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Queensland College of Teachers v Illingworth[2016] QCAT 309

Queensland College of Teachers v Illingworth[2016] QCAT 309

CITATION:

Queensland College of Teachers v Illingworth [2016] QCAT 309

PARTIES:

Queensland College of Teachers

(Applicant)

v

Jean Anne Marjorie Illingworth

(Respondent)

APPLICATION NUMBER:

OCR087-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

11 July 2016

HEARD AT:

Brisbane

DECISION OF:

Member Howard, Presiding Member

Member Kanowski

Member MacDonald

DELIVERED ON:

30 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Ms Illingworth is prohibited from re-applying for registration as a teacher, and from applying for permission to teach, until 3 October 2017.
  2. If Ms Illingworth is registered as a teacher, or granted permission to teach, it will be a condition of the registration or permission that she is prohibited from working as a principal or deputy principal or acting in the capacity of either principal or deputy principal.

CATCHWORDS:

EDUCATION – SCHOOLS – GOVERNMENT SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE - DISCIPLINARY MATTERS – convictions for fraud offences – whether Tribunal can make findings inconsistent with commission of the acts constituting the offences – major fraud committed to obtain extra funding for school – not suitable to teach – prohibition on working as principal

Education (Queensland College of Teachers) Act 2005 (Qld) s 3, s 11, s 12, s 92, s 160, Schedule 3

Evidence Act 1977 (Qld) s 79

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 28

Bachman v Public Safety Business Agency [2016] QCAT 104

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v Johnston [2010] QDC 113

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690

Meissner v R [1995] HCA 41

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209

Queensland College of Teachers v Brady [2011] QCAT 464

Queensland College of Teachers v GHI [2012] QCAT 182

Queensland College of Teachers v Ku [2015] QCAT 130

Queensland College of Teachers v Osborne [2013] QCAT 471

Queensland College of Teachers v Segger [2013] QCAT 690

Queensland College of Teachers v Teacher G [2015] QCAT 158

Pharmacy Board of Australia v Coghill [2015] QCAT 27

APPEARANCES:

APPLICANT:

Ms Clare Sherman, Senior Legal Officer, Queensland College of Teachers

RESPONDENT:

Ms Illingworth, in person

REASONS FOR DECISION

Introduction

  1. [1]
    This case is a disciplinary proceeding against a teacher, Ms Illingworth, under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the QCT Act’).
  2. [2]
    The impetus for the disciplinary referral by the Queensland College of Teachers (‘QCT’) was that Ms Illingworth was convicted and sentenced in the District Court on 3 October 2014 for two indictable offences. Ms Illingworth entered guilty pleas to the charges.
  3. [3]
    One offence was a Commonwealth offence of obtaining financial advantage by deception between August 2010 and July 2011. For that offence, the Court sentenced Ms Illingworth to imprisonment for three years but she was released immediately on a recognisance. The other offence was a State offence of fraud committed between February 2010 and April 2011. For that offence, the Court sentenced Ms Illingworth to two and a half years imprisonment, suspended immediately. The Court took into account the fact that Ms Illingworth had spent 351 days in pre-sentence custody. In these reasons, we will refer to both offences simply as fraud offences, for the sake of brevity.
  4. [4]
    The prosecution allegations may be summarised as follows. Ms Illingworth was Principal of Djarragun College. She was responsible for making claims to the Commonwealth and State education departments for recurrent funding based on student numbers. The school lodged claims, which overstated the number of eligible students. The number of students was inflated by 242 for the Commonwealth claims, and by 294 for the State claims. The fraudulent claims resulted in the school receiving $3,482,551 in government funding to which it was not entitled.

The disciplinary proceeding

  1. [5]
    The QCT referred the disciplinary matter to QCAT contending that a ground for disciplinary action exists because of the convictions. Subsequently, in an amended referral, the QCT contended that an additional ground exists, namely that Ms Illingworth is not suitable to teach.
  2. [6]
    Ms Illingworth became a registered teacher in Queensland in 1999. Her registration lapsed in 2013 when she did not pay the annual renewal fee. As a former approved teacher, she remains a ‘relevant teacher’ for disciplinary purposes.[1]
  3. [7]
    The Tribunal heard the disciplinary matter on 11 July 2016. There was written material before the Tribunal, marked as Exhibits 1 to 18. Ms Illingworth also gave oral evidence. She also called oral evidence from two witnesses. The first was Mr Ken Fleming of Queen’s Counsel, who had represented her in the criminal proceedings. Mr Fleming explained that Ms Illingworth had waived legal professional privilege to enable him to give evidence. The second witness was Dr Anthony Watt, a former board member at Djarragun College.
  4. [8]
    Ms Illingworth gave and called evidence directed at showing that she did not commit the acts, which constitute the offences of which she was convicted. She submits that the evidence is relevant to both of the disciplinary grounds alleged against her. The Tribunal explained that if it decided that it could not go behind the convictions that evidence would not be taken into account in determining the disciplinary referral.

Can the Tribunal consider evidence, which is inconsistent with Ms Illingworth’s commission of the acts constituting the offences of which she has been convicted? If so, are there limitations on the consideration?

  1. [9]
    As far as the Tribunal is aware, the question of whether QCAT can go behind a criminal conviction by making factual findings inconsistent with the acts which constitute the offence/s in a teacher disciplinary proceeding has not previously been addressed in detail by a court or tribunal. There was brief mention of the topic in Queensland College of Teachers v Osborne.[2] Ms Osborne had pleaded guilty to offences in the Magistrates Court. In the teacher disciplinary proceeding, she gave an account minimising any wrongdoing, and said she had pleaded guilty only because she saw no other viable option. The Tribunal commented:

Ms Osborne’s guilt has been established through the criminal process. It is not open to us to deal with her on the basis that she is innocent.[3]

  1. [10]
    That said, the issue of going behind convictions has been considered by courts and tribunals in other contexts. The Full Federal Court considered the issue in Minister for Immigration and Ethnic Affairs v Gungor[4] (‘Gungor’). Mr Gungor had been convicted at the conclusion of a District Court trial of jury the offence of supplying a prohibited drug. The Minister then made a decision to deport Mr Gungor, on the basis that he was an alien who had been convicted of an offence for which he was sentenced to imprisonment for one year. Mr Gungor subsequently applied to the Administrative Appeals Tribunal (‘AAT’) for a review of the Minister’s decision. In the AAT proceeding, Mr Gungor gave evidence to the effect that his involvement in the offence had been merely as an accessory. The AAT accepted this evidence and recommended that the deportation order be revoked.
  2. [11]
    The Minister appealed to the Full Federal Court on the basis that the AAT should not have gone behind the conviction. The Full Federal Court observed that the jury had convicted Mr Gungor as an active participant in the drug supply offence, and not merely as an accessory. The Court held that the AAT had made an error of law in proceeding on the basis of facts inconsistent with the conviction. Fox J noted that the conviction was a necessary basis for the Minister’s decision to deport. Fox J considered that any review of a conviction was a matter for the criminal justice process, and that it was highly unlikely that Parliament would have intended that an administrative tribunal should embark on such a review. If a tribunal were to so embark, Fox J noted, it may be doing so a long time after the trial, when some witnesses for the prosecution were unavailable and memories were dimmed. Accepted trial procedures would not apply. Further, ‘the Crown, as repository of the function of criminal prosecutions, would not be a party’.[5]
  3. [12]
    Gungor has been cited in a number of Queensland cases dealing with whether a person should be granted a ‘blue card’ permitting them to work in child-related employment. The legislation dealing with blue cards requires decision-makers to have regard to any convictions.
  4. [13]
    Commissioner for Children and Young People and Child Guardian v Johnston[6] (‘Johnston’) is a decision of the District Court on appeal from the Children Services Tribunal. (That Tribunal was abolished, and its functions transferred to QCAT when QCAT was established). Mr Johnston had pleaded guilty to a charge of unlawful stalking. He later applied for a blue card but the Commissioner refused the application. Mr Johnston applied to the Children Services Tribunal for a review of the Commissioner’s decision. Mr Johnston gave evidence at the Tribunal hearing that minimised his wrongdoing. The Tribunal set aside the Commissioner’s decision and decided to grant Mr Johnston a blue card. In the District Court, on appeal, Devereaux DCJ observed that it appeared that the Tribunal proceeded on the basis that Mr Johnston may not be guilty of the stalking offence. Devereaux DCJ said:[7]

… it was not open to the Tribunal to act upon a basis other than that Mr Johnston was guilty of the offence of unlawful stalking.

His plea of guilty to the charge was ‘the most cogent admission that can be made’ of all the facts essential to the offence …

  1. [14]
    Accordingly, Devereaux DCJ set aside the Tribunal’s decision.
  2. [15]
    Commissioner for Children and Young People and Child Guardian v Lister (No 2)[8] is a decision of the QCAT Appeal Tribunal. Ms Lister had been convicted by a jury of an offence of depriving a child of liberty. The offence involved restraining the child on a toilet. Ms Lister later applied for a blue card but the Commissioner refused the application. Ms Lister applied to QCAT for a review of the Commissioner’s decision, and the matter in due course went on to the QCAT Appeal Tribunal. In her submissions in the Tribunal proceedings Ms Lister variously denied or said that she could not remember restraining the child. The Appeal Tribunal, citing Gungor, said that Ms Lister’s conviction established the act charged.
  3. [16]
    While that case involved a conviction by a jury, the case of Bachman v Public Safety Business Agency[9] is an example of QCAT holding that it could not go behind a conviction resulting from a plea of guilty. Ms Bachman had pleaded guilty to supplying a prohibited drug. She later unsuccessfully applied for a blue card, and then sought review by QCAT. At the QCAT hearing, she gave a version of events different from that on which she had been sentenced. The Tribunal held that it could not go behind the conviction.
  4. [17]
    That said, in WJ v Chief Executive Officer, Public Safety Business Agency[10] the Appeal Tribunal held that the Tribunal erred in holding that ‘The Tribunal cannot go behind the circumstances of the offending behaviour’[11] and said (footnotes not included):

[80] That is an obvious misstatement. It should have been to the effect “The Tribunal may, indeed must, go into the circumstances of the offending behaviour, but it cannot make findings that go behind the finding of guilty”.

…….

[84] The statement that “the Tribunal cannot go behind the circumstances of the offending behaviour” is clearly too wide a statement, but may well have been a mere error of expression. Reference may have been intended to the fact of conviction. But it would certainly be an error if, for example, it were thought that the “circumstances of the offending behaviour” had to be taken as those outlined in the police brief, or as requiring the rejection of WJ’s version to the extent that it differed from the police brief.

[85] The only limitation upon the Tribunal’s assessment of evidence about the events surrounding the incident is that they must be interpreted consistently with the existence of the conviction, that is to say with the necessary elements (or in the words of Fox J the “necessary ingredients”) of the offence. The exercise is to infer “the view of the facts necessarily adopted by the jury”, or, in non-jury proceedings, by the Court that has convicted the person.[12]

  1. [18]
    In a disciplinary proceeding involving a pharmacist, Pharmacy Board of Australia v Coghill[13] (‘Coghill’), QCAT considered it appropriate to go behind a conviction in some circumstances which are similar to those in Ms Illingworth’s case. Mr Coghill had been convicted of offences in the Magistrates Court. The Pharmacy Board brought a disciplinary proceeding in QCAT, alleging two grounds. The first ground was that Mr Coghill had been convicted of relevant offences. The fact of the conviction was not disputed and the Tribunal found that the first ground was established. The second ground was that by engaging in the conduct on which the convictions were based, Mr Coghill had behaved in a way that constituted unsatisfactory professional conduct. The Tribunal noted s 79 of the Evidence Act 1977 (Qld) (‘the Evidence Act’). That provision is to the effect that in a civil proceeding the fact that a person has been convicted of an offence is admissible in evidence for the purpose of proving that the person committed the offence. Further, where such proof is given, the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind, which at law constitute the offence.
  2. [19]
    The Tribunal commented that ‘in many cases it may be entirely appropriate and orthodox’[14] for the Tribunal, relying on s 79, to accept as established the underlying facts and mental state upon proof of the conviction for the offence. However, s 79 does not provide conclusive proof, but only prima facie proof, which can be rebutted. The Tribunal went on to examine the convictions, which had been secured in Mr Coghill’s absence. Mr Coghill had then unsuccessfully applied to the Magistrates Court to have the criminal proceedings reopened. The Tribunal examined the legal bases for the prosecutor’s submissions and found that they were seriously flawed. The Tribunal contrasted Mr Coghill’s case with a Victorian case in which a tribunal relied upon convictions reached after a trial in which the offences had been proven, on fully tested evidence, beyond reasonable doubt. In contrast, Mr Coghill had been convicted in his absence on tenuous evidence. Consequently, the Tribunal did not regard the convictions as evidence that Mr Coghill had actually committed the acts constituting the offences.
  3. [20]
    It is useful to set out s 79 of the Evidence Act in full. It provides as follows:

79 Convictions as evidence in civil proceedings

  1. (1)
    In this section—

civil proceeding does not include an action for defamation.

convicted means a finding of guilt for an offence, on a plea of guilty or otherwise, and whether or not a conviction was recorded.

  1. (2)
    In any civil proceeding the fact that a person has been convicted by a court of an offence is admissible in evidence for the purpose of proving, where to do so is relevant to any issue in that proceeding, that the person committed that offence.
  1. (3)
    In any civil proceeding in which by virtue of this section a person is proved to have been convicted by a court of an offence the person shall, unless the contrary is proved, be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute that offence.
  1. (4)
    This section applies—
  1. (a)
    whether or not a person was convicted upon a plea of guilty; and
  1. (b)
    whether or not the person convicted is a party to the civil proceeding.[15]
  1. [21]
    There is no reference to Gungor in the Tribunal’s reasons in Coghill, so presumably the Tribunal was not aware of that case. Whether the Tribunal would have reached a different conclusion if it had been aware of Gungor is not known. However, it does not seem to us that the Tribunal’s findings are inconsistent with Gungor.
  2. [22]
    Consistently with Gungor, the Tribunal held that the first disciplinary ground, that Mr Coghill had been convicted of certain relevant offences, was established. That is, the Tribunal held that the disciplinary ground was established by the fact of conviction. Similarly, in Gungor, the basis for deportation was the fact of the relevant conviction. Only in respect of the second disciplinary ground, namely that Mr Coghill engaged in unsatisfactory professional conduct, did the Tribunal consider s 79(3) of the Evidence Act relevant in the circumstances of the case before it. Mr Coghill did not challenge the fact of his conviction and the Tribunal found the ground based on the fact of conviction was established. In Coghill, the second disciplinary ground was not based on the fact of conviction, but rather on Mr Coghill having committed the acts constituting the offence. The Tribunal considered it relevant that the conviction had occurred in Mr Coghill’s absence (rather than following a contested jury trial) and its own assessment that the evidence was tenuous.
  3. [23]
    The QCT’s written submissions in Ms Illingworth’s case are to the effect that it is open to QCAT in a teacher disciplinary proceeding alleging that the teacher is not suitable to teach to apply s 79 of the Evidence Act and, if appropriate, to make findings as to whether the teacher committed the acts which constitute the offence. The QCT’s written submissions do not cite Gungor or cases, which have relied on that decision. However, as we have observed, in Gungor the decision to deport was grounded in the fact of conviction.
  4. [24]
    The QCT’s submissions discuss the High Court case of Meissner v R. (‘Meissner’).[16] The QCT has drawn attention to the following passages:

A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. … If a plea of guilty is entered by the person charged in purported exercise of a free choice to serve that person's own interests, but the plea is in fact procured by pressure and threats, there is a miscarriage of justice. In such a case, the court is falsely led to dispense with a trial on the faith of a defective plea. The course of justice is thus perverted.[17]

It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.[18]

  1. [25]
    In summary, the decision in Meissner acknowledges that a person may enter a plea of guilty to a criminal offence for reasons other than an acceptance of their guilt, and this will constitute an admission of all elements of the offence. These passages are primarily relevant for a court deciding on appeal whether to set aside a conviction. However, they may well be relevant for a tribunal to consider if it is contemplating making findings inconsistent with the commission of the acts constituting the offence.
  2. [26]
    None of the cases discussed above are binding on this Tribunal. None is a decision of a court about whether it is permissible under the QCT Act for the Tribunal to make findings, which may be inconsistent with the commission of the acts constituting the offence. However, the cases provide some guidance.
  3. [27]
    The only case that actually involved a tribunal making findings inconsistent with the commission of the acts constituting the conviction is Coghill. Although the Tribunal in that case was not referred to Gungor, as discussed earlier, the Tribunal took an approach, which was not inconsistent with Gungor as concerns the disciplinary ground premised upon the fact of conviction. It applied s 79(3) of the Evidence Act, only as concerns the ground of disciplinary action which was not based upon the fact of a conviction. In Coghill, the Tribunal was constituted by a District Court Judge (assisted by three members). Further, there were powerful arguments in favour of doing so in the circumstances. In particular, there had not been a contested criminal trial, the conviction was secured in Mr Coghill’s absence and the Tribunal considered the case presented by the Crown was seriously flawed.
  4. [28]
    All of the decisions suggest it is impermissible to make findings inconsistent with the fact of conviction. However, where there is compelling evidence to do so, it seems that it is permissible to apply s 79(3), which may result in findings about whether a person committed acts constituting the offence in circumstances when the disciplinary ground is based upon the commission of the acts constituting an offence, rather than based in the fact of conviction.
  5. [29]
    Of course, it may be difficult to persuade a tribunal that evidence presented to it in a disciplinary proceeding displaces the prima facie proof provided for in s 79(2) of the Evidence Act where the conviction results from a contested trial. The reasons for this approach were convincingly explained in Gungor where the Full Federal Court thought it highly improbable that the Commonwealth Parliament would have intended that the AAT could go behind a conviction following a contested criminal trial, on the lesser civil standard of proof. A conviction may be some years in the past by the time a disciplinary matter is considered by QCAT. Witnesses and evidence would be scattered and memories would be dimmed.
  6. [30]
    That said, where a serious (as defined under the QCT Act) criminal charge against a teacher results in an acquittal following a contested criminal trial; or is dismissed or withdrawn; or a nolle prosequi is presented; or the teacher is instead convicted of a lesser offence, then the circumstances of the charge must nevertheless be considered by the Tribunal in disciplinary proceedings to determine whether the teacher is not suitable to teach.[19] Clearly, the Tribunal is expected to look behind the acquittal or other disposal of the charge, to form its own conclusions about whether on the (lesser) civil standard, the acts alleged in the commission of the offence are established.
  7. [31]
    Having said that, s 79 of the Evidence Act is not binding on the Tribunal, because the Tribunal is not bound by the rules of evidence, except to the extent that it adopts them.[20] That aside, the rules of evidence are indicative of the practice in the courts and they may afford useful guidance for the Tribunal.[21] In any event, s 79 complements s 147 of the QCT Act. Under s 147 of the QCT Act, the Tribunal may adopt, as it considers appropriate, the decisions and or findings of, inter alia, a court that may be relevant to the hearing before it. A conviction is a decision of a court. Accordingly, it appears that it is open to us, relying upon s 147, to accept the conviction.
  8. [32]
    The Parliament clearly intended by s 79 of the Evidence Act that in appropriate circumstances, in a civil proceeding, a court or tribunal may, based on evidence presented by a party, make findings, which are inconsistent with the person having committed the acts, which constitute the offence. There are good public policy reasons why s 79 should be adopted in disciplinary proceedings before the Tribunal, as occurred in Coghill. There seem to be no good public policy or other reason why it should not be adopted here. We do adopt it in these proceedings.
  9. [33]
    However, s 79 does not provide that a finding may be made in any circumstances, which is inconsistent with the fact of conviction.
  10. [34]
    The disciplinary charge against Ms Illingworth of unsuitability to teach does not rely solely to the fact of conviction (although the particulars recite the fact of conviction in addition to the commission of the acts alleged to constitute the offence) for its establishment. It relies also upon the commission of the acts constituting the offence. Ms Illingworth and her independent Senior Counsel gave evidence that she entered a plea of guilty while maintaining her innocence, because she had exhausted her physical, emotional and financial resources. In the circumstances, we are satisfied that it is appropriate to consider the evidence which seeks to establish that Ms Illingworth did not commit the acts which constitute the offences of which she was convicted.
  11. [35]
    That said, contrary to Ms Illingworth’s submission, the evidence is irrelevant with respect to the ground of disciplinary action under s 92(1)(b): it may be considered only in considering whether the particulars alleged under s 92(1)(h) are made out.

The first alleged ground - convictions for indictable offences: QCT Act s 92(1)(b)

  1. [36]
    The QCT Act provides that a ground for disciplinary action will exist if a relevant teacher has been convicted of an indictable offence that is not a ‘serious offence’ except if the teacher becomes a ‘relevant excluded person’.[22] The terms ‘serious offence’ and ‘relevant excluded person’ are defined.[23] The offences in Ms Illingworth’s case are not serious offences (as defined in the QCT Act) and she is not a relevant excluded person.
  2. [37]
    It is not controversial that the offences of which Ms Illingworth was convicted were indictable. The fact of conviction for the indictable offences establishes this disciplinary ground. Therefore, the Tribunal finds that this ground for disciplinary action is established.

The second alleged ground: not suitable to teach – QCT Act, s 92(1)(h)

  1. [38]
    A ground for disciplinary action exists if a relevant teacher is not suitable to teach.[24]
  2. [39]
    The QCT alleges in its amended referral that that Ms Illingworth is not suitable to teach because of her convictions for fraud for the Commonwealth and State offences (and the sentences imposed), but also in the following terms respectively:

………

  1. The circumstances of the conviction are as follows:

I.  Ms Illingworth was the principal of Djarragan College.

II.  With respect to recurrent Commonwealth funding grants, Ms Illingworth dishonestly inflated the number of eligible students from 412 to 632.

III. A (sic) amount of $2,477,101 was received as a result of the inflated student figures for which Djarragun College would otherwise have been ineligible.

………..

  1. The circumstances of the offence were:

I.  While Principal of Djarragan College, Ms Illingworth dishonestly inflated the number of eligible students by 294.

II.  An amount of $1,005,450 was received as a result of the inflated student figures for which Djarragun College would otherwise have been ineligible.

  1. [40]
    She had a committal hearing and was facing a trial on 11 charges until the matter resolved into a sentence on only two charges at the last moment. The Tribunal accepts that Ms Illingworth would have incurred considerable legal costs in preparing for a lengthy trial. The Crown Prosecutor referred to what would have been ‘a lengthy trial of 110 witnesses’. Mr Fleming QC told the Tribunal that the trial had been expected to last six weeks but on the morning that the trial was to start, the Crown Prosecutor suggested dropping most of the charges in return for pleas of guilty to the remaining charges. After some negotiations between prosecution and defence, Ms Illingworth elected to plead guilty to the two fraud charges.
  2. [41]
    The QCT submits that the dishonesty constitutes a breach of the trust placed in teachers, especially principals, by the community. The QCT also submits that Ms Illingworth lacks insight into, and remorse for, her offending.
  3. [42]
    Ms Illingworth argues essentially that she did not commit the acts that led to her convictions. As we understand her arguments and evidence as they emerged at the hearing, she says either that the student numbers were not overstated in the grant applications, or at least if they were it was because of actions of her rivals in the school community, who deliberately or negligently made her appear to have overstated the student numbers. She says that she pleaded guilty only because she was under extreme emotional and financial stress.
  4. [43]
    Ms Illingworth told the Tribunal that she knew from copies of rolls that student numbers were not overstated. Ms Illingworth says that an audit of enrolments was undertaken for the Crown by an organisation called Resolve. This audit indicated that student numbers had been overstated. Ms Illingworth told the Tribunal that she believes that incorrect or inadequate information was given to Resolve, and that the reliability of the report was criticised in the committal hearing. Ms Illingworth told the Tribunal that subsequent audits commissioned by the school back up her position. She said a forensic audit was done by an organisation called Aurora, and another audit was done by the accountancy firm Moore Stephens.
  5. [44]
    Despite Ms Illingworth having been directed by the Tribunal to file all material she relied upon by 9 May 2016, at the hearing Ms Illingworth provided a copy of a letter from Moore Stephens to the Board of Directors of Djarragun College dated 15 August 2012 (‘Exhibit 18’). Ms Illingworth does not argue that this document by itself proves that she did not overstate student numbers. The letter indicates that Moore Stephens used randomly selected samples of data from the years 2008 to 2010 to assess the proportion of students eligible for inclusion in grant applications. The letter indicates that a high proportion were found to be eligible, and several others would have been eligible for inclusion under a special circumstances category (had applications for special circumstances been made).
  6. [45]
    The Tribunal notes that the Crown Prosecutor had explained to the sentencing judge that grant applications were required to be based on the number of students in attendance on certain census dates, subject to some restrictions relating to the attendance patterns of those students. The Crown Prosecutor explained that a special circumstances claim could be made in respect of students not eligible for inclusion under the ordinary criteria, but that no such claims had been submitted for the periods in question.
  7. [46]
    While the Moore Stephens letter gives some support for Ms Illingworth’s position, it is certainly not enough by itself to demonstrate that she did not commit the acts of which she was accused. It covers a period that is somewhat different to the period of the charges. It counts, as eligible, several students for whom special circumstances applications would have been required. It is not apparent whether Moore Stephens used the same source data as Resolve or, if different data was used, why that data should be preferred.
  8. [47]
    Ms Illingworth told the Tribunal that she has been trying to obtain a copy of an audit report, which she described as a very large document. She initially referred to this as the Moore Stephens report but later in her evidence, she said she believes it must be the Aurora report. She said she had asked Mr Fleming some time ago to obtain it. Mr Fleming told the Tribunal that he has been trying to obtain it, so far without success, but he is hopeful that further lines of enquiry would be successful. He referred to it as the Moore Stephens report, but it is possible that he was mistaken about that. Ms Illingworth also told the Tribunal she had provided a copy of the summary report to QCT some months ago, but QCT’s records do not suggest it was received at any time.
  9. [48]
    Ms Illingworth told the Tribunal that she has a summary of the report in question, and that she had reproduced a table from it in her response dated 29 November 2015 (‘Exhibit 10’). (Ms Illingworth had not supplied a copy of the summary itself to the Tribunal and she did not bring a copy to the hearing). The table set out by Ms Illingworth in her response says, for example, that for 2010 the Aurora review found that there were 632 eligible students, and that this matched the number on the school’s grant claim, whereas the Resolve review indicated only 420 eligible students.
  10. [49]
    The table does not cover the 2011 year, although the charges included part of that year. It is not apparent whether Aurora counted as eligible students for whom special circumstances claims might have been warranted. It is also not known whether the Aurora and the Resolve audits used the same source data.
  11. [50]
    It was conceded by Ms Illingworth that the audit report she intended to rely upon was prepared on a basis of estimating how many students attended throughout the year and not on the census dates. Again, the table appears to lend some support to Ms Illingworth’s arguments about overall numbers of students. However, without the actual report the Tribunal cannot assess the reliability of the conclusions reached by Aurora. In any event, based on Ms Illingworth’s own evidence, the reports would not assist to show that Ms Illingworth did not inflate the numbers because they refer to overall numbers of students, rather than the relevant number of students eligible to be included on the census dates for the purposes of the funding grants.
  12. [51]
    Further, Ms Illingworth’s evidence was to the effect that as school principal she relied on other staff members to collate the relevant information and prepare the grant applications, so that she personally was not responsible even if the numbers were overstated. She claims that those who wished her ill were actually responsible, claiming that there was significant unhappiness and tension within the school community. That said, she also gave evidence that because of the unhappiness and tensions in the school community, she took steps and devoted substantial time to checking attendance records in order to assure herself about the correctness of the attendance records being kept. She seems to suggest that the reports, which support her, were based on her own attendance records, which were separately maintained from the school’s attendance records. (Again, none of the relevant documents were produced to the Tribunal).
  13. [52]
    Further, these apparently conflicting reports were produced in the context of both the prosecution and Ms Illingworth alleging that school records were tampered with.
  14. [53]
    Having regard to the matters discussed, we considered, although Ms Illingworth herself did not seek an adjournment of the hearing to attempt to obtain further documents, whether it was appropriate to allow further time for Ms Illingworth to attempt to obtain the report she says supports her. Mr Fleming commented in his oral evidence to the Tribunal that the audit report obtained by the school supported Ms Illingworth’s position about overall numbers but, as he advised Ms Illingworth at the time, the jury may have opted to accept the Resolve findings in preference to the findings in the report later obtained by the school. Given the competing reports were prepared on different bases and that the report Ms Illingworth relies upon does not address the census dates, even if the overall student numbers supported Ms Illingworth’s claims, that cannot assist to rebut the prima facie proof provided for in s 79(2) of the Evidence Act with respect to the relevant census dates.
  15. [54]
    Bearing in mind its statutory objective to deal with matters quickly as well as fairly,[25] and that Ms Illingworth has already had considerable time to obtain and file copies of the audit reports, and that the report she seeks to reply upon, even if available, could not assist Ms Illingworth with respect to the census dates, we conclude that allowing further time for the report to be obtained is not justified.
  16. [55]
    The evidence before us is inadequate to rebut the prima facie proof provided for in s 79(2) of the Evidence Act. Accordingly, pursuant to s 79(2) of the Evidence Act and s 147 of the QCT Act, the Tribunal is satisfied that Ms Illingworth committed the acts that constituted the fraud offences as alleged in paragraphs 10 and 12 of the amended referral.
  17. [56]
    The Tribunal is satisfied that the offending behaviour involves a high degree of dishonesty. It resulted in the school receiving a very substantial amount of funding to which it was not entitled. As the sentencing judge remarked, ‘the grant system relies very much on the honesty and integrity’ of people in Ms Illingworth’s position, and her offending ‘involves a gross breach of trust’.[26] The judge considered that Ms Illingworth had not cooperated after being apprehended, though she had eventually demonstrated remorse by her pleas of guilty. However it is apparent from Ms Illingworth’s evidence to the Tribunal that she does not, even now, believe that she did anything wrong. Instead, she claims that rivals on the school staff set out to make her appear guilty.
  18. [57]
    (For completeness, although the amended referral which would constrain us does not allege other than dishonesty, we make the observation that even if we had accepted, which we do not, that other staff maliciously or negligently inflated the grant applications, Ms Illingworth was at least grossly professionally negligent as principal in failing to assure herself as to the accuracy of the claims being made, and at odds with her claims to have checked all records due to her mistrust of some staff).
  19. [58]
    Parents, students and the community generally expect teachers, and especially principals as leaders of the school community, to act ethically, lawfully and conscientiously. Ms Illingworth’s commission of the offences modelled the antithesis of the behaviour that she should have been modelling. Ms Illingworth behaved in a way that did ‘not satisfy a standard of behaviour generally expected of a teacher’.[27]
  20. [59]
    Suitability or otherwise to teach must be assessed as at the time of the hearing.[28] We are satisfied that Ms Illingworth has positive attributes, which should also be taken into account. Her references, and the oral evidence of Dr Watt, indicate that she has had a long and otherwise distinguished career as a teacher and a champion of education for disadvantaged students. She is now 69 years of age. She has focused on the education and welfare of disadvantaged students in both Australia and Africa. She was the driving force behind Djarragun College overcoming adversity and becoming a flourishing centre for indigenous education. She worked very long hours, often without a great deal of support from the school’s board, to make the school successful. She inspired several staff members who provided references. She was named Senior Queenslander of the Year in 2009. Since her release from prison, she has done volunteer work including tutoring struggling students. This evidence suggests that in many respects Ms Illingworth is ‘suitable to work in a child-related field’.[29]
  21. [60]
    Notwithstanding the matters in Ms Illingworth’s favour, on balance the Tribunal considers that she remains not suitable to teach. The fraud offences, while not serious offences as defined under the QCT Act for teacher disciplinary purposes, were certainly very serious in the colloquial sense. They were committed relatively recently. They were committed in the course of Ms Illingworth’s duties as a teacher. Although Ms Illingworth is now living once more in the community, she is still within the sentence periods imposed by the District Court.
  22. [61]
    Accordingly, the Tribunal finds that the second ground for disciplinary action is also established.

Sanction

  1. [62]
    The purpose of disciplinary action is not to punish a teacher. That is the function of the criminal courts. Instead, disciplinary action is undertaken to further the objects of the QCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.[30] Although punishment is not the aim, deterrence is a relevant consideration: the sanction imposed must provide ‘general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question’.[31] Under QCT Act, the Tribunal may impose various sanctions.[32]
  2. [63]
    The QCT submits that Ms Illingworth should be prohibited from re-entering the teaching profession until the end of her sentence period on 3 October 2017.
  3. [64]
    Ms Illingworth submits that she should be permitted to return immediately to teaching. She points to her otherwise unblemished teaching career. She submits that she can continue to make a contribution to the education of indigenous children. She also wishes to earn an income, having depleted much of her life savings on extensive legal costs after being charged. Ms Illingworth told the Tribunal that she wishes to seek employment as a classroom teacher. Although at this stage, she indicated that she does not intend to apply for another leadership position, she was equivocal as to her future intentions, but would accept any restrictions that may be imposed.
  4. [65]
    The QCT has referred us to a number of disciplinary cases involving teachers who had committed frauds.[33] Those cases are useful in demonstrating the types of matters that have been taken into account, such as the degree of planning, the amount involved, whether the teacher personally benefitted from the fraud, whether restitution was made, any mental health conditions, the degree of insight, and any rehabilitation. However, none of the cases is comparable to Ms Illingworth’s in terms of the nature and scale of the monies involved here.
  5. [66]
    Against that, Ms Illingworth did not personally benefit financially from the acts. Her school, its staff and its students were the beneficiaries. The sums involved were large. Ms Illingworth has not made restitution, and no doubt, she lacks the means to do so. The Education Departments have written off the debts, having concluded that the school would not be able to continue operation if it had to try to repay them. So taxpayers have been left to meet the cost of Ms Illingworth’s fraudulent conduct.
  6. [67]
    Nevertheless, the Tribunal accepts the QCT’s submission that Ms Illingworth should be prohibited from re-entering the teaching profession, not permanently, but for a period. The Tribunal accepts that Ms Illingworth has a contribution to make as a teacher, and of course a legitimate financial interest in practising her profession. The date suggested by the QCT, 3 October 2017, is appropriate. That will be when – assuming no breach of the recognisance or suspension – she will have completed her sentences.
  7. [68]
    However, the Tribunal considers it appropriate to impose a permanent condition that Ms Illingworth not work as a principal or deputy principal or act in either of those leadership roles. The gravity of the offences is such that Ms Illingworth should never be trusted with an educational position with financial responsibility, where she might engage again in similar conduct. While this is a significant restriction, the Tribunal considers it necessary in order to uphold standards, maintain public confidence, and protect the public.

 Conclusion and Orders

  1. [69]
    The appropriate course is to prohibit Ms Illingworth from re-entering the teaching profession before 3 October 2017, and to prohibit her from working as a principal or deputy principal, or to act in either of those roles, if she is permitted in due course to re-enter the profession.

Footnotes

[1]See the definitions in QCT Act, Schedule 3, s 92(1).

[2][2013] QCAT 471 at [14].

[3]Ibid, at [14].

[4](1982) 42 ALR 209.

[5]Ibid, at [213].

[6][2010] QDC 113.

[7]Ibid, at [22]-[23].

[8][2011] QCATA 87.

[9][2016] QCAT 104.

[10][2015] QCATA 190.

[11]Ibid, at [79].

[12]Ibid, at [80]-[85].

[13][2015] QCAT 27.

[14]Ibid at [29].

[15]Emphasis added by underlining.

[16][1995] HCA 41.

[17]Brennan, Toohey and McHugh JJ at [22].

[18]Dawson J at [19].

[19]QCT Act s 92; especially s 92(2)(a), s 92(3).

[20]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(b).

[21]Crime and Misconduct Commission v Assistant Commissioner Ross Barnett [2010] QCAT 690 at [22]-[23].

[22]QCT Act s 92(1)(b).

[23]QCT Act Schedule 3.

[24]Ibid, s 92(1)(h).

[25]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).

[26]Exhibit 8, p 2 lines 22-26.

[27]QCT Act s 12(3)(a).

[28]Queensland College of Teachers v GHI [2012] QCAT 182 at [9].

[29]Ibid, s 12(1)(b).

[30]QCT Act s 3(1).

[31]Queensland College of Teachers v Brady [2011] QCAT 464 at [55].

[32]QCT Act s 160.

[33]Queensland College of Teachers v Osborne [2013] QCAT 471; Queensland College of Teachers v Segger [2013] QCAT 690; Queensland College of Teachers v Ku [2015] QCAT 130; Queensland College of Teachers v Teacher G [2015] QCAT 158.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Illingworth

  • Shortened Case Name:

    Queensland College of Teachers v Illingworth

  • MNC:

    [2016] QCAT 309

  • Court:

    QCAT

  • Judge(s):

    Presiding Member Howard, Member Kanowski, Member MacDonald

  • Date:

    30 Aug 2016

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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