Queensland College of Teachers v Teacher FSM
[2017] QCAT 480
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- Unreported Judgment
- Queensland College of Teachers v Teacher FSM[2017] QCAT 480
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Queensland College of Teachers v Teacher FSM[2017] QCAT 480
Queensland College of Teachers v Teacher FSM[2017] QCAT 480
CITATION: | Queensland College of Teachers v Teacher FSM [2017] QCAT 480 |
PARTIES: | Queensland College of Teachers (Applicant) |
| v |
| Teacher FSM (Respondent) |
APPLICATION NUMBER: | OCR156-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Browne |
DELIVERED ON: | 12 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where charged with serious offence – whether exceptional case - whether suspension should continue Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 50, s 53, s 55 Criminal Law (Sexual Offences) Act 1978 (Qld), s 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Kent v Wilson [2000] VSC 98 Queensland College of Teachers v MJS [2017] QCAT 17 R v Kelly (2000) QV 198 R v K [1998] QCA 161 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]Teacher FSM has been registered in Queensland as a teacher since 1980. The Queensland College of Teachers (‘QCT’) suspended Teacher FSM’s teachers registration on 21 July 2017 pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’) on the grounds that he had been charged with a number of criminal offences, namely indecent treatment of a child under 16, indecent assault and attempted rape.[1]
- [2]The Queensland Police Service (‘QPS’) notice of the offences received by the QCT did not specify the number of charges. The QPS notification provided to the QCT also advised that on various occasions between 3 July 1989 and 30 December 1994, Teacher FSM allegedly sexually assaulted the complainant.[2]
- [3]In accordance with s 50(5) of the QCT Act, the QCT referred the continuation of the suspension to the Tribunal for review.[3] The Tribunal must decide whether to continue the suspension or whether it is an exceptional case in which the best interests of children will not be harmed if the suspension were ended.[4]
- [4]Directions were made by the Tribunal inviting Teacher FSM to file submissions as to why the matter is an exceptional case in which the best interests of children would not be harmed if the suspension of the registration or permission to teach were ended.[5]
- [5]Teacher FSM submits that his case is an exceptional one. The QCT opposes the lifting of the suspension.
Is this an exceptional case in which the best interests of children would not be harmed if the suspension was lifted?
- [6]The term ‘exceptional case’ is not defined in the QCT Act. The term has been considered in a number of authorities involving different statutory concepts.[6]
- [7]In Queensland College of Teachers v MJS,[7] the Tribunal identified certain principles which emerged from those cases that considered whether an ‘exceptional case’ exists:
- An exceptional case is one that is not regularly, routinely or normally encountered;
- The term should be considered in the context of the legislation which contains it, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect;
- Whether a case is exceptional involves the exercise of discretion and a consideration of the individual circumstances of the case; and
- A number of facts, in combination, may constitute an exceptional case.
- [8]The Tribunal has also determined that whether an exceptional case exists involves an exercise of discretion, having regard to the merits of the individual case concerned. In Queensland College of Teachers v Teacher S,[8] the Tribunal said (footnotes emitted):
The term, ‘exceptional case’ is not defined in the Act. There are no generally applicable rules about what constitutes an exceptional case. An exceptional case has been variously described as one that is not ‘regularly, or routinely, or normally encountered’ or ‘unusual, an unusual instance or extraordinary’. Determining whether there is an exceptional case is an exercise of discretion, having regard to the merits of the individual case concerned.
- [9]In this case, Teacher FSM has been charged with a number of ‘serious offences’ (as defined by Schedule 3 of the Act) under the Queensland Criminal Code, namely[9]:
- Indecent treatment of a child under 16 (expose) – between 3 July 1989 and 1 November 1992;
- Indecent treatment of children under 16 – between 31 December 1989 and 11 December 1991;
- Indecent treatment of children under 16 – between 27 June 1991 and 1 July 1991;
- Three counts of indecent assault – between 1 August 1993 and 1 November 1993; and
- Attempted rape – between 30 March 1994 and 31 December 1994.
- [10]All of the offences concern one female complainant who was aged between 12 and 17 years of age at the time. The complainant is now 40 years old. The allegations are not related to Teacher FSM’s employment as a teacher.
- [11]Teacher FSM denies the allegations and says that he is ‘disgusted by the allegations, and he is sickened that anyone might think him capable of such acts’.[10]
- [12]Teacher FSM relies on affidavit material in support of his submission that the allegations are ‘false and malicious construction of events which simply did not happen’.[11] Teacher FSM also relies on character references that he says attest to his good character, integrity and professionalism in dealing with other teachers and students.
- [13]Teacher FSM submits that his case is an exceptional one and identifies the following features of his case:
- The allegations are not made by a current or former student;
- The allegations arise in a context that is suggestive of malice;
- The allegations are incongruous with Teacher FSM’s demonstrated impeccable character;
- On the face of the QP9 (police documents) it seems clear that the allegations are uncorroborated;
- There was an inordinate delay in making the complaint to police and throughout the delay the complainant willingly associated with Teacher FSM and his family;
- The allegations are framed in a peculiar way. In particular the allegations outlined in the QP9 are ‘verbose and intricate narratives’; and
- The way the allegations are framed prejudices Teacher FSM’s ability to make a more forceful ‘exceptional case’ submission.
- [14]Teacher FSM also submits that the complainant is unable to state the date and time of the allegations and the complainant suggests discrete allegations occurred within a window of time of 1 year and 11 months, 9 months, or 3 months. Teacher FSM also submits that in the circumstances where the complainant is able to intricately particularise the allegations, it is peculiar that the complainant was not able to particularise dates with the same level of precision. Teacher FSM contends that this is another aspect of the case that ‘makes it very much open to scrutiny’.[12]
- [15]The QCT submits that the Tribunal should not be satisfied that the matters relied upon by Teacher FSM render this matter an ‘exceptional case’ and therefore would not end the suspension of his teacher registration.
- [16]The QCT relies on Justice Lee’s observations in R v K[13] and submits that R v K’s case can be applied in the present matter. The QCT say that in the context of criminal proceedings concerning alleged historical sexual offending, the delay between the commission of the last alleged offence and the complaint to the police, the inability of the complainant to recall the precise dates for alleged offending conduct that occurred many years ago and that the allegations are based on uncorroborated evidence, are unremarkable. The QCT says that these features of themselves do not diminish the credibility and reliability of the complainant.
- [17]The QCT also submits that the appropriate forum for the determination of the criminal matters including the assessment of the credibility and reliability of the complainant and her witnesses and other witnesses will be in the criminal courts, in particular by trail in the District Court before a properly instructed jury.
- [18]I accept the QCT’s submission that the observations made by Justice Lee in R v K can be applied in the present matter. In R v K, Justice Lee, in considering the ground of appeal in a criminal proceeding that raised a lack of particularity in the evidence concerning two of the allegations, observed that the surrounding circumstances, whilst not fixed accurately in time, were precisely detailed.[14] Justice Lee said:[15]
Before moving to the next issue, it should be noted that a very large percentage of these types of cases i.e. where a complainant alleges unlawful sexual acts many years after the acts in question occur, are stamped with the problem of lack of particularity. It is very common for the complainant’s evidence to be quite vague, and given the passage of time in some cases, memory loss is hardly surprising. To require precise particulars of specific dates or occasions would often result in offences of this type going unprosecuted.
- [19]I also accept the QCT’s submission that the features of this matter identified by Teacher FSM in his submissions, including but not limited to the complainant’s delay in making the complaint to police and the way the allegations are framed are unremarkable and do not diminish the credibility and reliability of the complainant.
- [20]I also accept the QCT’s submission that the appropriate forum for the testing of evidence and the determination of the allegations including an assessment of the credibility and reliability of the complainant and other witnesses is in the criminal courts.
- [21]I have considered all of the material prepared by Teacher FSM including his impressive character references. I am not satisfied however that this is an exceptional case and that the suspension should end. Consistent with earlier decisions of this Tribunal, the relevant provision, namely s 48 of the QCT Act, is protective in nature and is aimed at ensuring that children are protected by removing a person who may be unsuitable to teach from their position where they may be in a position to cause harm to children.[16]
- [22]As observed by the Tribunal in Queensland College of Teachers v MJS[17] the QCT Act defines harm to a child as any ‘detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing’.[18] In MJS’s case the Tribunal also said that the QCT Act creates a rebuttable presumption that the existence of a ‘serious offence’ charge creates an unacceptable risk of harm to children. The relevant teacher (in this case Teacher FSM) bears the onus of rebutting this presumption and establishing that exceptional circumstances exist ‘whereby the best interests of children would not be harmed if the suspension were lifted’.[19]
- [23]Teacher FSM identifies features of his matter that he says makes this case an exceptional one. Teacher FSM has referred to the allegations in particular the delay in making the complaint to police, the lack of particulars in relation to the allegations; and relies on affidavit material and character references. I have accepted the QCT’s submission that the features identified by Teacher FSM concerning the allegations and the lack of particulars of the allegation do not make this case unremarkable and that the appropriate forum for testing the complainant’s evidence and the evidence of other witnesses is in the criminal courts.
- [24]I am not satisfied that Teacher FSM has discharged his onus in establishing an ‘exceptional case’. I find that this is not an exceptional case and that the suspension of Teacher FSM’s teachers registration should continue.
Non-Publication order
- [25]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Tribunal can make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal to be identified. The Tribunal may do so on the application of a party or on its own initiative.[20]
- [26]Both parties agree that a non-publication order should be made in this matter.
- [27]I am satisfied that it would be contrary to the public interest for information to be published which would identify Teacher FSM’s name including the names of other family members and witnesses who have prepared statements or are otherwise identified in the material. The offences with which Teacher FSM has been charged do not relate to a student but have arisen within a family relationship. It is therefore appropriate not to publish the identity of Teacher FSM because the publication of Teacher FSM’s name could lead to the identification of the complainant’s name.
- [28]I order pursuant to s 66 of the QCAT Act that, other than to the parties to this proceeding, and until further order of the Tribunal, publication of any information which may identify Teacher FSM or the names of any other person who may be identified in the material filed, and who is not a party to the proceeding, is prohibited.
Footnotes
[1] Applicant’s submissions on s 48 suspension and non-publication order filed on 7 September 2017.
[2] Ibid.
[3] In accordance with s 50 of the QCT Act.
[4] Section 53(1) and (3) of the QCT Act.
[5] Directions dated 28 July 2017.
[6] Queensland College of Teachers v MJS [2017] QCAT 17 and see Kent v Wilson [2000] VSC 98 at [22] and [29]; R v Kelly (2000) QV 198; Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492; Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 at [17]; Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [28]-[36].
[7] [2017] QCAT 17, [5].
[8] [2013] QCAT 361.
[9] Application or referral – disciplinary proceeding filed on 21 July 2017.
[10] Submission of the respondent filed on 31 August 2017.
[11] Ibid.
[12] Submission of the respondent filed on 31 August 2017.
[13] [1998] QCA 161.
[14] Ibid, p 15.
[15] Ibid.
[16] Queensland College of Teachers v MJS [2017] QCAT 17, [9].
[17] [2017] QCAT 17.
[18] Ibid, [9].
[19] Ibid, [10].
[20] Section 66(3) of the QCAT Act.