarried. That is notwithstanding the apparent choices made by the respondent before the Panel.

41. It follows, in our view, that the Panel’s finding that the respondent was engaged in ‘drug dealing’ was tainted by process error. In our view, that error constitutes a clear and cogent reason to depart from the Panel’s decision. We uphold, in part, the respondent’s first alternative contention (as amended).

    Whether the finding of the Board that the respondent was not a fit and proper person to be registered as a teacher was unreasonable or plainly unjust

    Whether the respondent was a fit and proper person to be registered as a teacher

42. The respondent advanced these alternative contentions on the premise that the material before the Panel supported the finding that he had engaged in ‘drug dealing’ at the time of his arrest. He submitted that the question of fitness falls to be determined at the time of application for registration. In this regard he relied on material he placed before the judge in support of his contention that she should make a finding that he was a fit and proper person.

43. The respondent relied on the following propositions:

    ·nearly six years passed between the incident and 2018 and the primary judge’s judgment. The respondent has had no further interactions with the criminal justice system;

    ·the ‘drug dealing’ incident occurred when the respondent was 18. The common law recognises that immaturity of youth provides an explanation for offending. There is greater potential for young offenders to be rehabilitated.[71] The respondent is now 24 and is necessarily more mature;

    [71]   Referring to R v Williams [2018] SASCFC 14 at [40]-[42].

    ·the respondent has demonstrated actual rehabilitation, having not offended further, attended university and obtained a teaching qualification. His placement reports were positive;

    ·the respondent’s success in his studies and practical training demonstrates his fitness and propriety;

    ·the respondent has consistently maintained employment in areas that saw him working with children;

    ·the respondent has maintained a desire to work in the teaching profession, despite setbacks and delays;

    ·the respondent reapplied to be registered as a teacher on 21 August 2024. He disclosed the fact of the charges;

    ·the respondent’s friends and family have attested to his good character;

    ·SAPOL withdrew the charges;

    ·the evidence indicates the offending was isolated and a ‘solitary lapse’;

    ·the instance of offending six years ago does not ‘demonstrate’ that the respondent now poses a risk to the welfare and best interests of children;

    ·there was no challenge to the respondent’s account that his failure to disclose the charge was a mistake;

    ·the charge of trafficking was reduced to simple possession which, if proved, would have resulted in the respondent being diverted.

1. The respondent concluded this submission by saying that in light of the protracted history of the matter, this Court ought to make a finding of fitness and propriety.

2. We are prepared to take into account all the matters now raised by the respondent. Some of those are of questionable weight. For example, given the findings of the Panel, the fact that the charges were withdrawn says nothing about the respondent’s fitness and propriety, if the premise of the assessment is that the respondent was, indeed, engaged in ‘drug dealing’.

3. Moreover, the Wickr messages suggest that the incident in 2018 was more than a solitary lapse. The respondent’s disclosure of the charges in his more recent application was nothing more than his basic obligation.

4. The passage of time, combined with the respondent’s likely increased maturity with age and lack of any interaction with the criminal justice system are significant factors. So too is the respondent’s commendable dedication to his study and manifest commitment to the education of children.

5. However, none of the integers of rehabilitation on which the respondent now relies engages directly with his conduct in 2018, if that is accepted to have occurred. The respondent has not acknowledged his actions. He has not expressed remorse. He has not provided an explanation for his conduct. In those circumstances, while it might be expected that he is in some ways more mature some six years later, this Court is at a considerable disadvantage in assessing whether he is a fit and proper person to be registered as a teacher. The Court is in large part being asked to infer rehabilitation by dint of the passage of time, the respondent’s further education and commitment to teaching and his lack of offending since, without any acknowledgment of, or engagement with, the fact of his earlier actions. The character references carry the same difficulty.

6. In that situation, this Court is not in a position to assess the impact of the respondent’s actions in 2018, by reference to the circumstances of those actions as alleged, on his present fitness and propriety to be a registered teacher. That does not mean that the passage of time, combined with other evidence of rehabilitation, could in no circumstances provide sufficient reassurance.  However, when considering the whole of the evidence, including the further affidavit filed by the respondent in this Court, and having regard to the fact and form of the respondent’s denials before the Board, this Court is not in a position to conclude that the respondent is a fit and proper person to be a registered teacher. This does not, however, bind the Board in any future assessment of the respondent’s fitness and propriety.

7. Alternative Contentions 2 and 3 fail.

   Whether the way in which the Board dealt with the respondent’s character references constituted cogent reasons to depart from the Board’s finding that the respondent was not a fit and proper person to be registered as a teacher

8. The respondent relied on seven character references before the Board. The Board held:

   The Panel finds that references provided by the Applicant in support of his application cannot be afforded significant weight, having regard to the fact that they have all been written in the context that there was no wrongdoing by the Applicant in 2018.

9. The Board went on to note that five of the references contained almost identical versions of the following paragraph:

   I am aware that Dillon Kourlas previously had drug charges before the Adelaide Magistrates Court and that those charges were dismissed on the basis that the police tendered no evidence. I am aware of the circumstances of the offence and that this reference will be used in proceedings relating to Dillon’s application for registration as a teacher with the Teachers Registration Bord of South Australia.

10. The Board went on to find that given the respondent’s denials, the references were ‘unlikely to have been provided on the knowledge of the circumstances relevant to the drug charge, as found by the Panel’.

11. The judge said, in respect of the references:[72]

    I do not find that the references were used against the applicant. The Board’s primary focus was a determination of the evidence and what was established by it. There was no fundamental error in approaching the evidence in this way.

    [72] [2024] SADC 5 at [213].

12. This alternative contention by the respondent particularises three issues. First, the respondent contended that the Board failed to consider the character references in determining whether the respondent had engaged in ‘drug dealing’. We have addressed this above and found that this complaint is established.

13. The second particular of this alternative contention was that the judge should have found that the Board failed to consider the character references in determining whether the respondent was a fit and proper person to be registered as a teacher, particularly insofar as the references shed light on the respondent’s rehabilitation since 2018. Again the references were provided to the Board as evidence of good character, following a submission that all evidence of the 2018 incident should have been excluded. As identified above, they expressed a knowledge of the drug charges and ‘of the circumstances surrounding those offences’. For the reasons discussed above more generally with respect to the indicia of rehabilitation, they were of limited use in assessing rehabilitation where the respondent still denied the offending itself.

14. In this regard, as already noted, the Board said that ‘given the [respondent’s] denials’, the references were unlikely to have been provided on the knowledge of the circumstances relevant to the drug charge ‘as found by the Panel’. That statement by the Board is a little difficult to understand on its bare terms, given the common paragraph in each.

15. It may be that the Board meant that the deponent was not aware of, or did not accept, the truth of the allegations as found, given the respondent’s denials. The Board’s statement here is not clear. However, even assuming, in favour of the respondent, that the Board did not give full credit to the common statement in each reference about awareness of the circumstances of the offending, it remains the case that the references were provided on a necessary premise of acceptance of the respondent’s denials. In this regard, the references shed little light on the respondent’s rehabilitation, as opposed to his general character. The Panel’s ultimate determination to accord the references little weight on account of that necessary premise was open to it.[73] Of course, that observation is subject to our finding on the first alternative contention.

    [73]   Bhoola v Optometry Board of Australia [2022] SASCA 20 at [45]-[47].

16. The third particular of this alternative contention is that the judge should have found that the respondent was denied procedural fairness as a result of the Panel having regard to the fact that the character references contained a similarly worded paragraph. The respondent’s submission was that the Panel accorded the references less weight by reason of each containing the near-identical paragraph. He complained that he was not given notice that the Panel would treat the references in this way.

17. This submission falls at the threshold. There is no reason to think that the Panel attached some negative significance to the fact that the phrasings were the same. The Panel here was doing no more than identifying that the extent of awareness of the referees of the events of 2018 were expressed in the same terms and, therefore, could be addressed compendiously.

    Conclusion

18. The consequence of upholding the respondent’s first alternative contention (as amended) in part is that the matter should be remitted to the Board for further consideration. However, that must occur in circumstances where we have upheld the complaints in Grounds 1 and 2 of the Board’s appeal.

19. In this regard, we note that Ground 3 of the Board’s appeal complains that the judge erred in directing on remittal that the panel was not to take into account the respondent’s involvement in any incident on Hindley Street. The effect of our decision is that the Board is entitled to take into account those matters. However, in considering whether the events in Hindley Street took place as alleged, the Board is required to approach that question, together with the evidence of the plastic bags in the respondent’s bedroom, the associated forensic and police evidence and the Wickr messages, with due regard to the Briginshaw standard. In doing so, it is required to take into account, at that stage of its consideration, the respondent’s denials, the fact of withdrawal of the charges and the good character references. It would then be a matter for the Board to determine the findings it should make.

20. Having regard to the orders made by the primary judge, the orders of the Court should be:

    1. The appeal is allowed.

    2.The respondent’s Alternative Contention 1 (as amended) is upheld in part.

    3.The matter is remitted to a Sub-Committee of the Board, differently constituted, to consider the respondent’s application for registration in accordance with these reasons.