Queensland College of Teachers v El-Sayed
[2018] QCAT 320
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- Queensland College of Teachers v El-Sayed[2018] QCAT 320
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Queensland College of Teachers v El-Sayed[2018] QCAT 320
Queensland College of Teachers v El-Sayed[2018] QCAT 320
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v El-Sayed [2018] QCAT 320 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v WAEL MOHAMED EL-SAYED (respondent) |
APPLICATION NO/S: | OCR074-16 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 18 September 2018 |
HEARING DATE: | 28 March 2018 |
DATE OF FINAL SUBMISSION: | 14 June 2018 |
DECISION OF: | Member Howe (Presiding Member) Member Grigg Member Olding |
ORDERS: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where allegations against teacher acting as carer for intellectually impaired adult complainant – where criminal charges discontinued after complainant passed away – where video recording of interview of complainant in evidence – where allegations corroborated by DNA evidence – whether ground for disciplinary action established – sanction Acts Interpretation Act 1954 (Qld), s 20(2)(c) D’Arro v Queensland Building and Construction Commission [2018] 1 Qd R 204 |
APPEARANCES & REPRESENTATION: | |
Applicant: | E.J. Houston, Acting Principal Legal Officer, Queensland College of Teachers |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]The Queensland College of Teachers (QCT) has referred to the Tribunal a disciplinary proceeding relating to Mr El-Sayed.
- [2]It is alleged that, while engaged as a relief support worker for an intellectually impaired, female adult then 23 years of age (the complainant), Mr El-Sayed felt her breasts, kissed her face and chest, and licked her bottom.
- [3]QCT submits that this conduct establishes a ground for disciplinary action under section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (the Act), namely that:
(h) the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.
- [4]QCT also submits that Mr El-Sayed’s conduct demonstrates that he is not fit to hold teacher registration and that the appropriate sanction is to cancel his registration and to prohibit him from reapplying for registration or permission to teach for an indefinite period.
- [5]Mr El-Sayed denies that he engaged in the conduct.
- [6]The Tribunal’s task is to determine whether the ground for disciplinary action is established and, if so, the appropriate sanction.
Background
- [7]The complainant resided in a locked facility where the conduct allegedly occurred during Mr El-Sayed’s shift as a relief care worker from 9-00 pm on 5 September 2013 to 7-00 am on 6 September 2013.
- [8]Charges were laid against Mr El-Sayed in relation to the alleged conduct. However, the complainant’s evidence was accidentally omitted from material handed up at the committal proceeding and the complainant passed away before the matter could proceed. The criminal proceedings were therefore discontinued.
- [9]A member of the Tribunal determined that statements by the complainant to the police before the charges were laid, in the form of video recordings and transcripts of police records of interview, were admissible as evidence in this proceeding, along with statements of Ms Joanne Drake and Ms Cindy Tyson, respectively a youth worker and primary carer for the complainant. The Tribunal in the current proceeding therefore had the benefit of viewing an audio-visual recording of the complainant’s statement to the police.
- [10]Additionally, there is evidence of Mr El-Sayed’s DNA being found in underpants worn by the complainant during the evening the conduct is alleged to have occurred. Mr El-Sayed also offers an alternative explanation that the DNA came to be found on the underpants, suggesting that he must have sneezed or coughed when folding the complainant’s clothes.
The complainant’s statement
- [11]The complainant’s recorded statement included a number of allegations, which are recorded in this exchange with the interviewing police officer, Plain Clothes Senior Constable Krystal Martyn:
[COMPLAINANT]: And uhm, at first he kept saying, ah you could be my girlfriend and I go, no, I’m too young for you. He goes, no there’s famous people have older boyfriends and all.
KM: Mmmhmm
[COMPLAINANT]: And yeah, he just keep harassing me and then uhm, I was showing him pictures on my camera and he saw a photo of my tattoo and it’s down my back and uhm, he said show me and I showed him but, UI, then he said, ah do you have any other tattoo’s (sic).
KM: Mmmhmm
[COMPLAINANT]: I go yes. Am I talking too fast?
KM: No, that’s fine.
[COMPLAINANT]: I said, yes and and I showed him where it was and he pulled my shirt down a bit but then he goes, ah take your shirt off.
KM: Mmmhmm
[COMPLAINANT]: I took it off, that was rude but then, I went to bed and uhm, I got up UI half an hour later and I had to go to the toilet. And I went back in, in the office to ask if he could tuck me back in bed. And he came in and laid right next to me.
KM: Mmmhmm
And he started feeling my boobs. And uhm, then I don’t know if he got bit down, like he turned around or what ever
KM: Mmmhmm
[COMPLAINANT]: He uhm, licked me inside my bum
KM: Mmmhmm
[COMPLAINANT]: And then, I said, don’t do that. And uhm, then he goes, oh will it be better if I lick you down below? I said no.
KM: Mmmhmm and then what happened?
[COMPLAINANT]: Well he went out because I said I want to go to sleep.
KM: Mmmhmm. Then what happened after that?
[COMPLAINANT]: Nothing. He didn’t come in.
KM: Ok. What happened the next morning?
[COMPLAINANT]: Well I uhm, my other career (sic) said, oh why are you so tired. And I said, well something happened. UI And she uhm, was wondering what UI happened cause I didn’t want to say what happened cause he said, don’t tell anybody. And yeah uhm, I was scared if he came back he would abuse me. So uhm, yeah, I didn’t tell her but then I went out outside and my UI, the boss that’s here, uhm she came to and I said. I just had to tell her.
- [12]The video recording showed the complainant appeared to answer the questions with little emotion and yawned a lot during the interview. Her answers appeared to be given in a straightforward way. She also took the opportunity to correct a misunderstanding by the interviewing officer in this exchange:
KM: That’s ok. So tell me everything about, uhm you showing him your other tattoo, UI the one on your shoulder.
[COMPLAINANT]: Well he pulled my, UI went pulled my shirt down a bit, like that.
KM: Ok, so he pulled your shirt down.
[COMPLAINANT]: Nah, I did.
- [13]So far as we were able to form an impression from the recording, it was that the complainant answered the questions put to her and gave her account in an honest way. The allegations in the recorded statement are also consistent with comments by the complainant in a conversation with her support worker, Ms Joanne Drake, as set out in a statement provided by Ms Drake.
- [14]But we are, of course, conscious of the limitations of this evidence and, in particular, the absence of an opportunity for cross-examination. We are also mindful that the complainant has previously, albeit not recently, made and retracted allegations of sexual assault, as well as substantiated allegations including an allegation of unlawful carnal knowledge when she was 15 which resulted in a guilty plea by the perpetrator.[1]
- [15]Mr El-Sayed also submitted that the complainant’s evidence was inconsistent and therefore unreliable. In that regard, he noted that during a police interview the complainant first said that he sat next to her while looking at the photographs on her phone and then that he sat on her lap. However, as the following extract from the transcript of interview indicates, while the complainant did say that Mr El-Sayed sat on her, she immediately corrected this:
KM: Ok. And whereabouts was Wael sitting?
[COMPLAINANT]: On the other side but he was, he uhm, sat on me sometimes. Not on me.
KM: Mmmhmm
[COMPLAINANT]: Like, I’d have my legs off and yeah, he sat on my legs UI
KM: Ok. So that, you said you had your legs on the couch?
[COMPLAINANT]: Yeah
KM: Like how was that? Do you want to just show me how that was?
[COMPLAINANT]: I uhm, UI like, like that
KM: Yep
[COMPLAINANT]: And yeah
KM: And then he would lean on your legs?
[COMPLAINANT]: Yeah
- [16]We do not think there is a relevant inconsistency – going to the credibility of the complainant’s statement – between the statements that Mr El-Sayed sat next to the complainant and that while doing so he would lean on her legs which were on the couch.
Mr El-Sayed’s evidence
- [17]All of the details of the allegations were put to Mr El-Sayed in cross examination. With the exception of what follows below, Mr El-Sayed unequivocally denied the allegations.
- [18]Mr El-Sayed agreed that, when they were looking at photographs, he saw a photograph showing a tattoo on the complainant’s back and that he said that he wanted to see a tattoo on her shoulder.
- [19]Mr El-Sayed also agreed that he told the complainant she was beautiful, saying:
Yes, but I tell this one to all my client, even male client.
- [20]Mr El-Sayed also admitted that he rubbed cream around the complainant’s neck after she told him she had a stiff neck but denied that he rubbed cream on the complainant’s chest.
- [21]He emphasised that, having regard to previous violent outbursts, his whole strategy was to try to keep the complainant calm and avoid triggers that might lead to such behaviours.
The DNA evidence
Nature of the evidence
- [22]The complainant’s pyjama pants and underpants were tested. Saliva, but no DNA, was found on the pyjama pants.
- [23]The inside front and back surfaces of the underpants were screened for saliva. An area on the inside back of the underpants, measuring approximately 65mm by 60mm, tested positive. A sample prepared from this positive area was submitted for DNA analysis and Mr El-Sayad accepts, as do we, that his DNA was found to be present.
- [24]QTC submits that this corroborates the complainant’s recorded statement.
Mr El-Sayed’s alternative hypothesis
- [25]Mr El-Sayed gave evidence that he was suffering from the flu and submitted that the DNA must have become present on the underpants due to him sneezing on the underpants when he was folding some clothes. He also suggests that the complainant must have changed her underwear during the night as she was capable of doing.
- [26]The forensic scientist who provided the DNA report, Ms Patricia Anne Finch, was asked to provide a report regarding whether DNA contamination could have occurred by Mr El-Sayed sneezing near the underwear or by touching the underwear. Ms Finch’s report was to the effect that both propositions are possible, but she was unable to distinguish between these, and transfer via saliva, as the most likely cause of the transfer of the DNA to the underpants. We take this to mean that Ms Finch was unable to make this distinction based on the scientific analysis, as Ms Finch was obviously unable to assess the broader evidence of Mr El-Sayed, the complainant and other witnesses.
- [27]Mr El-Sayed also sought to attack what he submitted to be inconsistent evidence regarding the washing of the complainant’s bed linen, which occurred before the police arrived. However, the evidence of Ms Drake, which we accept in the absence of any contrary evidence, was that the clothing the complainant was wearing was not washed.
- [28]The scientific evidence establishes that it is scientifically possible that Mr El-Sayed’s hypothesis occurred. It provides no assistance in determining the probability that Mr El-Sayed’s DNA came to be present in the complainant’s underwear.
- [29]Mr El-Sayed also submitted that, if the complaint were true, his DNA should have been found elsewhere. However, there was no testing of other clothing or bedding other than the pyjama pants on which saliva but not DNA was found.
The ground is substantiated
- [30]Although the standard of proof for criminal matters (beyond reasonable doubt) does not apply, having regard to the serious nature of the allegations and the consequences for Mr El-Sayed, we should not find the allegations substantiated unless comfortably satisfied on the basis of direct evidence to that effect.[2] For the reasons that follow, we are so satisfied.
- [31]As already observed, our impression of the complainant’s recorded statement was that the complainant provided her comments in an honest and straightforward way. Nevertheless, because of the absence of an opportunity for cross examination and the earlier retracted allegations, and having regard to the serious nature of the current allegations, we would hesitate to find the allegations proved on the basis of this evidence alone.
- [32]However, the presence and location of the saliva, and the presence of Mr El-Sayed’s DNA, in the complainant’s underpants directly corroborates a key element of the complaint. Even accepting Mr El-Sayed’s evidence that he folded the complainant’s clothes during the shift, his alternative hypothesis, although scientifically possible, would require that:
- (a)the complainant changed her underpants during the night;
- (b)Mr El-Sayed folded the particular pair of underpants that the complainant selected when changing her underpants;
- (c)Saliva and Mr El-Sayed’s DNA became present at the back of the underpants either through sneezing or touch.
- (a)
- [33]We find Mr El-Sayed’s hypothesis to be highly improbable. It is perhaps conceivable, if unlikely, that a person sneezing or coughing directly into material might leave a saliva patch of the size indicated in the scientific evidence. However, Mr El-Sayed does not claim to have sneezed or coughed directly into any underpants; in fact, he gave evidence that he did not or would not do so. Indeed, apart from saying that he had the flu, and that he coughed and sneezed during the night, Mr El-Sayed’s evidence was mere speculation as the extracts from the transcript illustrates:
MS HOUSTON: Mr El-Sayed, can I continue? Do you use a handkerchief or tissues when you sneeze? --- If I handkerchief or some [indistinct] within my hand, yes. If not, I go to my hand. It’s - - -
So did you sneeze while you were folding the clothes” --- I cannot remember exactly if I sneeze or I cough during the time, but yes. What – I can recall that I have now many time that I sneeze, I have recall that at the time I had a flu. So I have coughed and sneezed, yes. I cannot remember exactly how many times htat I have done that.
. . .
MS HOUSTON: Okay. So you don’t recall sneezing particularly into the underpants? --- Well, I do not sneeze into some else’s underpants. If – if the contamination occurred – but this is – my opinion is, I could be wrong, if this had been made at the time that I was folding her clothes or maybe the time before I fold her clothes. I have no idea, but that’s basically is what happened.
- [34]Coupled with our cautious review of the complainant’s statement to the police, essentially confirming her complaint to her carers, and having due regard to the seriousness of the allegations, we are comfortably satisfied that the DNA evidence supports a conclusion that Mr El-Sayed licked the complainant’s bottom as alleged. It follows that we do not accept that Mr El-Sayed was a truthful witness. Having reached this conclusion, and consistent with our impression of her recorded statement, we are comfortably satisfied that all of the complainant’s allegations are substantiated.
- [35]In deciding whether a ground for disciplinary action is established, s 158(2) of the Act requires that the Tribunal “have regard to any relevant previous decision of a practice and conduct body of which QCAT is aware”. Our attention was drawn to only one previous decision – Queensland College of Teachers v Mr Robert James Napier[3]– and in the context of sanction rather than whether a ground for disciplinary action is established.
- [36]The Napier case involved an uncorroborated allegation of inappropriate touching of a six-year-old child, who had slept over at the home of the teacher and his partner, in the area of her vagina. Criminal proceedings were commenced but discontinued. The Tribunal observed that “[f]rom an evidentiary perspective this matter is problematic and borderline”, but nevertheless decided that the ground for disciplinary action was established. The evidence in the current case is stronger, due to the corroborating DNA evidence. We have not otherwise found this decision helpful in the context of deciding whether a ground for disciplinary action is established.
- [37]We have no doubt that the conduct we have found that Mr El-Sayed engaged in does not satisfy the standard of behaviour generally expected of a teacher. Accordingly, we conclude that a ground for disciplinary action is established and now turn to consider the appropriate sanction.
Sanction
- [38]In deciding the appropriate sanction in this case, we have regard to the objects of the Act, which under s 3(1) include:
(a) to uphold the standards of the teaching profession; and
(b) to maintain public confidence in the teaching profession; and
(c) to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
- [39]In Queensland College of Teachers v TSV,[4] the Tribunal observed that the purpose of disciplinary action is not to punish the teacher but to but to further the objects of the Act and also, importantly, “[i]t is essential that persons registered as teachers do not pose a risk of harm to children”.[5]
- [40]Aside from the Napier case, our attention was not drawn to any comparable case. In Napier, the Tribunal’s observation about the problematic nature of the evidence was made in the context of the Tribunal considering the appropriate sanction. We are not clear why, once it is decided that a disciplinary ground is established, the weight of the evidence leading to that decision is relevant to determining the sanction. However, in any case, the weight of the evidence in the current case is, as already noted, stronger than in Napier.
- [41]We accept QCT’s submission that Mr El-Sayed’s conduct is at the most serious end of the spectrum and that cancellation of his teacher registration is required. We have considered whether, as in Napier, cancellation with a prohibition on reapplying for registration for an extended period (in that case, three years, along with a condition requiring psychological treatment and assessment) would be appropriate.
- [42]However, having regard to the serious nature of the conduct in this case, we consider that the risk of harm to children in allowing Mr El-Sayed to apply to return to teaching is too great. The Act contemplates cancellation for an indefinite period: s 160(2). As already noted, the behaviour in this case is of a most serious nature. We accept QCT’s submission that cancellation for an indefinite period is the only appropriate course.
Observations
- [43]QCT filed the application to refer the disciplinary proceeding to the Tribunal on 24 May 2016. The proceeding was referred as required under ss 92(2)(a) and 92(3) of the Act on the ground for disciplinary action, as it then was, that:
the teacher is not suitable to teach.
- [44]Section 51(2) of the Education and Other Legislation Amendment Act 2016, which commenced on 8 September 2016, amended the relevant ground under s 92(1)(h) to:
the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.
- [45]After the hearing of the matter, the Tribunal drew to the attention of the parties the decision of the Court of Appeal in D’Arro v Queensland Building and Construction Commission[6] and invited submissions on whether, in accordance with the principle in that case, this matter should be decided by reference to the amended s 92(1)(h) ground. QCT filed submissions addressing this issue. Mr El-Sayed did not.
- [46]Consistent with QCT’s submissions, we have decided this matter on the basis that the amended provision applies. That is to say, the saving in s 20(2)(c) of the Acts Interpretation Act 1954 (Qld) for provisions relating to existing liabilities would not apply, as Mr El-Sayed’s liability would only be completed upon a decision of the Tribunal that the grounds for a disciplinary action are established.
- [47]In case we are wrong in that approach, we have considered whether we would in any case conclude that the Mr El-Sayed is “not suitable to teach” and note that we would so conclude. This is not a case where evidence of subsequent behaviour would affect that decision; because Mr El-Sayed has denied the allegations there is not, for example, evidence of remorse or greater insight into the behaviour. Similarly, if the former ground applies, we are of the view that the same sanction should apply.
Footnotes
[1]This history of earlier complaints, which we take into account, is detailed in the reasons for decision relating to admissibility of the complainant’s statement and related evidence: Queensland College of Teachers v El-Sayed [2017] QCAT 330.
[2]Briginshaw v Briginshaw (1938) 60 CLR 336.
[3][2010] QCAT 626
[4][2015] QCAT 186.
[5]At [25].
[6][2018] 1 Qd R 204