Queensland College of Teachers v GK
[2018] QCAT 71
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- Queensland College of Teachers v GK[2018] QCAT 71
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Queensland College of Teachers v GK[2018] QCAT 71
Queensland College of Teachers v GK[2018] QCAT 71
CITATION: | Queensland College of Teachers v GK [2018] QCAT 71 |
PARTIES: | Queensland College of Teachers (Applicant) v GK (Respondent) |
APPLICATION NUMBER: | OCR177-17 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 20 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Presiding Member Hughes Member Clifford Member Grigg |
DELIVERED ON: | 14 March 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher charged with serious offence – where teacher found not guilty by jury – whether ground for disciplinary matter established – where Tribunal satisfied that creating and storing inappropriate material on school computer is not in keeping with standard of behaviour expected of a teacher – where notation is entered on register reprimanding teacher Criminal Law (Sexual Offences) Act 1978 (Qld), s 6 Education (Queensland College of Teachers) Act 2005 (Qld), s 92, s 161 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 66 Briginshaw v Briginshaw (1938) 60 CLR 336 Queensland College of Teachers v CSK [2016] QCATA 125 Queensland College of Teachers v Teacher GK [2015] QCAT 215 |
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]On 20 April 2015, the Queensland College of Teachers (QCT) suspended GK’s teacher registration pursuant to s 48 of the Education (Queensland College of Teachers) Act 2005 (Qld) (QCT Act) on the grounds he had been charged with rape under the Criminal Code. GK had held teacher registration since 7 May 2004.
- [2]The complainant in the criminal matter was GK’s partner at the time and they both worked as teachers in the same school.
- [3]The QCT consequentially referred the matter to the Tribunal for continuation of the suspension. On 11 June 2015, the Tribunal ordered continuation of the suspension.[1]
- [4]The criminal trial was conducted over 5 days in May 2017 before District Court Judge Kent QC. The jury found GK ‘not guilty’ with respect to all counts on the indictment. The QCT received confirmation of that verdict from the Office of the Director of Public Prosecutions on 26 July 2017.
- [5]On 18 August 2017, the QCT filed the referral of disciplinary action to the Tribunal.
- [6]Under the QCT Act, notwithstanding the criminal charge has been dealt with the Tribunal is required to consider the circumstances of the charge and whether a ground for disciplinary action has been established.[2] The relevant ground in this case is found at s 92(1)(h):
the person behaves in a way, whether connected to the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher…
- [7]
- [8]The QCT noted that GK held registration from 7 May 2004 until 23 May 2016. He then chose not to renew his registration. He is therefore a ‘former approved teacher’ for the purpose of the QCT Act.
- [9]The circumstances of the three charges of rape made against GK were complex, but in essence, they arose from his relationship with another teacher with whom he had purchased a home and with whom he resided.
- [10]The complainant alleged GK was a controlling person from early in their relationship. The complainant alleged GK had unlawfully obtained her consent for sex through threats and intimidation. First, by threats to disclose that she had had an abortion, and second, by threats to release videos and pictures of her engaging in sexual acts with GK, to the religious school where they both worked.
- [11]The complainant confirmed she had an abortion earlier in the relationship. It was apparent she was aware of GK’s opposition to such an outcome and initially told GK she had miscarried.
- [12]Although the complainant and GK differ in who initiated recording their sexual activities, it was apparent both were aware of the recordings that commenced early and continued throughout the relationship.
- [13]Nonetheless, they continued to reside in the same home for around another year whilst they tried to work out, through various options, the future of the relationship.
- [14]While GK admitted that he tried to stop the complainant from proceeding to have an abortion by threatening to email the school, he denied ever threatening her again. GK further denied that he threatened the complainant or engaged in sexual relations without her consent. GK relied on the pictorial evidence of the many outings at restaurants he and the complainant undertook together, in support of his denials. GK suggested the complainant was seeking leverage in a property settlement.
- [15]While the complainant alleges she was under threatening control by GK for some period, the criminal charges related to three particular dates and incidents. Ultimately, the jury was not persuaded that the charges had been established on the criminal standard and returned a ‘not guilty’ verdict.
- [16]In disciplinary matters, the lower civil standard of proof applies. The onus of proof rests with the regulator who has to be satisfied that a ground for disciplinary action is established on the balance of probabilities. The seminal case of Briginshaw[5] goes to the strength of the necessary satisfaction.
- [17]The allegations made by the complainant are most serious. They involve consideration of complex personal and sexual relations between a couple, who once jointly owned a home and resided together. They touch on the highly emotional issue of abortion whereby each party to the relationship held differing views. The recording of sexual activities is generally a highly private matter between consenting adults. The allegations surround and record a disintegrating relationship.
- [18]Among these allegations and facts, the Tribunal must consider whether GK has behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.
- [19]The QTC in its submissions referred to the fact that the dates on Counts 1 and 2 of the original indictment required the Crown to amend the indictment to a date one day later because of the inconsistency between the complainant’s written statement and evidence at trial, which attracted a warning to the jury by the trial judge.
- [20]The QCT submitted – with the qualification of not having the compelling advantage of hearing or seeing the evidence of credibility and reliability of the complainant and respondent – that the ‘not guilty’ verdicts were not unreasonable. Because of this, the QCT submitted that the Tribunal would not be satisfied that a ground for disciplinary action under s 92(1)(h)[6] has been established, and that the referral should be dismissed.
- [21]GK in his submission expressed hope for reinstatement as a registered teacher. He strongly disputed his suspension as a teacher because he says it was based on allegations that were ultimately proven false in court. GK submitted that he has been a teacher all his life and that it is his passion. He submitted that he has always performed his duties as a teacher to the utmost of his ability and that his pupils, peers and management had always respected him.
- [22]GK also submitted that the complainant’s information was false, and claimed that she had an illegal abortion in another State and was concerned about her career and reputation, so decided to end his instead.
- [23]GK also submitted that he has been unemployed since April 2015, affecting him and his new family, both personally and financially.
- [24]The Tribunal has carefully considered the material and submissions. In relation to the serious allegations of rape through threats and intimidation, the Tribunal is not satisfied on the balance of probabilities, that the disciplinary ground as described in s 92(1)(h)[7] has been established. In particular, the Tribunal notes the inconsistency of the complainant’s evidence around dates and the evidence that the complainant continued to reside with and socialise with GK, notwithstanding the serious allegations raised and the broad claims about the controlling nature of the relationship.
- [25]However, ‘the circumstances of the charge’ also relate to GK’s alleged use of school resources, a computer, and the creation of and storage of inappropriate material in the form of:
- highly graphic videos and pictures of sexual acts between GK and the complainant; and
- a compilation of photographs imputing captions to the complainant including ‘I killed my baby girl’, including ‘I have two kids, so f--- (expletive) you, (Name). I don’t care that I am killing your only child’, and ‘My sister (Name), a midwife, will organise the murder.’
- [26]GK does not deny he used the school computer for this purpose. He confirmed that he created the compilation file in February 2015. GK testified:
Because before that, I couldn’t do anything else on my computer because the school had a program called Video Pro. Wasn’t available to all teachers, but because I made videos for my accounting class previously – I think it’s a license issue. It’s too expensive to give to all teachers. I convinced them because I had accounting videos on YouTube and – and kids use the accounting videos. They con- they- they gave it to me.[8]
- [27]GK further responded ‘Correct’ to questioning about ‘various items, movies, videos, if we call them that, and still photographs that were on your computer equipment that’s been listed?’[9]
- [28]The School Headmaster stated that at the request of Police, he took possession of a school computer and took it to the school so that the school computer technicians could wipe the contents of the computer, as an officer had advised him that it had pornographic material.[10] He returned the computer to Police an hour later.
- [29]A Senior Constable also observed several small video clips of a sexual nature on the computer entitled such things as ‘This is sex on hell fire’, and ‘I killed my baby’.[11]
- [30]Based on this information, the Tribunal is satisfied that GK created and stored inappropriate material on a school-issued computer, and the Tribunal is satisfied that this use does not satisfy the behaviour generally expected of a teacher.
- [31]While the Tribunal does not have any specific school policy around the level of personal use for such a resource, the Tribunal would not expect, even in the most liberal-thinking schools, that this use was permissible or appropriate. Schools provide computers to assist teachers to prepare for classes. It would be concerning if any school student was able to access this computer either with permission or inadvertently.
- [32]The Tribunal accepts that GK may hold whatever personal views he has about abortion, and that consenting adults may film sexual activities. However, bringing explicit and potentially disturbing imagery into the school on a school resource that could be open for students to view crosses personal boundaries and has the potential to cause harm to children and to the reputation of teachers and the school. The Tribunal is satisfied this is not the standard of behaviour expected of a teacher.
- [33]Given a ground for disciplinary action has been established, the Tribunal may, in relation to a former approved teacher, decide a number of actions including to take no further action, or order that a particular notation or endorsement about the teacher be entered on the register.[12]
- [34]The purpose of disciplinary proceedings is not to punish, but to protect children and the community. The objects of the QTC Act are to uphold the standards of teaching, maintain public confidence in the profession and to protect the public.[13] While the Tribunal accepts GK may feel aggrieved by the criminal allegations, for which he has been found not guilty, the charges have exposed other actions by GK that fall below the standards expected of a teacher.
- [35]The Tribunal is concerned that the nature of the material on the school computer could, if accessed by students, have a potentially harmful impact on them. This is particularly so when students are developing their own identities and emotional maturity around social and moral issues. The school and general community expect teachers to have this insight.
- [36]However, the Tribunal has no other material that the actions of GK were any more than an isolated incident in the circumstances of a disintegrating relationship. GK has started a new family and is moving forward with his life.
- [37]The Tribunal is satisfied that it is appropriate in the circumstances that a notation is entered in the register, reprimanding GK for creating and storing inappropriate material on a school computer. The Tribunal orders accordingly.
- [38]The QCT submits that the Tribunal make a non-publication order in light of the prohibition of the identification of the complainant in the criminal matter pursuant to section 6 of the Criminal Law (Sexual Offences) Act 1978 (Qld) and section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Tribunal accepts that in the circumstances, it is in the interests of justice the publication of any information that could identify GK, the complainant in the criminal matter, or the school is prohibited. The Tribunal orders accordingly.
Footnotes
[1] Queensland College of Teachers v Teacher GK [2015] QCAT 215.
[2] Education (Queensland College of Teachers) Act 2005 (Qld), s 92(2)(a), s 92(3),
s 92(4), s 92(5); Queensland College of Teachers v CSK [2016] QCATA 125, [28].
[3] QCT Submission dated 1 December 2017.
[4] GK submission dated 18 October 2017.
[5] Briginshaw v Briginshaw (1938) 60 CLR 336.
[6] Education (Queensland College of Teachers) Act 2005 (Qld).
[7] Education (Queensland College of Teachers) Act 2005 (Qld).
[8] Transcript, Day 4, QCT, page 313, lines 40–45.
[9] Transcript, Day 4, QCT, page 317, line 40.
[10] Statement dated 28 April 2015.
[11] Statement dated 13 May 2015.
[12] Education (Queensland College of Teachers) Act 2005 (Qld), s 161.
[13] Ibid, s 3(1).