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  • Unreported Judgment

Queensland College of Teachers v OLC

 

[2019] QCAT 242

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v OLC [2019] QCAT 242

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

(applicant)

v

OLC

(respondent)

APPLICATION NO/S:

OCR303-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

22 August 2019

HEARING DATE:

17 June 2019

DATE FINAL SUBMISSIONS RECEIVED:

12 July 2019

DECISION OF:

Member Olding, Presiding

Member Hemingway

Member Robyn Oliver

ORDERS:

  1. The suspension of OLC’s teacher registration is ended.
  2. Other than to the parties to the proceeding and until further order of the Tribunal, publication is prohibited of any information which may identify OLC or any relevant former student or school.

CATCHWORDS:

EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GENERALLY – whether grounds for disciplinary action established – where allegations of sexual and other inappropriate interactions by a teacher with a student – where allegations made over four years after the last of the alleged incidents – where no corroborating evidence

Education (Queensland College of Teachers) Act 2005 (Qld), s 123(2)(b), s 158(1), s 158(2), s 159

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66

Briginshaw v Briginshaw (1938) 60 CLR 336 Queensland College of Teachers v FAS [2017] QCAT 226

Queensland College of Teachers v Lobo [2019] QCAT 26

Queensland College of Teachers v Teacher OLC [2018] QCAT 137

R v K [1998] QCA 161

APPEARANCES & REPRESENTATION:

 

Applicant:

D Dupree, Acting Principal Legal Officer, Queensland College of Teachers

Respondent:

V Bourzige

REASONS FOR DECISION

  1. [1]
    The Queensland College of Teachers (‘QCT’) suspended OLC’s teacher registration on 13 March 2018[1] and, following an investigation, the QCT’s Professional Capacity and Teacher Conduct Committee referred a disciplinary matter concerning OLC to the Tribunal.[2]
  2. [2]
    The referral involved a range of serious allegations of inappropriate sexual and other conduct and interactions (collectively, ‘the interactions’) with a secondary school student, who we shall call ‘Ms A’. The interactions were alleged to have occurred between 2011 and 2013, when Ms A was in years 10 to 12 of her secondary schooling, but were first reported by the then former student in early 2018. The conduct involving sexual relations with Ms A was alleged to have commenced shortly after Ms A turned 16 years of age.
  3. [3]
    The Tribunal’s role is to decide whether the alleged grounds for disciplinary action, or any one or more of them, are established.[3]
  4. [4]
    The evidence in support of the allegations, provided by Ms A, was almost entirely uncorroborated, and wholly denied by OLC. The absence of corroborating evidence is clearly significant but not in itself a barrier to deciding that the grounds are established.
  5. [5]
    However, we are not satisfied on the evidence before us that the alleged interactions occurred. It follows that the grounds for disciplinary action are not established. In reaching that conclusion, it is not necessary for us to make a positive finding that Ms A’s evidence was untruthful and we make no such finding.

The applicable principles

  1. [6]
    Because OLC denied all of the allegations in their entirety, the focus of the hearing was on whether the Tribunal should be satisfied that the allegations were true.
  2. [7]
    In approaching the Tribunal’s task, we must be guided by the oft-cited principles in Briginshaw v Briginshaw:[4]

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. 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 seriousness of an allegation made, the inherent unlikelihood of an 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.

  1. [8]
    Hence, to decide that the allegations were made out, we would be required to reach a reasonable standard of satisfaction having regard to the grave nature of the allegations.
  2. [9]
    In reaching our decision on whether disciplinary grounds are established, the Tribunal is required to have regard to any relevant previous decision of a ‘practice and conduct body’ (as defined) of which the Tribunal is aware.[5] We take that requirement to more likely require consideration of previous decisions where the issues is whether proven particulars of allegations constitute grounds for disciplinary action, rather than in a case such as this where the issue is whether the Tribunal is satisfied the particulars of the allegations are made out. In any case, we are not aware of any relevant decisions.

Summary of allegations

  1. [10]
    There were four broad allegations made, namely that OLC:

Allegation 1: Between 24 January 2011 and 11 September 2011, whilst a registered teacher employed at [ABC College] engaged in inappropriate and/or overfamiliar interactions with grade 10 [ABC College] student [Ms A]. We set out and address the three alleged interactions below.

Allegation 2: Whilst a registered teacher some time during 2011 or 2012, had conversation/s with [ABC College] student [Ms A] about (words to the effect) running away together when she turned 18.

Allegation 3: During 2012, whilst a registered teacher employed at [DEF State High School] engaged in inappropriate and/or overfamiliar interactions with grade 11 student [Ms A]. We set out and address the seven alleged interactions below.

Allegation 4: Whilst a registered teacher at [GHI State High School] during 2013, engaged in inappropriate interactions with grade 12 [ABC College] student [Ms A]. We set out and address the two alleged interactions below.

Agreed facts

  1. [11]
    The following facts are not in dispute:
    1. (a)
      OLC was a registered teacher from December 2010 until his registration was suspended, following the allegations the subject of this application, in March 2018.
    2. (b)
      OLC was employed as a teacher in Queensland schools, as follows:
      1. ABC College (located in the outer Brisbane area) – January 2011 to December 2011;
      2. DEF State High School (also located in the outer Brisbane area) – January 2012 to January 2013;
      3. GHI State High School (located in a regional centre) – January 2013 to 2016;
      4. JKL State High School (located about an hour so from the outer Brisbane area) – January 2016 to 13 March 2018 (when his teacher registration was suspended).
    3. (c)
      OLC was 28 to 30 years of age at the time of the alleged interactions. Ms A was 15 to 17 years of age.
    4. (d)
      OLC was Ms A’s health and physical education teacher at ABC College in 2011, but taught at the other schools in subsequent years.
    5. (e)
      The allegations were first raised by Ms A, in a report to the Queensland Police Service (QPS), on 1 March 2018.
    6. (f)
      Noting that Ms A had reached 16 years of age at the time the sexual interactions were alleged to have occurred, and there is no suggestion that the alleged interactions were non-consensual, the QPS did not raise any charges against OLC.
    7. (g)
      The QPS, not Ms A, referred the matter to the QCT, but Ms A agreed to be interviewed by the QCT and give evidence at the Tribunal.

General observations about the evidence on behalf of Ms A and OLC

Demeanour of the witnesses

  1. [12]
    Ms A and OLC gave oral evidence at the hearing.
  2. [13]
    We are mindful of the challenges of forming an accurate impression of honesty based on the demeanour of a witness. With that reservation in mind, we make the following observations.
  3. [14]
    Ms A answered questions concisely and appeared to give her evidence in a calm and measured way.  There was nothing in her answers that suggested she was embellishing her evidence; she stated that she could not be sure about, for example, the timing of certain alleged interactions. On the other hand, her accounts of alleged interactions were generally quite detailed. This factors point in favour of the truthfulness of her evidence.
  4. [15]
    In contrast to Ms A, OLC’s evidence was wordy and agitated; he presented as a witness anxious to prove his innocence. However, in view of the nature of the allegations, it would not be surprising that an honest witness facing such allegations might present in this way. No inconsistencies emerged in cross examination of OLC.
  5. [16]
    Overall, the observed demeanour of the witnesses did not support a conclusion that the evidence of one should be preferred over the other.

Timing issues

  1. [17]
    A feature of this case is that Ms A did not raise the allegations until over four years after the last of the interactions were alleged to have occurred.
  2. [18]
    Ms A gave evidence regarding her reasons for reporting the allegations over four years after she finished school and after, on her evidence, she last interacted with OLC. She stated that she considered that OLC should not have allowed the interactions to occur and referred to the impact on her life and the risk of a re-occurrence with other students. 
  3. [19]
    The absence of an early complaint may tell against a complainant’s account, but having regard to Ms A’s young age at the time the interactions are alleged to have occurred, her explanation why she came forward with the allegations in 2018 after more mature reflection is not implausible.
  4. [20]
    It has been observed that it is not unusual in cases of this kind for evidence of a complainant to lack particularity such that allegations are not clearly fixed in time due to effect on the memory of the passage of time.[6]
  5. [21]
    However, it should also be acknowledged that the absence of precision about the timing of alleged interactions, which on Ms A’s evidence could have taken place any time over a period of months in some cases, means that it would be difficult for OLC to meet the case against him by, for example, endeavouring to account for his movements when those interactions were alleged to have occurred. Similarly, the delay in making the complaint means that the ability or otherwise of OLC or other witnesses to provide accurate evidence regarding whether OLC could have been engaged in the interactions is limited.
  6. [22]
    On behalf of OLC, it was submitted that discrepancies between Ms A’s statement to the QPS, her interview with the QCT and her oral evidence, mainly as to timing, were significant and raised issues about her credibility. Having regard to the nature of the discrepancies and the effluxion of time between the alleged interactions and the complaint, and her repeated assertions that she could not be sure of details regarding timing, we do not consider that these discrepancies cast significant doubt on Ms A’s credibility.

Motive for the allegations

  1. [23]
    In cross examination and submissions, Mr Bourzige, who appeared as a lay representative for OLC, attempted to establish that Ms A pursued the allegations as a romantic fantasy or delusion.  While that possibility remains, we do not accept that Ms A’s answers necessarily support a thesis that the allegations, when made, were motivated by a romantic fantasy or delusion. Ms A’s explanation would also be consistent with an honest acknowledgment of her state of mind at the time of the alleged interactions.
  2. [24]
    It is, though, notable that there is no evidence from OLC or other witnesses that Ms A pursued him in any way that suggested that she harboured romantic feelings, other than Ms A’s conversation with a school friend referring to a ‘real relationship’ with a then unnamed teacher. There is no evidence from OLC or other witnesses suggesting that romantic overtures from Ms A were made by Ms A or rejected by OLC.
  3. [25]
    The absence of any evidence of a motive for Ms A going to the trouble of engaging with the Bravehearts organisation (who provided a support person at the hearing); making a statement to the QPS; agreeing to be interviewed by the QCT; and giving evidence and subjecting herself to cross examination at the hearing in the Tribunal points in favour of her accounts. Likewise, that Ms A’s accounts through these processes remained essentially consistent.

Physical features of the witnesses

  1. [26]
    There was also an attempt to discredit Ms A’s evidence as a result of her failing to nominate three physical features that a person who had had intimate relations with OLC should, so it was suggested, have noticed.
  2. [27]
    The first feature is that OLC is not circumcised. OLC’s submissions describe the nominated features as ‘unique’. That is patently not so in respect of this feature and we draw no inference from Ms A’s failure to mention this feature when asked in cross examination about identifying features.
  3. [28]
    The second is described in a medical report as ‘a small brown “mole” lesion approx. 2mm diameter to the right of his penis’. In view of the size and location of this feature and the furtive circumstances in which the interactions are alleged to have occurred (outlined below), we also draw no inference in respect of Ms A’s failure to nominate this feature.
  4. [29]
    The third feature is what OLC described as a fungal infection. OLC produced photographs that indicated a prominent and extensive discolouration on his torso. It is likely that a person engaged in ongoing intimate relations with OLC would observe a marking of this kind. 
  5. [30]
    However, the evidence from Ms A is that the interactions occurred on a small number of occasions and in furtive circumstances – in the back of OLC’s car and later her car; on the floor of a school bus; and in her bedroom late at night while her parents were home. There is no evidence that there were lights on during any of these alleged interactions.
  6. [31]
    There is also no evidence of when the photographs were taken. OLC’s evidence was that the infection was permanent in nature. Under cross examination, he stated that he had been so advised by a doctor at the age of 16 and, somewhat surprisingly, had not sought further medical advice or treatment since that first diagnosis.[7]
  7. [32]
    Because of the emphasis in OLC’s submissions on this issue and the absence of direct medical evidence that the discolouration was permanent, we allowed OLC time to obtain a further medical report.  The doctor who provided the report examined OLC in June 2019 and was not, of course, able to state that the discolouration was present five to six years ago when the sexual interactions were alleged to have occurred.  However, the report did state that:

It seems the pigmentation in the area (15-20 cm on both sides) has been caused by chronic infection and has been permanent for some years. At the moment both swabs of this area were negative (no active bacteria or Candida infection). (emphasis added)

In spite of that he has had obvious red/brown pigmentation of the skin.

  1. [33]
    This evidence is inconclusive on the question of whether the discolouration was present at the time the sexual interactions are alleged to have occurred and more particularly as prominent as they were when the doctor examined OLC or the photographs were taken. In all the circumstances, even accepting OLC’s evidence that prominent pigmentation was present at the time of the alleged interactions, having regard to the passage of time and the furtive nature of the alleged interactions, we did not find Ms A’s failure to nominate this feature in cross examination of significant assistance in respect of the truthfulness or otherwise of her evidence.
  2. [34]
    OLC submitted that evidence that Ms A suffered chronic back pain was inconsistent with the allegations relating to sexual behaviour and her entering and exiting her bedroom through a window as indicated further below.  However, the relevant medical report contained so little detail that we do not accept that the condition would have precluded Ms A from engaging in the alleged activities.

Character evidence

  1. [35]
    OLC presented letters from the Principal, Deputy Principal, Clinical Social Worker and a fellow teacher at JKL State High School, where he taught in the years immediately before his suspension, attesting in highly complementary terms to OLC’s professionalism, as well as from family members and leaders of his church.
  2. [36]
    Additionally, the response of the ABC College Principal to a formal Notice of Requirement for Information stated that there were no complaints or information received concerning OLC’s conduct during his employment at the college. Similarly, his church attested to the absence of any complaints regarding OLC’s youth leadership activities.
  3. [37]
    We take these into account, but the weight to be afforded to them is limited as the referees do not know and cannot give evidence as to whether any of the alleged interactions occurred.

OLC’s wife

  1. [38]
    In her oral evidence, and also in her interview with the QCT, Ms A stated that in the course of a telephone call from OLC’s mobile telephone, Ms A became aware that OLC’s wife was listening and that she confronted Ms A about having sexual relations with her husband. Ms A says that it was because OLC’s wife discovered the relationship that OLC and his wife moved away to the country.
  2. [39]
    OLC’s wife supported OLC with a written statement in which is it implicit that she believed OLC’s denials of the allegations.
  3. [40]
    The QCT did not require OLC’s wife to attend for cross examination, which would have enabled her to give evidence regarding whether any such telephone conversation took place. Nor was Ms A’s evidence in relation to this conversation, which may have been crucial to an assessment of her credibility, addressed in cross examination of Ms A or OLC.  Nor was any evidence provided of calls from OLC’s mobile telephone (or the availability of such evidence) which he stated he has used consistently for 15 years, although in that regard we note that Ms A could not remember OLC’s mobile telephone number so there is no evidence of the number from which the call is said have originated.
  4. [41]
    Having regard to the above matters, and the evidence regarding the specific allegations, we were unable to form a positive conclusion regarding the general truthfulness or otherwise of the evidence of either Ms A or OLC.
  5. [42]
    We turn now to examine the particulars of the allegations and relevant evidence. In reaching our conclusions on each allegation, we have taken into account the matters discussed above.

Allegation 1(a)

  1. [43]
    Particular 1(a) of allegation 1 is that OLC and Ms A:

Communicated using their school and personal email addresses regarding suicidal tendencies felt by [Ms A].

  1. [44]
    This particular relates to events alleged to have occurred during 2011 while Ms A was in year 10 and OLC was a teacher at ABC College.
  2. [45]
    Ms A gave evidence that she reached out to OLC regarding mental health issues and that he provided her with his mobile telephone number and his two personal email addresses through which they communicated.
  3. [46]
    OLC admits communicating with Ms A through the school email system for appropriate professional reasons but denies ever communicating with Ms A about suicidal tendencies or communicating with her using his private email address. Neither electronic nor paper copies of email communications were produced. The school was unable to produce relevant email records.
  4. [47]
    Ms A says that she kept paper copies of emails with OLC but threw them away about a year before she made her complaint.  She was about to go overseas and says she was worried about someone finding the emails.
  5. [48]
    The only evidence approaching any form of corroboration of this particular relates to a conversation between Ms A and a school friend to whom Ms A spoke in very general terms about the alleged relationship and the existence of copies of the emails. The friend saw a folded copy of a wad of papers but neither saw nor read emails.
  6. [49]
    Having regard to our previous observations regarding the witnesses and the lack of physical, electronic or other substantial corroborating evidence, we are not satisfied that this particular is made out.

Allegation 1(b)

  1. [50]
    Particular 1(b) of allegation 1 is that OLC:

Failed to report to [ABC College] administration and/or other appropriate person the information provided to [OLC] by [Ms A] regarding her suicidal tendencies.

  1. [51]
    There is evidence, which we accept, that Ms A was admitted to hospital after an overdose of Panadol at the end of year 10.
  2. [52]
    OLC claims that he did speak to the Director of Student Services after a staff meeting about Ms A and produced a copy of a reminder in his diary to do so. He denies being aware of suicidal tendencies.
  3. [53]
    The Director was interviewed by QTC and could not recall any conversation with OLC about Ms A. While, as the QCT noted, the Director advised that her practice was to record discussions regarding concerns about particular students in the ‘Teacher Kiosk’ system, the following exchange also appears in the transcript of the interview with the Director:

[Q]: Just a, in general terms is there a sort of threshold that would warrant you to make a record of something that a teacher had brought to your attention as opposed to something that would not reach that threshold?

. . .

[A]: Probably. I think if a, if a teacher came to me and said they’re worried about a child self-harming, suicide, used the word suicide, hurting themselves that type of terminology.

[Q]: Yeah.

[A]: Would spark alarm bells for me.

[Q]: Yeah.

[A]: And I would contact, I would try and speak with the teacher or the student and I would contact the parent before the child goes home that day.

[Q]: Yep.

[A] That information would be passed onto the principal and that would also be entered into Teacher Kiosk notes.

[Q]: Yep.

[Q]: So information or disclosure made to you by a teacher of a lower level?

[A]: Mmhmm.

[Q}: What would you do there?

[A]: I would, in some instances because of my role in the school it’s, from K to 12 I speak to teachers all day long about students.

[Q]: Yeah.

[Q]: Yeah.

[A]: So at any point after a staff meeting for example I could have six to eight teachers waiting to speak to me about a child.

[Q]: Yep.

[A}: So if it was a lower level I might say to the teacher well you could go and speak to the Head of Year or can we get the Head of Year over so that I can get some more information or I might say why don’t you try talking to the child about this tomorrow or have you contacted the family? Can you cotact [sic] the family and let me know if it’s of a low level that they haven’t done their homework or you know maybe they haven’t been themselves or they’ve been away or whatever.

And later:

[Q]: In those cases, what record would you make of that or would you make a record of it?

[A]: Not necessarily.

  1. [54]
    A little later in the interview the Director indicates that she tries to make notes in the Kiosk system as she goes but if she has not been able to then by the end of the week – ‘sometimes it goes a little over, but I try to do it by the end of the week’ – she enters her notes in the Kiosk system.
  2. [55]
    In those circumstances, having regard to the volume of discussions, and that on OLC’s account he was not seeking to report suicidal tendencies or other high-level concerns, it would not be surprising that the discussion if it occurred did not culminate in an entry in the Kiosk system.
  3. [56]
    Again, having regard to our general observations regarding the witnesses and the lack of physical, electronic or other substantial corroborating evidence of this allegation, we are not satisfied that this particular is made out.

Allegation 1(c)

  1. [57]
    Particular 1(c) of allegation 1 is that OLC:

Hugged Ms A whilst in the ABC College Gymnasium.

  1. [58]
    Ms A gave evidence that, after telling OLC that she was experiencing a panic attack, Ms A and OLC went into the school gymnasium which was unoccupied. During this interaction, according to Ms A, OLC gave her a long hug which was interrupted by another teacher coming into the gymnasium. Ms A also said that the lights in the gymnasium were not on, but OLC stated in evidence which was not challenged that the building was ‘a thoroughfare’ and had clear external windows all around it.
  2. [59]
    OLC agrees that he and Ms A stepped into the gymnasium and that he provided reassurance during this incident but denies hugging Ms A.
  3. [60]
    The teacher who entered during the gymnasium provided a statement that he found Ms A and OLC alone in the gymnasium, and subsequently counselled OLC about being alone with a student in this way. However, he also stated that he saw nothing untoward occurring between Ms A and OLC.
  4. [61]
    Of course, it is possible that Ms A and OLC separated from a hug as the other teacher entered the gymnasium. Ms A told the QCT that she and OLC would hug a lot at school, but there is no evidence that any other teacher witnessed any hugging.
  5. [62]
    In light of the other teacher’s evidence, and in absence of evidence of other teachers witnessing hugging around the school or other corroborating evidence, we are not satisfied that this allegation is made out on the evidence before us.

Allegation 2

  1. [63]
    Allegation 2 is that OLC:

Whilst a registered teacher some time during 2011 or 2012, had conversation/s with [ABC College] student [Ms A] about (words to the effect) running away together when she turned 18.

  1. [64]
    Ms A’s evidence recounted alleged conversations with OLC about running away together. OLC denies the allegation.
  2. [65]
    There is no evidence directly corroborating this allegation. This would not be surprising given the nature of the allegation. There is evidence from the school friend mentioned in relation to particular 1(a) that Ms A referred to her alleged relationship with OLC as a ‘real relationship’, but this is not directly corroborative of the allegation and in any case as a hearsay report of Ms A’s statement is of limited probative value.
  3. [66]
    In the absence of directly corroborative evidence and having regard to our earlier observations regarding the witnesses, we are not satisfied that this allegation is made out.
  4. [67]
    The QCT submissions group the allegation 3 and allegation 4 particulars and we follow that course in our consideration below.

Allegation 3

  1. [68]
    Allegation 3 relates to when OLC was employed at DEF State High School in 2012 and Ms A was a year 11 student at ABC College.

Allegations 3(a) and 3(b)

  1. [69]
    Particulars 3(a) and 3(b) of allegation 3 are that OLC:

(a) Communicated by Skype and observed [Ms A] expose her breasts on Skype video chat.

(b) Communicated by text message and received photographs from Ms A of herself naked.

  1. [70]
    Ms A says that she and OLC Skyped ‘regularly’ usually at night and communicated by text starting in her year 10 school holidays and continuing into year 11 when OLC was teaching at another school. She provided some detail of an alleged recurring joke or playful exchange in the course of the alleged conversations. While Ms A stated that she sent naked photographs of herself she said she could not remember whether OLC sent photographs of himself to her. OLC denies the allegations.
  2. [71]
    There is no electronic log evidence or other corroboration of these allegations. Ms A says she no longer has the Skype account or mobile telephones she used, and that while she used her parents’ laptop for Skyping, she has not told her parents about the alleged relationship and interactions with OLC.
  3. [72]
    Against Ms A’s account, it is perhaps surprising that she claims to remember sending naked photographs of herself but not remember whether OLC sent photographs of himself. However, we are mindful of the passage of time since the interactions were alleged to have occurred. We also take into account the probability of Ms A regularly undertaking the Skype interactions using her parents’ laptop, without her parents discovering the use of their laptop for this purpose.
  4. [73]
    OLC gave evidence that he has never had a Skype account. He also produced a consultant’s technical report confirming that there was no evidence of a Skype account having been attached to his mobile telephone account. We give this evidence little weight as it is, of course, conceivable that OLC had another mobile telephone account.
  5. [74]
    In the absence of corroborating evidence, we are not satisfied that these allegations are made out.

Allegations 3(c) to 3(f)

  1. [75]
    Particulars 3(c) to 3(f) of allegation 3 are that OLC:

(c) In early 2012, attended [Ms A’s] residence in [an outer Brisbane suburb] and laid on a couch with her.

(d) In early 2012, met with [Ms A] near her residence in [the outer Brisbane suburb] in [OLC’s] vehicle and had physical contact with her including touching her face.

(e) Sometime after 11th April 2012, met with [Ms A] near her residence in [the outer Brisbane suburb] and had sexual intercourse with her in OLC’s vehicle.

(f) Sometime after 11th April 2012, attended [Ms A’s] residence in [the outer Brisbane suburb] and entered the bedroom through the window and engaged in sexualised behaviour with her including oral sex and sexual intercourse.

  1. [76]
    These allegations are uncorroborated other than in a very limited fashion in the interview with Ms A’s friend, where he recounted that Ms A mentioned a then unnamed teacher driving to Ms A’s house and a sexual encounter in a car. The friend’s evidence is of limited value for the reasons previously mentioned. Again, it would not be surprising that allegations of furtive sexual encounters would be uncorroborated.
  2. [77]
    The QCT notes that Ms A referred to OLC’s wife being pregnant in this period and submits that this is consistent with the truth of her account as she could only have known this through OLC. We do not accept this submission. The unchallenged evidence is that OLC’s wife had an open Facebook account on which she announced her pregnancy and that OLC’s cousins attended ABC College and were Facebook friends with Ms A. It is quite conceivable that Ms A became aware of the pregnancy through these sources.
  3. [78]
    However, the allegations included that on more than one occasion OLC climbed into Ms A’s bedroom through her window, at a height of over five feet, and engaged, undisturbed, in sexual activity while her brother slept in the next room and her parents elsewhere in the house. While it is not impossible that it is true, this allegation, if not inherently improbable, certainly would involve a high degree of risk taking on OLC’s part.  Of course, any allegation of sexual activity between a teacher and a student has that feature, although more so when it is said to have taken place in the student’s home when the student’s parents and brother are at home and to have involved entry and exit by climbing through a window.
  4. [79]
    In the circumstances, having regard to these factors, we are not satisfied that these allegations are made out.

Allegation 3(g)

  1. [80]
    Particular 3(g) of allegation 3 is that OLC:

(g) On or about 3 August 2013 whilst at a [Queensland school sporting tournament in a regional centre], met with [Ms A] on a bus used by [DEF] State High School and engaged in sexualised behaviour including taking off their clothing and attempting to have sexual intercourse.

  1. [81]
    OLC agrees that he drove students from his school to a regional sports tournament in a school bus and attended the tournament. Ms A alleges that she and OLC agreed to meet outside the bus, parked in the venue car park, entered the bus together and, because of the windows in the bus, sat on the floor. She went on to say that while they took clothes off and started or tried to engage in ‘sexual stuff’, she became uncomfortable and ‘then we ended up just sitting there for a bit and then walked out and went back to the game.’
  2. [82]
    OLC denies entering the bus with Ms A or engaging in sexualised behaviour.
  3. [83]
    A fellow DEF State High School teacher who attended the tournament provided a letter stating that:

At no time did I see [OLC] associating or socialising with any students from [ABC College], nor was [OLC] separated from me for any period of time during the tournament that would have allowed time for him to access the school bus and engage in sexual actions with a student from [ABC College].

  1. [84]
    It is, of course, possible that this teacher is mistaken in his insistence that OLC was never separated from him during the tournament. It seems unlikely that OLC was with this teacher for every minute of the tournament such that he could not have slipped away for what the allegation suggests would have been a relatively short time. There is no evidence from teachers from ABC College of Ms A being unaccountably absent during the tournament.
  2. [85]
    In the absence of corroborating evidence and considering the inherent implausibility or at least extreme risk taking inherent in the allegation of a teacher engaging in sexual activity with a student from another school in a school bus parked in the car park at a crowded sports tournament, we are not satisfied that this allegation is made out.

Allegation 4

  1. [86]
    Allegation 4 relates to a time when OLC was employed at GHI State High School and Ms A was a year 12 student at ABC College.

Allegations 4(a) and 4(b)

  1. [87]
    The particulars of these allegations are of OLC, whilst a teacher at GHI State High School:

(a) Being driven by [Ms A] to OLC’s parent’s residence at [an outer Brisbane suburb] and engaged in sexualised behaviour in Ms A’s vehicle while parked in the driveway.

(b) Met with Ms A, at a park in [the suburb in which Ms A’s residence is located] and engaged in sexualised behaviour including oral sex in Ms A’s vehicle.

  1. [88]
    In relation to allegation (a), Ms A says that she does not remember picking up OLC in her car or how he got to the point where she picked him up. Ms A accurately identified the road on which OLC’s parents’ home was then located, which is a long road in the area.
  2. [89]
    OLC presented a timetable that purported to account for his whereabouts throughout the entire period of the 2013 June-July school holidays. Family members purported to verify this timetable and OLC’s wife stated that OLC was never unaccountably absent. We have given little weight to this evidence as it is unlikely that OLC and the family members could account for OLC’s movements throughout this period with this degree of precision some five years later.  In any case, it is conceivable that OLC could have ‘accounted’ to his family for his absence while in fact with Ms A.
  3. [90]
    That Ms A was able to state that OLC was in Brisbane during a period of school holidays and identify the road in which his parents’ house was located supports her account.
  4. [91]
    On the other hand, there are other potential explanations for Ms A having this knowledge. There was unchallenged evidence that two of OLC’s cousins, with whom Ms A connected on Facebook, attended ABC College. Further, the element of this allegation that involves sexual activity taking place in Ms A’s vehicle while parked in OLC’s parents’ driveway, while conceivable, also exhibits a degree of improbability.
  5. [92]
    Ms A also mentioned a long driveway, but OLC gave unchallenged evidence that there are many homes on the road that are on acreage blocks and have long driveways. She also said the front door was clearly visible when she and OLC were in the car in the driveway while OLC says the front door is not visible as it is on the side of the house.
  6. [93]
    On balance, in the absence of corroboration and having regard to these competing considerations, we are not satisfied that this allegation is made out.

Disposition of the matter

  1. [94]
    As we are not satisfied that any of the allegations are made out, it follows that a ground for disciplinary action is not established. Accordingly, we must end the suspension of OLC’s teacher registration.[8]
  2. [95]
    OLC also sought a range of other monetary and non-monetary orders. The Tribunal has no power to make such orders.

Non-publication order

  1. [96]
    When the QCT referred the continuation of the suspension of OLC’s registration to the Tribunal, the QCT supported OLC’s application for a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) on the basis that non-publication was appropriate given that OLC is married with children and that publication may also adversely impact Ms A. The Tribunal duly made a non-publication order.
  2. [97]
    In its written submissions on the current application, the QCT continued to support a non-publication order in respect of any information that would enable Ms A or her former student friend who provided evidence to the QCT to be identified.  However, the QCT submitted that ‘there is currently nothing before the Tribunal which would justify or render necessary a non-publication order by the Tribunal with respect to identification of the respondent’. Unfortunately, this submission was not discussed at the hearing.
  3. [98]
    Section 66 empowers the Tribunal to make an order prohibiting publication of the contents of a document or thing produced to, or evidence given before, the Tribunal or information that may enable a person who appeared before the Tribunal to be identified.[9] Such an order may only be made if the Tribunal is satisfied that it is necessary (so far as potentially relevant to this matter):

. . .

(b) to avoid endangering the physical or mental health or safety of a person;

. . .

(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest;

(e) for any other reason in the interests of justice.[10]

  1. [99]
    We accept that it is necessary for a non-publication order to be made to prevent the identification of Ms A to avoid endangering her mental health. Protection of the identity of Ms A’s friend, the other former student, is necessary to prevent possible identification of Ms A.
  2. [100]
    Given that the Tribunal has decided that no disciplinary ground is established, and having regard to evidence regarding OLC’s mental health, we consider that it is necessary for the non-publication order to also prevent identification of OLC, both to avoid endangering his mental health and in the interests of justice.
  3. [101]
    In the event that the Tribunal decided to make a non-publication order in respect of identification of OLC, the QCT submitted that there should be an exception to permit disclosure to any employer who employs OLC; his current and future health practitioners; teacher regulatory authorities; and the chief executive (employment screening).
  4. [102]
    In support of this submission, the QCT referred the Tribunal to previous decisions[11] in which disclosures of this kind were permitted as exceptions to a non-publication order. However, these decisions related to applications in which the Tribunal decided that disciplinary grounds were established.
  5. [103]
    In the current matter, where grounds for disciplinary action have not been established, we are not persuaded that the interests of justice can be served with these exceptions. The disclosures that would be permitted could have substantial adverse effects on a respondent against whom serious allegations have been levelled but not made out to the satisfaction of the Tribunal on the evidence before it.
  6. [104]
    The non-publication order made in the previous proceeding to continue the suspension of OLC’s teacher registration is in these terms:

Other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information which may identify [OLC] any relevant student or the relevant school.[12]

  1. [105]
    Identification of the other schools at which OLC has taught and the timeframes could potentially lead to identification of OLC. Our order will also cover these schools.

Footnotes

[1] The suspension was continued by the Tribunal: Queensland College of Teachers v Teacher OLC [2018] QCAT 137.

[2] Pursuant to the Education (Queensland College of Teachers) Act 2005 (Qld), s 123(2)(b).

[3] Education (Queensland College of Teachers) Act 2005 (Qld), s 158(1).

[4] (1938) 60 CLR 336 at 361-362.

[5] Education (Queensland College of Teachers) Act 2005 (Qld), s 158(2).

[6] R v K [1998] QCA 161, 15 (Lee J).

[7] OLC did note that his wife, who was in attendance in the hearing room, could give evidence of the permanent nature of the discolouration, an offer we did not take up in view of her lack of medical expertise.

[8] Education (Queensland College of Teachers) Act 2005 (Qld), s 159.

[9] Section 66(1).

[10] Section 66(2).

[11] Queensland College of Teachers v FAS [2017] QCAT 226; Queensland College of Teachers v Lobo [2019] QCAT 26.

[12] Queensland College of Teachers v Teacher OLC [2018] QCAT 137.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v OLC

  • Shortened Case Name:

    Queensland College of Teachers v OLC

  • MNC:

    [2019] QCAT 242

  • Court:

    QCAT

  • Judge(s):

    Member Olding, Member Hemingway, Member Oliver

  • Date:

    22 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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