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Queensland College of Teachers v XYZ

 

[2019] QCAT 283

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Queensland College of Teachers v XYZ [2019] QCAT 283

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS

 

(applicant)

 

v

 

XYZ

 

(respondent)

APPLICATION NO/S:

OCR266-17

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

17 September 2019

HEARING DATE:

25 August 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Quinlivan

Member Grigg

ORDERS:

  1. A ground for disciplinary action against the respondent has been established.
  2. The applicant must file in the Tribunal two (2) copies and give to the respondent one (1) copy of written submissions on sanction by 4:00pm on 1 October 2019.
  3. The respondent must file in the Tribunal two (2) copies and give to the applicant one (1) copy of written submissions on sanction by 4:00pm on 15 October 2019.
  4. The applicant must file in the Tribunal two (2) copies and give to the respondent one (1) copy of written submissions in reply by 4:00pm on 22 October 2019.
  5. Unless a party requests an oral hearing, the question of sanction will be determined on the papers.
  6. The non publication order made 15 December 2017 is continued and is extended to include the prohibition of any information which may identify any relevant teacher and the relevant school at which the events occurred.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES OR CALLINGS – where teacher charged with serious offences – where offences alleged to have occurred on a school camp – where teacher acquitted of charges – whether grounds for disciplinary action established – whether evidence establishes on the Briginshaw standard that the respondent has behaved in a way that does not satisfy the standard expected of a teacher

Education (Queensland College of Teachers) Act 2005 (Qld) s 48, s 92(1)(h), s 92 , s 97, s 147, s 233, sch 3

Queensland Civil and Administrative Tribunal Act 1991 (Qld) s 28

Briginshaw v Briginshaw (1938) 60 CLR 336

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Rejfek v McElroy (1965) 112 CLR 517

Queensland College of Teachers v CSK [2016] QCATA 125

Queensland College of Teachers v RCJ [2015] QCAT 282

APPEARANCES &

REPRESENTATION:

Applicant:

Ms B Houston, solicitor

Respondent:

Mr S Reidy instructed by Holding Redlich

REASONS FOR DECISION

  1. [1]
    The Queensland College of Teachers (QCT) has brought disciplinary proceedings against the respondent arising out of an incident which the QCT says occurred during a school camp in 2016 (the Referral). At the time of the school camp the respondent was employed as a teacher at Alpha School.  It is alleged that the respondent assaulted two male students. The respondent denies the allegation.
  2. [2]
    The respondent was charged upon indictment with three counts of indecently dealing with a child under the age of 16 years. Two of the charges related to S1. The remaining charge related to S2. After a trial in the District Court, the respondent was acquitted of the charges.
  3. [3]
    Upon being notified of the charges against the respondent, the QCT suspended his registration.[1] That suspension remains in effect. 

The statutory framework – Education (Queensland College of Teachers) Act 2005 (Qld) (EA).

  1. [4]
    If the QCT reasonably believes that 1 or more grounds for disciplinary action against a relevant teacher exist, the QCT must refer the matter to the Tribunal.[2] A relevant teacher is defined and includes an approved teacher.[3] An approved teacher includes a registered teacher.[4] A registered teacher means a person holding full registration or provisional registration under the EA.[5]
  1. [5]
    The grounds for disciplinary action are set out at s 92 of the EA. One of the grounds is that a person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.[6] This particular disciplinary ground is taken to apply to a relevant teacher whose registration or permission to teach under s 48 of the EA has been suspended and the teacher has been charged with a serious offence and the charge has been dealt with.[7] ‘Dealt with’ means, inter alia, that the teacher has been acquitted of the charge.[8]
  2. [6]
    A serious offence is defined and includes indecent treatment of children under 16.[9]
  3. [7]
    The stated object of s 92(2) of the EA is to ensure the circumstances of the charge are examined by a practice and conduct body.[10]  A matter involving a disciplinary action under s 92(1)(h) of the EA is a ‘general matter’.[11] General matters must be referred to QCAT.[12] QCAT must conduct a hearing and make decisions about the matter having regard to the information provided by the QCT.[13]
  1. [8]
    If a matter is referred to the tribunal, the QCT must inform QCAT about the grounds for the matter and circumstances forming the basis for the grounds.[14]
  2. [9]
    A disciplinary referral pursuant to s 92 of the EA is brought in the tribunal’s original jurisdiction. In performing its functions under the EA, the welfare and best interests of children are to be the primary considerations of the QCT.[15] In observing that there is no equivalent provision applying to the tribunal in exercising its original jurisdiction, the Appeal Tribunal has held[16]:

That said, the objects of the (EA) include protecting the public through ensuring education in schools is delivered in a professional and competent manner. As a matter of statutory interpretation, an interpretation which best achieves the purpose of the Act concerned is to be preferred to any other interpretation.

  1. [10]
    The tribunal must decide whether a ground for disciplinary action against a teacher has been established.[17] If the tribunal decides that a ground for disciplinary action has not been established, the tribunal must end any suspension of the teacher’s registration.[18] If the tribunal decides that a ground for disciplinary action has been established, the tribunal may make appropriate orders.[19]

The referral

  1. [11]
    The ground for disciplinary action is set out in the Referral:
    1. (a)
      Section 92(1)(h) – the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher; and
    2. (b)
      Sections 92(2)(a) and 92(3) – the teacher has been charged with a serious offence and the charge has been dealt with.
  1. [12]
    The QCT relies upon the following facts as forming the basis of the ground for disciplinary action:
    1. (a)
      On 25 May 2016 the respondent was charged with:
      1. One count of indecent treatment of a child under 16 years, under 12 years pursuant to s 210(1)(a) and s 210(3) of the Criminal Code (Qld);
      2. Two counts of common assault under s 335 of the Criminal Code;
    2. (b)
      The particulars of the charges were that the respondent, whilst on school camp, allegedly entered the complainant’s cabin and touched and sucked his penis. The respondent also allegedly touched another boy in the same room;
    3. (c)
      An indictment was presented in the Brisbane District Court charging the respondent with the following:
      1. Three counts of indecent treatment of children under 16, child under 12;
    4. (d)
      The matter proceeded to trial in the Brisbane District Court on 30 October 2017;
    5. (e)
      On 6 November 2017, the jury returned a verdict of ‘not guilty’ on all charges.[20]
  2. [13]
    The respondent’s registration has been suspended under s 48 of the EA. The respondent was charged with a serious offence and acquitted after a trial in the District Court. The charge has therefore been dealt with for the purposes of s 92(2)(a) of the EA.

The joint statement filed by the parties

  1. [14]
    The parties have filed a joint statement of facts and issues for determination.[21] The parties agree on the following facts:
    1. (a)
      S1, S2 and other year 6 students from Alpha School, and accompanying Alpha School staff (including the respondent) attended the school camp at Beta School from 21 March 2016 to 24 March 2016;
    2. (b)
      S1 and S2, together with students S3, S4 and S5 were assigned to cabin 10.06;
    3. (c)
      On 23 March 2016, as a result of a water leak, the students in cabin 10.06, and students from cabin 10.01, were transferred to cabin 6.02 and cabin 6.01 respectively;
    4. (d)
      The respondent moved to cabin 6.03 to supervise the students in cabins 6.02 and 6.01;
    5. (e)
      After dinner on 23 March 2016 all students watched a movie;
    6. (f)
      After the movie finished the students returned to their cabins to prepare for bed;
    7. (g)
      The respondent waited at a picnic table in the veranda area at the back of cabins 6.01 and 6.02 while the students settled in for the night;
    8. (h)
      The security/welfare officer at Beta School, T1, subsequently came around on his patrol and told the students in cabins 6.01 and 6.02 to be quiet. T1 then spoke with the respondent before continuing his patrol;
    9. (i)
      T1 subsequently returned and spoke with the respondent;
    10. (j)
      During the conversation, the respondent heard sobbing coming from cabin 6.02;
    11. (k)
      The respondent then entered cabin 6.02 and spoke with S3 who was homesick;
    12. (l)
      The respondent subsequently returned to the picnic table and continued talking with T1;
    13. (m)
      T1 subsequently resumed his patrol;
    14. (n)
      The respondent subsequently went to the teachers’ staff room where he met with other Alpha School staff;
    15. (o)
      After about an hour or so, Alpha School staff retired for the night to their cabins.
  1. [15]
    The following facts are in dispute:
    1. (a)
      During the evening of 23 March 2016 the respondent entered cabin 6.02 between 10pm and 11pm;
    2. (b)
      S1 awoke when he felt the respondent tapping on his body over his stomach, privates and legs and felt the respondent’s hands patting him down from his chest to his upper thighs;
    3. (c)
      S1 felt a mouth over his penis and could feel a tongue licking and teeth biting it and he woke up and saw the respondent’s face down on his penis and could see his mouth sucking his penis;
    4. (d)
      The respondent left the cabin and subsequently returned a short time later;
    5. (e)
      The respondent walked over to S2’s bed and commenced patting S2’s body, over his private area, legs and stomach.
  2. [16]
    The parties agree that the Tribunal must decide the following:
    1. (a)
      Whether a ground for disciplinary action against the respondent has been established, that is, whether the respondent has behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher;
    2. (b)
      Whether the evidence establishes on the Briginshaw[22] standard that the respondent behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher;
    3. (c)
      If the Tribunal is not satisfied that a ground for disciplinary action has been established, the Tribunal must end the suspension of the respondent’s registration;
    4. (d)
      If the Tribunal is satisfied that a ground for disciplinary action has been established, the Tribunal must make a decision about the appropriate disciplinary action to be taken.

The material before the Tribunal and the evidence given at the hearing

  1. [17]
    The material before the Tribunal includes the following:
    1. (a)
      The referral;
    2. (b)
      The response;
    3. (c)
      Video-taped interviews conducted by the Queensland Police Service of the five students who were in cabin 6.02 on the night of the alleged offending and transcripts of the interviews and video-taped interviews conducted by the Queensland Police Service of S1’s two brothers and transcripts of the interviews (‘the s 93A evidence’);
    4. (d)
      Video-taped interview conducted by the Queensland Police Service of the respondent[23] and a transcript of the interview;
    5. (e)
      An affidavit by the respondent;[24]
    6. (f)
      Various photographs of the cabin in which the offending is alleged to have taken place and of the building in which the cabin was located;[25]
    7. (g)
      A visiting teacher roster;[26]
    8. (h)
      Various statements provided to the Queensland Police Service by school staff and other persons;
    9. (i)
      The transcript of S1’s evidence taken pursuant to s 21AK of the Evidence Act 1977 (Qld) (‘the s 21AK evidence’);
    10. (j)
      Transcript of the District Court criminal trial;
    11. (k)
      Various photographs and police diaries.
  2. [18]
    During a hearing the tribunal may receive in evidence a transcript or part of a transcript of evidence taken in a proceeding before a disciplinary body or court or tribunal and draw conclusions of fact from the evidence it considers appropriate or adopt as it considers appropriate decisions, findings, judgements or reasons for judgement of a disciplinary body, court or tribunal that may be relevant to the hearing.[27]
  3. [19]
    S1 was first interviewed by police approximately four weeks after the alleged incident (‘the first interview’).[28] He was interviewed again by police approximately three weeks later (‘the second interview’).[29] S1 gave pre-recorded evidence in August 2017 prior to the District Court trial (‘the pre-recorded evidence’).[30] The District Court trial in respect of the charges against the respondent took place in October 2017.
  4. [20]
    The video recordings and transcripts of the first and second interviews are before the Tribunal. The video recording of the s 21AK evidence is not before the Tribunal.
  5. [21]
    The respondent was the only witness to give evidence at the hearing in these proceedings. At the hearing the QCT advised the Tribunal that it was prepared to call the child witnesses. Counsel for the respondent advised that none of the child witnesses were required for cross examination.
  6. [22]
    Prior to the hearing both parties filed written submissions. At the hearing the QCT was given leave to file further written submissions which were, in effect, the applicant’s oral submissions. Counsel for the respondent also filed a document setting out counsel’s notes in relation to the video recordings of the child witnesses.[31] The respondent subsequently filed written submissions in response to the QCT’s oral submissions.[32]
  7. [23]
    The parties were advised at the hearing that the Tribunal intended to hear the evidence and the parties’ submissions and then adjourn to view the video evidence. The parties were advised that unless any matters arose requiring the Tribunal to seek further submissions from the parties, the matter would proceed to determination without further reference to the parties. The parties agreed that the matter proceed in this way.
  8. [24]
    By s 28 of the Queensland Civil and Administrative Tribunal Act 1991 (Qld) (QCAT Act), the s 93A evidence and the s 21AK evidence may be admitted into evidence in teachers’ disciplinary proceedings.[33] If the evidence is admitted, and the audio or video recordings are available, the recordings should be admitted into evidence in preference to the transcripts.[34] The tribunal may exercise its discretion and not admit s 93A evidence or s 21 AK evidence if, for example, the maker of the statement is not available to give evidence.[35]
  9. [25]
    We have viewed the video evidence and do not require further submissions from the parties.
  10. [26]
    The s 93A evidence and the s 21AK evidence is admitted. We will address the weight to be given to the evidence later in these reasons.

What do the parties say?

  1. [27]
    The QCT says that notwithstanding the respondent’s acquittal in the criminal proceedings, it is open to the Tribunal to decide the ground for disciplinary action has been established. The QCT says that the Tribunal is required to examine the circumstances of the charge against the respondent to determine whether the ground for disciplinary action has been established.
  2. [28]
    The QCT says that the Referral of the disciplinary proceeding was made when there was limited information available to the QCT. Upon the production of documents to the QCT by the Director of Prosecutions, errors in the notification were identified however the QCT says that it did not consider it necessary to amend the Referral.
  3. [29]
    The QCT says that tribunal proceedings are inquisitorial as opposed to the adversarial nature of criminal proceedings. In relation to the submission by the respondent that if it cannot be established on the balance of probabilities that the respondent entered cabin 6.02 between 10pm and 11pm then the behaviour is not established, the QCT says that the Tribunal need only be satisfied that the respondent engaged in the alleged conduct, irrespective of whether the conduct occurred at a time other than between 10pm and 11pm.
  4. [30]
    The QCT says that, despite his submissions to the contrary, the respondent is raising an issue about S1’s credibility while refraining from attacking his character or credit. This is a reference to the respondent’s submissions raising issues as to whether S1 is able to separate dreams from reality, imagination from fact and fantasy from actuality.
  5. [31]
    The QCT says it is understandable that S1 was reluctant to discuss with police the alleged sexual acts performed upon him by the respondent. S1 was a young child, 10 years old at the time of the school camp and 11 years old at the time of the second police interview. The QCT highlights the differences in the nature of the evidence given by S1 relating to the alleged offending and his evidence about other aspects of what occurred at the school camp.
  6. [32]
    In relation to the alleged conduct, the QCT says that in the same way S1 was reluctant to discuss the alleged sexual conduct he was also reluctant to demonstrate the specific alleged conduct of the respondent. The QCT says that S1 is able to place the events of the night in question in a clear sequence.
  7. [33]
    The QCT says that there is nothing unusual about the way in which S1 describes certain matters, including seeing in the dark and committing images to memory, and are readily explicable when S1’s age is taken into consideration.
  8. [34]
    The respondent says that the Tribunal is conducting a fresh, different and new proceeding and that the function of the Tribunal is not to re-run the criminal trial. The respondent says that if evidence is admitted without the respondent having been given the opportunity to properly test it, the evidence ought not be afforded the same weight as if it had been tested. The respondent says that, in assessing the s 93A evidence, answers to leading questions should be given diminished weight, the hearsay evidence rule applied and irrelevant lines of questioning and answers in response disregarded. In relation to this submission we note that the respondent did not require the child witnesses to be available for cross-examination. 
  9. [35]
    The respondent says that if it cannot be established on the balance of probabilities that the respondent entered the cabin between 10pm and 11pm then the behaviour is not established. We accept that the QCT is bound by the terms of the referral.[36] The referral refers to the charges brought against the respondent in respect of the subject events and the subsequent indictment presented in the District Court.  The original charges refer to the incidents as having occurred ‘between the 22nd day of March 2016 and the 25th day of March 2016’.[37] The indictment presented is in similar terms.[38] The referral, in referring the charges and the indictment, does not limit the timeframe of the alleged offending to a specific period other than as set out in these reasons.
  10. [36]
    The timeframe referred to by the respondent appears in the joint statement of agreed and disputed facts filed by the parties. The relevant part of the joint statement is expressed in the following terms:

Whether or not the respondent engaged in the conduct alleged by (S1) in respect of (S1), being the version recorded in the Queensland Police Service Court Brief QP9, namely:

1.1  During the evening of 23 March 2016, the respondent entered cabin 6.02 between 10pm and 11pm;

  1. [37]
    The Queensland Police Service Court Brief QP9 is before the Tribunal.[39] The QP9 makes no mention of the suggested time frame. To the extent that it is considered necessary for us to do so we do not consider we are confined by the suggested time frame of 10pm to 11pm on 23 March 2016 in our consideration of the referral and the conduct.
  2. [38]
    The principal submissions made by the respondent are:
    1. (a)
      The only direct evidence about the occurrence of the alleged incidents is the evidence of the respondent and S1;
    2. (b)
      There is no evidence corroborating S1’s version of events;
    3. (c)
      The respondent’s evidence denying the allegations is clear and consistent and has remained so throughout;
    4. (d)
      S1’s account of the relevant events is inexact, indefinite and thus unreliable.

The evidence

  1. [39]
    We must decide whether we are satisfied, on the relevant standard, that the facts supporting the charge have been made out. The relevant standard in this case is the civil standard. The civil standard of proof is the balance of probabilities.
  2. [40]
    In Briginshaw v Briginshaw it was held:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. 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. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[40]

  1. [41]
    The Briginshaw approach is based on the principle that a court in a civil action should not lightly find that a party has engaged in criminal conduct.[41] The standard of proof does not vary - the civil standard remains the applicable standard. However in applying the Briginshaw principles we must proceed cautiously in light of the gravity of the allegations made against the respondent and we must be satisfied that the relevant evidence has a high probative value, commensurate with the seriousness and the consequences of the alleged conduct.
  2. [42]
    We will consider the evidence relevant to the ground of disciplinary action, referring as appropriate and necessary to the parties’ submissions.
  3. [43]
    In considering the evidence we will address:
    1. (a)
      The evidence regarding whether the rear door was locked or unlocked;
    2. (b)
      The evidence regarding the incident;
    3. (c)
      The evidence regarding when S1 reported the incident;
    4. (d)
      The respondent’s evidence;
    5. (e)
      The inconsistencies in S1’s evidence asserted by the respondent;
    6. (f)
      Whether S1’s version of events is implausible.

The location of the alleged offending behaviour

  1. [44]
    Cabin 6.02, in which the alleged offending occurred, was located on the lower level of a two storey building containing a total of 10 cabins.  There were five students housed in cabin 6.02, including S1.
  2. [45]
    The other students were S2, S3, S4, and S5 all of whom were year 6 students.
  3. [46]
    The cabin contained three bunk beds and a single bed. The cabin had a front door and a rear door. The front door to the cabin was a solid door with a key-coded security lock. The rear door comprised a sliding glass door and a sliding screen door. Louvered windows were situated on either side of the rear door, one narrower than the other. A veranda ran along the rear of the lower level of the building onto which the rear door opened. Situated on the veranda at or about the location of one of the windows to the side of the rear door was a table with bench seating. There was an external light located on the rear wall, positioned above the table, between cabin 6.02 and the adjoining cabin. Both the rear glass door and the screen door had latch style locking mechanisms operated from inside the cabin and keyed locks operated from the outside of the cabin. The cabin also had a bathroom and toilet.
  4. [47]
    Two of the three bunk beds in the cabin were located along one wall while the other bunk bed was located on the opposite wall. A single bed was located under the larger of the two windows next to the rear door.
  5. [48]
    S1 was located in the single bed.

The rear door

  1. [49]
    S1’s evidence was that the rear door was left unlocked when he and the other cabin occupants went to the dining room but that the door was locked when they went to the beach.[42] S1 said that on the night in question, when the cabin occupants were going to bed, he told S4 to lock the door and that he saw him lock the door.[43]
  2. [50]
    S1 stated that on the night the alleged conduct occurred, the respondent had entered the cabin after the occupants of the cabin had gone to bed as one of the boys was homesick and crying. S1 stated that the respondent entered the cabin through the rear door.[44]
  3. [51]
    S1 stated that at the time the respondent was touching S2, S2 was moving around in his bunk.[45] S1 heard footsteps outside the cabin at which time the respondent quickly left the cabin through the rear door.[46]
  4. [52]
    S2 stated that the occupants of the cabin did not close the rear glass door during their stay.[47] He stated that he never locked the rear screen door.[48] S2 stated that he thought S1 had opened the rear door for the respondent when he entered the cabin to speak with S3 who was upset because he was homesick.[49] S2 said that the respondent left the cabin through the rear door.[50]
  5. [53]
    S4 stated that when the occupants were in the cabin the rear screen door was left unlocked.[51] On the night in question he could not recall whether the rear door had been locked when the cabin occupants went to bed.[52] He stated he thought that the door might have been locked but that sometimes the cabin occupants unlocked the door if it was hot.[53] Ultimately S4 could not remember if the rear glass door was opened or closed.[54] S4 recalled unlocking the rear door the following morning to go outside to check on his wet swimmers. He stated that S2 and S3 were already awake.[55]
  6. [54]
    S3 stated that ‘mostly all the time’ the occupants of the cabin did not lock the rear door.[56] He stated that the rear door was not locked when the cabin occupants were going to sleep.[57] He stated that after returning to the cabin on Wednesday evening he unlocked the rear glass door in order to go outside to check on his wet clothes and when he re-entered the cabin he did not lock the door.[58]  S3 recalled the respondent entering the cabin on Wednesday evening before the occupants went to sleep after he became upset.[59] The respondent entered through the rear glass door ‘because um he comes out that door and comes in ‘cause he doesn’t, he didn’t know the passcode in ours.’[60] S3 stated that the respondent exited through the rear glass door.[61] S3 did not lock the door after the respondent exited the cabin.[62] S3 thought that he was the first of the cabin’s occupants to wake up on Thursday morning. He exited through the rear door which he stated was unlocked.[63]
  7. [55]
    S5 stated that the rear door was required to be left unlocked to enable teachers to access the cabin if required.[64] On Wednesday evening after the occupants had gone to bed, the respondent entered the cabin through the unlocked rear door when S3 was heard crying and exited through the rear door.[65]

The alleged conduct

  1. [56]
    In the first interview S1 stated he first became aware of the respondent engaging in the alleged conduct ‘(w)hen he was already started.’[66] S1 said that he could ‘see my (S1’s) private up in his mouth’[67] and that the respondent had pulled his pants down and that S1 felt his pants had been pulled down when he ‘woke up.’[68] S1 described the respondent sucking on his privates.[69]
  2. [57]
    S1 described, ‘just before I woke up’,[70] the respondent using his hands to tap S1’s body.[71] S1 described the sensation as ‘weird’ and ‘germy’.[72] He also described the sensation as ‘(f)elt like water was on it.’[73] S1 described the respondent leaning over him, not kneeling.[74]
  3. [58]
    In the first interview S1 described waking up when the respondent was ‘feeling’ him.[75] In his s 21AK evidence S1 stated that he first felt the respondent ‘tapping’ him.[76] S1 said that he could see the respondent in the cabin despite it being dark and said that he had ‘special eyes where I can just see things’.[77] When asked how he knew it was the respondent in the room, S1 stated that the respondent had ‘a different face to everyone’, that he was wearing a badge with the respondent’s name on it and that he was wearing the ‘same clothes I saw at night’.[78] S1 stated that at the time of the alleged conduct the respondent was ‘in the same clothes … when in the morning he was wearing the same clothes.’[79]
  4. [59]
    S1 stated that he was able to see in the cabin as there were lights outside.[80] He described the respondent’s clothing.[81]
  5. [60]
    S1 stated that after ceasing the behaviour, the respondent ‘pulled it up’ presumably a reference to S1’s pants. S1 stated that he felt ‘really disgusting’ after the respondent left the cabin.
  6. [61]
    S1 described the respondent leaving the room for a brief period and then returning. S1 described the respondent ‘tapping’ the body of another student, S2, when he returned to the cabin.[82] S1 stated that the respondent ‘started feeling (S2’s) body’ and doing ‘the same what he did to me’ in S2’s ‘private area’.[83]
  7. [62]
    S1 described the rear door as being left open.[84] He stated that the respondent used the rear door and that the respondent ‘doesn’t know our front door code.’[85]
  8. [63]
    S1 stated that he was sleeping in a sleeping bag lying on his back when the incident occurred.[86]
  9. [64]
    In his pre-recorded evidence S1 stated that he was wearing pull ups and that the respondent pulled his pyjama pants and pull ups back up.[87] S1 stated that he did not wear the pull ups every night[88] but was wearing them on the night in question.[89]
  10. [65]
    When asked whether it was possible that he had dreamed the occurrence of the incident S1 stated ‘(t)hat’s what I’ve been asking myself, but I don’t know that answer.’[90]

The evidence regarding when S1 first reported the incident

  1. [66]
    S1 told the school principal after the incident was reported that he told S2 the following day what he had observed the respondent doing to S2 however he did not tell S2 what had happened to him (ie S1).[91] S1 stated he was too scared to tell anyone about what had occurred to him.[92]
  2. [67]
    This is to be contrasted however with S1’s statements to the police. In his statements to the investigating officers S1 did not specify when he spoke with S2.
  3. [68]
    B1 is S1’s elder brother. He was 13 years old at the relevant time. He recalled S1 telling him about the incident involving the respondent. B1 stated that after returning from the camp S1 was acting strangely, that he would not talk to B1 and that he looked sad.[93]
  4. [69]
    B1 recalled a conversation with S1 during which S1 told B1 that the respondent ‘was feeling up at his chest and feeling down between his legs’ and that the respondent ‘sucked his thing’.[94] S1 asked B1 to tell their mother what had occurred.[95] B1 could not recall when this conversation took place.
  5. [70]
    S1’s younger brother, B2, was also present when S1 disclosed the occurrence of the incident. B2 was 9 years old at the time. He stated that when S1 was telling him what had occurred S1 had a ‘weird sort of face’.[96] S1 told his brothers that the respondent had ‘tried to suck his dick.’[97] B2 could not recall when this conversation took place.
  6. [71]
    S1’s mother, S1M, provided a statement to police.[98] On the 19th April 2016 S1 told his mother that the respondent had ‘played’ with him and ‘touched him’ at the school camp. He told his mother that he had not reported the incident upon his return from the camp ‘(b)ecause I thought you and dad would tell me off and no one would believe me.’[99] S1 started to cry as he told his mother what had occurred.[100] After S1 left the room, B2 approached his mother and told her that the respondent had ‘sucked his (S1’s) willy’. S1 subsequently confirmed this with his mother.[101] S1’s father, S1F, was also present and recounted a similar version of events.[102]
  7. [72]
    S6 was a school friend of S1’s. He was also in grade 6. S6 stated that S1 told him the ‘next day’ at school that the respondent had ‘sexually harassed’ him at the camp and had entered S1’s cabin and ‘felt’ him.[103] S1 told S6 that what had occurred ‘was too disgusting to even think about it.’[104] S6 recalled that S1 started to ‘tense up’ recounting what had occurred[105] and that he appeared angry.[106] When asked to clarify when the conversation had taken place, noting that the school holidays commenced the week after the incident, S6 stated that the conversation took place on Monday, ‘the week that we came back to school.’[107]
  8. [73]
    In his pre-recorded evidence, S1 stated that the first person he told about the incident was his brother B1.[108] S1 stated that he told S2 about the incidents after returning to school following the school holidays and after he had told his brother B1.[109]

The respondent’s evidence

  1. [74]
    The respondent was interviewed by police. The respondent stated that, on the night in question, he had entered cabin 6.02 through the rear door, which was unlocked, when he heard one of the occupants crying.[110] The respondent stated that he subsequently exited the cabin through the rear door shutting the screen door as he exited.[111]
  2. [75]
    The respondent denied the incidents involving S1 and S2.[112]
  3. [76]
    The respondent relied upon affidavit evidence in these proceedings.[113] His evidence was that on the night in question the respondent entered the cabin after the occupants had gone to bed after hearing one of the occupants crying. The respondent entered cabin 6.02 using the rear door.[114] The respondent exited the cabin through the rear door, closing the screen door behind him.[115] The respondent says that he did not enter the cabin again until the following morning after 6.15am.[116] When the respondent approached the rear door of the cabin the following morning, the doors were open.[117] The respondent denied the conduct allegations.[118]
  4. [77]
    The respondent also gave evidence at the hearing in these proceedings. He maintained his denials of the alleged conduct. He stated that after checking on the student who was crying and leaving the cabin, he did not lock the door nor did he subsequently ascertain whether or not the rear door was locked.

Inconsistencies in S1’s evidence

  1. [78]
    We accept that there are inconsistencies in S1’s evidence. We do not propose to address all of the inconsistencies but will highlight those we consider of significance in our consideration of the evidence:
    1. (a)
      S1’s complaint to S2. The evidence of the school principal is that S1 told him that he, S1, had told S2 about the incident involving S2 the following day. In his s 93A evidence, S1 did not specifically state when he told S2 about the incident. S2 says that S1 did not speak to him about the incident until they had returned from the school holidays, which commenced after the camp ended, at which time S1 told him about the incidents involving both S1 and S2. S1 subsequently gave evidence that he told S2 about the incidents upon returning to school after the holidays;
    2. (b)
      S1’s description of the events to his brothers and later to the police. S1 told B1 that the respondent was laying on the bed. S1 made no such statement to police. He made no mention to his brothers of the incident involving S2;
    3. (c)
      S1’s description of events to the school principal. S1 told the principal that the respondent had touched and sucked his private parts and did the same thing to S2. This is contrary to what S1 told police;
    4. (d)
      S1’s description of the respondent entering and leaving the room. In his first record of interview with police S1 made no mention of the respondent exiting the cabin after the incident involving S1 and returning to engage in the conduct with S2;
    5. (e)
      S1’s description of when he awoke. S1 initially told police that he was awoken by the sensation of the respondent’s mouth on his penis. S1 described the incident as also involving the respondent ‘patting’ his body. The ‘tapping’ preceded the other behaviour.
    6. (f)
      S1’s reference to wearing pull up pants. S1 told police he wore no underwear beneath his pyjama pants. In his pre-recorded evidence S1 stated that he was wearing pull-ups on the night in question;
    7. (g)
      S1’s description of the incident. The respondent says that S1 initially made no mention of ‘feeling teeth’ and ‘biting’ and that these descriptions were introduced at the time of the s 93A interviews.

Consideration

Is S1’s version of events implausible?

  1. [79]
    The respondent says that S1 gave police a description of being a light sleeper and stated that he awoke when he felt the respondent’s mouth over his penis. The respondent says this is inherently implausible as it would have required the respondent to pull down S1’s sleeping bag, his shorts and his pull up pants,[119] all without waking S1.
  2. [80]
    The respondent says that it is implausible that the respondent was leaning during the assault and that, given the height of the bed, it would not be possible or would be extremely improbable that a person could do the things alleged from the position described.
  3. [81]
    The ‘tapping’ behaviour by the respondent involving S2 described by S1 is said by the respondent to have the aura of dreamy or imaginative unreality or fantasy. The respondent says that despite such alleged forceful contact, S2 did not wake up although he was rolling around in his bed in a highly disturbed state.
  4. [82]
    S1 reported the following morning vomiting. Despite this says the respondent S1 did not report this to any teachers or other adults.
  5. [83]
    The respondent says that, based on the evidence, it is more probable than not that the rear sliding door was locked on the evening in question and that if we find accordingly, we are compelled to find that the alleged conduct could not have occurred.
  6. [84]
    As the respondent has submitted, caution must be exercised when evaluating evidence that has not been tested under cross examination. We note that the respondent required none of the authors of the s 93A statements to be available for cross examination. 
  7. [85]
    We will first address the evidence regarding whether the rear door of cabin 602 was locked. If we are satisfied it is more probable than not that the door was locked, this would support a conclusion that the respondent could not have entered the cabin and engaged in the offending behaviour as alleged.
  8. [86]
    The respondent says S1’s evidence is that he observed S4 lock the rear door. It is unclear however when this is said to have occurred. S4’s evidence is that he unlocked the rear door the following morning in order to go outside and check his wet swimmers. S4 does not say he locked the door on Wednesday evening after the respondent entered the cabin to check on the crying child. S4 does say however that S3 and S2 were already awake when he awoke and got out bed the next morning.
  9. [87]
    The evidence of S3 was that ‘mostly all the time’ the rear door was not locked, and that the rear door was not locked when the cabin occupants were going to sleep. S3 thought that he was the first person to wake up the following morning and that when he exited the rear door it was unlocked. S5’s evidence was that the rear door was left unlocked. S2 does not say whether the rear door was locked or not.
  10. [88]
    It is not contentious that when the respondent entered the cabin on Wednesday evening upon hearing S3 crying he did so through the rear door. It does not appear to be contentious that both the glass door and the screen door were unlocked at that time. It also does not appear to be contentious that the respondent did not lock the rear glass and screen doors when he exited the cabin.
  11. [89]
    We find that the glass door and the screen door were unlocked after the cabin occupants had gone to bed and before the respondent entered the cabin to speak with S3.
  12. [90]
    The only evidence about who might have locked the door came from S1 and it is not clear from his evidence whether he observed S4 lock the door before or after the respondent entered the cabin to check on S3. Against this, S4 does not say that he locked the doors, nor do any other of the cabin occupants say that they locked the doors.
  13. [91]
    S4 says he unlocked the rear door after he arose on Thursday morning. He says that both S3 and S2 were already awake when he got up. Consistent with this is the evidence of S3 who says that he was the first to wake up on Thursday morning and that when he exited the cabin through the rear door it was unlocked.
  14. [92]
    There is no direct evidence that any of the cabin occupants locked the rear glass door and the rear screen door after the respondent exited the cabin when he checked on S3. We find that both the rear sliding glass door and the rear sliding screen door of the cabin were unlocked on Wednesday evening after the cabin occupants went to bed, and after the respondent left the cabin after checking on S3, and remained unlocked until the following morning. 
  15. [93]
    We turn now to the conduct of the respondent involving S1. The respondent submits, correctly, that the evidence of S1 is uncorroborated. The respondent says that there is no independent evidence to support S1’s evidence in relation to the respondent’s alleged behaviour.
  16. [94]
    There are, in our view, and relevant in the context of the overall factual matrix, a number of evidentiary matters which must be addressed. These may, in our view, be considered evidentiary matters of a circumstantial nature.
  17. [95]
    Firstly, on the night in question the occupants of the cabin had been relocated to cabin 6.02 in block 6 along with another group of students in cabin 6.01. The respondent also relocated to block 6. The respondent was the only teacher residing in block 6. He had volunteered to be relocated after the flooding incident. The events described by S1 occurred on the last night of the camp, the only night of the camp during which the occupants of cabin 6.02 were relocated block 6 and in circumstances in which the opportunity to offend best presented itself to the respondent who was in the cabin immediately adjacent to cabin 6.02.
  18. [96]
    Secondly, the evidence of the security welfare officer was that patrols of the camp buildings were not conducted constantly throughout the night. He stated that the patrols were at random and depended upon the level of activity of the students.[120] His evidence was that he would either be patrolling the grounds or sitting outside in a covered pavilion from which he had no view of block 6.[121] In our view, and based upon the evidence, the respondent had the opportunity to enter the cabin and engage in the alleged behaviour.
  19. [97]
    Thirdly, S1 describes the clothing worn by the respondent at the time of the alleged behaviour including respondent’s name badge. The evidence of the respondent was that whilst he could not recall what he was wearing on the night in question he stated he would have been wearing his name badge.[122] S1’s description of the clothing worn by the respondent at the time of the offending is a blue shirt and ‘brownish, greyish’ shorts.[123]  The evidence of the respondent was that, after entering the cabin to calm S3, he did not go to bed but rather joined a group of teachers for approximately one hour.[124] That the respondent would have remained in his work clothing are matters about which S1 could not reasonably have known. His recollection is nevertheless consistent with the objective facts.
  20. [98]
    The respondent, in these proceedings and in the criminal proceedings, focused to some extent upon the ‘dreamlike’ aspects of S1’s evidence. The first mention of dreams is in S1’s first s 93A statement. S1 was asked why he had not reported what had happened to him. His response was that he was ‘too scared to, I thought they would yell at me…’.[125]  He then stated ‘I just thought I was dreaming, that if I told them they would yell at me and probably get me in jail.’[126] S1 subsequently clarified the statement about the dream, ‘Oh that was like after it happened….After the camp….I had a dream that …if I told Mum…they would yell at me and take me in jail.’[127] In our view the evidence supports the finding that S1 was referring not to ‘dreaming’ the subject incident but rather to a dream experienced by him subsequent to the camp. There is no suggestion on the evidence that S1 was unable to differentiate the particular dream to which he was referring from reality.
  21. [99]
    S1 described how he felt after the offending behaviour ceased and the respondent had left the cabin: ‘Felt like I, felt like I never woke up during it.’[128] He clarified this statement saying ‘Felt like I didn’t wanna be awake… Felt like I wanted to be not at camp.’[129] In our view S1 was not describing a dream. He was attempting to describe how he felt following the incident.
  22. [100]
    When giving his s 21AK evidence S1 was asked whether he could have dreamed the incident. S1 replied: ‘That’s what I’ve been asking myself, but I don’t know that answer.’[130] In re-examination S1 was asked a series of questions about the incident. His evidence was that he remembered the relevant events.[131] The evidence S1 gave regarding whether he might have dreamed the incident to which we have referred is the only occasion on which he gave such evidence. At no other time does his evidence suggest he was unsure the specific events had occurred.
  23. [101]
    We note that in the intervening period between the end of the school camp and the end of the Easter school holiday break S1 and his family experienced a traumatic event involving his brother following which he experienced dreams involving being kidnapped and someone trying to kill his mother. We do not consider that these events, and the impact of the events on S1, undermine the reliability of his evidence.
  24. [102]
    Taking all of these matters into consideration, we are satisfied that S1 was able to distinguish between the events in question and the dreams he described in his evidence.
  25. [103]
    The respondent also places considerable emphasis upon other aspects of S1’s evidence which are said to have a ‘dreamlike or fantasy quality’. These include various references in S1’s evidence to taking photographic mind pictures.[132] In our view, these descriptions are consistent with an attempt by a 10 year old child to explain the process of committing to memory what he had observed. 
  26. [104]
    Throughout his evidence, S1 consistently describes the day, the time of day and the place the incidents occurred. The overall sequence of events as described by S1 is clear notwithstanding some inconsistencies in his evidence. One such inconsistency relates to when S1 says he awoke during the incident. S1 says in his first s 93A statement that the respondent entered the cabin and ‘started feeling me’.[133] S1 was asked what he felt when he awoke to which he responded ‘I felt his mouth’.[134] S1 subsequently clarified that he was referring to the respondent’s mouth on his penis.[135] When further questioned S1 said that he did not observe the respondent enter the cabin.[136] S1 described the respondent engaging in the ‘tapping’ conduct. He described that as occurring ‘…just before I woke up.’[137]
  27. [105]
    Taking into consideration the totality of the evidence we are satisfied that S1 was describing having been awakened by the sensation of being ‘tapped’ but keeping his eyes closed. He opened his eyes when he felt the respondent place his mouth on his penis. This conclusion is supported by S1’s evidence: ‘I opened my eyes and then closed it…’cause I felt something wanted to see who it was…And then see what he was doing.’[138]
  28. [106]
    The respondent says that the description by S1 of the ‘tapping’ as feeling ‘weird’ and ‘germy’ and feeling ‘like water was on it’ is unusual. We do not agree. S1 gave these descriptions when answering a series of questions about the ‘tapping’ behaviour and the respondent’s behaviour in placing his mouth on S1’s penis. S1 was asked about the ‘tapping’ behaviour. He responded by explaining that he opened his eyes and then closed them again. He said that he opened his eyes again when he felt the respondent’s mouth on his penis. He was then asked what he was feeling in his private area during the ‘tapping’ behaviour. S1 then gave the responses described by the respondent as unusual. S1’s responses were not, in our view, unusual. They were consistent with his description of how it felt when the respondent placed his mouth on his penis.
  29. [107]
    Contrary to the respondent’s submissions we do not consider S1’s evidence that he felt teeth and biting to be in any way remarkable. Again, S1’s description of events is consistent with the alleged conduct. That S1 variously referred to the sensation as sucking, licking and biting is consistent with the alleged conduct.
  30. [108]
    The respondent says there are various inconsistencies and contradictions in S1’s description of the conduct involving S2. In his second s 93A statement S1 describes in some detail the relevant events.[139] The respondent says that S1’s description of events has the ‘aura of dreamy or imaginative unreality or fantasy’.[140] S1’s evidence was that the respondent engaged in similar ‘tapping’ behaviour, touching S2’s body while S2 was asleep. The respondent says that it was remarkable S2 was not awoken by this conduct. However, S1’s evidence was that S2 moved a lot when the conduct was occurring.[141] This evidence is, in our view, not remarkable but consistent with the events described. S1 describes turning over in his bed to face the wall when he observed the respondent’s ‘face turning a little bit’ while he was standing beside S2.[142] It is entirely plausible that S1 did not want the respondent to know that he was awake. 
  31. [109]
    S1 said that he saw the respondent ‘turning his head to look at me.’[143] S1 described hearing a noise outside ‘like somewhere far and they were making a lot of noise.’[144] S1’s evidence was that he turned his head ‘a little bit’ and saw the respondent run from the room. In our view, S1’s evidence does not have the aura of unreality or fantasy. His evidence is consistent with his trying to observe the events taking place involving S2 and the respondent hurriedly leaving the cabin when noises from outside were heard.
  32. [110]
    We turn now to the evidence as to when S1 first reported the incidents. Before doing so, we make some observations about preliminary fact evidence. Although the Tribunal is not bound by the rules of evidence,[145] the relevance of the evidence by S1’s brothers can only go to evidence of a preliminary complaint. Any inconsistencies between the accounts given by S1 to his brothers and his s 93A evidence and s 21AK evidence may cast doubt on S1’s credibility or reliability. The same may be said for the evidence of S2, at least insofar as it relates to S1 telling him of the occurrence of the relevant events.
  33. [111]
    The inconsistencies relied upon by the respondent are:
    1. (a)
      S1 stated that he told S2 about the occurrence of the events involving S2 (but not the incident involving S1) the following day and that S2 responded by stating ‘that’s okay it’s not really illegal’. S2’s evidence is that the conversation did not take place until the commencement of the new school term;
    2. (b)
      S1 told B1 that the respondent was laying on the bed, was feeling him and sucked his thing which he later referred to by name as a penis;
    3. (c)
      S1 told B1 that the respondent had looked down at his private parts the following day;
    4. (d)
      S1 told B2 that the respondent was laying on the bed and that the respondent tried to suck S1’s dick;
    5. (e)
      S1 made no mention to his brothers of the incident involving S2.
  34. [112]
    It is necessary to examine the evidence about when S1 told S2 about the incident involving S2. S1 stated ‘but I told him that after it happened what he (the respondent) did to him…’.[146] We are unable to identify any evidence by S1 that he told S2 about the incident the following day. There is some suggestion in the evidence of the school principal that he might have been told something about when S1 spoke with S2 regarding the incident. The evidence of S2 was that S1 did not speak to him about the incident until the commencement of the new school term. It is in our view significant that S2 says that S1 told him that the respondent was ‘doing the thing’ to S1’s penis and ‘putting his hands all over me.’[147]  This is consistent with S1’s description of the events. In his s 21AK evidence S1 stated that he spoke with S2 about the incidents after the commencement of the new school term. We are not satisfied that there is any inconsistency in S1’s evidence regarding when he told S2 about the incident.
  35. [113]
    The respondent says that the accounts given by S1 to his brothers differed to the accounts he provided to police. It is appropriate to make a number of observations about this submission. B1 stated that he had been told by S1 that the respondent had ‘started feeling him’ and ‘sucked his thing’ and that the following morning the respondent had ‘looked down at this thing’.[148] When further questioned, B1 stated that S1 had told him that the respondent had been ‘feeling up at his chest and feeling down between his legs’[149] and ‘sucked his thing’.[150] B1 stated that S1 had used the word ‘penis.’[151] The respondent suggests this is unusual noting S1’s reluctance to use the word ‘penis’ when being interviewed by police. We do not agree. The reluctance of a ten year old child to use the work ‘penis’ when being interviewed by female police officers is readily explicable by his being embarrassed and uncomfortable in doing so.
  36. [114]
    B1’s evidence was that S1 told him that the respondent was ‘lying on the bed with him.’[152] B2 stated that S1 had told him the respondent had ‘layed across his bed and try like, tried to suck his dick’.[153] It is relevant in our view that B1 and B2 were 13 years old and 9 years old respectively when they were interviewed by police.[154] The evidence suggests that B1 has an intellectual impairment and Attention Deficit Disorder and that B2 has an intellectual impairment and Attention Deficit Hyperactive Disorder.[155]  It is therefore possible that their individual recollections of what S1 told them were not entirely accurate. Nevertheless, the key elements of S1’s story are present in the evidence of both brothers. That is to say, the evidence of both B1 and B2 is that S1 stated the respondent had touched his body and placed his mouth on S1’s penis.
  37. [115]
    The respondent also placed some emphasis on the evidence about whether S1 was wearing pull ups on the night in question. The respondent says that S1 makes no mention of the pull ups in his s 93A statements however in his s 21AK evidence he said that he was wearing them. But what is the relevance of whether S1 was or was not wearing pull ups? On the respondent’s case, the issue is of significance for two reasons. Firstly, it is a further example of inconsistencies in S1’s evidence. Secondly, that S1 was wearing pull ups (and the difficulties the respondent would have had pulling them down and pulling them back up again) makes it highly unlikely that events occurred as described by S1. 
  1. [116]
    It is clear from the evidence that S1 was embarrassed at being required to take pull ups to the camp. The evidence of S1’s teacher, T2, is that bed wetting was noted as a medical condition from which S1 suffered.[156] T2’s evidence is that she did not observe S1 wearing the pull ups nor did she see any pull ups disposed of in plastic bags at the camp.[157] T2’s evidence is that she was told by S1 during the camp that he had been wearing the pull ups at night.[158] The evidence of S1M was that she packed S1 four pairs of pull ups to take on the camp.[159] When he returned from the camp 1 or 2 pairs of pull ups remained.[160] S1 told his mother that he ‘threw’ the other pairs because he ‘couldn’t do it in the room.’[161] In his first interview with police, S1 made no mention of wearing pullups. He did however state that he was not wearing underwear beneath his pyjama pants.[162]
  2. [117]
    We accept that, on the balance of probabilities, S1 was wearing pull ups on the night in question. There is no evidence that it was not possible that pull ups worn by a child could not be pulled up and down. They would not fulfil their function if they could not. There is no evidence that pull ups are more or less difficult to pull up or down than conventional underwear. We do not accept that the result of the finding that the S1 was wearing pull ups is that his evidence is less reliable or believable.
  3. [118]
    Although not relied upon as inconsistencies in S1’s evidence we will address two additional matters in the evidence. Firstly the respondent relied upon the fact that S1 was in a sleeping bag prior to the incident occurring as supporting the proposition that it would have been extremely difficult, and implausible, for the respondent to have engaged in the alleged conduct. We do not consider it implausible that, in order to engage in the conduct, the respondent removed the sleeping bag from S1. There is no evidence to suggest that this was not possible.
  4. [119]
    Secondly the respondent suggests that the cabin was dark and S1 could not have observed the events. S1’s evidence was that there were lights outside the cabin which enabled him to see inside the cabin.[163] He stated that the curtain was pulled over the fixed panel of the rear glass sliding door but that the curtain did not extend over the door panel.[164]  S2’s evidence was that even though ‘it was really hard to see’ in the cabin with the lights out, ‘you could kind of see something though. If you have good eyesight.’[165] The evidence of S4 was that it was ‘not that dark’ in the cabin with the lights off[166] and that he could see in the cabin.[167] S5 said that ‘it wasn’t that dark’ in the cabin with the lights off.[168] We are satisfied on the evidence that there was sufficient lighting in the cabin to have observed the events. 
  5. [120]
    The QCT says that if we are satisfied that the respondent engaged in the alleged conduct it matters not that we find the conduct occurred before 10pm or after 11pm. We have already found that we are not confined by this time frame in our consideration of the referral and the conduct.
  6. [121]
    However we would make the following observations about the evidence concerning when the cabin occupants went to bed on the night in question and the relevant events:
    1. (a)
      S1 stated that the respondent entered the cabin and engaged in the conduct at ‘like ten-ish eleven’[169]. He also referred to the conduct as occurring at ‘about eleven o’clock’;[170]
    2. (b)
      S1 stated that the cabin occupants went to bed ‘about ten o’clock’;[171]
    3. (c)
      S3 thought that the cabin occupants were told by the respondent to go to sleep at ‘about nine thirty’;[172]
    4. (d)
      S5 thought that it was ‘none thirty or something’ when the respondent entered the cabin to speak with S3;[173]
    5. (e)
      The respondent said it was ‘some time after nine thirty’ when he spoke with S3.[174] In his statement of evidence the respondent said that the students were ‘settled for bed by about 9.30pm’;.[175]
  7. [122]
    The evidence about the movements of the respondent after the students went to bed is:
    1. (a)
      The respondent said that he socialised with other teachers in the common room from about 9.45pm for 45 minutes to one hour;[176]
    2. (b)
      The respondent said that after this, he went ‘straight back’ to his cabin in block 6 where he slept for the rest of the night.[177]
  8. [123]
    In his submissions, the respondent says that, on the evidence, it is possible that the respondent did not return to his room until between 11.15pm and 11.30pm. On his own evidence however the respondent socialised with other teachers until approximately 10.30pm to 10.45pm before returning ‘straight’ to his cabin which is within the timeframe referred to in the joint statement.
  1. [124]
    In State of Queensland v Cannon, Applegarth J said:

This proceeding is not a criminal proceeding, and questions of fact must be decided on the balance of probabilities. The gravity of the allegation that the respondent engaged in serious crime related activity must be taken into account when being invited to reach this conclusion according to the balance of probabilities. The seriousness of the allegation and the gravity of the consequences flowing from such a finding are considerations which must affect the determination of whether or not the respondent engaged in the serious crime related activity that is alleged. The gravity of the consequences that flow from findings about the extent to which a person has engaged in “serious crime related activity” means that reasonable satisfaction as to those matters should not rely on what Dixon J in Briginshaw v Briginshaw described as “inexact proofs” and “indefinite testimony”. Still, the standard of proof is the balance of probabilities. The High Court in Rejfek v McElroy said:

“[T]he standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”[178]

  1. [125]
    We are fully cognisant of the gravity of the allegations made against the respondent. As these reasons reveal, we have considered very carefully all of the evidence and the submissions by the parties. We have considered carefully the High Court pronouncements in Briginshaw and in Rejfek v McElroy.[179]
  1. [126]
    We are satisfied that S1 is a truthful witness and endeavoured to the best of his abilities, as a 10 year old child, to recount the events in question as accurately as possible. Where the evidence of S1 and the respondent conflicts relevant to the occurrence of the conduct, including the timing of the events, we prefer the evidence of S1.  We would also observe that S1’s evidence does not refer to the respondent ‘tapping’ him or S2. The term ‘tapping’ appears to be one applied by others (and not S1) based upon S1’s description of the manner in which he was touched by the respondent and the manner in which he observed the respondent touching S2. 
  2. [127]
    For the reasons we have set out we do not accept the respondent’s submission that unless we find that the offending occurred between 10pm and 11pm on 23 March 2016 we must find that the behaviour is not established. As we have observed while the QCT is bound by the terms of the referral, the time frame referred to in the joint statement of agreed and disputed facts, and relied upon by the respondent, does not form part of the referral. Nevertheless we accept the evidence of S1 that the conduct occurred between approximately 10pm and approximately 11pm. It is unnecessary for us to confine ourselves further in light of our other factual findings. 
  3. [128]
    We are satisfied on the balance of probabilities that:
    1. (a)
      During the evening of 23 March 2016 the occupants of cabin 6.02 went to bed at or about 9.30pm;
    2. (b)
      At the time the occupants of cabin 6.02 went to bed the rear glass door and the rear screen door were unlocked;
    3. (c)
      Some time after 9.30pm the respondent entered cabin 6.02 through the unlocked rear door and spoke with S3, subsequently exiting cabin 6.02 through the rear door;
    4. (d)
      Neither the rear glass door nor the rear screen door were locked after the respondent exited cabin 6.02;
    5. (e)
      The respondent re-entered cabin 6.02 at some time between approximately 10pm and approximately 11pm;
    6. (f)
      S1 awoke when he felt the respondent touching his body over his stomach, privates and legs and felt the respondent’s hands touching him from his chest to his upper thighs;
    7. (g)
      S1 felt a mouth over his penis and could feel a tongue licking and teeth biting it and he saw the respondent’s face down on his penis and could see his mouth sucking his penis;
    8. (h)
      The respondent left the cabin and subsequently returned a short time later;
    9. (i)
      The respondent walked over to S2’s bed and commenced touching S2’s body, over the area of his genitals, legs and stomach.
  4. [129]
    Accordingly, we find that a disciplinary ground exists in respect of the respondent.[180]
  5. [130]
    We will make orders for the parties to file submissions on sanction.

Non publication order

  1. [131]
    The non publication order previously made should remain in place and should be extended to include information which may identify any relevant teacher at the relevant school, including the school at which the events occurred.

 

Footnotes

[1]  Applicant’s submissions filed 12 September 2018, [12].

[2]  EA, s 97(1).

[3]  Ibid, sch 3 (definition of ‘relevant teacher’).

[4]  Ibid, sch 3 (definition of ‘approved teacher’).

[5]  Ibid, sch 3 (definition of ‘registered teacher’).

[6]  Ibid, s 92(1)(h).

[7]  Ibid, s 92(2)(a).

[8]  Ibid, s 92(5).

[9]  Ibid, sch 3 (definition of ‘serious offence’); Working with Children (Risk Management and Screening) Act 2000, s 167, sch 2.

[10]  EA, s 92(3).

[11]  Ibid, s 96.

[12]  Ibid, s 97(2)(a).

[13]  Ibid, s 97(4)(b).

[14]  Ibid, s 97(4)(a).

[15]  Ibid, s 233.

[16] Queensland College of Teachers v CSK [2016] QCATA 125 (citations omitted).

[17]  EA, s 158(1).

[18]  Ibid, s 159(1) - (2).

[19]  Ibid, s 160(1) - (2).

[20]  Application filed 23 November 2017.

[21]  Joint statement filed 31 July 2018.

[22] Briginshaw v Briginshaw (1938) 60 CLR 336.

[23]  Exhibit 1.

[24]  Exhibit 4.

[25]  Exhibit 2.

[26]  Exhibit 3.

[27]  EA, s 147.

[28]  23 April 2016.

[29]  12 May 2016.

[30]  21 August 2017.

[31]  Marked ‘A’ for identification purposes.

[32]  Respondent’s submissions filed 30 October 2018.

[33] Queensland College of Teachers v RCJ [2015] QCAT 282,  [12],  [25].

[34]  Ibid, [12], [34].

[35]  Ibid,  [12], [28].

[36] Queensland College of Teachers v CSK [2016] QCATA.

[37]  QCT bundle, 13, 14, 15.

[38]  Ibid, 17.

[39]  QCT bundle, 1-12.

[40] Briginshaw v Briginshaw (1938) 60 CLR 336, 361-2.

[41] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170.

[42]  Bundle of documents filed by QCT on 12 September 2018 (QCT Bundle), 104-105.

[43]  Ibid, 53.

[44]  Ibid, 108.

[45]  Ibid, 119.

[46]  Ibid, 120.

[47]  Ibid, 151

[48]  Ibid.

[49]  Ibid, 153.

[50]  Ibid.

[51]  Ibid, 184.

[52]  Ibid, 191.

[53]  Ibid.

[54]  Ibid, 192.

[55]  Ibid, 194.

[56]  Ibid, 218.

[57]  Ibid, 226.

[58]  Ibid.

[59]  Ibid, 240.

[60]  Ibid, 229.

[61]  Ibid.

[62]  Ibid, 248.

[63]  Ibid, 221.

[64]  Ibid, 261.

[65]  Ibid, 266-267.

[66]  Ibid, 64.

[67]  Ibid.

[68]  Ibid, 65.

[69]  Ibid, 66.

[70]  Ibid, 67.

[71]  Ibid.

[72]  Ibid.

[73]  Ibid, 68.

[74]  Ibid, 74.

[75]  Ibid, 68.

[76]  Ibid, 681.

[77]  Ibid, 69.

[78]  Ibid.

[79]  Ibid, 107.

[80]  Ibid, 70.

[81]  Ibid, 73.

[82]  Ibid, 71, 75-76.

[83]  Ibid, 75-76.

[84]  Ibid, 72.

[85]  Ibid, 76.

[86]  Ibid, 38.

[87]  Pre-recorded evidence, 21 August 2017, 1-19.

[88]  Ibid, 1-21.

[89]  Ibid.

[90]  Ibid, 1-20.

[91]  QCT Bundle, 362.

[92]  Ibid, 78.

[93]  Ibid, 326-327.

[94]  Ibid, 327-328.

[95]  Ibid, 328.

[96]  Ibid, 337.

[97]  Ibid, 336.

[98]  Ibid, 342.

[99]  Ibid, 344 [11].

[100]  Ibid, 345 [13].

[101]  Ibid, 345 [15].

[102]  Ibid, 353.

[103]  Ibid, 386.

[104]  Ibid, 387.

[105]  Ibid, 388.

[106]  Ibid, 389.

[107]  Ibid.

[108]  Pre-recorded evidence, 21 August 2017,  1-16.

[109]  Ibid, 1-17.

[110]  QCT Bundle, 308-309.

[111]  Ibid, 312.33.

[112]  Ibid, 321.

[113]  Affidavit of XYZ sworn 2 October 2018, exhibit. 4; the respondent also gave oral evidence at the hearing.

[114]  Affidavit of XYZ sworn 2 October 2018, exhibit. 4, [44] – [46].

[115]  Ibid, [46].

[116]  Ibid, [48].

[117]  Ibid, [51].

[118]  Ibid, [55].

[119]  Incontinence pants.

[120]  QCT Bundle, 767, lines 11-12

[121]  Ibid, lines 16-27.

[122]  Ibid, 316.

[123]  Ibid, 73.

[124]  Ibid, 320.

[125]  Ibid, 78.

[126]  Ibid.

[127]  Ibid, 79.

[128]  Ibid, 72.

[129]  Ibid.

[130]  Ibid, 686.

[131]  Ibid, 688.

[132]  Ibid, 123, 125.

[133]  Ibid, 52.

[134]  Ibid, 59.

[135]  Ibid, 60.

[136]  Ibid, 63.

[137]  Ibid, 67.

[138]  Ibid.

[139]  Ibid, 116 -120.

[140]  Respondent’s submissions, filed 4 October 2018, [84].

[141]  QCT Bundle, 118.

[142]  Ibid, 117

[143]  Ibid, 117

[144]  Ibid, 119

[145]  QCAT Act, s 28(3)(b).

[146]  QCAT Bundle 76.

[147]  Ibid, 161.

[148]  Ibid, 326.

[149]  Ibid, 327.

[150]  Ibid, 328.

[151]  Ibid, 329.

[152]  Ibid, 325.

[153]  Ibid, 336.

[154]  Ibid, 342.

[155]  Ibid, 352, 353.

[156]  Ibid, 401.

[157]  Ibid.

[158]  Ibid, 402.

[159]  Ibid, 350.

[160]  Ibid.

[161]  Ibid.

[162]  Ibid, 56.

[163]  Ibid, 70.

[164]  Ibid, 103.

[165]  Ibid, 157.

[166]  Ibid, 189.

[167]  Ibid, 190.

[168]  Ibid, 269.

[169]  Ibid, 59.

[170]  Ibid, 24.

[171]  Ibid, 27.

[172]  Ibid, 228.

[173]  Ibid, 266.

[174]  Ibid, 312.

[175]  Affidavit of the respondent sworn 2 October 2018, exhibit. 4, [43].

[176]  Op cit 170 at 320; op cit 171 at [49].

[177]  Op cit 171 at [50].

[178]   [2011] QSC 75.

[179]  (1965) 112 CLR 517.

[180]  EA, s 158(1).

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v XYZ

  • Shortened Case Name:

    Queensland College of Teachers v XYZ

  • MNC:

    [2019] QCAT 283

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown, Member Quinlivan, Member Grigg

  • Date:

    17 Sep 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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