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Queensland College of Teachers v El-Sayed[2017] QCAT 330

Queensland College of Teachers v El-Sayed[2017] QCAT 330

CITATION:

Queensland College of Teachers v El-Sayed [2017] QCAT 330

PARTIES:

Queensland College of Teachers

(Applicant)

v

Wael Mohamed El-Sayed

(Respondent)

APPLICATION NUMBER:

OCR074-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member A Fitzpatrick

DELIVERED ON:

25 September 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The complainant’s s 93A statements to the Queensland Police Service dated 6 September 2013 and 9 September 2013, being s 93A recordings and transcripts of police record of interviews dated 6 September 2013 and 9 September 2013, are admissible as evidence in Queensland Civil and Administrative Tribunal matter number OCR074-16.
  2. The statements of Cindy Tyson dated 13 September 2013, 1 August 2014 and 16 November 2014 and the statements of Joanne Drake dated 17 September 2013, 4 August 2014 and 17 November 2014 are admissible in their entirety as evidence in Queensland Civil and Administrative Tribunal matter number OCR074-16.
  3. Order number 2 above does not limit the ability of the Respondent Mr El-Sayed, to take objection to parts of the evidence of Cindy Tyson and Joanne Drake and to receive a ruling in relation to his objections in any hearing in matter number OCR074-16.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY– GENERAL PRINCIPLES – GENERALLY – where complainant made statements pursuant to s 93A of the Evidence Act 1977 (Qld) – where complainant since deceased – where complainant suffered from intellectual impairment – where complainant had previously made and withdrawn allegations of abuse – whether admission of the statements “inexpedient in the interests of justice”

Criminal Code Act 1899 (Qld), s 216(2)(a), s 216(3)(c)

Education (Queensland College of Teachers) Act 2005 (Qld), s 80, s 92(1)(h), s 92(2)(a)

Evidence Act 1977 (Qld), s 92(2), s 92(3), s 93A, s 98

Justices Act 1886 (Qld), s 111

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

Attorney-General (Qld) v Harvey [2012] QSC 173

Barker v Linklater [2007] QSC 125

Fulcher v Knott Investments Pty Ltd [2012] QSC 232

GU v TO [2005] QCA 480

R v Adcock [2016] QCA 264

R v D [2003] QCA 151

R v Griffith [1998] 1 Qd R 659

R v GVM (No 2) [2013] QDC 70

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

Application

  1. [1]
    By an application for miscellaneous matters filed 7 November 2016, the Queensland College of Teachers (QCT) has sought a determination from the Tribunal as to the admissibility of certain documents filed as part of the referral by the QCT for a finding that the respondent, Mr El-Sayed, is ‘not suitable to teach’.[1]
  2. [2]
    Specifically, the application by the QCT requests that the Tribunal determine the admissibility of:
    1. (a)
      the deceased complainant’s statements to the Queensland Police Service, dated 6 September 2013 and 9 September 2013. These statements are referred to as her s 93A Statements, being a reference to s 93A Evidence Act 1977 (Qld).
    2. (b)
      statements of Cindy Tyson dated 13 September 2013, 1 August 2014 and 16 November 2014; and
    3. (c)
      statements of Joanne Drake dated 17 September 2013,
      4 August 2014 and 17 November 2014.

Background

  1. [3]
    On 26 May 2014, the QCT was informed by the Queensland Police Service that Mr El-Sayed had been charged with three counts of indecent dealing with a person with an impairment of the mind as a carer under s 216(2)(a) and s 216(3)(c) of the Criminal Code Act 1899 (Qld).
  2. [4]
    Mr El-Sayed is a registered teacher who was employed at a special education school. The criminal charges arise out of his secondary employment as a carer/support worker through an organisation called ‘Real Community Services’, who were contracted to provide carers/support workers to patients at The Park for Mental Health at Wacol in Queensland. The charges do not arise directly out of Mr El-Sayed’s employment as a teacher.
  3. [5]
    On 26 May 2014, Mr El-Sayed’s registration was suspended. The suspension has been continued by order of this Tribunal made on 11 July 2014.[2]
  4. [6]
    On 16 May 2016, the QCT was informed by the Office of the Director of Public Prosecutions (the ODPP), pursuant to s 80 of the Education (Queensland College of Teachers) Act 2005 (Qld), that criminal charges against Mr El-Sayed had been discontinued by way of a nolle prosequi, in the Brisbane District Court on 28 April 2016.
  5. [7]
    Pursuant to notices to produce issued by this Tribunal on behalf of both the QCT and Mr El-Sayed, documents relevant to this matter have been provided by:
    1. (a)
      the Queensland Commissioner of Police;
    2. (b)
      the ODPP;
    3. (c)
      House With No Steps (the disability support service provider); and
    4. (d)
      The Department of Communities, Child Safety and Disability Services (Child Safety).
  6. [8]
    By letter dated 17 October 2016 from the ODPP to this Tribunal, the ODPP advised that:
    1. (a)
      The complainant’s s 93A statements were not tendered at committal proceedings against Mr El Sayed on 5 February 2015;
    2. (b)
      before the complainant could give viva voca evidence and be cross-examined the complainant passed away;
    3. (c)
      the Crown could not rely on s 111 Justices Act 1886 (Qld), s 93A or s 93B of the Evidence Act 1977 (Qld) to have the s 93A statement admitted in lieu of the complainant giving verbal evidence. Without her evidence, the Crown could not prove the offences alleged;
    4. (d)
      as a result the criminal proceedings against Mr El-Sayed were discontinued by way of a nolle prosequi.
  7. [9]
    The complainant suffered from an intellectual impairment, epilepsy and various mental health conditions.
  8. [10]
    At the time of the alleged indecent dealing, the complainant was 24 years of age. She lived at The Park for Mental Health at Wacol. She was held in a locked facility on a forensic procedure order. She required 24 hour care and could not reside on her own.
  9. [11]
    On 5 September 2013, Mr El-Sayed commenced a night shift as a carer for the complainant.
  10. [12]
    It is alleged that on that evening Mr El-Sayed dealt indecently with the complainant when he removed her shirt, fondled her breasts and licked her on the bottom.
  11. [13]
    The following morning, the complainant made a complaint to Ms Joanne Drake – youth support worker for the complainant, and Ms Cindy Tyson – primary carer for the complainant.
  12. [14]
    The matter was then referred to the Queensland Police Service.
  13. [15]
    Statements were taken from the complainant, Ms Drake and Ms Tyson.
  14. [16]
    The complainant’s clothing was seized by the police for the purpose of forensic testing.
  15. [17]
    A statement of Patricia Anne Finch, scientist in the DNA analysis unit of Queensland Health Forensic and Scientific Services is included in the material produced by the Queensland Police Service.
  16. [18]
    It is not disputed by Mr El-Sayed that DNA consistent with Mr El-Sayed’s saliva was found on the inside back of the complainant’s underpants.

Material

  1. [19]
    I have referred to the following material:
    1. (a)
      submissions of the QCT filed 7 November 2016;
    2. (b)
      submissions of Mr El-Sayed filed 28 November 2016;
    3. (c)
      further submissions of Mr El-Sayed filed 20 April 2017;
    4. (d)
      further submissions of the QCT filed 15 May 2017; and
    5. (e)
      documents the subject of the five notices to produce referred to earlier.

QCT’s submissions

  1. [20]
    The QCT submits that this Tribunal should determine that the relevant statements are admissible in disciplinary proceedings before the Tribunal in accordance with:
    1. (a)
      s 28(3) of the QCAT Act; or 
    2. (b)
      pursuant to s 92(2)(a) of the Evidence Act 1977 (Qld); or
    3. (c)
      in the case of the statements of Ms Tyson and Ms Drake that they be admitted in accordance with common law principles as evidence of a complaint and not as evidence of the proof of the facts asserted, but merely as evidence that the complainant’s disclosure was made.
  2. [21]
    I accept the QCT’s submissions that both sections of those Acts provide the Tribunal with a basis to admit the complainant’s s 93A statements in the disciplinary proceedings against Mr El-Sayed. Further, the statements of Ms Tyson and Ms Drake are admissible in accordance with common law principles on the basis put by the QCT.
  3. [22]
    Mr El-Sayed concedes that the statements are, as a matter of law, admissible in these disciplinary proceedings. However, he submits that the Tribunal should exercise its discretion not to do so.
  4. [23]
    By s 28(3)(c) of the QCAT Act, the Tribunal may inform itself in anyway it considers appropriate. By s 28 (3)(e), the Tribunal must ensure, so far as is practicable, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.
  5. [24]
    By s 28(3)(b) the Tribunal is not bound by the rules of evidence, or any practices and procedures applying to courts of record, other than to the extent the Tribunal adopts them. I consider that the Evidence Act 1977 (Qld) sets out procedures which should be adopted by the Tribunal in this case to ensure fairness to all parties and consistency with the procedures of other courts of record.
  6. [25]
    I am satisfied that the requirements of s 92 of the Evidence Act 1977 (Qld) are met, in that:
    1. (a)
      s 92 applies to a “civil or other proceeding” such as the current disciplinary proceeding;
    2. (b)
      the s 93A statements are contained in a document as defined in the Act;
    3. (c)
      as the complainant, the deceased had “personal knowledge” of the alleged sexual assault;
    4. (d)
      the complainant is dead. In this regard I rely upon advice from the Office of the Director of Public Prosecution (ODPP) in its letter dated 17 October, 2016. Neither party disputes this fact;
    5. (e)
      the statements were “made” by a person, having been electronically recorded in an interview with the Queensland Police Service;[3] and
    6. (f)
      the statements were recorded with the complainant’s knowledge.
  7. [26]
    On this basis I conclude that I am able to admit the statements as evidence, subject to the following analysis.

Mr El-Sayed’s submissions

  1. [27]
    Mr El-Sayed submits that in relation to the complainant’s s 93A statements, the recordings or transcripts of the police interviews with the complainant should not be admitted, because under s 98 of the Evidence Act, it is ‘…inexpedient in the interests of justice that the statement should be admitted’.
  2. [28]
    It is submitted that this Tribunal has a discretion under s 98 of the Evidence Act and that this is an occasion when the statement is so ‘patently unreliable that it is appropriate to exercise the discretion given under the Act to exclude it from being given as evidence at trial’.[4]
  3. [29]
    Mr El-Sayed submits that the documents obtained under the notices to produce raise a number of issues, which demonstrate that the complainant’s statements are patently unreliable. In particular:
    1. (a)
      the note of March 2007 in the Child Protection case management file that the complainant said to Link In (a care provider) staff ‘I’m going to make it look like you’re lying and get you fired’;
    2. (b)
      the Positive Futures Positive Behaviour Support Plan, dated
      30 April 2014, noting departmental records report that ‘while in the care of relatives during this period unsubstantiated allegations of a sexual nature were made’.;
    3. (c)
      the initial assessment report in the Child Protection case management file, closed 3 September 2009, identifying the following safety risk in respect of the complainant: ‘There is an ongoing vulnerability to repeated sexual assaults/rape as well as a risk of further false disclosures of sexual assault.’;
    4. (d)
      the list of presentations to the Royal Children’s Hospital, Caboolture area office file, closed 1 March 2004, noting ‘History given included [the Complainant] sexually assaulted by paternal uncle in 2000 – went to court not convicted’;
    5. (e)
      the Family Planning Queensland consultation report, dated 30 January 2006, Caboolture Child Protection file opened 24 May 2005:

“September 2004 – Department families had concerns regarding [the Complainant’s carer relative] and his relationship with [the Complainant]. He had taken [the Complainant] into a doctor as she had thrush. The ointment prescribed was applied [the carer relative]. Also there were allegations that he had taken photographs of her breasts. Apparently this was to see if the cream used for her stretchmarks was working. These allegations were not substantiated.”

  1. (f)
    the Psychiatric report on the complainant’s family, dated
    20 April 2004, Caboolture area office report closed 31 July 2004:

“Recently there has been a complication when [the Complainant] accused her father of physical abuse. Apparently this related to her saying that the father punched her in the head. This was denied and the family indicated that it was actually related to self-harm by [the complainant]. This was investigated and no substance was found to the allegations. However it put a strain on the relationship and the couple separated for several days because Toni, at one stage, thought there was truth to the allegation.”

  1. (g)
    statement of Januanio Cardoso, dated 3 August 2001:

“[the complainant] replied that she’s worried her uncle would try to rape her again and the family friend. Grandmother replied none believed that the story, [the complainant’s] parents especially. They stated that [the complainant] has made up the story.”

“No charges were laid against either of the man” [sic]

  1. (h)
    case notes summary, dated 28 September 2005 – email received from Caboolture JAB on 14 June 2005 ‘… I got out of her that he didn’t in fact try and sexually abuse her and didn’t in fact even touch her…’;
  2. (i)
    Disability Services Queensland child functional assessment, Positive Futures positive behaviour support plan, dated 30 April 2014:

“[the complainant] also has made statements of incidents that have happened to her, only to retract the statements later. For example, [the complainant] made allegations that her brother raped her. She later retracted this and has not shown regret.”

  1. (j)
    Child Protection case management assessment, dated 1 June 2007, Child Protection case management file closed 3 September 2009, “[the complainant] also has a tendency to report incidences that happened to her and retract statements later.”
  2. (k)
    similar statement, Adult Lifestyle Support Program 2007-08 documentation, prepared by Donna Ball dated 21 January 2008;
  3. (l)
    Family Planning Queensland consultation report, dated 30 January 2006, Caboolture Child Protection file opened 24 May 2005:

“It was also reported at the assessment that [the complainant] would often disclose information to her caseworker at the Department of Families or others (for example school personnel etc) of incidences that had happened to her only to retract the statements later. This made it difficult for all concerned as they attempt to support [the complainant] appropriately.”

  1. (m)
    email Robyn Bridges, Psychologist, Queensland Government Child Safety Behaviour Support Team 4 October, ‘[the complainant] did make a false disclosure of sexual assault in relation to her brother. She later retracted her accusation.’
  2. (n)
    case note summary, Lynne Stay, Caboolture CSSC:

“Lynne Stay explained that [the complainant] can communicate when she wants to for example she told the mental health workers at Logan adolescent unit that she was raped by her brother and convinced them that this had occurred. When she told them that she had lied they did not believe her. She also has a history of making accusations about sexual intimidation from others that is believed to have started when she was about 13 years old.”

“[the complainant] told Lynne that her brother did not rape her.”

“[the complainant] does not have the capacity to say ‘sorry’ to her brother who she made false allegations against causing him significant distress.”

  1. (o)
    The Legacy – case notes summary, dated 5 January 2005:

“I asked [the complainant] to answer yes or no. Had she been touched by [her carer relative]. [the complainant] responded no… [the complainant] is dangerous for both parties concerned as she tells lies and difficult to tell when she is telling the truth or lies.”

  1. (p)
    The Legacy investigation and assessment summary dated 8 December 2006:

“[the complainant] stated she made up the allegations about her brother […] that he sexually assaulted her because she was angry at him over a fight between her and her mother and Daniel intervened”

  1. (q)
    reports of Dr Tran, Consultant Psychiatrist, dated 22 July 2014, Dr VB Mantzioris, dated 1 February 2013, Dr Ken Arthur, Specialist Physician, Psychiatry, dated 26 October 2011, Cecelia Ann Bendall, psychological assessment and report dated 7 May 2010, and Prof Gregory O'Brien, dated 25 January 2012 to the effect that the complainant was permanently unfit for trial because of her enduring incapacities;
  2. (r)
    assessment report, dated 23 November 2016, Caboolture Child Protection file opened 24 May 2005: ‘The complainant was “functioning at a level of a 10-11 year old”’.
  1. [30]
    Mr El-Sayed describes the complainant’s conduct, in the lead up to the criminal trial against him. He said that as part of the special measures for taking of her evidence, the complainant was in a separate room. She was asked questions for the purpose of recording her answers to play to the jury when the trial started, so that she did not have to attend the trial. The complainant did not answer any questions and the matter was adjourned to obtain a psychiatric report.That report has not been produced as part of the Notices to Produce issued in this matter. Mr El-Sayed suggests the report was not prepared at the time of the complainant’s death.
  2. [31]
    Mr El-Sayed submits that if the s 93A statement of the complainant is not admitted, the statements of Ms Tyson and Ms Drake should also not be admitted. It is said that where the complainant’s statement is excluded, those statements are inexpedient in the interests of justice and create a significant and unfair prejudice against Mr El-Sayed. Mr El-Sayed relies on a decision of R v GVM (No 2) [2013] QDC 70, where Kingham DCJ said:

“If the only evidence of the offence was the statement by the mother to the police recording what her daughter told her, I would not have allowed the matter to proceed further. The statement was not based on notes made by the mother contemporaneously.”

Further submissions of the QCT

  1. [32]
    The QCT expresses concern about the accuracy and recording of reports of sexual assault by the complainant throughout the material before the Tribunal, which has been relied upon by Mr El-Sayed.
  2. [33]
    It submits that in relation to the matters referred to by Mr El-Sayed, the allegations against the complainant’s carer relative and father were in fact retracted; and that it is not the case that all of the allegations referred to by Mr El-Sayed were legitimately investigated and found to be false.
  3. [34]
    It is also said that the material does not disclose detail of why convictions were not recorded in some cases, such as the alleged assault by the complainant’s uncle.
  4. [35]
    The QCT has prepared a chronology of all allegations of physical and sexual assault in relation to the complainant and the outcome of each allegation.
  5. [36]
    The chronology reveals a charge of sexual assault against the complainant’s uncle when she was 11 years of age; a substantiated allegation of physical harm by her father over the Christmas period when she was 15 years of age; a charge against a 19 year old of unlawful carnal knowledge to which he pleaded guilty when she was 15 years of age; and the allegations against Mr El-Sayed when she was 23 years of age.
  6. [37]
    During the complainant’s young years from 9 to 15 years of age there are a number of unsubstantiated allegations of physical and sexual harm.
  7. [38]
    The QCT submits that the complainant did not retract allegations of events which were found to have actually occurred, including the rape in 2005. I accept that is the case.
  8. [39]
    I accept the submission of the QCT that despite a history of having made 2 false complaints of sexual assault which were retracted I cannot say that the complainant’s complaint of sexual assault on 5 September 2013 is patently unreliable. She has made reports in the past of sexual assault, which were later proven to be true. She has demonstrated that she has been capable in the past of making a genuine complaint.
  9. [40]
    Apart from a note in the Child Safety file on 10 August 2007 that the complainant threatened a staff member by ‘saying she touched her to get her fired’ there are no allegations of sexual or physical harm made by the complainant from the age of 16 years to 23 years of age. Accordingly, she has no recent history of making unsubstantiated allegations.
  10. [41]
    The QCT submits that there are a number of other factors which support a finding that the complainant’s s 93A statements are not patently unreliable, including:
    1. (a)
      her behaviour after the August 2005 rape is not dissimilar to her behaviour after the alleged sexual assault by Mr El-Sayed. I am not satisfied that there is sufficient evidence to reach this conclusion;
    2. (b)
      the complainant’s behaviour after the alleged assault. I accept that reports of her being upset, losing appetite, talking about the matter to her mother and carers and requesting that she not have a male carer are consistent with her allegations. The reports are set out in the records of the House with No Steps.
    3. (c)
      the complainant’s contemporaneous complaint of sexual assault on 6 September, 2013. I agree that this factor is compelling.

The complainant disclosed the alleged sexual assault by Mr El-Sayed to her carers when she woke up on the morning of 6 September 2013 and that contemporaneous notes of the conversation were taken.

An informal interview took place later that day and then on 9 September 2013 a formal s 93A interview. The transcript of the application before Magistrate McLaughlin to cross-examine the complainant reveals a comment by the Magistrate of the complainant’s evidence as follows:[5]

“I’ve listened carefully to the tape – or that part of the tape where those disclosures are made. My observations were that whilst the complainant came across as childlike in her mentality, she was quite able to tell a fairly concise story, not only about this…

Her account is short, clear and quite consistent with the fresh complaint witnesses, apart from the order in which things happened, which again is of little consequences given the nature of the complainant’s disability…”

The QCT also submits that Ms Drake and Ms Tyson were both of the view that the complainant was telling the truth about the current allegation. They recorded having witnessed the complainant to be anxious on the morning and day after the alleged sexual assault, and believed it to indicate that she was truthful in reporting her complaint to them and the Queensland Police Service. Likewise, the police officers who were involved in the matter and who interviewed the complainant expressed their views that she appeared to be truthful in her account of the allegations.

I rely on these matters only insofar as they go to the question of patent unreliability of the statements.

I have read the transcripts of the statements made on 6 and 9 September 2013. I consider that they are clearly expressed, consistent in relation to key details and unequivocal in relation to the allegations made. On their face the statements do not appear to be patently unreliable.

  1. (d)
    Importantly, the QCT refers to the evidence of Patricia Finch, Scientist, confirming saliva and DNA belonging to Mr El-Sayed was located in the complainant’s underpants.

Mr El-Sayed in his record of interview with police says that it was part of his duties on the night in question to fold the complainant’s laundry. He says that he had a cold and sneezed and that is the explanation as to how his saliva and DNA came to be in the crotch of the underpants.

The statement from Ms Drake was that no laundry had been folded out of the basket of unfolded laundry in the lounge room on the evening of 5 September 2013.

The scientific evidence has not been sufficiently addressed by Mr El-Sayed in his submissions to cause me to find it not corroborative of the complainant’s account.

I accept the submission of the QCT that the scientific evidence of saliva and DNA from Mr El-Sayed being found in the crotch of the complainant’s underpants, is consistent with the mechanism of the complainant’s complaint of sexual assault by Mr El-Sayed. More specifically, it is consistent with the complainant having been licked by Mr El-Sayed between the cheeks of her bottom.

  1. [42]
    In relation to Mr El-Sayed’s submission that the complainant would not answer questions in the pre-trial process, supported by a statutory declaration made 20 April, 2017, the QCT says that Mr El-Sayed’s statutory declaration dated 20 April 2017 is mistaken and highly improbably. The QCT cites the letter from the ODPP, dated 17 October 2016, referred to earlier. In particular, I note that the ODPP advises: “…before the complainant could give viva voca evidence in her section 21AK hearing, the complainant passed away.” Based on the letter from the ODPP I do not accept the submission of Mr El-Sayed.
  2. [43]
    The QCT refers to the medical evidence relied upon by Mr El-Sayed in relation to the complainant’s fitness for trial or to plead. It says the medical reports were prepared in the context of criminal charges against her of common assault, assault occasioning bodily harm and wilful damage. The reports were not in relation to her allegation of sexual assault or whether she was capable of reporting a sexual assault. There is no expert evidence as to the state of the complainant’s level of intelligence or reliability, or propensity to lie as at the date of her complaints.[6]
  3. [44]
    I accept the submissions of the QCT that the medical reports are directed to factors relevant to whether a person has the intellectual capacity to understand proceedings and to make an adequate defence. In addressing, those matters the medical practitioners cannot be taken to have addressed the question of whether the complainant was capable of making a reliable statement in reporting a sexual assault. I do not think the medical reports support Mr El-Sayed’s submission that the complainant’s statements are patently unreliable.
  4. [45]
    The QCT submits that the critical issue here is whether the current allegations, are credible and reliable. It submits that in light of all of the available evidence, this is not a matter where the complainant’s s 93A statements are so patently unreliable that the discretion to reject a statement ought to be exercised.
  5. [46]
    The QCT submits that a court has not determined the complainant’s evidence and a substantial case remains that warrants further consideration by the Tribunal.
  6. [47]
    I accept the QCT’s submissions. I do not think the complainant’s s 93A statements are so patently unreliable as to exclude their admissibility

Statements of Ms Drake and Ms Tyson

  1. [48]
    In relation to the statements of Ms Drake and Ms Tyson, I accept the submissions by the QCT that the decision of R v GVM (No 2) is distinguishable. The statements of Ms Drake and Ms Tyson were based on contemporaneous notes that they took at the time and immediately after the complainant’s disclosure to them of the alleged sexual assault.
  2. [49]
    The QCT submits that it seeks to rely upon these statements as evidence of the complaint and not as to the truth of the complaint. Upon this basis, I agree that they are admissible in this matter. Ms Drake and Ms Tyson will no doubt be available to give evidence and to be cross-examined.  Accepting that their statements are admissible does not limit the right of Mr El-Sayed to make proper objections to their evidence and to seek a ruling if that is necessary in the course of any hearing.

Conclusion

  1. [50]
    I accept the submissions of the QCT in relation to admissibility of the statements of the complainant, Ms Drake and Ms Tyson. I order that they be treated as admissible in this matter.
  2. [51]
    I rely upon s 28 of the QCAT Act. In particular, the Tribunal’s obligation to ensure as far as practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts.
  3. [52]
    I also rely upon s 92(2)(a) and s 92(3) of the Evidence Act as a basis upon which to admit the statements.
  4. [53]
    Taking into account all of the matters before me, I find that the complainant’s statements should be admitted into evidence and that there is no inexpediency in the interests of justice as contemplated by s 98 of the Evidence Act, that the statements should not be admitted.

Confidentiality

  1. [54]
    On 21 June 2016 a non-publication order was made in this proceeding over “the names, addresses and schools of the children referred to”.[7] Neither party have made any submissions as to whether any further non-publication order pursuant to s 66 of the QCAT Act is appropriate. Section 6 of the Criminal Law (Sexual Offences) Act 1978 (Qld) prohibits any report of the examination of witnesses or a trial from revealing the identity of, or a particular likely to identify, a complainant in relation to a sexual offence, and s 10 prohibits more generally identifying the complainant in relation to a sexual offence.
  2. [55]
    I am satisfied that it is not in the interest of justice to identify the complainant in these reasons, nor is it in the interest of justice to identify the complainant’s family.

Orders

  1. [56]
    The complainant’s s 93A statements to the Queensland Police Service dated 6 September 2013 and 9 September 2013 being s 93A recordings and transcripts of police record of interviews dated 6 September 2013 and 9 September 2013, are admissible as evidence in Queensland Civil and Administrative Tribunal matter number OCR074-16.
  2. [57]
    The statements of Cindy Tyson dated 13 September 2013, 1 August 2014 and 16 November 2014 and the statements of Joanne Drake dated 17 September 2013, 4 August 2014 and 17 November 2014 are admissible in their entirety as evidence in Queensland Civil and Administrative Tribunal matter number OCR074-16.
  3. [58]
    Order number 2 above does not limit the ability of the Respondent Mr El-Sayed, to take objection to parts of the evidence of Cindy Tyson and Joanne Drake and to receive a ruling in relation to his objections in any hearing in  matter number OCR074-16.

Footnotes

[1] Education (Queensland College of Teachers) Act 2005 (QCT Act) (Qld), s 92(1)(h), s 92(2)(a).

[2] Queensland College of Teachers v El-Sayed [2014] QCAT 348.

[3] R v Griffith [1998] 1 Qd R 659, 660-661.

[4] R v Adcock [2016] QCA 264, [69] (McMurdo P).

[5] Transcript of Application for Directions, dated 8 January 2015, p 25.

[6] R v D [2003] QCA 151.

[7] Tribunal Directions dated 21 June 2016.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Wael Mohamed El-Sayed

  • Shortened Case Name:

    Queensland College of Teachers v El-Sayed

  • MNC:

    [2017] QCAT 330

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    25 Sep 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Attorney-General v Harvey [2012] QSC 173
1 citation
Jump To
Cite 1 - [2012] QSC 173
Barker v Linklater [2007] QSC 125
1 citation
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Cite 1 - [2007] QSC 125
Fulcher v Knott Investments Pty Ltd [2012] QSC 232
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Cite 1 - [2012] QSC 232
GU v TO [2005] QCA 480
1 citation
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Cite 1 - [2005] QCA 480
Queensland College of Teachers v El-Sayed [2014] QCAT 348
1 citation
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Cite 1 - [2014] QCAT 348
R v Adcock[2017] 2 Qd R 469; [2016] QCA 264
2 citations
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Cite 1 - [2016] QCA 264
Cite 2 - [2016] QCA 264
R v D [2003] QCA 151
2 citations
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Cite 1 - [2003] QCA 151
Cite 2 - [2003] QCA 151
R v G[1998] 1 Qd R 659; [1997] QCA 115
2 citations
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Cite 1 - [1998] 1 Qd R 659
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R v GVM (No. 2) [2013] QDC 70
2 citations
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Cite 2 - [2013] QDC 70

Cases Citing

Case NameFull CitationFrequency
Queensland College of Teachers v El-Sayed [2018] QCAT 3201 citation
1

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