Queensland College of Teachers v AHC
[2018] QCAT 116
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- Unreported Judgment
- Queensland College of Teachers v AHC[2018] QCAT 116
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Queensland College of Teachers v AHC[2018] QCAT 116
Queensland College of Teachers v AHC[2018] QCAT 116
CITATION: | Queensland College of Teachers v AHC [2018] QCAT 116 |
PARTIES: | Queensland College of Teachers (Applicant) v AHC (Respondent) |
APPLICATION NUMBER: | OCR049-18 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Browne |
DELIVERED ON: | 23 April 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – suspension of teacher – where relevant teacher charged with a serious offence – whether exceptional case – whether suspension should continue Criminal Code Act 1899 (Qld), s 352 Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 50(5), s 53, s 54, s 55 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 Kent v Wilson [2000] VSC 98 Queensland College of Teachers v Teacher S [2013] QCAT 361 R v Kelly (2000) QB 198 |
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).
REPRESENTATIVES: |
|
APPLICANT: | Queensland College of Teachers represented by an in-house Senior Legal Officer |
RESPONDENT: | AHC represented by Holding Redlich |
REASONS FOR DECISION
- [1]AHC has been registered in Queensland as a teacher since 23 January 2006. The Queensland College of Teachers (‘QCT’) suspended AHC’s teacher’s registration on 22 February 2018 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 ‘serious offence’, namely sexual assault under s 352(1)(a) of the Criminal Code (Qld).[1] It is alleged that AHC put his hand over the female complainant’s right shoulder, reached around and grabbed her right breast with his whole hand and ‘gave it a shake’.[2] It is also alleged that the incident took place in front of the complainant’s husband and her children.
- [2]In accordance with s 50(5) of the QCT Act, the QCT has referred the continuation of the suspension to the Queensland Civil and Administrative Tribunal (the ‘Tribunal’) for review. 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.[3]
- [3]Directions were made by the Tribunal inviting AHC to file submissions as to why this is an exceptional case in which the best interests of children will not be harmed if the suspension of the registration were ended.[4] AHC has filed written submissions and supporting material.
- [4]If the Tribunal determines that this matter is not an exceptional case and continues the suspension of AHC’s teacher’s registration, AHC may apply within 28 days of the notice of this decision to QCAT for a review of this decision.[5] AHC may, in applying for a review, produce any additional material to support a submission that his case is an exceptional one.
What is an exceptional case?
- [5]The QCT Act does not define the meaning of an exceptional case. I adopt the approach taken by the Tribunal in Queensland College of Teachers v Teacher S[6] in determining whether a case is an exceptional one. In Teacher S’ case, the Tribunal correctly found that the determination of whether there is an exceptional case is an exercise of discretion having regard to the merits of the individual case concerned.[7] In Teacher S’ case the Tribunal cited other decisions that have described an ‘exceptional case’ as being not ‘regularly, or routinely, or normally encountered’ or ‘unusual, an usual instance or extraordinary‘.[8]
- [6]In this case, AHC says his matter is an exceptional one, and says that the complaint is ‘deliberately untrue, and motivated by retribution for various perceived slights’.[9] AHC says that the complainant did not make a complaint to the Queensland Police Service (‘QPS’) until some nine weeks after the alleged conduct and says that various events over that period ‘inspired the complaint’.[10] AHC provides details of the relevant events occurring during the period in his written submissions.
- [7]AHC also provides a number of character references from colleagues and community members.[11] AHC submits that these references demonstrate, among other things, that he displays all the best qualities of a great educator, is committed to safety, is a valued school leader and is honest, hardworking and trustworthy.[12]
- [8]AHC submits that his case is exceptional because:
- The allegations do not involve a child complainant;
- AHC has been able to document circumstances suggesting the complaint was motivated by retribution for various perceived slights; and
- AHC is a teacher of impeccable character (as demonstrated by the character references).
- [9]In his written submissions, AHC refers to Teacher S’ case, and submits that the case is authority for the Tribunal to examine the circumstances that led to the complaint being made to the QPS, including the delay in making the complaint.[13] AHC says that an extraordinary delay of nine weeks in making a complaint to the QPS is a feature of his case and ‘ought to be viewed similarly in assessing the complainant’s motivations’.[14]
- [10]The QCT submits that the Tribunal would not be satisfied that the matters relied upon by AHC render his case an ‘exceptional case’ and therefore would not end the suspension of AHC’s teacher registration.[15]
- [11]The QCT contend that this matter has features that are distinct from the circumstances in Teacher S’ case, namely that the alleged offence was witnessed by the complainant’s husband and their 13 year old child, and the evidence does not suggest that the delay in reporting the incident was ‘motivated by revenge’.[16]
- [12]The QCT submits that the nine week delay cannot properly be described as extraordinary in sexual assault matters, and the appropriate forum to determine the criminal matter is the Magistrate’s Court.[17] The QCT contends that in relation to the character references provided by AHC, the factors relied upon are not unusual, nor extraordinary.[18]
- [13]The QCT submits that on the evidence before the Tribunal, AHC has not discharged his onus in establishing an ‘exceptional case’.[19] The QCT submits that given AHC was a principal of a school and therefore in a position of greater authority, responsibility and with a greater expectation of leadership, and the seriousness of the alleged offence which was committed in a public place and in the presence of a child who is a student at AHC’s school, AHC has not established an exceptional case.[20]
Is this an exceptional case?
- [14]I am not satisfied this is an exceptional case. I have carefully considered AHC’s written submissions and supporting material. AHC acknowledges the seriousness of the alleged conduct and contends that the complaint is untrue.[21] AHC will have an opportunity to contest the complaint in the criminal courts and that is the appropriate forum for AHC to contest the allegations and the relevant evidence.
- [15]It is non-contentious that the circumstances surrounding the allegations involved a person known to AHC in a personal capacity. AHC refers to the complainant’s husband in his written submissions as ‘his friend’.[22] AHC is the principal of the school where one of the complainant’s children, who is alleged to have witnessed the alleged assault, is also a student.
- [16]The relevant QPS material referred to as the QP9 provided to AHC in relation to the complaint contains reference to an ‘MMS’ sent by AHC to the complainant.[23] In written submissions filed, AHC refers to the MMS as being ‘lewd’ and says that the MMS was a ‘viral meme’ received by him which he forwarded on without any real consideration.[24] AHC says that it was ‘a silly meme’ and that forwarding it on was ‘in keeping with the waggish humour that they often exchanged’.[25] There is also other material relevant to the circumstances concerning the complaint before me including several SMS messages (‘the messages’) that were exchanged between AHC, the complainant’s husband and the complainant.
- [17]I have read the messages exchanged that are included in AHC’s submissions filed. I accept that, after reading the messages, the complainant’s husband and the complainant were on friendly terms and there was communication between AHC and the complainant’s husband after the alleged incident giving rise to the complaint. The QPS material also refers to statements obtained from the complainant, the complainant’s husband and the complainant’s 13 year old child in relation to the alleged complaint. The child witness is reported to have provided to the QPS ‘a concise free recall’ of the incident which was consistent with the statements of the complainant and her husband.[26]
- [18]I find that the complaint is serious and the incident giving rise to the complaint occurred in public and is alleged to have been witnessed by the complainant’s husband and the complainant’s 13 year old child. I accept the QCT’s submission that AHC’s matter can be distinguished from Teacher S’ case and that the delay in reporting the complaint (of nine weeks) cannot be properly described as extraordinary.
- [19]In Teacher S’ case the allegation of sexual assault was made by a former employee and there was a delay of approximately 16 months in reporting the matter to the QPS. In this matter, the complainant was known to AHC in a friendly capacity and her son attended the school where AHC worked as a principal. The incident is alleged to have been witnessed by the complainant’s husband and her child. I am not satisfied based on all of the material before me that the delay of nine weeks is, as submitted by AHC, ‘extraordinary’. I accept the QCT’s submission that a delay in reporting a sexual assault matter can be attributed to a number of reasons such as the complainant experiencing emotional distress and may have difficulty in disclosing the allegation.
- [20]In exercising my discretion in this matter, I have considered the merits of the case including AHC’s references filed. The references refer to, amongst other things, AHC as being a great educator, his dedication and drive to make his school safe, AHC’s honest and trustworthy character and that the allegations are out of character with AHC’s general behaviour and demeanour. I have also considered the seriousness of the allegations and the alleged circumstances of the incident including the QPS material. I find that AHC’s case can be distinguished from Teacher S’ case for the reasons given above, and that this is not a matter where the delay in reporting the matter to the QPS is extraordinary. I am not satisfied that AHC’s case is an exceptional one in which the best interests of children would not be harmed if the suspension were ended. I order that the suspension of AHC’s teacher’s registration continue.
Non-Publication Order
- [21]Pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) 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.[27]
- [22]AHC submits that a non-publication order is appropriate and seeks an order prohibiting publication of any information which may identify AHC, the school at which he is employed, any witnesses, the place of employment of any witness, any children and any referee sought.[28] AHC submits that he intends to contest the allegations in the District Court before a jury in a small regional location and such proceedings should not be prejudiced by sensational reportage. I accept AHC’s submissions in relation to the proposed orders sought under s 66 of the QCAT Act.
- [23]In this case, AHC has not yet been committed for trial and is entitled to have his identity protected. Further, it is not in the interests of justice for any relevant student or child, the relevant complainant or relevant school where AHC is employed to be identified.
- [24]I am satisfied that given the unique features of this matter involving AHC who is a principal of a school in a regional area, identification of AHC’s name may lead to the identification of the complainant and her children. I am also satisfied that the identification of the names of any referee who has provided a statement to the Tribunal in support of AHC’s written submissions may lead to the identification of AHC and the complainant. Therefore, it is not in the interests of justice for information to be published which may identify AHC, any relevant complainant, any relevant child, any person who has provided a reference in support of AHC’s submissions and the relevant school. I make orders pursuant to s 66 of the QCAT Act prohibiting the publication of that information.
Footnotes
[1]Application or referral – disciplinary proceeding filed on 23 February 2018. See Affidavit of David Graham Dupree affirmed on 23 February 2018.
[2]Ibid.
[3]QCT Act, s 53.
[4]Tribunal’s Directions dated 7 March 2018.
[5]QCT Act, s 55(6)(b).
[6][2013] QCAT 361.
[7]Queensland College of Teachers v Teacher S [2013] QCAT 361, [3] citing Commissioner for Children and Young People & Child Guardian v Maher & Anor [2004] QCA 492.
[8]Ibid, [3] citing R v Kelly (2000) QB 198 and Kent v Wilson [2000] VSC 98.
[9]Submissions of the Respondent filed 10 April 2018, [3] and [8].
[10]Ibid, [9]-[10].
[11]Ibid, Annexure 11.
[12]Ibid, [37].
[13]Submissions of the Respondent filed 10 April 2018, [40]-[43].
[14]Ibid, [43].
[15]Applicant’s submissions on section 48 suspension and non-publication order filed on 17 April 2018, [20].
[16]Ibid, [21].
[17]Ibid, [22]-[23].
[18]Ibid, [24].
[19]Ibid, [25].
[20]Ibid, [25], relying on Queensland College of Teachers v CSK [2018] QCAT 70.
[21]Submissions of the Respondent filed 10 April 2018, [8].
[22]Submissions of the Respondent filed 10 April 2018, [12].
[23]Submissions of the Respondent filed 10 April 2018, [33].
[24]Ibid.
[25]Ibid.
[26]Ibid, Annexure 1.
[27]Section 66(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[28]Applicant’s submissions on section 48 suspension and non-publication orders filed on 17 April 2018, [31]; Submissions of the Respondent filed 10 April 2018, [44]-[49].