Queensland College of Teachers v WRD
[2015] QCAT 200
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- Unreported Judgment
- Queensland College of Teachers v WRD[2015] QCAT 200
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Queensland College of Teachers v WRD[2015] QCAT 200
Queensland College of Teachers v WRD[2015] QCAT 200
CITATION: | Queensland College of Teachers v WRD [2015] QCAT 200 |
PARTIES: | Queensland College of Teachers (Applicant) v WRD (Respondent) |
APPLICATION NUMBER: | OCR010-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 1 June 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard, Presiding Member Acting Senior Member Browne Member Dr Grigg |
DELIVERED ON: | 2 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | DISCIPLINARY ACTION – TEACHER – DISCIPLINARY REFERRAL – APPLICATION FOR LEAVE TO WITHDRAW REFERRAL –where criminal charges – first charge teacher found not guilty – second charge conviction quashed and later permanently stayed – where significant inconsistencies in evidence of the complainants – where QCT has formed view that disciplinary grounds cannot reasonably be established – whether leave to withdraw disciplinary referral should be granted Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 92, s 97, Schedule 3 Criminal Law (Sexual Offences) Act 1978 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167 DDR v The Queen [2014] QDC 271 Queensland College of Teachers v Burrows [2015] QCAT 78 R v RAQ [2014] QCA 261 |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). |
REASONS FOR DECISION
- [1]The Queensland College of Teachers (‘QCT’) made a disciplinary referral to the Tribunal concerning a former approved teacher, WRD. The referral was made on the basis that the QCT had formed a reasonable belief that a ground for disciplinary action existed against WRD, namely that he is not suitable to teach pursuant to the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’)[1] and that the teacher was charged with serious offences and the charges had been dealt with.[2]
- [2]Subsequently, the QCT has formed the view after considering material from the Director of Public Prosecutions that it cannot be reasonably satisfied that the ground for disciplinary action can be established to the requisite standard. Accordingly, it has more recently filed an application seeking leave to withdraw the disciplinary referral.
- [3]The disciplinary referral and the application for miscellaneous matters are both listed before this Tribunal for consideration.
- [4]Since amendment of s 46 of the QCAT Act, the Tribunal has on one previous occasion granted leave to the QCT to withdraw a disciplinary referral.[3] In essence, the Tribunal held that the QCT Act contained a modifying provision such that a referral for disciplinary action could not be withdrawn by the QCT by simply filing a withdrawal notice.
- [5]In summary, the Tribunal held in QCT v Burrows, that s 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) has been modified (because of the operation of s 6(7) and s 7 of the QCAT Act) by the QCT Act. As a result, the Tribunal held that leave is required (which may or may not be granted in the exercise of the Tribunal’s discretion) before the disciplinary referral may be withdrawn. In QCT v Burrows, the Tribunal considered that the inconsistency arose because of the requirements of s 97(4) of the QCT Act and s 46 of the QCAT Act.
- [6]In WRD’s case, the QCT has also directed our attention also to s 92(2) and s 92(3) of the QCT Act. It submits that in the circumstances of this case, s 92(2) and s 92(3) also support the Tribunal’s ruling in QCT v Burrows that leave must be granted where a relevant teacher has been charged with a serious offence.[4]
- [7]We accept QCT’s submission. Where a charge for a serious offence has been ‘dealt with’,[5] s 92(2) of the QCT Act applies. It provides that the ground for disciplinary action that a teacher is not suitable to teach is taken to apply where a teacher’s registration or permission to teach has been suspended under s 48 of the QCT Act, on the basis that the teacher has been charged with a serious offence and the charge has been dealt with. Further, s 92(3) of the QCT Act provides that the object of s 92(2) is to ensure the circumstances of the charge are examined by a disciplinary committee. The QCT Act defines a disciplinary committee to include QCAT when undertaking disciplinary action under the Act.[6] Accordingly, we are satisfied in the circumstances that they apply, s 92(2) and s 92(3) are modifying provisions, together with s 97(4). Withdrawal may only be granted with the Tribunal’s leave, which can only be granted if appropriate having regard to these provisions.
- [8]In this instance, WRD was charged with serious offences and was suspended pursuant to s 48 of the QCT Act. We are satisfied that those charges have been dealt with. In the circumstances, the Tribunal must be satisfied having regard to the evidence that it is appropriate for leave to be granted for QCT to withdraw its referral under s 46 of the QCAT Act. That is, we must consider whether the evidence is adequate to establish the disciplinary charges. If not, it may be appropriate to grant leave for withdrawal.
- [9]The QCT relies upon documents produced by the Director of Public Prosecutions pursuant to a notice to produce issued by the Tribunal in support of its application.
What is the evidence about the ground for disciplinary action?
- [10]In September 2012, WRD was charged with two criminal charges. First, he was charged with indecently dealing with one of his stepdaughters in September 2009 when she was aged 14 years. Second, he was charged with raping another of his stepdaughters during the period from December 2010 to January 2011 when she was aged 12 years. The alleged unlawful conduct occurred at home.
- [11]In August 2013, WRD was found not guilty in the Brisbane District Court on the first charge. On 21 May 2014, WRD was convicted in the Southport District Court on the second indictment. He was sentenced to three years imprisonment, suspended after 18 months. On 2 October 2014, the Queensland Court of Appeal quashed the conviction of May 2014 and ordered a retrial.[7] On 25 November 2014, a Judge of the District Court ordered that the second indictment be permanently stayed.[8]
- [12]WRD denies the allegations made by his stepdaughters.
The first charge
- [13]The first of the charges related to allegations in respect of WRD’s then 14 year old stepdaughter. It is alleged that in September 2009, WRD unlawfully and indecently dealt with the child. The particulars of the offence relate to allegations that WRD on one occasion entered the bedroom of the child, asked her to sit on his lap and spoke to her about why she was upset. It is alleged that whilst speaking with her he moved his hand along her leg until his fingers came to rest on her underpants on the outside of her vagina. It is further alleged that he then moved his hand to the elastic at the side of the underpants and was attempting to lift the elastic when the child said no. WRD then left the room and had a shower.[9]
- [14]The jury found WRD not guilty of this charge. On the day of the alleged event, the complainant told her grandmother that WRD had touched her on the leg on the inner thigh.[10] On the day, she told her sister that he had touched her on the leg.[11] In April 2011, she told the police that he touched her leg and that was it.[12] In March 2011, she told her mother that he had touched her leg.[13]
- [15]The complainant’s grandmother had seen the complainant sitting next to WRD, not on his lap as his stepdaughter alleged.[14] WRD said that he sat next to the complainant, she was not sitting on his lap. One of her sisters said that she had seen the complainant sitting on his lap.[15] When the allegations were subsequently made to the Police in 2012, they were substantially more serious than those previously made by the complainant, such as were relied upon in the charge. The complainant and her sister’s statements about which both of whom alleged the complainant was sitting on WRD’s leg, differed in that one said she was sitting on his right leg and the other said his left leg.[16]
- [16]The QCT submits that the inconsistencies create sufficient doubt that the Tribunal could not be satisfied as to the credibility of the complainant. The allegation relies solely on the complainant’s evidence as no one else saw anything untoward.
- [17]The inconsistencies in the complainant’s evidence are many and varied. We are satisfied that the Tribunal could not be reasonably satisfied to the requisite standard that the alleged events occurred.
The second charge
- [18]The allegations involved in the second charge are that on a date unknown between 1 December 2010 and 24 January 2011, WRD raped another of his stepdaughters. The particulars of that alleged offence are that during the summer holidays at the end of her year 7, the complainant was playing in the pool with WRD and her brother. Whilst playing, she alleges that WRD lifted her from the water and in the process of doing so inserted a finger around her togs and into her vagina and then threw her into the pool. She was 12 at the time of the alleged offence.
- [19]The preliminary complaint by the complainant was made in September 2012, and the conduct was reported to the Queensland Police Service at this time. She told the Police that there had been no such conduct prior to the incident and nothing since.
- [20]In December 2013, the first trial commenced. That trial aborted because a preliminary complaint witness statement was found to contain inadmissible and prejudicial evidence.[17] In May 2014, the second trial on the indictment occurred. The prejudicial evidence was not deleted. WRD was convicted. In October 2014, the Court of Appeal quashed the conviction and ordered a retrial.[18] In November 2014, the conviction was permanently stayed.[19]
- [21]WRD had produced evidence that he had a broken leg at the time the complainant was at the end of the year 7 and could not have been in the pool with her. The complainant then changed her evidence. Consequently, and without objection, the prosecution amended the indictment to allege that the conduct had occurred at the end of the previous year, that is December 2009 to January 2010.
- [22]On the application for the stay, WRD’s counsel submitted as follows:
The complainant’s assertion that it happened at the end of year 7 in the section 93A statement is simply inconsistent with her evidence that she had given on the 21st of June and the evidence that was given on the 8th of August as a result of Mr T’s cross-examination [the first barrister]. And it reached a point, that the prosecution, Your Honour, didn’t even seek to amend the dates to include the 2010/2011 period. Because, and this is the heart of this submission that I’m making today on behalf of this man, because they knew that he had, effectively, an alibi – akin to an alibi in demonstrating that it couldn’t have occurred in 2010/2011.
- [23]As a consequence, the complainant’s credibility was severely undermined by the change of dates. She appeared to change her story when it was apparent that WRD had a broken leg at the time she alleged it had occurred. However, she was not cross-examined about that issue, and her response is unknown.
- [24]We accept that given the state of the material before the Tribunal, we could not be reasonably satisfied to the requisite standard that the events alleged by the complainant occurred.
Should the application for leave to withdraw the referral be granted?
- [25]In the circumstances, the available evidence is inadequate to establish the disciplinary grounds alleged. Accordingly, we are satisfied that it is appropriate to grant QCT leave to withdraw the disciplinary referral.
Non-publication of identifying information
- [26]The Criminal Law (Sexual Offences) Act 1978 (Qld) prohibits publication of identifying information about complainants and, in some circumstances, persons charged with sexual offences. Pursuant to s 66(1) of the QCAT Act, the Tribunal may make an order prohibiting the publication of information before it. Identification of WRD or the other witnesses in the proceeding would identify the complainants, because of their family relationship. We have initiated an application under s 66. We are satisfied that it is appropriate to order that publication of any identifying information about WRD, the complainants, and all other witnesses is prohibited. Other than to the parties to this proceeding, these reasons may be published only in a de-identified format.
Observations
- [27]In his submissions, WRD asks the Tribunal to lift the suspension and re-instate his registration as a teacher. However, the Tribunal is unable to do so. WRD is not currently registered, his provisional registration, having ceased on 22 January 2014. WRD can, of course, reapply for registration with the QCT.
Footnotes
[1]Section 92(1)(h).
[2]Section 92(2)(a)(i) and s 92(3).
[3]For discussion of the circumstances see Queensland College of Teachers v Burrows [2015] QCAT 78.
[4]A serious offence is an offence defined by s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld).
[5]QCT Act, s 92(5)
[6]Ibid, Schedule 3 ‘disciplinary committee’.
[7]R v RAQ [2014] QCA 261.
[8]DDR v The Queen [2014] QDC 271.
[9]Produced documents from the Director of Public Prosecutions, Transcript 26 August 2013, see 1-7 to 1-27.
[10]Ibid, 1-28 to 1-33.
[11]Ibid, 1-38.
[12]Produced documents from the Director of Public Prosecutions, Transcript of Police Record of Interview with complainant undated, with Officer Nick and Officer Deon.
[13]Produced documents from the Director of Public Prosecutions, Transcript 26 August 2013, 1-42.
[14]Ibid, 1-29.
[15]Ibid, 1-36.
[16]Ibid, cf 1-10 and 1-36.
[17]Produced documents from the Director of Public Prosecutions, Transcripts 10 and 11 December 2013, especially at 11 December 2013, 2-18 to 2-22.
[18]R v RAQ [2014] QCA 261.
[19]DDR v The Queen [2014] QDC 271.