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Queensland College of Teachers v GOH[2022] QCAT 22

Queensland College of Teachers v GOH[2022] QCAT 22

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v GOH [2022] QCAT 22

PARTIES:

QUEENSLAND COLLEGE OF TEACHERS 

(applicant)

v

GOH

(respondent)

APPLICATION NO:

OCR130-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

14 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Sammon

Member McDonald

Member English

ORDERS:

  1. Disciplinary grounds under s 92(1)(b) and s 92(1)(h) of the Education Queensland (College of Teachers) Act 2005 (Qld) are established.
  2. GOH is prohibited from re-applying for registration or permission to teach for no less than ten (10) years from the date of the suspension of her teacher registration, namely 12 October 2016.
  3. The Register of Teachers is to be endorsed with a notation that should GOH re-apply for registration or permission to teach after the period of prohibition, the application must be accompanied with:
    1. (a)
      An independent psychological report to the satisfaction of the Queensland College of Teachers (‘QCT’) addressing the following:
    2. (b)
      An assessment as to whether the psychologist is satisfied that GOH has adequately understood and addressed the following matters:
      1. (i)
        Differentiating between personal and professional relationships;
      2. (ii)
        The legal obligations of teachers and tutors;
      3. (iii)
        The concept, and importance, of professional boundaries;
      4. (iv)
        The development and maintenance of professional standards and professional boundaries when working with students;
      5. (v)
        GOH’s awareness of what constitutes appropriate and inappropriate communication and behaviour with students;
      6. (vi)
        The impact of inappropriate communication, conduct and relationships upon students, families, schools and the profession;
      7. (vii)
        The need to protect children and students from physical, psychological and emotional harm;
      8. (viii)
        Risk assessment and early identification of potentially problematic situations and venues;
      9. (ix)
        How to achieve realistic solutions to avoid the risk of harm to students;
      10. (x)
        The trust and power granted to a teacher;
      11. (xi)
        The extent and nature of the trust invested in a teacher by students, colleagues, parents and the community;
      12. (xii)
        Conduct that would compromise the professional standing of a teacher and the teaching profession;
      13. (xiii)
        The importance of full adherence to the QCT Code of Ethics;
    3. (c)
      Confirmation that the psychologist was provided with copies of:
      1. (i)
        The Tribunal’s orders and reasons for decision;
      2. (ii)
        The QCT amended referral under s 97 of the Act; and
      3. (iii)
        Annexure A - facts and circumstances.
    4. (d)
      The respondent must bear all costs of, and associated with, compliance with the Tribunal orders.
  4. Subject to the exceptions in order 5 below, other than to the parties to this proceeding and until further order of the Tribunal, publication is prohibited of any information that may identify GOH, any relevant student, or the relevant school.
  1. The QCT may provide a copy of the decision and the reasons for the decision to any of the following:
    1. (a)
      any relevant body conducting an investigation or disciplinary proceeding relating to the matters giving rise to the proceeding;
    2. (b)
      the Chief Executive of the Department of Education;
    3. (c)
      other teaching regulatory authorities;
    4. (d)
      any employing authority for a school;
    5. (e)
      any principal of a school who was provided with a copy of the notice of suspension of GOH under s 50(4) of the Education (Queensland College of Teachers) Act 2005 (Qld);
    6. (f)
      The Minister of Education;
    7. (g)
      A relevant agency with whom the QCT has entered into an information sharing agreement under s 287 of the Education (Queensland College of Teachers) Act 2005 (Qld);
    8. (h)
      The Chief Executive of Employment Screening; and
    9. (i)
      Any other entity relevant to GOH’s practice of the teaching profession.

CATCHWORDS:

Queensland College of

Teachers v DGM

EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GENERALLY – where teacher had a sexual relationship with a current student – other inappropriate conduct concerning other students deriving from that conduct – appropriate sanction – non-publication order.  

Criminal Code, s 217, s 218B, s 408E

Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 53, s 92, s 158(2), s 161, Dictionary (schedule 3)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)

Working with Children (Risk Management and Screening) Act 2000 (Qld).

Briginshaw v Briginshaw (1938) 60 CLR 336

Queensland College of Teachers v Armstrong [2010] QCAT 709

Queensland College of Teachers v ATL [2020] QCAT 59

Queensland College of Teachers v CJK [2019] QCAT 115

Queensland College of Teachers v CMH [2019] QCAT 282

Queensland College of Teachers v CMK [2019] QCAT 271

Queensland College of Teachers v DCG [2016] QCAT 29

Queensland College of Teachers v DGM  [2018] QCAT 194

Queensland College of Teachers v El-Sayed [2018] QCAT 320

Queensland College of Teachers v Teacher FDA [2017] QCAT 224

Queensland College of Teachers v Teacher GBJ [2018] QCAT 135

Queensland College of Teachers v HMJ [2016] QCAT 447

Queensland College of Teachers v Mills [2015] QCAT 476

Queensland College of Teachers v NBL [2019] QCAT 312

Queensland College of Teachers v RTM [2016] QCAT 501

Queensland College of Teachers v SGS [2017] QCAT 383

Queensland College of Teachers v TSV [2015] QCAT 186

Queensland College of Teachers v Teacher VK [2014] QCAT 268.

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

  1. [1]
    The Queensland College of Teachers (the College) has referred this matter to the Tribunal in applying for orders to be made against a former teacher (GOH) concerning her conduct as a teacher at a high school in regional Queensland. The College applies for orders that a disciplinary ground has been established against GOH, and for orders to be made against her if a disciplinary ground has been established, under the Education (Queensland College of Teachers) Act 2005 (Qld) (the Teachers Act).
  2. [2]
    In summary, the most serious of the allegations made by the College against GOH are that she engaged in sexual acts and other intimate contact with a student at the school (‘Student A’), then aged between 16 and 17, on four occasions. In effect, the College also alleges that this conduct had a ‘ripple effect’, in that:
    1. (a)
      GOH engaged in inappropriate communication with another student (‘Student B’) then in year 9 and aged 14, about the relationship between GOH and Student A;
    2. (b)
      GOH engaged in intimidating behaviour against two other year 9 students (‘Students C and D’) because of things those students were saying about GOH having a relationship with another student;
    3. (c)
      which lead to GOH asking another teacher at the school to obtain information about students C and D from the school’s computer system.  This action resulted in GOH being convicted of the offence of ‘computer hacking’.  

GOH is currently not registered as a teacher in Queensland. She was first granted registration on 10 January 2008 and retained registration until 10 January 2018. She did not renew her registration and was consequently removed from the Queensland register of teachers on 10 April 2018.[1]

Summary of factual background

  1. [3]
    The conduct of GOH which is the subject of this application first came to the attention of the College on 11 October 2016, when the College received notification from the Queensland Police Service that GOH had been charged with several offences under the Criminal Code.
  2. [4]
    The College suspended GOH from teaching on 12 October 2016 as it was required to do under s 48 of the Teachers Act, because of the charges. Subsequently, under s 53 of that Act, the Tribunal ordered that the suspension be continued. GOH has not taught since 12 October 2016.
  3. [5]
    The charges against GOH were not resolved until 2019. The outcome of the relevant charges is as follows:
  1. (1)
     On 19 January 2018, in the Magistrates Court, one charge of procuring a young person for carnal knowledge (on a date unknown between 31 March 2016 and 31 May 2016) pursuant to s 217(1) of the Criminal Code was dismissed;
  1. (2)
     On 6 June 2019, at the District Court, a nolle prosequi[2] was entered in relation to one count of grooming a child under 16 years with intent to expose to indecent matter (between 31 July 2016 and 26 August 2016) pursuant to s 218B(1)(b) of the Criminal Code;
  1. (3)
     On 18 June 2019, at the District Court, GOH was found not guilty in relation to three counts of procuring a young person for carnal knowledge (between 9 March 2016 and 31 March 2016) pursuant to s 217(1) of the Criminal Code;[3]
  1. (4)
     On 5 August 2019, at the District Court, GOH pleaded guilty to one count of ‘computer hacking’ to gain a benefit under is 408E of the Criminal Code.[4] 
  1. [6]
    After resolution of the charges, the College commenced the current application, on 13 May 2020. The College filed an amended referral under cover of the Deo December affidavit, exhibit D.
  2. [7]
    Although GOH engaged solicitors to act for her, she chose not to participate in this proceeding.  In a letter from the solicitors to the College dated 13 November 2020,[5] they advised that:

We instruct that our client is not in a position nor wishes to pursue this matter or provide a response. The position being that our client is simply unwell, and continuation of this matter will aggravate her existing health condition. Further, our client instructs that it is not her intention to return to teaching.

  1. [8]
    Further, in a letter to the Tribunal dated 7 April 2021, the solicitors for GOH confirmed that their client was not intending to provide a response to the College’s submissions and that:

With regards to the ongoing silence of our client, we simply inform this should not be considered an affront to the procedural process, but her focus being on improving her health.

The statutory basis for the referral

  1. [9]
    It will first be necessary for us to determine whether the College has proven that a ground for disciplinary action exists against GOH. The grounds for disciplinary action are set out in s 92 of the Teachers Act. The grounds relied upon by the College are in s 92(1)(b) and (h) which are as follows:

92 Grounds for disciplinary action

  1. (1)
     Each of the following is a ground for disciplinary action against a relevant teacher—
  1. (b)
     the relevant teacher has been convicted of an indictable offence that is not a serious offence, or an offence against this Act, except if, in relation to the conviction, the teacher becomes a relevant excluded person;

Note

See section 56 for action that may be taken against an approved teacher who becomes a relevant excluded person.

  1. (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.
  1. [10]
    The term ‘relevant teacher' is defined in the Dictionary (schedule 3) of the Act relevantly to mean an 'approved teacher' or a 'former approved teacher'. The latter term is also defined in the Dictionary to the Act, relevantly to mean a former registered teacher. GOH as a former approved teacher is therefore subject to the application of the provisions of s 92(1) set out above.   
  2. [11]
    For s 92(1)(b), a ‘serious offence' is defined in the Dictionary to the Teachers Act by reference to the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Working with Children Act).  
  3. [12]
    In August 2019, GOH pleaded guilty to an offence under s 408E(1) and (2) of the Criminal Code, of one count of using a restricted computer without consent and causing or intending to cause detriment, damage or gain (‘the computer hacking offence’). That is not a ‘serious offence' under the Working with Children Act. The District Court imposed a fine of $2,000 for that offence, with no conviction recorded. However, that still amounts to a ‘conviction’ for the purposes of s 92(1)(b).[6] That means that the ground for disciplinary action by the College against GOH under             s 92(1)(b) for the computer hacking offence is established. 
  4. [13]
    Given that several of the allegations made by the College relate to matters covered by the criminal charges which did not result in a ‘conviction' within the meaning of the Act, it is necessary for us to refer to s 92(2), (3) and (5). Section 92(2) is relevantly as follows:
  1. (2)
     The ground for disciplinary action mentioned in subsection (1)(h) is taken to apply to a relevant teacher whose registration or permission to teach is suspended under section 48 if any of the following applies—
  1. (a)
     the teacher has been charged with a serious offence and the charge has been dealt with;

(added emphasis)

  1. [14]
    The expression 'dealt with' contained in s 92(2) is contained in s 92(5) as follows:

dealt with, in relation to a charge against a relevant teacher for a serious offence, means any of the following—

  1. (a)
     the relevant teacher is acquitted of the charge;
  1. (b)
     the charge has been withdrawn or dismissed;
  1. (c)
     a nolle prosequi or no true bill is presented in relation to the charge.
  1. [15]
    Effectively, a combination of s 92(1)(h), s 92(2) and s 92(5) means that the ground for disciplinary action under s 92(1)(h) is able to apply to a teacher who has been charged with a 'serious offence’ but not resulting in a conviction for the relevant charge. In other words, the ground for disciplinary action is still open in relation to matters covered by a criminal charge even if the teacher has not been convicted of those charges. It will, of course, still be necessary for the Tribunal to be satisfied of the veracity of the matters which have been the subject of the criminal charges. This interpretation is clear because of s 92(3) which states that the object of s 92(2) is to ensure the circumstances of the charge are examined by a ‘practice and conduct body’, which includes the Tribunal.[7]

Allegations by the College

Category 1 - Sexual conduct between GOH and Student A

  1. [16]
    The most serious of the allegations made by the College against GOH are the allegations of sexual conduct between GOH and Student A on four occasions in 2016.
  2. [17]
    We do not think it is necessary to go into the intimate details of the sexual conduct which is the subject of this category of allegations. The particulars have been provided to GOH and the Tribunal in Annexure A attached to the amended referral.[8] It suffices to say that the sexual conduct occurred on four separate occasions, in four separate locations. On one occasion, the sexual conduct took place in Student A’s bedroom. Each incident involved kissing and sexual intercourse. On three occasions, multiple sexual acts occurred. On the first occasion, the sexual intercourse was unprotected when GOH agreed to Student A removing the condom he was wearing. On the second occasion, Student A did not wear a condom, and the sexual intercourse was therefore unprotected.
  3. [18]
    Following an order made by the Tribunal, the Director of Public Prosecutions (DPP) provided the College with documents prepared by the police during the investigation of the criminal charges and documents used in the prosecution of the charges against GOH. Those documents were filed in the Tribunal by the College.
  4. [19]
    Most of the particulars of the conduct in Category 1 are verified by the statement of Student A given to the police. On his version, GOH initiated the encounters which lead to sexual acts between the two, by asking him at school whether he would have sex with a teacher. He responded by asking GOH whether she would ever have sex with a student. Student A then says that later that night, GOH initiated contact with him through social media and asked if he wanted to do 'something fun’ the next night.
  5. [20]
    Student A continues that GOH picked him up the following night and provided him with alcohol. The first occasion of sexual intercourse then took place at a location to where GOH had driven. For the second and third occasions, GOH also picked up Student A and drove him to a location where sexual conduct of several kinds occurred.
  6. [21]
    Student A's version is that GOH asked him not to tell anyone else about the sexual activity. GOH and Student A would exchange text messages on the weekdays between the sexual encounters. Student A said he discontinued the sexual encounters, for fear of them getting caught.
  7. [22]
    In addition to the recorded interview with the police, evidence was taken from Student A by pre-recording, on 18 December 2018, which was ultimately used by the prosecution on three counts of procuring a young person for carnal knowledge as an offence against s 217 of the Criminal Code.
  8. [23]
    In the pre-recorded evidence, Student A:
    1. (a)
      confirmed the dates of the sexual encounters with GOH as being in March or April 2016;[9]
    2. (b)
      GOH was not Student A’s teacher in the sense that GOH did not actually teach Student A in 2016;[10]
    3. (c)
      Described the fourth sexual encounter, occurring in Student A's bedroom;[11]
    4. (d)
      Student A conceded that it was he who initiated the sexual conduct on each of the four occasions.[12]
  9. [24]
    Student A confirmed the sexual conduct between him and GOH on the four occasions which are the subject of the particulars of this category of allegations by the College.
  10. [25]
    As we have described above, GOH was acquitted of the charges of procuring a young person for the purposes of carnal knowledge under s 217 of the Criminal Code. A key element of the offence under s 217 is to 'procure' a young person for the purposes of carnal knowledge, where 'procure' is defined in s 217(12) to mean 'knowingly entice or recruit for the purposes of sexual exploitation’.  Further, the onus of proof on prosecution of an offence against s 217 is guilt beyond a reasonable doubt. By contrast, in a disciplinary proceeding such as this, the standard of proof is on the civil standard of balance of probabilities, but on the basis that the more serious the allegation the greater the proof required.[13]  
  11. [26]
    In this proceeding, the College does not propose to demonstrate that GOH is guilty of the offence under s 217 of the Criminal Code, but instead that the conduct of GOH in sexual encounters with Student A amounts to a ground for disciplinary action under  s 92(1)(h) of the Teachers Act, in that the behaviour of GOH does not satisfy the standard of behaviour generally expected of a teacher.
  12. [27]
    We are satisfied that the sexual encounters between GOH and Student A occurred as Student A described in his evidence.
  13. [28]
    Included in the allegations by the College against GOH concerning Student A is that GOH engaged in inappropriate conduct (apart from the sexual encounters) towards, and with, Student A, knowing him to be a student at the school. In summary, those allegations are:
    1. (a)
      engaging in overfamiliar and inappropriate communications with Student A, in person, through social media and through text messages. In general, those communications involved arrangements for, and discussion about, the sexual encounters;
    2. (b)
      transporting Student A in her car on at least three occasions, collecting him from near his house for their sexual encounters and dropping him near his home or at another location afterwards;
    3. (c)
      supplying Student A with alcohol on at least three occasions and with cigarettes on at least one occasion.
  14. [29]
    We find that these allegations are proven as well, to the requisite standard. The proof of these allegations also comes from the evidence of Student A to the police and during the prosecution of GOH.

Category 2 - GOH engaging in inappropriate communications with Student B

  1. [30]
    In 2016, Student B was a year nine student at the school aged between 13 and 14 years. GOH had taught Student B in years eight and nine.
  2. [31]
    The particulars of the communications between GOH and Student B are contained in Annexure A of the amended referral. They list the details of text messages shared between Student B and GOH. In the main, those texts discuss the sexual encounters between GOH and Student A.
  3. [32]
    The sending of the texts between GOH and Student B, and their content, is verified by a transcript of an interview between the police and Student B[14] and also a statement[15] of a police officer who examined the mobile phone of Student B in which that statement lists the texts which are the subject of the allegations in this category. The overall tone of the interview between Student B and the police is that Student B appears to consider that the texts from GOH about sexual encounters with student A were fictional and only joking banter.[16] 
  4. [33]
    We find the allegations in this category proven to the relevant standard.
  5. [34]
    GOH was earlier suspended from duty as a teacher at the school by a letter to her dated 9 May 2016. The reason for the suspension was due to alleged inappropriate conduct as a teacher concerning students at the school, but not the subject of the allegations made by the College in this proceeding. The suspension was lifted effective 8 September 2016. Her return to teaching was subject to a transition plan.[17]
  6. [35]
    The communications with Student B which are the subject of this category of allegations took place when GOH was under suspension, with a requirement not to contact students at the school.[18]
  7. [36]
    GOH told Student B to delete these texts[19] and not to tell anyone else about the texts.[20]

Category 3 - intimidating behaviour towards students C and D

  1. [37]
    The College’s allegations on this category as contained in Annexure A are that on a particular day in 2016, GOH entered a classroom at the school where a year nine science class was being taught. The allegation is that GOH behaved in an intimidatory manner towards Student C and Student D by going to where they were seated and saying words to the student 'stop spreading rumours about me and shit and don't say shit you don't understand'. The allegation continues that GOH also said words to the effect that 'the school would deal with’ Student C and that GOH would be 'here forever’, before GOH left the classroom.
  2. [38]
    The allegation continues that by entering the classroom and engaging with students, GOH also failed to comply with the requirements of her return to work program.
  3. [39]
    The allegations in this category were not subject to any criminal charges against GOH.
  4. [40]
    The College’s allegations about what GOH said to Student C are verified by a statement given by the student to the Department of Education and Training, and in a transcript of a recorded interview between the police and student C.[21] The allegations about the failure of GOH to comply with the return to work program, by visiting the classroom, are verified in the statement given to the police by the principal of the school.[22]
  5. [41]
    We find that the allegations in this category are established to the relevant standard of proof.

Category 4 – ‘computer hacking’ student details

  1. [42]
    As we have analysed above, the factual basis for this category of allegations has been established by GOH pleading guilty to the relevant offence under s 408E of the Criminal Code.

The College’s submissions on whether grounds for disciplinary action have been established

  1. [43]
    In its written submissions,[23] the College submitted that the effect of the allegations, if proven, is to establish a ground for disciplinary action under s 92(1)(h) of the Teachers Act, in that the behaviour of GOH does not satisfy the standard of behaviour generally expected of a teacher.
  2. [44]
    The College referred to previous decisions of the Tribunal on the meaning of the 'standard of behaviour generally expected of a teacher’ in s 92(1)(h), including that:

…the standard expected should be the standard ‘reasonably’ expected by the community at large, as the actions of a teacher may impact directly upon the children of the community; and this in turn should reflect the standard that those in the teaching profession would expect of their colleagues and peers.[24]

  1. [45]
    The College submitted that in considering the ‘expected standard', it is appropriate to have regard to the objects of the Teachers Act contained in s 3, which are:
  1. (a)
     to uphold the standards of the teaching profession; and
  1. (b)
     to maintain public confidence in the teaching profession; and
  1. (c)
     to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.

We agree with that proposition.

  1. [46]
    The College refers to the high level of trust bestowed on teachers by students, parents and the wider community and, with that trust, an expectation it will not be breached. The submissions refer to the Tribunal’s decision in Queensland College of Teachers v DGM[25] where the Tribunal said:

Teachers hold a special position of trust arising from the nature of their work. In particular, teachers exercise powers that have a significant impact on the lives of students. How teachers behave towards a student may influence that student for life. Consequently, there is a community expectation that these powers will be exercised appropriately.

Consideration - grounds for disciplinary action

  1. [47]
    GOH has clearly breached the standard of behaviour required by s 92(1)(h). We have reached this conclusion when her behaviour across the four proven categories of allegation is considered, but especially so on the first category of sexual conduct with a student. The standard of conduct required of a teacher means that there is a blanket prohibition on teachers engaging in romantic or sexual relationships with current students.[26]  
  2. [48]
    The behaviour of GOH in the proven conduct under categories 2 and 3 would also, in our view, amount to a breach of the standards required by s 92(1)(h). The conduct in those proven categories amounts to a breach of professional boundaries between teachers and students. On those professional boundaries, the Tribunal has said:

As far as interaction with current students is concerned, teachers are expected to be empathic and to build rapport with students. However, it is important that they maintain professional boundaries with students, who of course are young and impressionable.[27]  

  1. [49]
    The proven conduct in category 2 on the relationship between GOH and Student B concerning the texts shared between the two of them was a clearly inappropriate over – familiarity between teacher and student. The sexualized content was clearly not appropriate to be shared with a student in year nine, even though the student might have understood the content to be a form of joking banter. When looked at through the prism of the proven behaviour in category 1 concerning the sexual encounters with Student A, there is a far more serious aspect to the texts.
  2. [50]
    We also find that the College has established the ground for disciplinary action under s 92(1)(b) of the Teachers Act in respect to the conviction for the hacking offence.
  3. [51]
    Having found that the College has proven grounds for disciplinary action under s 92, it is then necessary for us to determine what the appropriate sanction should be under s 161 of the Teachers Act, which is the applicable provision because GOH is a 'former approved teacher’. Relevantly, s 161 allows the following orders to be made:
    1. (a)
      if the Tribunal would have made an order cancelling the teacher’s registration if the teacher had been an approved teacher – make an order prohibiting the person from reapplying for registration to teach for a stated period from the day the order is made or indefinitely;[28]
    2. (b)
      make an order that a particular notation or endorsement about the teacher be entered in the register of teachers.[29]  

The College’s submissions on sanction

  1. [52]
    The College submits at one point in its written submissions that the conduct of GOH warrants an indefinite prohibition on her from reapplying for registration as a teacher.[30] In other places, the College submits that GOH should be prohibited from applying for registration or permission to teach for a period of 10 years[31] or no less than 10 years.[32] Also, the College submits that the register of teachers should be endorsed with a notation that should GOH reapply for registration after the period of prohibition, the application must be accompanied with an independent psychological report to the satisfaction of the College addressing specified factors.[33]

Factors relevant to sanction

  1. [53]
    The College referred to several factors concerning the conduct by GOH, in support of its submissions on sanction. Some of these are factual matters which we have considered above. However, the main factors relied upon by the College are as follows.
  2. [54]
    Concerning the worst conduct of GOH, namely the sexual encounters with Student A, the College submits:
    1. (a)
      GOH was well aware that Student A was a student at the school, although not his direct teacher;
    2. (b)
      after the initial conversation with student A about whether one would have sex with a teacher/student respectively, GOH 'furthered her intent’ through communications via social media and text message to arrange meetings. On the other hand, and apart from the submissions of the College, the evidence of Student A when being cross-examined in the relevant criminal prosecution, was that on each occasion, he initiated the sexual acts;
    3. (c)
      GOH deterred Student A from telling others about their relationship by asking or telling him on numerous occasions not to tell anyone. The College submits this indicates that GOH was well aware that her conduct with the student was unacceptable;
    4. (d)
      GOH engaged in personal and inappropriate discussions with Student A, including discussing her marital issues, previous relationships and sexual history;
    5. (e)
      she transported Student A in her car on at least three occasions by picking him up from his house and driving him to a remote location where the sexual encounters took place before she dropped him home or elsewhere;
    6. (f)
      GOH supplied Student A with alcohol on at least three occasions and with cigarettes at least once and would consume alcohol with him during their sexual encounters;
    7. (g)
      they engaged in multiple sexual acts in the encounters. On at least two of those occasions, either a condom was removed partway through the sexual act or not used. The College notes that GOH agreed when Student A asked if he could remove the condom. The College submits that this caused concern for the risk of pregnancy and transmission of sexually transmitted infections;
    8. (h)
      the relationship between GOH and Student A continued for approximately six months.      
  3. [55]
    We think the last of these submissions is an overstatement. Having regard to the evidence given by Student A when being cross-examined for the purposes of the criminal trial, we think the best view is that the sexual encounters occurred only between March and April 2016, after when the sexual encounters finished.
  4. [56]
    As for the conduct in category 2, apart from the facts of the matter as found above, the College submits that the text message exchanges took place during and well outside of school hours and the content had no relevance to an educational purpose. The College submits that the content was sexualized and entirely inappropriate. These interactions occurred when GOH was suspended and directed not to communicate with students. Further, GOH also sent text messages to Student B about deleting their text exchanges and telling her not to tell anyone about their texting.
  5. [57]
    Concerning category 3, and the conduct towards Students C and D, apart from the facts we have found above, the College notes that GOH had returned from suspension for only one day when she engaged in the behaviour. GOH entered a classroom against the stipulated requirements of her return to work program. The College submits that the behaviour to Students C and D was intimidatory. Student C was visibly shaken and upset following the incident. The students were in year nine.
  6. [58]
    The College submits that the conduct which formed category 4, of the computer hacking offence, amounted to vindictive behaviour against students C and D through obtaining their school records via another teacher.
  7. [59]
    Overall, the College makes the following submissions about the entirety of GOH’s conduct:[34]
    1. (a)
      she did not have any known previous disciplinary history;
    2. (b)
      her behaviour involved multiple students and was calculated and she was well aware of the conduct in which she was engaged;
    3. (c)
      being suspended more than once, including for an allegation similar to the allegations in categories 2 and 3, did not act as a deterrent to GOH;
    4. (d)
      the material indicates that GOH may have been going through personal issues with her marriage, but there was nothing to confirm or deny that, given the lack of participation on the part of GOH in the proceeding. Further, the letter from her lawyers indicates that she is unwell and participating in the proceeding would exacerbate her existing health condition. The College submits that it is unknown whether GOH has engaged with professional services about her behaviour. 
  8. [60]
    The last of these points requires some comment given some of the documentary material provided to the Tribunal by the College, originating from the DPP.
  9. [61]
    The sentencing remarks by the judge on the conviction for the computer hacking offence referred to a report tendered to that court, prepared by a consultant psychologist. The judge noted that GOH was first treated by him in August 2014 when admitted as an inpatient for assessment and management of her mental health condition. The judge summarised the report as stating that she presented with a diagnosis of psychotic depression which happened after the birth of her first child, which the judge understood to be a reference to post-natal depression.
  10. [62]
    The judge referred to ongoing treatment by the psychologist and that GOH returned to work in January 2015. It appears that the psychologist conducted a review in February 2015, and by November 2015, GOH was demonstrating some improvement in her depressive and anxious symptoms, but that she started to disclose that there were some longstanding issues in her marriage that she thought had contributed also to her condition.
  11. [63]
    The judge went on to note the psychologist reported by January 2016, GOH was taking various anti-psychotic medications. The judge referred to the words expressed by the psychologist that it is very possible that her poor decision-making over the period between March 2016 and October 2016 partly occurred due to her impaired concentration and impaired decision-making from her mental illness and also as a possible side effect from the medications that she had been prescribed.
  12. [64]
    Finally, the judge refers to that part of the psychologist’s report that since around mid- 2017, through the medical treatment and ongoing care provided to GOH, and that she had been compliant with the use of medication over the previous two years, that she had continued to thrive and improve and that he recommended in March 2019 that she cease all of her medications.
  13. [65]
    The judge took into account the psychologist’s report on GOH’s mental condition, and found that there appeared to be a causative link between her condition and her offending, not the least because of her flagrant disregard of the instructions given to her in approaching Student C on the second day after she had returned to work as both irrational and, in one sense, quite bizarre and perhaps reflected her state of mind at the time, that she was not thinking particularly clearly.
  14. [66]
    The purpose of a sentencing for a criminal offence is quite different to the current proceeding which is protective in nature, particularly of school students. Nonetheless, we have taken the sentencing judge’s comments into account, balanced against the objective evidence that GOH knew that her conduct was wrong, at least concerning categories 1 and 2.   

Comparative decisions of the Tribunal

  1. [67]
    The College correctly points out the effect of s 158(2) of the Teachers Act which provides that the Tribunal must have regard to any relevant previous decision by a 'practice and conduct body' (which includes the Tribunal itself) of which the Tribunal is aware.
  2. [68]
    The College has referred the Tribunal to a range of decisions which it submits concern behaviour comparable to GOH in this case.
  3. [69]
    In Queensland College of Teachers v El-Sayed,[35] the conduct of the teacher was sexual assault of a mentally and intellectually impaired person for whom the teacher was caring. The Tribunal prohibited the teacher from teaching indefinitely. That case is no doubt worse than the conduct of GOH.
  4. [70]
    The conduct in Queensland College of Teachers v CJK[36] concerned a primary school teacher who provided massages to five students, which resulted in criminal charges of indecent treatment. Five of those charges related to indecent treatment of children under 12 and two charges related to indecent treatment of children under 16. While the teacher was found not guilty of all seven criminal charges, the Tribunal found the evidence demonstrated consistent and repeated boundary-crossing by the teacher. Some of the massaging was around the hips, waist and groyne of the students. 
  5. [71]
    The Tribunal prohibited the teacher from teaching indefinitely, taking into account the serious, extended and repetitive nature of the conduct. We agree that the conduct in that case is more serious than that of GOH, since it involved multiple students, much younger than Student A in this case, and CJK lacked the element of willing consent on the part of Student A in the present case.
  6. [72]
    The Tribunal also indefinitely prohibited the teacher from teaching in Queensland College of Teachers v ATL.[37] The conduct of the teacher in that case was engaging in a sexual relationship with a year 12 student, and at the same time, having a sexual relationship with a former student which had been ongoing for approximately 3.5 years. We agree that case is more serious than that of GOH, since it involved the teacher having a sexual relationship with a current and former student at the same time.
  7. [73]
    The behaviour of the teacher in Queensland College of Teachers v NBL[38] was broadly similar to that of GOH in the present case. In NBL, the teacher engaged in a sexual relationship with a year 11 student on at least three occasions. In addition, the teacher verbally and physically sexually harassed four other female students at the school. There were also occasions of intimate touching of students. The Tribunal prohibited the teacher from re-applying for registration from 10 years from the date of suspension and the teacher was also required to provide a detailed psychologist's report on re- application.
  8. [74]
    In Queensland College of Teachers v RTM,[39] a relationship between the teacher and a year 11 student in his class became over-familiar through a large volume of phone calls, text messages and gift giving. While the teacher did not teach the student in year 12, in that year the relationship escalated after the student's 18th birthday. The teacher engaged in sexual activities and intercourse with the student on at least five occasions before her graduation. The relationship continued for five months after the student graduated.
  9. [75]
    The teacher’s registration was cancelled and he was prohibited from re-applying for registration for seven years from the date of the order and was required to complete a professional boundaries course and provide a psychologist’s report on re-application.
  10. [76]
    The College submits that the contact of GOH is more serious than that of RTM, since RTM's conduct involved one student, unlike four students in the case of GOH. On the other hand, the sexual conduct in the present case involved only one student, albeit there was also inappropriate and over-familiar behaviour with Student B, and intimidating and vindictive behaviour towards Students C and D.
  11. [77]
    Queensland College of Teachers v SGS[40] involved a teacher in a longstanding sexual relationship with a 17-year-old student that commenced soon after the teacher was transferred to another school. However, the teacher knew that the student was still a student at school. The relevant conduct progressed through sexualized text messages, Facebook communication and sexual intercourse. The teacher and the student cohabited together within three months of her graduating from school. The precise length of the sexual relationship was unknown, but was for at least 10 months and possibly longer.
  12. [78]
    The Tribunal prohibited the teacher from re-applying for registration for seven years and required him to provide a psychological report on re-application.
  13. [79]
    The College submits that the conduct of GOH is worse than that of SGS because of the behaviour of GOH involving the other students in categories 2, 3 and 4.
  14. [80]
    In Queensland College of Teachers v HMJ,[41] the teacher held a head of department role at the relevant school. She taught the 17-year-old student concerned in year 12. The teacher engaged in sexualized communications with the student for a period of six to seven weeks. The teacher was aware of the student’s dream to have sex with her after the school formal. The teacher communicated on multiple occasions the possible availability and later the actual availability of a hotel room after the formal.
  15. [81]
    The teacher had sexual intercourse with a student on a single occasion after the formal. At that time, the teacher was aware that she was a carrier of the herpes virus, exposing the student to the risk of contracting the virus, which he did not ultimately acquire.
  16. [82]
    The Tribunal prohibited the teacher from re-applying for registration for six years from the date on which she surrendered her registration. Any application for re-registration was ordered to be accompanied by a psychologist’s or psychiatrist’s report addressing specific matters.
  17. [83]
    Again, the College submits that the conduct of GOH is more serious than HMJ since it involved a larger number of students, with the conduct extending to intimidating and vindictive behaviour, and being over-familiar with another student. 
  18. [84]
    The conduct of the teacher in Queensland College of Teachers v CMK[42] was not as serious as that in the present case, since it did not involve sexual intimacy with a current student. Instead, the conduct included inappropriate and/or over-familiar behaviour towards senior dance students. That included spray-tanning students at the school, engaging in discussion with students about parties she had attended, underage drinking, her breast enhancement surgery, and her social life. It also involved lifting her top to expose her sports bra and telling students about involvement in a physical altercation at a bar/nightclub while intoxicated.
  19. [85]
    The most serious of the conduct amounted to the teacher forming an intimate relationship with a former student. This included physical intimacy in public more than once, including kissing each other on the lips and neck. The former student met the teacher overseas at least 18 months after the student had left school, at which time they were physically intimate.
  20. [86]
    The Tribunal prohibited the teacher from applying for registration for three years from the date of suspension of her employment. It also imposed a requirement that any application for re-registration be accompanied by a detailed psychologist’s report addressing specific matters.
  21. [87]
    The College submits that the conduct of GOH is more serious than CMK, in that it involved four sexual encounters with a current student where GOH provided him with alcohol and cigarettes. Similarly to CMK, GOH also engaged in inappropriate and overfamiliar conduct with Student B. Also, GOH’s conduct included vindictive behaviour towards Students C and D.
  22. [88]
    Other decisions of the Tribunal referred to by the College involved behaviour comparable to the less serious conduct of GOH, summarised as follows:
    1. (a)
      Queensland College of Teachers v CMH[43] – a pattern of over-familiarity between the teacher and the student, and preferential treatment. The sanction imposed was to recognise the suspension already served, and end the suspension;
    2. (b)
      Queensland College of Teachers v DCG[44] – intimidating and harassing communications with a student and the student’s boyfriend. A reprimand was imposed;
    3. (c)
      Queensland College of Teachers v Teacher GBJ [45] – teacher inappropriately obtaining student data from the school and over-familiar conduct – reprimand imposed and the teacher was required to provide a report from a specified psychologist addressing specific matters.        

Consideration- appropriate sanction

  1. [89]
    As the College submits, the purpose of disciplinary proceedings under the Teachers Act is not to punish the teacher, instead:

… it is to further the objects of the [Teachers] Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way. It is essential that persons registered as teachers do not pose a risk of harm to children. Although punishment is not the aim, deterrence is a relevant consideration. The sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question.[46]

  1. [90]
    No doubt, the most serious of the conduct by GOH was the sexual encounters with Student A. There is no doubt that she knew Student A was still a student at school. The sexual encounters were not a ‘one-off’ or spontaneous episode (although an event like that would not excuse a sexual encounter between a teacher and a known student). However, the sexual encounters were repeated and the fact that GOH asked Student A not to tell anyone about them identifies her awareness that the conduct on her behalf was wrong. Nonetheless, she persisted in the conduct, when she could have avoided it. Having said that, there is no suggestion that Student A was anything else than a willing participant. It is not the case that the sexual encounters were an un-consented to sexual assault. Nonetheless, the repeated sexual encounters themselves are a sufficient basis for GOH to be prohibited from applying for registration to teach for a lengthy period.
  2. [91]
    There is a real sense in which the sexual encounters with Student A had a 'ripple effect' which led to the other allegations against GOH which we have found to have been proven. For this, GOH only has herself to blame.
  3. [92]
    For the contact in category 2 concerning the texts sent to Student B, the conduct that the College complains of are texts about the sexual encounters with Student A, although Student B seems to have regarded them as fictitious joking banter. However, there was no error on the part of GOH about the content, as the entirety of the facts reveals. In any event, the content of the relevant texts was sexualized in nature and clearly inappropriate for discussion with a year nine student aged 13 or 14. 
  4. [93]
    The ripple effect also extended to the conduct in category 3, then consequently to the conduct in category 4. It appears that GOH became aware that Student C was circulating rumours about sexual activity between GOH and another student. This led to the confrontation and the intimidatory behaviour she showed towards Students C and D.
  5. [94]
    In turn, that led to GOH persuading another teacher to access the school’s records on Students C and D which formed the subject of the computer hacking charge to which GOH pleaded guilty.
  6. [95]
    A further aspect of the conduct taken as a whole, is a lack of professionalism, in the sense of GOH disobeying the directions given to her whilst under suspension, not to contact students. The texts sent to Student B occurred during that time. Also, as the College has pointed out, she breached the return to work program after the initial suspension was lifted, within a very short time after returning to the school.
  7. [96]
    The sentencing remarks of the judge on conviction of GOH for the computer hacking charges reveal that GOH was suffering from mental health problems at the relevant times in 2016 which appear to have been caused by or contributed to by post-natal depression, accompanied with difficulties in her marriage. Those mental health problems may have had an ongoing effect, explaining why her solicitors have told the College that their client is unwell and accordingly did not wish to participate in this proceeding. 
  8. [97]
    Be that as it may, she appears to have been aware of the wrongfulness of the conduct, and the potential that she would be dismissed from her employment if the sexual encounters with Student A were revealed, and also about the texts that she shared with Student B. Those mental health problems cannot excuse the seriousness of her contact, which she knew to be wrongful.
  9. [98]
    We consider that the sanction in this case should reflect the seriousness of the conduct of GOH taken as a whole. It may be that GOH has no current intention to return to teaching. However, she may change her mind at some time in the future. Bearing in mind the protective nature of sanctions of this kind, we think that the appropriate sanction is that GOH should be prohibited from reapplying for registration as a teacher for permission to teach for a period of 10 years from the suspension on 12 October 2016.
  10. [99]
    The prohibition period of 10 years amounts to a sufficient deterrent to members of the teaching profession about the consequences of inappropriate relationships with students. We think there is little need for a subjective deterrent to GOH. The sentencing remarks of the judge on the conviction for the computer hacking offence reveal the remorse of GOH for her conduct.
  11. [100]
    The conduct which we have found to have taken place also means that we agree with the submission of the College that the register of teachers should be endorsed with a notation that should GOH re-apply for registration or permission to teach after the period of 10 years, the application must be accompanied with an independent psychological report, to the satisfaction of the College addressing the factors which we describe in our orders below. 
  12. [101]
    This decision is consistent with the range of comparative sanction decisions by the Tribunal to which we have been referred by the College. It is not the worst case of teacher misconduct that has come before the Tribunal, such as in El-Sayed where the teacher preyed upon a mentally and intellectually impaired student. The sexual encounters with Student A which caused the ripple effect of the other categories of conduct, were not cases of sexual assault on an unwilling participant.  

Non-publication orders

  1. [102]
    We have given consideration to whether a non-publication order should be made concerning the identity of the teacher concerned in this case. The Tribunal has the power to do so under s 66(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) but only, relevantly:
  1. (b)
     to avoid endangering the physical or mental health or safety of a person; or

  1. (e)
     for any other reason in the interests of justice.
  1. [103]
    The starting position is that ordinarily proceedings of the Tribunal should be published in full, in the interests of open justice and so that proceedings are open to public scrutiny and to maintain the integrity and independence of courts and tribunals. In disciplinary matters, there is a deterrent effect in publishing details of the person the subject of the sanction.[47]
  2. [104]
    In its written submissions, the College recognises that in matters involving students and teachers, it is not uncommon for the name of the teacher to be suppressed, to avoid identification of the relevant student. The College continues that if the present matter was of that kind, its submission would be that it is not in the interests of justice for any child or student to be identified. However, the College submits that the matter at hand does not involve a child or student. That may be because the passage of time since the date of the relevant events in 2016 means that the students at the relevant time will now be adults. However, clearly the students were not adults at the date of the relevant events.  
  3. [105]
    In our view, there are three good reasons why a non-publication order should be made in the circumstances of this case. Firstly, the relevant involvement of the students occurred when they were children and accordingly their identity should be made the subject of a non-publication order. Secondly, the town in which the relevant events occurred is a small community and publication of the name of the teacher will, we think, inevitably lead to the identity of the students being made known.
  4. [106]
    Thirdly, given the sentencing comments made by the judge on the computer hacking offence we have referred to above, it is clear that GOH was suffering a mental illness at the relevant time. She appears to have largely overcome these difficulties, although the letter from the solicitors for GOH to the College dated 13 November 2020 indicates illness. We are concerned that publication of her name in connection with the events of 2016 could well lead to an adverse effect on her mental health.
  5. [107]
    The College submits that if a non-publication order is made, then there should be an exception made to it, for the processes of the College in sharing information with relevant agencies. We agree. The non-publication order as described on the first page of these reasons includes an exception in the form proposed by the College. An exception of that kind is consistent with exceptions made to non-publication orders in other decisions of the Tribunal.[48]

Orders

  1. [108]
    Our orders appear on the front page of these reasons.

Footnotes

[1]  The College’s written submissions on sanction and non-publication order dated 23 March 2021 (the College’s submissions), paragraph (12).

[2]  A decision by the prosecution not to continue with an indictment for a criminal charge.

[3]  The matters in (1)-(3) are verified by a National Police Check Results Report which is exhibit G to the affidavit of Kanchan Kavita Deo, Acting Principal Legal Officer of the College, affirmed on 6 May 2020 (the Deo May affidavit).

[4]  District Court sentencing remarks contained in an affidavit by Kanchan Kavita Deo, affirmed 4 December 2020 (the Deo December affidavit), exhibit G.

[5]  Exhibit E to the Deo December affidavit.

[6]  The Dictionary to the Teachers Act defines a ‘conviction' to mean a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.

[7]  See the definition of that term in the Dictionary to the Teachers Act.

[8]  Exhibit D to the Deo December affidavit.

[9]  Transcript, p 1-5.

[10]  Transcript, p. 1-7.

[11]  Transcript, pp. 1-27 - 30.

[12]  Transcript, pp. 1-17 - 16 (first occasion), p. 1-23 (second occasion), p. 1-26 (third occasion), p. 1-28 (fourth occasion).

[13] Briginshaw v Briginshaw (1938) 60 CLR 336.

[14]  In the documents from the DPP filed with the Tribunal.

[15]  Dated 1 March 2017, also contained in the documents from the DPP filed with the Tribunal.

[16]  See for example, at pp. 37 and 42 of the transcript of the interview.

[17]  Deo December affidavit, exhibits E and F.

[18]  Letter dated 9 May 2016 contained in the Deo December affidavit under cover of exhibit F.

[19]  Statement of Student B contained in the DPP documents, p. 32.

[20]  Statement of Student B, p. 33.

[21]  Contained in the documents from the DPP filed with the Tribunal.

[22]  Also contained in the documents from the DPP filed with the Tribunal.

[23]  Dated 23 March 2021.

[24] Queensland College of Teachers v Armstrong [2010] QCAT 709 at [33].  

[25]  [2018] QCAT 194 at [34].

[26]  A breach of the expected standard of behaviour will also very likely occur when a teacher engages in a sexual relationship with a recent former student – Queensland College of Teachers v Teacher FDA [2017] QCAT 224.

[27] Queensland College of Teachers v Teacher VK [2014] QCAT 268 at [12].  

[28]  Section 161(2)(c).

[29]  Section 161(2)(d).

[30]  Written submissions paragraph (78).

[31]  Written submissions paragraph (2).

[32]  Written submissions paragraph (80).

[33]  Written submissions paragraph (80).

[34]  The College’s written submissions at pp. 30-32.

[35]  [2018] QCAT 320.

[36]  [2019] QCAT 115.

[37]  [2020] QCAT 59.

[38]  [2019] QCAT 312.

[39]  [2016] QCAT 501.

[40]  [2017] QCAT 383.

[41]  [2016] QCAT 447.

[42]  [2019] QCAT 271.

[43]  [2019] QCAT 282.

[44]  [2016] QCAT 29.

[45]  [2018] QCAT 135.

[46] Queensland College of Teachers v TSV [2015] QCAT 186 at [25]. Emphasis and footnotes omitted. 

[47] Queensland College of Teachers v Mills [2015] QCAT 476, [3]-[5].

[48] Teacher QNL, and ATL cited above. 

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v GOH

  • Shortened Case Name:

    Queensland College of Teachers v GOH

  • MNC:

    [2022] QCAT 22

  • Court:

    QCAT

  • Judge(s):

    Member Sammon, Member McDonald, Member English

  • Date:

    14 Jan 2022

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Queensland College of Teachers v Armstrong [2010] QCAT 709
2 citations
Queensland College of Teachers v ATL [2020] QCAT 59
2 citations
Queensland College of Teachers v CMH [2019] QCAT 282
2 citations
Queensland College of Teachers v CMK [2019] QCAT 271
2 citations
Queensland College of Teachers v DCG [2016] QCAT 29
2 citations
Queensland College of Teachers v DGM [2018] QCAT 194
2 citations
Queensland College of Teachers v El-Sayed [2018] QCAT 320
2 citations
Queensland College of Teachers v HMJ [2016] QCAT 447
2 citations
Queensland College of Teachers v Mills [2015] QCAT 476
2 citations
Queensland College of Teachers v NBL [2019] QCAT 312
2 citations
Queensland College of Teachers v RTM [2016] QCAT 501
2 citations
Queensland College of Teachers v SGS [2017] QCAT 383
2 citations
Queensland College of Teachers v Teacher CJK [2019] QCAT 115
2 citations
Queensland College of Teachers v Teacher FDA [2017] QCAT 224
2 citations
Queensland College of Teachers v Teacher GBJ [2018] QCAT 135
2 citations
Queensland College of Teachers v Teacher VK [2014] QCAT 268
2 citations
Queensland College of Teachers v TSV [2015] QCAT 186
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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