Queensland College of Teachers v RCJ
[2015] QCAT 282
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- Unreported Judgment
- Queensland College of Teachers v RCJ[2015] QCAT 282
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Queensland College of Teachers v RCJ[2015] QCAT 282
Queensland College of Teachers v RCJ[2015] QCAT 282
CITATION: | Queensland College of Teachers v RCJ [2015] QCAT 282 |
PARTIES: | Queensland College of Teachers (Applicant) v RCJ (Respondent) |
APPLICATION NUMBER: | OCR265-14 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 4 June 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howard, Presiding Member Dr Grigg, Member Member Jones |
DELIVERED ON: | 17 July 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | Questions were posed for the Tribunal on 18 March 2015 as follows:
The questions are answered in summary as follows (and in more detail in these reasons for decision):
|
CATCHWORDS: | TEACHER DISCIPLINARY PROCEEDINGS – use of out of court statements by children – use of pre-recorded video evidence of children – effect of offence provisions of s 93AA and s 21AZB of the Evidence Act on orders for production and use of out of court statements by children and pre-recorded video evidence of children in teacher disciplinary proceedings Criminal Code Act 1899 (Qld), s 590AOA Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 92, s 147 Evidence Act 1977 (Qld), s 21AK, s 21AM, s 21AY, s 21AZA, s 21AZB, s 93A, s 93AA, Schedule 3 Queensland Civil and Administrative Act 2009 (Qld), s 28, s 63 Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 |
REPRESENTATIVES: | |
APPLICANT: | Queensland College of Teachers represented by Mr Alexander White, Principal Legal Officer |
RESPONDENT: | RCJ represented by Mr Liam Dollar of counsel instructed by Mr Andrew Knott of TressCox Lawyers |
REASONS FOR DECISION
Introduction
- [1]A disciplinary referral was made for the Tribunal to determine whether RCJ, an approved teacher, is not suitable to teach. The referral was made by the QCT because it formed the view that RCJ was not suitable to teach,[1] because of criminal charges against RCJ of indecent treatment of six students under the age of 16 or 12. RCJ is a teacher of long standing, and the offences were alleged to have occurred over the course of one day, when RCJ was a relief teacher.
- [2]Four questions were posed for preliminary determination by the Tribunal following a compulsory conference in these proceedings. The questions put to the Tribunal concern whether there are any prohibitions or limitations on the Tribunal’s use of recordings and transcripts of recordings made by the children about the alleged indecent treatment. The recordings and transcripts were created in the course of a police investigation and in subsequent criminal proceedings in the District Court. The Crown subsequently entered a nolle prosequi on all of the charges against the teacher.
- [3]The police investigation statements by the children are audio or video recordings and the transcripts of those recordings. These are referred to as ‘s 93A statements’. Section 93A statements are admissible in various proceedings as an exception to the hearsay rule.[2] However, such a statement is admissible only where the author is available to give evidence in the relevant proceeding.
- [4]The criminal proceeding statements are the pre-recorded video evidence of the children[3] and transcripts of that evidence. They include cross-examination of the children by Counsel representing the teacher.
- [5]
- [6]The transcripts of the s 93A statements and the video transcripts have already been produced to the Tribunal. The audio and video tapes have not. RCJ sought orders that they be produced, subject to certain restrictions. At the hearing, there was no substantial dispute about the nature and extent of the powers of the Tribunal to obtain the recordings for use in the disciplinary proceedings, and to authorise that they be made available to the parties’ legal representatives on appropriate conditions. The relevant orders were ultimately made with the consent of the parties on the following terms:
- Pursuant to s 63(1) of the Queensland Civil and Administrative Tribunal Act 2009, the Registrar must prepare a Notice to Produce to the Commissioner of the Queensland Police Service, Police Headquarters, 200 Roma Street, Brisbane City 4000, in relation to the following documents:
a. Any audio or video tape s 93A statements in relation to the matter of R v RCJ which was heard before the District Court of Queensland at Ipswich on or about 14 May 2014 for the offences of 6 x indecent treatment of a child under 16, specifically in relation to the following:
- Section 93A video or audio statement of interview with RE dated 3 October 2012;
- Section 93A video or audio statement of interview with KN dated 3 October 2012;
- Section 93A video or audio statement of interview with DCA dated 4 October 2012;
- Section 93A video or audio statement of interview with KA dated 6 October 2012;
- Section 93A video or audio statement of interview with MP dated 12 October 2012;
- Section 93A video or audio statement of interview with KZ dated 14 October 2010;
- Section 93A video or audio statement of interview with KP dated 14 October 2012;
- Section 93A video or audio statement of interview with OHC dated 15 October 2010;
- Section 93A video or audio statement of interview with BJP dated 21 October 2012.
- The Notice to Produce specified in Order 1 be made available to the Respondent’s solicitors for service by them.
- The video or audio statements detailed in Order 1 must be produced to the Tribunal, by:
4.00pm on 4 July 2015.
- Upon receipt of the video or audio statements detailed in Order 1, the legal representatives of each party has the right to inspect and watch the s 93A statements, but not to copy the material, and facilities are to be made available at a mutually convenient and pre-arranged time by the Tribunal for that purpose.
- Pursuant to s 21AZA of the Evidence Act 1977, the Principal Registrar of the Supreme and District Courts is authorised to provide a copy of the following video tapes of the s 21AK pre-recording of evidence in relation to the matter of R v RCJ which was heard before the District Court of Queensland at Ipswich on or about 14 May 2014 before her Honour Judge Richards, to the Principal Registrar of the Queensland Civil and Administrative Tribunal.
a. RE;
b. DCA;
c. MP;
d. BJP;
e. OHC.
- The order specified in Order 5 above be made available to the solicitors for the Respondent to be served upon the Registrar of the Supreme and District Court.
- The Registrar of the Supreme and District Court is requested to provide the video tapes specified in Order 5, by:
4.00pm on 4 July 2015.
- Upon receipt of the s 21AK pre-recordings detailed in Order 5, the Principal Registrar of the Queensland Civil and Administrative Tribunal is authorised to permit the legal representatives for each party to play (but not copy) the pre-recordings detailed in Order 5 for the purposes of preparing for these proceedings, pursuant to s 21AZA of the Evidence Act 1977, and that the Tribunal make facilities available at a mutually convenient and pre-arranged time for that purpose.
- The legal representatives of the parties are authorised to play the pre-recordings detailed in Order 5 for the purpose of preparing for these proceedings pursuant to s 21AZA of the Evidence Act 1977.
- Upon the conclusion of these proceedings, the Principal Registrar of the Queensland Civil and Administrative Tribunal is directed to return the copies of the pre-recordings detailed in Order 5 to the Principal Registrar of the Supreme and District Courts.
- Publication is prohibited of the names, schools and/or any other identifying information regarding any of the complainants referred in the documents.
- The copies of the transcripts of the s 93A statements and pre-recorded evidence which the parties obtained under Order 3 of the Orders made on 28 November 2014 must not be further copied or provided to any person, other than for the purposes of briefing counsel, and all such copies provided either by the Tribunal to the parties, or taken by a party in compliance with this order must be returned to the Tribunal once the proceeding has been determined and the appeal period has passed and then returned by the Principal Registrar with the produced copies of the transcripts of the s 93A statements and pre-recorded evidence.
- The application is listed for a Directions Hearing in Brisbane at 1:30pm on 28 July 2015.
- The decision on the questions set out in paragraph 1 of Tribunal directions dated 18 March 2015 is reserved.
- [7]The questions raised in this preliminary hearing involve a consideration of the interactions between the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act), the Education (Queensland College of Teachers) Act 2005 (Qld) (Education Act) and the Evidence Act 1977 (Qld) (the Evidence Act).
- [8]It does not appear that any previous cases have considered and decided the questions about the potential restrictions on the production and use of the s 93A statements and pre-recorded video evidence of children and the transcripts of those statements and recordings in teacher disciplinary proceedings in QCAT. These written answers to the questions may be of assistance should the questions arise in the future.
- [9]Of course, questions about the admissibility and weight to be given to evidence in a particular case are matters for the discretion of the relevant Tribunal at the time.
The Questions
- [10]On 18 March 2015 following a compulsory conference, it was directed that the parties file submissions on the following questions, for an oral hearing to decide:
a) Is the use of audio statements made by children to investigating police officers, referred to as s 93A statements under the Evidence Act 1977, prohibited or limited in some way in this disciplinary proceeding?
b) Is the use of transcripts of audio statements made by children to investigating police officers, referred to as s 93A statements under the Evidence Act 1977, prohibited or limited in some way in this disciplinary proceeding?
c) Is the use of pre-recorded videotaped evidence of children in the criminal proceeding about the charges brought against RCJ prohibited or limited in some way in this disciplinary proceeding?
d) Is the use of transcripts of pre-recorded videotaped evidence of children in the criminal proceeding about the charges brought against RCJ prohibited or limited in some way in this disciplinary proceeding?
- [11]For the purpose of these reasons, the responses to these questions have been reframed to follow the issues which are raised by the questions.
Summary of Responses to Questions
- [12]In brief, in response to the questions posed, the Tribunal considers:
- a)section 28 of the QCAT Act empowers the Tribunal to admit the audio and video records and the transcripts into evidence.
- b)although the Tribunal is not bound by the rules of evidence, the Tribunal may consider those rules and the principles which underpin them in exercising its powers to admit and consider evidence. For example, as a matter of fairness, the Tribunal may decide in a particular case not to admit a s 93A statement if the maker of the statement is not available to give evidence. This would reflect the proviso in s 93A even though the Tribunal is not bound by it;
- c)there are some restrictions on the use of transcripts.
- i)if audio or video recordings are available, the recordings should be admitted into evidence in preference to the transcripts (in the absence of other reason not to admit the recordings). Transcripts may be used as an aide to listening to the audio or video evidence. If there is a conflict between the audio or video recording and the transcript, the audio and video would generally be preferred. These principles reflect the ‘best evidence rule’ and practice in relation to the use of a transcript where the original recording is available;
- ii)if the audio or video recordings are not available, the Tribunal may in its discretion admit the transcripts into evidence. However, it is likely that the Tribunal will consider factors such as whether the accuracy of the transcript of what was said can be established, whether in fairness the transcript should be admitted if the maker of the statement is not available to give evidence, and the extent to which the statements contained in the transcript address the same issues as those for determination by the Tribunal.
- d)the exception to the offence provision concerning s 93A statements applies to teacher disciplinary proceedings in QCAT. The disciplinary proceedings are a legitimate purpose under s 93AA(2). QCAT may therefore order the production of s 93A statements[6] and make them available to the legal representatives of the parties for the purpose of the proceedings, on such conditions as seem appropriate.
- e)the exception to the offence provision concerning pre-recorded video evidence applies. The Tribunal constituted for the disciplinary proceeding is the ‘presiding judicial officer’[7] who may authorise the provision of the recordings to QCAT, and make them available to the parties’ legal representatives for the purpose of the proceedings, on such conditions as seem appropriate.[8]
- f)Production and use of the statements is subject to restrictions consistent with the need to protect the children involved.
- a)
The Parties’ Positions
- [13]It was accepted by both parties that s 28 of the QCAT Act governs the admissibility of evidence in QCAT proceedings, and that s 28 clearly empowers the Tribunal to admit the audio and video recordings and the transcripts into evidence. There was no dispute as to the relevance of the material to the disciplinary hearing. It was also uncontroversial that although the Tribunal is not bound by the rules of evidence, it may look to the rules of evidence for guidance.
- [14]The QCT submitted that RCJ’s position was in effect an application by the teacher for orders that the audio and audio-visual material be made available to the Tribunal and the parties, on appropriate conditions. The QCT did not propose to tender further evidence itself, and pointed to s 147 of the Education Act. Section 147 provides that the Tribunal may receive into evidence a transcript or part of a transcript of evidence taken by courts or other relevant bodies, and draw conclusions of fact from the transcript, as it considers appropriate.
- [15]The QCT did not however object to RCJ’s submissions that the Tribunal should make further orders to make the recordings available. It agreed that the relevant orders could be lawfully made and that the proposals by RCJ for the safekeeping of the material were reasonable.
- [16]The QCT submitted that without hearing the particular audio and viewing the particular video recordings, it was not in a position to make submissions on RCJ’s arguments that if available, the recordings should be admitted into evidence in preference to the transcripts. However the QCT did not advance arguments against these propositions as a matter of principle.
- [17]RCJ submitted that where audio and video are available, the transcripts should not be substituted for the recordings. Instead, the transcripts should only be used as an aid to listening to and understanding the evidence contained in the recordings. This reflects the best evidence rule.
- [18]In relation to the admissibility of s 93A material, RCJ submitted that although s 93A did not bind the Tribunal, the proviso in s 93A that the author of the statement should be available to give evidence, (and therefore be subject to cross-examination), should guide the Tribunal’s consideration of whether to admit the material into evidence.
- [19]RCJ noted that in this case the issues before the Tribunal and the issues for determination in the criminal hearing were identical and that the pre-recorded evidence of the children included cross-examination by Counsel for the teacher.
- [20]RCJ submitted that the Tribunal could order or authorise the production and necessary possession, copying and playing of s 93A audio or video recordings and the pre-recorded video evidence, without breaching the offence provisions of the Evidence Act.
- [21]RCJ proposed safeguards for the production and use of the material. RCJ pointed to the provisions of s 590AOA of the Criminal Code Act 1899 (Qld) (‘the Criminal Code’), as useful guidance on the types of restrictions the Tribunal may impose.
Reasons for Decision
Is the Tribunal prohibited from admitting into evidence the s 93A statements, or the pre-recorded video evidence and transcripts?
- [22]The starting point for a consideration of the admissibility of evidence for QCAT proceedings is s 28 of the QCAT Act. In particular, s 28(3)(b) provides that the Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the Tribunal adopts the rules, practices or procedures; and s 28(3)(c) says that the Tribunal may inform itself in any way it considers appropriate.
- [23]
- [24]The Evidence Act contains specific provisions about children’s evidence. These rules balance the need to protect vulnerable children with the need for fairness for the accused. The Act provides that s 93A statements and pre-recorded video evidence is admissible in proceedings other than the proceedings for which the statements or video evidence were made.[11]
- [25]The audio and video recordings and the transcripts are clearly relevant to central questions about whether the teacher is not suitable to teach, by reason of indecently treating children under the age of 12 or 16. It is equally clear that s 28 gives the Tribunal the discretion to admit the recordings and transcripts evidence into evidence.
- [26]Although the Tribunal is not bound by the rules of evidence, it may have regard to them and the principles which underpin them, in determining whether to admit the recordings or the transcripts into evidence. The Honourable JB Thomas AM QC said:
It is true that the tribunal is not bound by the rules of evidence, it may inform itself in any way it considers appropriate and act with as little formality and technicality as the requirements of the Act and fair practice will permit (Queensland Civil and Administrative Tribunal Act 2009 section 28(3)). However the tribunal is conscious of the fact that the rules of evidence “represent the attempt made, through many generations to evolve a method inquiry best calculated to prevent error and elicit truth” (per Evatt J in R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228, 256). The curial rules of evidence may afford useful guidance even though they are not binding here.[12]
Does the proviso to s 93A restrict the use of s 93A statements in disciplinary proceedings?
- [27]As we have already noted, the Tribunal is not bound by the rules of evidence, including the proviso to s 93A. However, it is reasonable that the Tribunal be guided by the proviso. One purpose of the restriction is to give the person accused the opportunity to test the evidence against him or her. This is a question of fairness in a criminal trial and also in disciplinary proceedings where a person’s livelihood and reputation are at stake.
- [28]If the maker of the statement is not available to give evidence, or there are other reasons why the witness should not be called, in a particular case, it may be a relevant consideration for the Tribunal as to whether to admit the s 93A statements as evidence. If admitted, there would be issues of the reliability of the statements, and the appropriate weight to be given to the evidence.
- [29]The admission of pre-recorded video evidence which includes cross-examination, may address the fairness concerns in a particular case.
- [30]The use of pre-recorded evidence also serves the important policy objective of protecting a vulnerable child in proceedings of this nature from the strains and possible trauma of giving evidence in the usual way.
Is there a restriction on the use of transcripts when the audio or video recordings are available?
- [31]RCJ strongly made the argument that where the audio or video recordings are available, the transcripts should not be substituted for the recordings. Instead, the transcripts should only be used as an aide to listening to the recordings. This reflects the best evidence rule.
- [32]RCJ’s submission referred to an extract from the Supreme and District Court bench book on tape recordings. It says:
Where tape recordings are admitted into evidence the actual evidence consists of the sound produced by playing the tape rather that the tape itself. The transcript of such a recording is not, in the ordinary case, evidence but is rather an aid to listening, and the jury should be instructed accordingly.[13]
- [33]RCJ further submitted that, where there was conflict between the tape and the transcript, the tape should be preferred.
- [34]The Tribunal agrees with these submissions. Unless there are other reasons why the audio and video recordings should not or cannot be admitted into evidence, it is preferable that the Tribunal and parties hear the audio and view the video, rather than rely on the transcripts alone. This allows the Tribunal and the parties the benefit of additional information gained from tone, demeanour and other visual information.
- [35]Transcripts may be admitted into evidence under s 28 of the QCAT Act. The Tribunal also notes s 147 of the Education Act which provides that the Tribunal may receive into evidence a transcript of evidence from a relevant proceeding, and draw conclusions of fact from it as it considers appropriate. Section 147 does provide a basis for the Tribunal to proceed on transcript evidence, but it does not prevent the Tribunal from informing itself using the best evidence available to it.
- [36]In the usual course, the Tribunal would consider the accuracy of the transcript as a record of what was said, the reliability of the contents of the transcript and the weight to be given to those contents.
Are there restrictions on the possession, copying, playing and supply of the s 93A statements or pre-recorded video evidence?
Section 93A statements
- [37]Section 93AA(1) provides that it is an offence to possess, supply, or copy a s 93A statement without authority. A person has authority to do those things if the person does them ‘for a legitimate purpose connected with the proceeding for which the section 93A statement was made or another proceeding’.[14]
- [38]The Tribunal’s view is that these QCAT disciplinary proceedings are ‘a legitimate purpose’ in ‘another proceeding’.
- [39]‘Legitimate purpose’ is not defined. However the QCAT disciplinary proceedings are part of a statutory scheme which governs the suitability of teachers to teach. Under the Education Act, the QCT must immediately suspend a teacher who is charged with a serious offence.[15]
- [40]Once suspension is triggered, QCAT must decide whether to continue the suspension. Under s 92(2) upon the charges being ‘dealt with’ QCT must refer the allegations to QCAT to determine whether the teacher is not suitable to teach.
- [41]The Tribunal’s view is that the consideration by QCAT of the question of suitability, having regard to relevant evidence, in accordance with the statutory framework, is a ‘legitimate purpose’. The parties to those proceedings, including their legal representatives, have a corresponding legitimate purpose in accessing the material, for the purpose of the disciplinary proceedings only.
- [42]Therefore QCAT has the authority to possess, supply and copy the s 93A statements and to make them available to the parties’ legal representatives on conditions it considers appropriate.
- [43]The process is by way of notice to the Director of Public Prosecutions under s 63 of the QCAT Act.
Pre-recorded video recordings
- [44]Section 21AZB(1) of the Evidence Act relevantly creates an offence in relation to recordings of an affected child’s evidence. It is an offence to possess, supply or offer to supply, play, copy or erase such a recording or to permit a person to play, copy or erase a recording, without authority.
- [45]A person has authority under s 21AZB(2):
- (a)in the case of a public official—for a purpose connected with the proceeding for which the recording was made or any rehearing or retrial of, or appeal from, the proceeding, or civil proceeding in which the recording may be presented in evidence; or
- (b)in any case—as authorised by a judicial officer under section 21AZA.
- [46]RCJ submitted that the relevant authority for the QCAT proceedings is under paragraph (b). QCT at the hearing agreed that this was an appropriate basis of authority.
- [47]Section 21AZA gives the presiding judicial officer the power to make any order he or she considers appropriate about the use or safekeeping of a recording. At first blanch, it would not seem that a Tribunal Member is a ‘presiding judicial officer’. However, the definitions of the Evidence Act provide a different result. The reasoning is as follows.
- [48]Under Section 21AY, ‘presiding judicial officer’ in relation to a recording, relevantly includes the judicial officer presiding at ‘the proceeding in which the recording is presented or to be presented’.
- [49]The definition in Schedule 3 of the Evidence Act defines ‘judicial officer’ as meaning a judge, magistrate or justices.
- [50]‘Judge’ is defined in Schedule 3 to mean the member or members of a court.
- [51]‘Court’ is defined in Schedule 3 relevantly as ‘otherwise – means the court, tribunal, judge, justice, arbitration, body or person before whom or which a proceeding is held or taken’.
- [52]Therefore the Tribunal constituted for hearing the disciplinary matter is a presiding judicial member, empowered to authorise the necessary possession, copying, supply and playing of the recording under s 21AZA(1).
- [53]Section 21AZA(2) provides that presiding judicial office may make directions with or without conditions as to the persons, or classes of persons, who are authorised to have possession of a recording; and the giving up of the possession of a recording.
- [54]Under s 21AZA(3), the presiding judicial officer must have regard to the need for counsel to have access to the recording and the need to ensure that persons authorised to have possession, are able to take appropriate measures to ensure there is no unauthorised access to the recording.
- [55]Section 590AOA of the Criminal Code provides some guidance on the types of measures which may be required. These may include restrictions on copying the recording, or on providing the recording to the person who has been accused of the matters dealt with in the recording. Other conditions may address the obligations of the parties’ legal representatives to return or destroy the material, or may address the circumstances in which the recording may be played.
Observation
- [56]A non-publication order was made on 4 June 2015 and other than to the parties these reasons for decision may only be published in de-identified format.
Footnotes
[1]Education (Queensland College of Teachers) Act 2005 (Qld) (the Education Act) s 92(1)(h).
[2]Evidence Act 1977 (Qld) (the Evidence Act) s 93A.
[3]These statements are made pursuant to Evidence Act s 21AK.
[4]Evidence Act s 93AA.
[5]Ibid s 21AZB.
[6]QCAT Act s 63.
[7]Evidence Act s 21AY.
[8]Ibid s 21AZA.
[9]QCAT Act s 28(3)(a).
[10]Ibid s 28(3)(e).
[11]Section 93A(1) makes the s 93A statements admissible in any proceeding where direct oral evidence of a fact would be admissible; s 21AM(1)(b)(iii) relevantly makes the video recording of an affected child’s evidence admissible in ‘a civil proceeding arising from the commission of the relevant offence' (unless the relevant court orders otherwise).
[12]Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 at [22] quoted at [28] of RCJ’s submission filed 22 April 2015.
[13]Annotations in the Supreme and District Court Benchbook Model Direction No 20.1 Tape Recordings, Transcripts and Exhibits quoted in [5]3 of RCJ’s submissions filed 22 April 2015.
[14]Evidence Act s 93AA(2).
[15]Education Act s 48.