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Queensland College of Teachers v Teacher BNU[2022] QCAT 255

Queensland College of Teachers v Teacher BNU[2022] QCAT 255

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland College of Teachers v Teacher BNU [2022] QCAT 255

PARTIES:

Queensland College of Teachers

(applicant)

v

teacher BNU

(respondent)

APPLICATION NO:

OCR059-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 July 2022

HEARING DATE:

2 June 2022

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski (Presiding)

Member Burson

Member Grigg

ORDERS:

  1. A ground for disciplinary action is established.
  2. BNU’s teacher registration is cancelled.
  3. BNU is prohibited from reapplying for teacher registration or permission to teach until 10 January 2024.
  4. A notation is to be entered into the teacher register that should BNU reapply for registration or permission to teach after the prohibition period, the application must be accompanied by a psychological report satisfactory to the Queensland College of Teachers addressing the following matters:
  1. (a)
    confirmation that the psychologist was provided with:
  1. (i)
    copies of the tribunal’s orders and these reasons for decision; and
  1. (ii)
    the referral and amended referral, including Annexure A to the amended referral;
  1. (b)
    an assessment as to whether the psychologist is satisfied that BNU has adequately understood and addressed the following matters:
  1. (i)
    awareness of appropriate and inappropriate relationships and behaviour with children and young people;
  1. (ii)
    awareness of the impact of inappropriate relationships and behaviour on children and young people, their family, schools, the community and the profession;
  1. (iii)
    awareness of differentiation between personal and professional relationships with children and young people;
  1. (iv)
    how to assess risks and identify potentially problematic situations early;
  1. (v)
    how to achieve realistic solutions to avoid the risk of harm to children and young people;
  1. (vi)
    awareness of the extent and nature of the trust and power invested in teachers by students, colleagues, parents and the wider community;
  1. (vii)
    awareness of behaviour that would compromise the professional standing of a teacher and the profession of teaching;
  1. (viii)
    the need to protect children and students from psychological and emotional harm;
  1. (ix)
    the concept and importance of professional boundaries;
  1. (x)
    the development and maintenance of professional standards and professional boundaries when working with students;
  1. (xi)
    the legal obligations and the duty of care which arises between teachers and students; and
  1. (xii)
    the importance of full adherence to the Queensland College of Teachers’ Code of Ethics.
  1. BNU must bear the costs of obtaining any report obtained under order 4.
  2. Other than to the parties to this proceeding and their legal representatives, and until further order of the tribunal, publication is prohibited of any information that may identify the teacher, a student or former student, or the school, other than to the extent necessary for the Queensland College of Teachers to meet its statutory obligations and as provided for under the Education (Queensland College of Teachers) Act 2005 (Qld). The teacher may provide a copy of this decision and the reasons to any regulatory authority or employer in compliance with any disclosure requirements.

CATCHWORDS:

EDUCATION – EDUCATORS – DISCIPLINARY MATTERS – GENERALLY – where student alleges overfamiliar relationship and sexual advances – whether alleged conduct established – whether teacher’s registration should be cancelled

Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1), s 92(1)(h), s 160

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Barton v R (1980) 147 CLR 75

Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16

Kah v Racing Victoria Limited [2021] VSC 753

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449

Queensland College of Teachers v ALE [2019] QCAT 143

Queensland College of Teachers v CMH [2019] QCAT 164

Queensland College of Teachers v CMK [2019] QCAT 271

Queensland College of Teachers v CSK [2016] QCATA 125

Queensland College of Teachers v CXJ [2018] QCAT 117

Queensland College of Teachers v HL [2013] QCAT 631

Queensland College of Teachers v REC [2020] QCAT 178

Rush v Nationwide News Pty Ltd (no7) [2019] FCA 296

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)

Applicant:

M Girvan, Acting Principal Legal Officer, Queensland College of Teachers

Respondent

M Black, instructed by Susan Moriarty and Associates

REASONS FOR DECISION OF members KANOWSKI AND GRIGG

Introduction

  1. [1]
    This is a teacher disciplinary proceeding. It has come about because a student says that the teacher – who we will refer to as BNU – behaved inappropriately toward him, including touching him intimately on many occasions.
  2. [2]
    The Queensland College of Teachers, which has referred the matter to the tribunal, submits that the tribunal should accept the student’s account of events. The QCT submits that the tribunal should find that the ground for disciplinary action set out in section 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘QCT Act’) is established:

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. [3]
    The QCT submits that the tribunal should cancel the teacher’s registration, prohibit him from reapplying for registration for four to five years from the date his registration was suspended, and require him to provide a satisfactory psychological report if he then reapplies for registration.
  2. [4]
    Mr Black for the teacher submits the student-teacher relationship remained professional. There was no inappropriate conduct, and so no ground for disciplinary action is established. Alternatively, if the tribunal finds that a disciplinary ground is established, the prohibition period should be only 18 months.
  3. [5]
    The student made his complaint in early June 2020 to the school guidance counsellor. At that time, the student was 17 and in year 12. He had turned 17 in the first half of 2020. The teacher was 32. His registration as a teacher has been suspended since 10 July 2020.
  4. [6]
    The teacher was never a classroom teacher of the student. The student was in the teacher’s form class in 2017, but the role of form teacher was quite limited. The teacher was initially a drama teacher at the school, and then became subject coordinator for drama from the end of 2018.
  5. [7]
    The tribunal must decide whether the ground for disciplinary action is established and, if so, what if any action should be taken as a result.[1]
  6. [8]
    We heard the matter on the papers. This was after another member made directions, expressed to be by consent, at the conclusion of a compulsory conference. The directions provided for the matter to be determined on the papers.
  7. [9]
    The material before the tribunal includes a video of the student’s interview by police on 25 June 2020, which the panel viewed. Documents before us included:
    1. (a)
      a transcript of the student’s police interview;
    2. (b)
      a transcript of a committal hearing held in January 2021 at which the student (who had graduated from school by that time) gave oral evidence; and
    3. (c)
      the teacher’s affidavit filed on 8 November 2021.
  8. [10]
    The committal hearing related to two charges brought against the teacher of indecent assault upon the student. One charge related to the period 27 January to 2 June 2020. The other related to 1 June 2020. The alleged conduct which was the subject of the charges is also part of what the QCT relies on in the disciplinary referral.
  9. [11]
    At the committal hearing, the prosecutor offered no evidence on the first charge, conceding that it could not be particularised. The magistrate dismissed that charge. The magistrate also dismissed the second charge, after concluding that a jury could not convict the teacher even taking the prosecution case at its highest. The magistrate considered that a defence of reasonable mistake as to consent to the relevant conduct on 1 June 2020 could not be excluded.
  10. [12]
    The dismissal of the criminal charges is not determinative of the disciplinary referral. A teacher could behave in a way that does not satisfy the relevant standard even though the conduct was not criminal or even though a student may have consented, or appeared to have consented, to the conduct.

The conduct or alleged conduct in question

  1. [13]
    The QCT says the conduct relied on is set out in Annexure A to its amended disciplinary referral dated 9 July 2021.[2] Annexure A consists an introduction followed by 31 paragraphs, and four headings. The annexure is set out below, omitting footnotes and identifying details, and substituting ‘teacher’ for ‘respondent’. Not all of the contended facts involve any impropriety. Some are merely background. The teacher agrees with some of the contentions; agrees with others subject to explanation; and disagrees with others. We will indicate our findings in italics after each contention. Under a later heading, we will explain those findings that call for explanation.

Annexure A, and findings

BNU …, a relevant teacher, behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the behaviour generally expected of a teacher in the circumstances below.

Background

  1. 1.
    The teacher … was initially registered as a teacher in Queensland on 17 December 2013. Finding: Accepted.
  1. 2.
    The teacher commenced employment as a teacher at [the school attended by the student] in 2017. Finding: Accepted.
  1. 3.
    The student was a year 9 student … in 2017. Finding: Accepted.
  1. 4.
    The teacher was the student’s form teacher in 2017. Finding: Accepted.
  1. 5.
    The teacher was the director of [a school musical] in 2017. The student participated in the musical but did not have a major role. Finding: Accepted.
  1. 6.
    The teacher asked the student to appear in a … play he was directing at [the school] in June 2018. Finding: Accepted, but this did not involve favouritism.
  1. 7.
    The teacher and the student spent increasingly more time alone with each other towards the end of 2018 / start of 2019. Finding: Established.
  1. 8.
    In 2018, the student auditioned and ‘won’ a lead role in [a school musical staged in May 2019]. The teacher was the director. Finding: Accepted, but this did not involve favouritism.
  1. 9.
    The teacher and the student developed an overfamiliar and inappropriate relationship over approximately two years, extending to inappropriate and intimate touching including hugging and touching on the bottom. Finding: Established only in respect of the period of approximately six months ending on 1 June 2020.

Overfamiliar and inappropriate relationship

  1. 10.
    The teacher and the student spent significant amounts of time together rehearsing and discussing [the 2019 musical]. Between mid-2019 and the end for 2019, the student visited the teacher in his office daily, usually at morning tea. Finding: Established subject to the qualification that the rehearsal time was not one-on-one between the student and the teacher, and did not exceed what would be expected for a student with a lead role in the musical. Further, we find that the visits to the teacher’s office may not have been daily but were almost daily.
  1. 11.
    Between late 2019 and 31 May 2020, the student visited the teacher in his office at least once a day during morning tea, lunch or after school. This would be half an hour to three quarters of an hour at a time. Finding: Partly established. Visits were numerous but not daily, and were often of shorter duration than 30 to 45 minutes.
  1. 12.
    The teacher gave the student gifts including a notebook, a framed painted artwork, a mug, a hairbrush and desk calendars. Finding: Accepted subject to noting that the gifts other than the hairbrush were mementos similar to gifts made by the teacher to others.
  1. 13.
    The teacher’s behaviour led the student to believe their friendship was normal where he described the relationship as friends and colleagues. They were close friends; the student was closer to the teacher than to his own father. The teacher and the student ‘hugged’ when the student left the office. The student described this as ‘normal, we had been pretty close for a student-teacher relationship – it wasn’t anything weird – it was all fine’. Findings: Established other than the contention that the teacher’s behaviour led the student to have his beliefs and the contention that it was a close friendship.
  1. 14.
    The student gave the teacher a card and a cinema giftcard for his birthday. Finding: Accepted.
  1. 15.
    The student wrote messages for the teacher on a blackboard such as “We love [name of teacher]” and “ILY [name of teacher]”, and used his fingers to form a heart shape directed at the teacher. Finding: Accepted. Noted that the teacher did not encourage this behaviour, and asked the student to stop each time it happened.
  1. 16.
    When discussing remaining in contact after the student finished school, the teacher believes that [the] student said “They don’t love you like I do”; “like you, I more than like you. I love you”. Finding: Not established.
  1. 17.
    The teacher asked the student if he loved him. The teacher told the student ‘I love you’, ‘you mean so much to me’, ‘you mean the world to me’, and ‘you bring me so much joy’. The teacher asked the student if he loved him and the student would nod in agreement. Finding: Established.
  1. 18.
    The teacher complimented the student ‘you’re so talented’, ‘you’re so fit, have you lost weight’. Finding: Established.
  1. 19.
    Other students were aware of the closeness of the relationship between the teacher and the student; some may have suspected there was something more going on. Finding: Not established.
  1. 20.
    The teacher would ask other students to leave so the teacher could talk to the student alone. Finding: Established.
  1. 21.
    In early 2020, the teacher touched the student on the bottom as he left the teacher’s office via the doorway. The teacher dismissed the student’s attempt to address the behaviour. The student was not 100% sure about what had occurred and thought there was a miscommunication or misunderstanding. Finding: Established other than the contention that the teacher dismissed the student’s attempt to address the behaviour.

Inappropriate and intimate physical touching

  1. 22.
    The teacher first hugged the student in early May 2019, at the end of the musical [name of musical]. Finding: Accepted.
  1. 23.
    Hugging between the teacher and the student became a common and normal occurrence. There were many times that during the ‘hug’, the teacher would touch the student on the bottom and sometimes the teacher would touch the student on the chest and nipples. Finding: Established.
  1. 24.
    The teacher first touched the student’s bottom during one of their hugs at the end of 2019 or early 2020. It happened between 15 and 30 times. Finding: Established.
  1. 25.
    The teacher ‘brushed’ the student’s genital area, with the back of his hand when he walked past the teacher to leave the office. Finding: Established.

1 June 2020

  1. 26.
    The student attended the teacher’s office after school at approximately 3:35 pm. Finding: Accepted.
  1. 27.
    The teacher asked the student what he thought if [the teacher] left the school. The student believed the teacher thought there was more to their relationship and the teacher wanted their relationship to progress. Finding: Established.
  1. 28.
    The teacher hugged the student and touched the student’s bottom with his hands. The embrace went on too long and the student felt uncomfortable. The student used his forearms to push the teacher  away as the teacher did not let go of the hug. Finding: Established.
  1. 29.
    The teacher asked for one more hug ‘just one more hug were his words’. The student told the teacher that he did not feel comfortable. Finding: Established.
  1. 30.
    The teacher told the student “well, I'm going to have to leave the school”. Finding: Established.
  1. 31.
    The teacher continued to walk towards the student, with his arms out, asking for one more hug. The student backed away into the corner of the teacher’s office and ‘I couldn't get around him’, ‘I remember standing in the corner shaking’. Finding: Established.

Standard of proof

  1. [14]
    The civil standard of proof – balance of probabilities – applies, but the tribunal must heed the observations of Dixon J in Briginshaw:[3]

…

At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded. …

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

…

When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

  1. [15]
    These observations are relevant because some of the conduct alleged involved assaults. That is so regardless of whether a defence of mistake of fact about consent would be open. Some of the other allegations do not involve criminal wrongdoing but are nonetheless serious matters in their potential to affect the teacher’s reputation and livelihood. As noted in Chapman v Crime and Misconduct Commission & Rynders,[4] reasonable satisfaction is ‘not to be reached lightly, or on flimsy evidence’. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[5] it was observed:

… members of our society do not ordinarily engage in fraudulent or criminal conduct [and a court] should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

Explanation of our findings

  1. [16]
    We will address some contentions out of the sequence in which they appear in Annexure A, in order to progress from the less to the more contentious issues.

Whether there was favouritism

  1. [17]
    Paragraphs 6 and 8 of Annexure A could carry connotations that the teacher favoured the student in casting decisions. The teacher says there was no favouritism. In respect of the 2018 play, the teacher said he asked two students, including the student in question, to join the cast after two year 12 students withdrew and had to be replaced quickly. Casting decisions for the 2019 musical were made jointly by a number of teachers, including himself, and were based on merit, according to the teacher.
  2. [18]
    The student makes the point several times during his police interview that he did not believe he was receiving favourable treatment by the teacher in casting decisions.
  3. [19]
    We accept that the casting decisions did not involve favouritism. They are relevant merely as background.

Annexure A paragraph 7

The teacher and the student spent increasingly more time alone with each other towards the end of 2018 / start of 2019.

  1. [20]
    The teacher says this contention misstates or misrepresents the facts: he did not make any effort to spend more time with the student; and any time they spent together was an ordinary incident of his role as a teacher and drama director.
  2. [21]
    However, the contention itself does not allege impropriety even though it might be read as implying it. The contention as stated is consistent with the teacher’s overall account in his affidavit. For example, the teacher mentions the student starting to drop by his office occasionally for a brief chat toward the end of term 4 in 2018.

Annexure A paragraph 15

The student wrote messages for the teacher on a blackboard such as “We love [name of teacher]” and “ILY [name of teacher]”, and used his fingers to form a heart shape directed at the teacher.

  1. [22]
    The teacher agrees that this happened. He provides detail and background in his affidavit. He says that in term 2 of 2017 the student had sometimes called hello and ‘love you’[6] across the school yard. The messaging on the board occurred in late 2017, ‘a bit in 2018’;[7] and again around the time of the musical in 2019. The teacher says that on each of these occasions, he asked the student to stop. He thinks it was in 2019 that the student switched to writing his messages in Japanese. The teacher says he and another teacher then asked students not to write on boards, and the behaviour did stop. The teacher says he thought this behaviour of the student ‘was weird but there didn’t seem to be anything to it, in a way he seemed to be showing off’.[8] In cross-examination at the committal hearing, the student was asked about this behaviour. When asked if he remembered the teacher asking him to stop, the student said ‘I don’t believe he asked me to stop’.[9]
  2. [23]
    The QCT has not addressed in Annexure A whether the teacher attempted to stop this behaviour. Nor has it contended that some failure to stop it is part of the conduct relied on to establish the disciplinary ground. Accordingly, in our view, the contention in paragraph 15 of Annexure A addresses the student’s behaviour, not the teacher’s. It simply forms part of the background. In light of the teacher’s specific evidence that he asked the student to stop the behaviour, and the student’s indefinite answer in cross-examination, we accept the teacher’s evidence that he asked the student to stop this behaviour whenever it occurred.

Annexure A paragraph 14

The student gave the teacher a card and a cinema giftcard for his birthday.

  1. [24]
    This is undisputed. This was in November 2019.
  2. [25]
    The teacher says that generosity was not unusual or improper at the school. He says he did not advertise his birthday but he did tell some students the date in 2018 when they asked. He says he received cards and cake for his birthday from other students, and students decorated the drama room for his birthday in 2018. We have no reason to doubt the teacher’s evidence about this.

Annexure A paragraph 16

When discussing remaining in contact after the student finished school, the teacher believes that [the] student said “They don’t love you like I do”; “like you, I more than like you. I love you”.

  1. [26]
    This is a curiously-worded contention, focussing on the teacher’s belief about what the student said rather than what the student said. It appears to be based on some exchanges at the committal hearing. Counsel for the teacher put to the student that he had made those comments. The student’s primary responses were to the effect that he did not recall making the first comment and that he did not make the second one. When pressed, he conceded that he could not be certain. 
  2. [27]
    The teacher says the student may have said something like one of the comments, adding that he understood it as simply jovial and light-hearted.
  3. [28]
    Mr Black submits that it cannot be inferred that questions put to the student in cross-examination reflected the teacher’s instructions to his lawyers. Such questions are neither evidence nor admissions, Mr Black submits. It is not necessary for us to resolve that question. Suffice it to say that the evidence relevant to the contention is very much in the category of the ‘inexact proofs, indefinite testimony, or indirect inferences’ mentioned by Dixon J in Briginshaw. The facts contended in paragraph 16 of Annexure A are not established to our reasonable satisfaction.

Annexure A paragraph 19

Other students were aware of the closeness of the relationship between the teacher and the student; some may have suspected there was something more going on.

  1. [29]
    These contentions are not based on any evidence from other students. They are based on comments by the student to police:

… there are some kids that I guess knew that, a lot of people knew that [the teacher] and I were close but there were still a few that maybe suspected there was something more that was going on but I haven’t talked to anyone about it.[10]

  1. [30]
    It is apparent that the student was only speculating about what level of knowledge others had, and whether they suspected anything. If the QCT wanted to try to establish that the teacher’s conduct toward the student had some effect on other students, it should have obtained evidence from at least a sample of those students. The present evidence about the state of mind of other students is very much in the realm of inexact proof. We are not satisfied on the balance of probabilities that the contentions in paragraph 19 are established.

Annexure A paragraph 22

The teacher first hugged the student in early May 2019, at the end of the musical [name of musical].

  1. [31]
    The teacher says:

At the end of opening night I was standing around with some teachers and students and the Student came along after the show and gave me and the music teacher … a hug in front of everybody. I think he was proud and pleased. I thought nothing of it, and nor did those around us.

There was no rule against hugging that I knew of. I wouldn't say it was a common thing, but sometimes a student might run up and give a quick hug, just a tap on the back. I recall one student would come and give me a quick hug in front of his parents before parent teacher conferences. In hindsight, I believe I should not have indulged the student or other students for that matter with hugs at all. Even though hugs were entirely innocent, there could be scope of misunderstanding.[11]

  1. [32]
    The teacher’s description of the first hug is broadly consistent with the student’s description to police.
  2. [33]
    We have no reason to doubt the teacher’s evidence that public hugging between teachers and students sometimes occurred at the school, and was not considered improper.

Annexure A paragraph 12

The teacher gave the student gifts including a notebook, a framed painted artwork, a mug, a hairbrush and desk calendars.

  1. [34]
    The teacher does not dispute that he gave these items to the student, but he says the contention misrepresents the facts. According to the teacher:
    1. (a)
      there was ‘a bit of a culture of gift-giving’[12] at the school, including from students to teachers;
    2. (b)
      he gave small and inconsequential gifts to a number of teachers and students, including the student in question, so he did not single the student out in this regard;
    3. (c)
      the notebook and calendar were mementos of his recent trip to the USA, and he gave such mementos to people at the school to share his interest in the performing arts;
    4. (d)
      the painted artwork and the mug were in the theme of the 2019 musical;
    5. (e)
      he arranged artwork for the student and the other lead performer to acknowledge their contributions;
    6. (f)
      those works consisted of the characters they played drawn over sheet music of their key songs;
    7. (g)
      he had told other staff about this and they agreed it was a good idea;
    8. (h)
      such mementos for lead performers were common;
    9. (i)
      the hairbrush was not purchased for the student but was, rather, a spare one the teacher had in his drawer;
    10. (j)
      at the start of 2020, the teacher noticed that the student was coming to school with messy hair;
    11. (k)
      the teacher offered the student the brush, mindful of the school’s strict uniform policy and the leadership role of the student; and
    12. (l)
      it was not meant as a gift but to promote better presentation by the student in his role as school captain. 
  2. [35]
    Gifts was not a subject the student had brought up himself in the police interview, which suggests it was not something he saw as significant. When the police asked him if he had received gifts, he mentioned the items listed in the contention. He thought that the female lead in the musical had also received a similar framed artwork from the teacher. The student’s explanation about the hairbrush differed from the teacher’s, however. The student said: ‘He’s given me a hairbrush, because he compliments my hair’.[13] That comment resonates with another made by the student:

… he touched me on the cheek, like from my cheek. He’d always compliment me on how well I shaved or if I needed a shave he’d feel my cheek and go oh you need a shave. … That’s one of the school rules you have to shave.[14]

  1. [36]
    We find that the teacher did give the items mentioned in paragraph 12 of Annexure A to the student. We accept that the gifts other than the hairbrush were mementos, and we see no reason to doubt the teacher’s evidence that he had given similar mementos to others. Whether the giving of the hairbrush was merely a utilitarian transaction depends really on whether one accepts certain other aspects of the student’s evidence. As we will explain, we do accept the student’s evidence. We do not regard that gift as purely utilitarian.

Annexure A paragraph 10

The teacher and the student spent significant amounts of time together rehearsing and discussing [the 2019 musical]. Between mid-2019 and the end for 2019, the student visited the teacher in his office daily, usually at morning tea.

  1. [37]
    The student does not say there were one-to-one rehearsals with the teacher. The teacher says there were not. Accordingly, while we accept that the student spent significant time in rehearsals where the teacher was present, ‘time together’ is liable to mislead in this context.
  2. [38]
    The student does not clearly say that visits to the teacher’s office were daily during the specified period, but it would be a fair summary to say he contended he visited daily during the musical and frequently at least after that. The student’s account of such matters is somewhat difficult to pinpoint because of how his evidence was gathered. The student’s main account is in the June 2020 police interview. That interview followed a style that is now widely recommended for interviewing young people. The young person is encouraged to initially give their account at length, with only minimal prompts from the interviewer. Then the interviewer poses questions intended to clarify or expand upon points already made. That style has advantages, but it results in the same topic being covered at several places. There is not always uniformity in what a young person says in each of those places, which in turn leads to questions of whether there are material inconsistencies. No final statement or affidavit is compiled in which the young person commits to a considered version of events in a methodical and chronological account.
  3. [39]
    The student variously spoke in the police interview of visits to the teacher’s office ‘fairly occasionally … including breaks and maybe after school a few times.’,[15] ‘basically every morning tea time’,[16] and:

… probably daily actually during the musical. More than once daily, during the musical. That would be, I’d brush past in the morning maybe, definitely see him at one of the two breaks, either morning tea or lunch time, and then possibly a rehearsal after school. [unintelligible] pretty often.[17]

  1. [40]
    Overall, these excerpts tend to suggest there was not a fixed pattern throughout the specified period.
  2. [41]
    In his affidavit, the teacher describes events in 2019. He says that in term 1 the student visited him at his office briefly after school from time to time. The student was tracking ticket sales for the musical, of his own initiative, and would usually want to tell the teacher about the strong ticket sales. The student would also want to ‘quickly check-in on his progress with the lead role’.[18]  In term 3, the teacher says, the student began to visit more frequently. Sometimes in the morning the student would come to the teacher’s form class and say hello, and the teacher would send him off to his own form class. This happened ‘maybe a couple of times a week’.[19] Also, perhaps a couple of times per week the student would visit the teacher’s office at morning tea time. The student was enthusiastic about the arts, and so the teacher was happy to talk to him about this. Term 4 was much the same, the teacher says, although the student was absent for some of the term on an overseas school trip. The teacher says the student was expressing a lot of enthusiasm for a show the teacher was planning for 2020. He also expressed his interest in a school leadership role in 2020.
  3. [42]
    It can be seen that there is common ground that the student was a fairly frequent visitor, at least. The student suggests more frequent visiting than the teacher. Neither kept records, so it is not possible to make a precise finding. As we generally prefer the student’s evidence on contentious matters, we find that visits during the specified period may not have been daily but were almost daily. We accept the teacher’s evidence that the student was overseas for part of term 4, and so visits would not have occurred during that time. The student did not mention this absence in his police interview, but clearly his focus was on his visits while at school.

Annexure A paragraph 11

Between late 2019 and 31 May 2020, the student visited the teacher in his office at least once a day during morning tea, lunch or after school. This would be half an hour to three quarters of an hour at a time.

  1. [43]
    The contention in paragraph 11 of Annexure A oversimplifies the student’s account. He did not allege daily visits during the period in question. His account was more nuanced. His comments included: 
    1. (a)
      ‘in the middle of term 1 he, when we had that incident in the hallway and I stopped seeing him for a while …;[20]
    2. (b)
      ‘just before everyone went home for Covid … I kind of retracted or stopped seeing him every day, or as often’;[21] and
    3. (c)
      ‘it definitely decreased over that period … during term 1I started to see him less and less’.[22]
  2. [44]
    The student went on to say that at the end of the school day he would walk down a path to the bicycle racks. The teacher could see the path from his office:

So he’d often if I hadn’t seen him in the day, he’d pop out the back entrance of the theatre and … he’d, you know, say hi or like why didn’t you see me today. I’d say I had some meeting or some other commitment to attend to but it would be maybe once a day, three or four times a week … and then plus his, him, himself going out of his way to see me. That would make it more like once a day … maybe a bit more’.[23]

  1. [45]
    In other words, the student was estimating that he visited the teacher’s office three to four times per week at the point he had in mind, but also was encountering the teacher elsewhere on other days.
  2. [46]
    The reference to visits lasting 30 to 45 minutes comes from the committal hearing. In cross-examination of the student by counsel for the teacher, the following was said:

So in the lead up to [the 2019 musical], you’d obviously spent a lot of time with him? --- Yes.

And that continued post the musical? --- Yes.

Okay. You would visit his office on your own? --- Yes.

In breaks. After school? --- Yes.

Spent a lot of time there. Half an hour, three quarters of an hour at a time? --- Yes.

Would you visit there at times before school? --- Occasionally, yes.[24]

  1. [47]
    It is therefore by no means clear that the reference to 30 to 45 minute visits was to 2020 at all. Further, the student had explained in the police interview that morning tea breaks were for 15 minutes, and so his visits to the teacher’s office at those times would last only 10 or 12 minutes. Accordingly, morning tea visits in 2020 would not have lasted for 30 to 45 minutes.
  2. [48]
    The teacher makes the same point about the duration of morning tea in his affidavit. He says that morning tea visits by the student were generally no longer than ten minutes. The student would discuss his subjects, drama, or other performing arts. The teacher describes the student as the most frequent visitor to his office, but not the only student who would visit.
  3. [49]
    In relation to after-school visits, the teacher says it would be very unusual for the student ‘to have any real time to spend visiting me’[25] because of the student’s after-school activities, the teacher’s frequent after-school commitments, and his practice of generally leaving the school straight after the final period when he did not have an after-school commitment.
  4. [50]
    The teacher also mentions the Covid-related switch to online home-based learning, which he says was for about the first five weeks of term 2 in 2020. He says that on-campus learning resumed in about mid-May 2020. He says the student then resumed visiting as before. Discussing 2 June 2020, the teacher describes the frequency of visits around that time as having been a couple of times per week.
  5. [51]
    Mr Black for the teacher characterises the student’s evidence about the timing and frequency of visits as ‘confusing and inconsistent’, and, picking up language from authorities cited above, ‘at best, “flimsy evidence” of “indefinite testimony”.[26]
  6. [52]
    We do not accept that the evidence was inconsistent. It could certainly have been more clearly expressed by way of a statement or affidavit. However, it was clear enough to convey that the student was a frequent visitor, and that there was a variable pattern of visiting. We do not regard the evidence as flimsy. It could have been more precise, but the student’s account was convincing, as we will discuss.
  7. [53]
    It can be seen that on the versions of both the student and the teacher, visits to the teacher’s office occurred but were not daily during the specified period, and they would not have been uniformly 30 to 45 minutes in duration. We find that there were numerous but not daily visits, and that visits were often shorter than 30 to 45 minutes.

Annexure A paragraph 13

The teacher’s behaviour led the student to believe their friendship was normal where he described the relationship as friends and colleagues. They were close friends; the student was closer to the teacher than to his own father. The teacher and the student ‘hugged’ when the student left the office. The student described this as ‘normal, we had been pretty close for a student-teacher relationship – it wasn’t anything weird – it was all fine’.

  1. [54]
    The teacher says: ‘I wouldn't refute the description “friend and colleagues”, in the sense that I had worked on several dramatic productions with the Student and we had built a friendly rapport’.[27] The teacher disagrees with the description ‘close friends’, saying he did not speak with the student about his personal life or associate with him outside school. The teacher says he did not sense that the friendship was as close as a father/son relationship. The teacher says the relationship was normal and fine: it was school-based and about school matters. The teacher says he strove to maintain professional boundaries, but it must be understood that the expectation at the school was that teachers would take a pastoral care approach. This including helping students in their latter school years mature into young adults. ‘That includes demonstrating to students how adults speak and relate with each other’.[28]
  2. [55]
    The teacher does not deny hugging, but characterises it as innocent:

On occasions, the Student did give me a quick hug, pat on the back type hug, when saying goodbye. There was nothing intimate or sexual about it. These were not embraces or improper.[29]

  1. [56]
    It is common ground that the teacher and the student shared interests and projects, and that they had frequent discussions. We find that it in that sense they were friends, and that they had a collegial relationship during the senior phase – years 11 and 12 – of the student’s schooling. The student did use the term ‘really close friends’,[30] but we are not persuaded that label can objectively be applied to an association limited to contact at school. The student made some brief comments in his police interview about the teacher’s social life, but it is apparent from the student’s remarks that this was only surmise. The student did not refer to any information that the teacher shared from his activities outside school apart from his enthusing about dramatic performances he had attended on trips to the USA.
  2. [57]
    It is not apparent why the QCT contends that the teacher’s conduct led the student to his beliefs about the relationship. We do not accept that contention. It has connotations of grooming, whereas the student’s account follows a different trajectory: the student initially infatuated by the teacher; the teacher maintaining a professional distance for quite some time but then eventually testing the waters for a more intimate relationship; but the student backing away because he did not want the relationship to follow that path.
  3. [58]
    The student did say ‘I was probably closer to [the teacher] than my Dad to be honest’,[31] but we have no information about the quality of the relationship between the student and his father. Accordingly, the student’s observation is of limited probative value.

Other allegations of overfamiliarity and touching

  1. [59]
    We refer here to the contentions in paragraphs 17, 18, 21, and 23 to 35 of Annexure A.

The teacher asked the student if he loved him. The teacher told the student ‘I love you’, ‘you mean so much to me’, ‘you mean the world to me’, and ‘you bring me so much joy’. The teacher asked the student if he loved him and the student would nod in agreement.

The teacher complimented the student ‘you’re so talented’, ‘you’re so fit, have you lost weight’.

In early 2020, the teacher touched the student on the bottom as he left the teacher’s office via the doorway. The teacher dismissed the student’s attempt to address the behaviour. The student was not 100% sure about what had occurred and thought there was a miscommunication or misunderstanding.

Hugging between the teacher and the student became a common and normal occurrence. There were many times that during the ‘hug’, the teacher would touch the student on the bottom and sometimes the teacher would touch the student on the chest and nipples.

The teacher first touched the student’s bottom during one of their hugs at the end of 2019 or early 2020. It happened between 15 and 30 times.

The teacher ‘brushed’ the student’s genital area, with the back of his hand when he walked past the teacher to leave the office.

  1. [60]
    The teacher denies telling the student that he loved him, making the other comments alleged, touching the student’s bottom, chest or nipples, or brushing against the student’s genitals. The teacher says that any positive feedback or encouragement he gave the student was proper and in line with the pastoral care expectations of the school. He says he had used an expression like ‘it means so much’,[32] but only in relation to the commitment of all students to the highly successful 2019 musical. The teacher says he did not comment on the student losing weight, and is not aware that the student ever carried additional weight. Further:

I just cannot fathom how it could seriously be suggested that I touched this boy’s bottom between 15 and 30 times, when my office is located in such a busy and vibrant area with so much going on and so many people around. I remain at a loss as to why the police did not get statements from others, because that could have shown how implausible this allegation is.[33]

  1. [61]
    Earlier in his affidavit, the teacher had described the location of his office:

My office was located adjacent to the Drama room where it oversaw a large stage area with stairs leading down to it.

The theatre was a very busy hub of music rehearsals, individual rehearsals, classes, special seminars and other [school] events including assemblies etc. Occasionally, the venue would be hired out externally, which meant large volumes of people setting up for their use of the space. People could be arriving at any time.

Whilst there was a hallway walk to the Drama space, it was not closed off or isolated. There was also another entrance and exit point below my office, so students and staff were constantly entering through this passage too.

My office door was always kept open and as indicated, backed onto a very large stage space which was generally occupied throughout the day. It was also possible to see directly into my office space as there were windows facing the stage.

Groups of students and staff would regularly visit me throughout the day. Again, the conversations conducted here were based around school, and usually some students wanting to know more about studying Drama.[34]

  1. [62]
    The student told police that the teacher had ‘a specific set of phrases that he’d use with me’ such as ‘love or you mean the world to me or you brighten up my day or you bring me so much joy’.[35] Further, ‘he sometimes ask if I loved him and I’d just nod, like not saying that I did but like trying not to offend him’.[36] The student said the teacher praised him for doing well in the 2019 musical and expressed how much joy the production had brought him, and ‘then I guess he slowly moulded that into how much joy I brought him as a result’.[37]
  2. [63]
    The student described the feedback he received from other teachers as:

Nothing as extensive as his complimenting. Like I mean for example, the rugby coach wouldn't go on for ages about my ability. They’d say ‘good job move on’.[38]

  1. [64]
    According to the student, the teacher first touched him on the bottom during one of their hugs. This happened again on later visits. The student described an occasion happening, after about five to ten earlier similar incidents, in narrow doorways in a hallway near the teacher’s office as he and the teacher walked along. The student says he gathered up the courage to say something but ‘it happened so fast I couldn't get it out’.[39] Similarly, at the committal hearing, the student said: ‘I was about to say something, but I didn’t get the chance’.[40] Accordingly, we are not satisfied, even on the student’s version, that it could be said that the teacher dismissed the student’s attempt to address the teacher’s behaviour.
  2. [65]
    In relation to his uncertainty, the student told police:

… I still wasn’t a hundred per cent sure if this was one big miscommunication or misunderstanding on my behalf, or really what’s going on because at [the school] it’s a very safe environment.

…

It’s not something that immediately jumped to my mind that I should be worrying about someone trying to I guess, take advantage of me.[41]

  1. [66]
    The student, referring to the start of 2020, said: ‘he continued to touch me. On the bottom and progressively the chest, nipples and umm genitals’.[42] The student said:

As we let go of the hug he might, you know, touch my cheek or you know touch my chest or you know my genitals. And especially as I’m walking past him to get out of his office, he’d you know, take advantage of the fact that I'm, you know, there and I could maybe think he’d just accidentally brushed me but.

…

It was always a slight touch it was never a grab,

…

or anything, it was. Yeah, oh. No so much the genitals that was always like a kind of back hand sort of brush.

…

I guess the chest he’d more grab and squeeze I guess.[43]

  1. [67]
    Describing the teacher’s office, the student mentioned there were windows looking on to the back stage area. Of the surrounds, he said:

Then the theatre itself, his office is behind the drama room, which you have to go through a fairly long hallway to get to.

…

Umm, so there’s really no thoroughfare through there. It’s the only reason of going to that area for theatre is for the, express purpose of seeing [the teacher],

…

you know. Umm, the hallway it branches off into practice rooms, there’s about six of them.

…

And that’s you know, kids go there daily like, there’s six or seven tutors in there.

…

Umm, but no one really goes past the drama room at break times, or anything.[44]

  1. [68]
    The police asked the student whether the door to the teacher’s office would be open or closed when he was visiting. The student responded: ‘Most of the time it’s open but sometimes it’s closed. Yeah.’ The police then asked ‘So the majority of time it would be open so anyone could walk in?’. The student responded: ‘Exactly but you can see pretty far down the hall from where he sits, so you know’.[45]
  2. [69]
    Referring to the student’s evidence overall, Mr Black submits the evidence is the type of inexact proof or indefinite testimony that Dixon J warned about in Briginshaw. Further:

His evidence is beset with problems, has not been tested by full cross-examination; and is not supported by independent witnesses – it is ‘flimsy evidence’ for such serious allegations’.[46]

  1. [70]
    It is true that there are no independent witnesses, but on critical matters there would have been no other witnesses. The alleged conduct was not done in front of observers. Corroboration on marginal issues would be of little real assistance.
  2. [71]
    We do take into account that the student’s evidence has not been tested by full cross-examination. The cross-examination at the committal hearing was limited to the issue of consent. Mr Black submits that the QCT ‘has elected not to call any oral evidence or make any witnesses available for cross-examination’.[47] The QCT in its submissions in reply appears to accept this, and seeks to justify it. However, in our view it is not the QCT’s call to make about whether a witness is to be cross-examined. Section 95(1)(b) of the QCAT Act requires the tribunal to allow a party a reasonable opportunity to cross-examine witnesses. The teacher did not seek to exercise his right under that provision. That diminishes somewhat Mr Black’s criticism that the student’s evidence has not been tested by full cross-examination.
  3. [72]
    Still, it is relevant to bear in mind that the student’s evidence has not been tested in that manner. We have not had the advantage of seeing how he would respond to challenging questions.
  4. [73]
    We did, though, have the advantage of observing the student in an interactive setting when we viewed the video of his police interview. While such an environment is less challenging than cross-examination, it would still be a stressful experience for most people, in which they field unexpected and probing questions on sensitive topics. The student impressed as a thoughtful, fair-minded and responsive interviewee. There was no sign of malice: for example, the student was quick to dispel any impression of favouritism by the teacher.
  5. [74]
    In relation to the student’s evidence that the teacher expressed love, and gave unnecessary compliments, Mr Black submits that the student’s credibility is undermined by the absence of reference to such comments in the notes made by the guidance counsellor on 2 June 2020, when the student initially reported the matter. The notes instead referred to the teacher praising the student for his abilities and his performances in a musical, Mr Black notes. We do not accept that the student’s credibility is undermined in that way. It is unremarkable that a year 12 student telling someone for the first time about protracted and sensitive events would not mention every detail that they later tell in a lengthy police interview. The handwritten notes made by the counsellor say that the student was ‘nervous / ill at ease’ and ‘upset’.[48] By the time of the police interview, some weeks later, there would have been time for the student’s emotions to settle. He had prepared notes on his phone, which he referred to near the end of the interview to check if he had missed any points.
  6. [75]
    Mr Black also submits that a typed version of the counsellor’s notes suggests that the student only realised something was wrong after watching a documentary and attending a presentation. (The student also mentions these in his police interview. He says the documentary examined abuse of students at a school. The presentation was by the chaplain and a senior teacher about respectful relationships and toxic relationships. He says he saw this presentation twice). It is implausible, Mr Black submits, that a senior student would not have understood that a teacher expressing love to them was highly unusual and inappropriate. The student’s comments that he did not know who to talk to about intimate touching, and not really having the courage to speak up, are also implausible, Mr Black submits, having regard to the student’s age, role as school captain, extensive support network, and easy access to a counsellor.
  7. [76]
    In our view, these submissions do not take into account the emotional state that a young person would likely find themselves in if they had been through the experiences described. The student’s description in his police interview of his previous sense of safety within the school, his initial confusion and self-doubt when the intimate touching began, and his gradual reframing of the situation, is very plausible. If the student’s account is true, he experienced a betrayal of trust by a teacher he considered a very close friend. That would have been a confusing and very unsettling time for a teenager.
  8. [77]
    As we have indicated, we were favourably impressed by the student’s presentation in the police interview. He was credible and convincing. The student appeared to answer questions in a thoughtful and sincere manner. He did not appear to be sticking to any rigid script. It has not been suggested that he had some ulterior motive to harm the teacher’s reputation, and no such motive is apparent. There is no obvious reason why he would lie about what happened. That does not rule out the possibility that he is lying, perhaps for example in retaliation for the teacher not responding positively to the student’s expressions of love.
  9. [78]
    The student did appear slightly guarded at times, but we regard that as unsurprising in view of the subject matter. That was sensitive, and probably embarrassing for him. Embarrassment can be detected in comments the student made after describing to police how the teacher behaved when the student had a relationship had with a girl from late 2019 to early 2020. The student said:

And he apologised and you know, said things to the effect, well can I get you back or he always referred to how I kind of umm, like my love, like the childish love like a Year 9 kid would have to a young male teacher, like umm, an idolisation I guess … of a teacher that I, he’s, I think he was kind of wanting that kind of idolisation out of me now but I've matured.[49]

  1. [79]
    The student did not expand upon that love or idolisation in the interview, and nor did the police ask him to. Some details emerged, however, at the committal hearing. The student agreed with a proposition put by the teacher’s counsel that he inscribed a birthday card to the teacher in November 2019 with the words ‘Dear Mr [teacher’s surname], happy 32nd birthday. I can't wait to spend another year with you, from [name of student]’.[50] Questions by counsel then elicited that the student had written the messages on the blackboard, and formed a heart shape with his fingers, as outlined in paragraph 15 of Annexure A.
  2. [80]
    Given this context, we do not regard any guardedness on the part of the student as detracting from his credibility.
  3. [81]
    Considering the student’s account as a whole, we are satisfied that at all times he gave his honest recollection. We regard his evidence as reliable. The student was able to answer questions put to him convincingly and in detail.
  4. [82]
    The student’s evidence on several key matters is contradicted by the teacher’s evidence. The teacher’s account is clear and internally consistent. It is generally plausible, but it does strain credibility that a teacher could truly view hugging, however perfunctory, with a student in private meetings as consistent with a purely professional relationship. We give weight to the fact the teacher has, in his affidavit, given evidence on affirmation. (The student’s evidence at the committal hearing was also on affirmation, but as we have mentioned the scope of the oral evidence there was limited). We have also taken into account the teacher’s arguments that certain alleged events are improbable because of environmental factors. As will be explained in more detail a little later, however, we do not regard those arguments as compelling. We also take into account that the teacher has an interest in denying the most damaging allegations. That does not, of course, mean that his denials must be false.
  5. [83]
    We are conscious of the seriousness of the key allegations against the teacher. We have borne in mind the matters discussed in Briginshaw and the other cases we cited earlier. After considering all of the evidence, we assess the student as a truthful and reliable witness. We are positively satisfied, on the balance of probabilities, that the teacher did intimately touch the student, express love, and so on. We find that the teacher’s compliments went beyond mainstream positive feedback. They were intended to convey a particular interest in the student and his physical appearance.
  6. [84]
    Mr Black submits that the allegation of the brushing of the student’s genitals in paragraph 25 of Annexure A is an allegation of a single incident. Such an incident in or near a doorway could well be accidental, Mr Black submits.
  7. [85]
    We note that the QCT is bound by the terms of the referral it makes,[51] including in this case how the referral has been particularised in Annexure A. Particulars in disciplinary matters are intended to afford procedural fairness to respondents.[52] Nonetheless, we do not accept that paragraph 25 is an allegation of a single incident. The contention is not specific about that. It should therefore be read in conjunction with the student’s police interview. The student’s account is of brushing on more than one occasion, though the number is not specified or estimated. At one point in the interview, the student described, in effect, a practice of the teacher standing at the door as the student was about to leave, and brushing the student’s genitals as he passed.[53]
  8. [86]
    Mr Black submits that even on the student’s account, there is no indication that any brushing was deliberate, other than the student’s assumption. We disagree. The overall described pattern of gradually-advancing touching of different parts of the student’s body is inconsistent with accident. We also do not accept Mr Black’s characterisation of the evidence on this topic as vague, indefinite and flimsy.
  9. [87]
    It is apparent that what the student was describing was surreptitious, brief touching that, while deliberate, could be explained away as accidental if necessary. It was a testing of the waters by the teacher. We accept that there would have been opportunities for the teacher to engage in such conduct without being observed, notwithstanding that the nearby area would have been quite busy at times. Similarly, the endearing comments were not uttered in front of others. The student gives a compelling account of a gradual and deliberately ambiguous build-up in the teacher’s various advances. The touching involved risky behaviour by the teacher, but to borrow language from Briginshaw, the conduct was not inherently unlikely, given the background. We feel an actual persuasion that the touching and the comments described by the student occurred.

Annexure A paragraph 20

The teacher would ask other students to leave so the teacher could talk to the student alone.

  1. [88]
    The teacher says there was no such common practice. He says he recalls one occasion when he did take the student aside to check on his welfare, but without any impropriety. The teacher says it was not uncommon for groups of students to visit him and chat about school topics. He says he did not seek out opportunities to be alone with any student.
  2. [89]
    The student says:

And I’d often try to go and see him with a few friends.

…

Umm, and sometimes he’d ask for other people to leave so he could talk to me alone about the play for example. And most of the time it’s not about the play, it’s just so he could talk alone.[54]

  1. [90]
    Mr Black submits that the allegation in paragraph 20 of Annexure A is exactly the type of allegation that, if true, could be supported by independent witnesses, yet no such evidence has been produced. Support from other witnesses though, would depend on the student being able to recall which other students had been present, and in turn those students being able to remember something that was probably of no consequence to them. We do not consider that the absence of such evidence necessarily detracts from the veracity of the student’s account. 

Annexure A paragraphs 26-31 (relating to 1 June 2020)

The student attended the teacher’s office after school at approximately 3:35 pm.

The teacher asked the student what he thought if [the teacher] left the school. The student believed the teacher thought there was more to their relationship and the teacher wanted their relationship to progress.

The teacher hugged the student and touched the student’s bottom with his hands. The embrace went on too long and the student felt uncomfortable. The student used his forearms to push the teacher away as the teacher did not let go of the hug.

The teacher asked for one more hug ‘just one more hug were his words’. The student told the teacher that he did not feel comfortable.

The teacher told the student “well, I'm going to have to leave the school”.

The teacher continued to walk towards the student, with his arms out, asking for one more hug. The student backed away into the corner of the teacher’s office and ‘I couldn't get around him’, ‘I remember standing in the corner shaking’.

  1. [91]
    The teacher agrees that the student visited his office that afternoon, but denies that the discussion and events alleged by the student occurred. The teacher says:
    1. (a)
      he had no intention of leaving the school and did not tell the student that he had;
    2. (b)
      he had never thought there was anything more than a teacher/student association;
    3. (c)
      the student said he had to go shopping and as he departed, said ‘see you tomorrow’[55] and smiled;
    4. (d)
      he did not see the student shaking;
    5. (e)
      there was no physical altercation or anything culminating in the student being cornered or having his path blocked;
    6. (f)
      it was a large space with the corners occupied by shelves or cupboards, so the teacher is not sure how the student could have been cornered;
    7. (g)
      it was a busy area;
    8. (h)
      from 3.30 pm there were instrumental music rehearsals with a large number of students and staff in the area;
    9. (i)
      it is ‘just implausible that something like this would happen with so many people around’;[56] and
    10. (j)
      he ‘cannot understand why the police did not get witness statements which would have identified that this was a busy time and area’.[57]
  2. [92]
    Earlier in the affidavit, the teacher described the music rehearsal as ‘a huge orchestra rehearsal happening outside at the time downstairs’.[58]
  3. [93]
    The student told police that the visit came about because the teacher had emailed him to say he had found a clipboard with notes that the student had misplaced. The student went into some detail about the discussion with the teacher in the office, and how he saw a disconcerting expression on the teacher’s face after they hugged. He then described the teacher’s request for another hug, then feeling cornered, and so on.  The student says, in effect, that during this interaction he decided he would report the teacher. He says he was shaking because of what had happened but also because he understood how the teacher’s career would be affected. He says he said goodbye to the teacher, and left.
  4. [94]
    We have no reason to doubt the teacher’s evidence that there were other people in the general vicinity. It is not suggested there was anyone with a direct view of the events. We accept that there would have been some risk of interruption, although presumably the musicians downstairs were focussed on their rehearsal rather than seeking out the drama coordinator. On the student’s account, the teacher was more insistent than on earlier occasions. It was an expected visit. The teacher had what appears to be an edge of desperation, on the student’s account, which might well be consistent with a greater willingness to take a calculated risk.
  5. [95]
    The teacher says there were shelves and cupboards in the corners of the office. It is not apparent how that would prevent a person being cornered.
  6. [96]
    Mr Black submits that the student’s account of events on 1 June 2020 is fantastical, unreliable and implausible. We disagree. Mr Black submits that the absence of corroborating evidence about the student being distraught on the afternoon of 1 June 2020 ‘renders the Student’s claims improbable at best’.[59] We do not accept this. The student’s account is that he left the office and then rode home on his bicycle. He had elsewhere mentioned that the bicycle racks are near the teacher’s office. He has not described encountering anyone as he left. The teacher’s affidavit mentions an exit point behind his office, and the student had alluded to a back entrance to the theatre. The next day the counsellor noted the student’s emotional state, as we have already mentioned.
  7. [97]
    As we have indicated, we regard the student as truthful. We accept his evidence about the events of 1 June 2020. We reject the teacher’s denials. Notwithstanding the seriousness of the allegations, we find on the balance of probabilities that the comments and events described by the student occurred.

Conclusions about duration of overfamiliar and inappropriate relationship

  1. [98]
    The QCT contends in paragraph 9 of Annexure A that the teacher and the student developed an overfamiliar and inappropriate relationship over approximately two years, extending to inappropriate and intimate touching including hugging and touching on the bottom.
  2. [99]
    We agree that the relationship was overfamiliar and inappropriate when it incorporated hugging in the teacher’s office, when it included other intimate touching, and when it included expressions of love by the teacher and comments such as ‘you mean the world to me’.
  3. [100]
    When each of these elements began cannot be pinpointed. The hugs at the conclusion of meetings in the teacher’s office started some time in 2019, after the May 2019 musical. While we accept that public hugging, such as in the euphoria of a successful event, might be unremarkable, hugging, however minimal or brief, in a meeting between a student and a teacher in an office can only attract the description overfamiliar. We find that such hugging commenced some time in the second half of 2019, but we cannot be more precise about the timing.
  4. [101]
    We find that the touching on the bottom commenced either in late 2019 or early 2020, and that other intimate touching including on the chest, nipples and genitals, occurred from early 2020. Again, we cannot be more precise.
  5. [102]
    It is not possible to pinpoint when the teacher’s expressions of love, comments such as ‘you mean the world to me’, or his unnecessary compliments, began. We find they were made in 2020. There is insufficient evidence to conclude that they dated back as far as 2019.
  6. [103]
    On this basis, we find that there was an overfamiliar relationship from approximately late 2019 to 1 June 2020.
  7. [104]
    We are not persuaded that there was an overfamiliar or otherwise inappropriate relationship prior to the introduction of the elements just discussed. Before those elements entered, there was a friendly teacher-student relationship with common interests and pursuits. However, we are not persuaded that it was inappropriate. There was an unusual feature in that the student at times professed love for the teacher, but we accept that the teacher did not encourage that. The teacher continued to deal professionally with the student for quite some time. Although this is not determinative, we note that the student himself described the relationship as ‘normal’[60] for some two years after the 2017 musical.
  8. [105]
    Accordingly, we find that there was an overfamiliar and inappropriate relationship of approximately six months’ duration up to 1 June 2020, which extended to hugging and intimate touching.

Conclusion about whether a disciplinary ground is established

  1. [106]
    On the basis of the findings we have made above, we consider the disciplinary ground under section 92(1)(h) of the QCT Act is clearly established: the conduct of the teacher over a period of approximately six months leading up to 1 June 2020 did not satisfy the standard of behaviour generally expected of a teacher. That requires little elaboration in the circumstances. The conduct was obviously improper. It involved a breach of trust. It was damaging to the student at a formative time in his life.
  2. [107]
    The QCT also submits that section 92(2)(a) operates. It provides that the ground in section 92(1)(h) is taken to apply to a teacher whose registration has been suspended under section 48, if a charge for a serious offence against the teacher has been dealt with. Nonetheless, we are satisfied that the ground under section 92(1)(h) is established on the conduct we have found to have occurred, not merely on account of the procedural deeming provision in section 92(2)(a).
  3. [108]
    In considering sanction, we will operate on the basis of our findings, which are less extensive than the contentions urged by the QCT.  We do not take into account what the QCT refers to in its submissions as findings of the magistrate at the committal hearing. As Mr Black explains comprehensively in his submissions, the magistrate’s role required the magistrate to assume the prosecution case at its highest could be established, rather than to make findings.

Sanction

  1. [109]
    Available actions under 160 of the QCT Act range from taking no action through to cancelling a teacher’s registration and prohibiting reapplication for a period or indefinitely. The purpose of sanction is not to punish the teacher, but to uphold the objects of the QCT Act. These include upholding standards in the profession; maintaining public confidence in the profession; and protecting the public by ensuring education is provided in a professional and competent way.[61] Deterrence specific to the teacher, and general in relation to the profession, is a relevant consideration. It is also relevant to take into account sanctions imposed in comparable cases: the promotion of consistency in tribunal decisions is an object of the QCAT Act.[62]
  2. [110]
    BNU says that ‘false allegations’[63] against him, the legal proceedings, and being stood down from his job have affected him deeply. As a result, he has been seeing Dr Greig Richardson, psychiatrist, since June 2020. BNU has provided letters from Dr Richardson written in February 2021 and November 2021. Dr Richardson:
    1. (a)
      noted 32 appointments between June 2020 and November 2021;
    2. (b)
      said that BNU had been a dedicated teacher who had realised his ambition of being a head of drama, and he had been devastated by being stood down;
    3. (c)
      said that BNU repeatedly told him that ‘interactions were no more than hugging with there being no sexual interplay whatsoever’;[64]
    4. (d)
      BNU experienced significant anxiety, stress and depression because of the proceedings and the impact on his career;
    5. (e)
      BNU’s mood has stabilised with medication;
    6. (f)
      much of the work in therapy has addressed professional boundary-keeping and the effects of breaking boundaries;
    7. (g)
      BNU has also completed courses; and
    8. (h)
      BNU ‘has an ability to understand and absolutely apply appropriate boundaries with students moving forward’.[65]
  3. [111]
    BNU has provided evidence that he has, while suspended, continued his professional development by completing an online program in professional practice and professional boundaries for teachers, and a short course in child protection for teachers.
  4. [112]
    We note that BNU has not acknowledged the conduct that we have found occurred. Accordingly, he has not demonstrated insight or remorse. We accept that he has felt devastated by being stood down by the school, having his teacher registration suspended, and facing legal proceedings. We accept he has made efforts to learn more about professional boundaries and child protection in therapy with Dr Richardson and through the courses he has done. We accept he was a dedicated teacher, including that he built up the school’s drama department in an impressive way, as described in his affidavit. We do not consider that he set out to entrap or groom the student. He seems to have developed an attraction for the student in the course of their friendship. He should have resisted that, and maintained professional distance, but instead he tried to gradually steer the friendship toward intimacy. This was confusing, unsettling, and upsetting for the student.
  5. [113]
    The QCT submits that the teacher’s registration should be cancelled for four to five years from the date of suspension, which was 10 July 2020. Mr Black submits that if the tribunal accepts the student’s version, the appropriate period of prohibition would be 18 months from the date of suspension.
  6. [114]
    The QCT draws our attention to several previous comparable cases.
  7. [115]
    The first is the 2013 case of HL.[66] It involved a teacher in her twenties who was overfamiliar with seven students over a two-year period. She used the term ‘love you’ in emails, for example, and engaged in some favouritism. She sometimes was critical of other students or staff in emails to the favoured students. She had a particularly close relationship with one student and slept next to her when staying with the student’s family. She gave clothing to the student. The relationship was affectionate but not sexual. The facts were not disputed by the teacher. The effective period of prohibition was 12 months.
  8. [116]
    The QCT submits that although the conduct in HL is comparable to that of BNU, a longer period of prohibition is warranted in his case. The QCT points out that HL was decided at a time when there was five-year cap on prohibition under the QCT Act. The QCT argues that if HL were decided today, it is likely that a longer period of prohibition would be imposed. There has been an evolution in community attitudes, associated with better understanding of the impacts of harm to children, as discussed in Queensland College of Teachers v ALE,[67] the QCT submits.
  9. [117]
    We accept that HL would probably attract a longer period of prohibition if decided today. It has some similarities to the present case. Some aspects were more serious, particularly the number of students, favouritism, the duration, and the criticism of other students and staff. On the other hand, the intimate touching in BNU’s case was sexual in motivation. BNU was a little older than the teacher in HL. There was a betrayal of trust by BNU which was not identified as a feature in HL. There is no mention of insight and remorse in HL, but it is apparent that the teacher did not deny the allegations. Overall, we regard the facts in BNU’s case as more serious.
  10. [118]
    The second comparable case noted by the QCT is the 2019 case of CMH.[68]  It involved a drama teacher who made sexualised comments to two male year 12 students, made sexual jokes in class, and overshared personal information about himself with students. The age of the teacher is not mentioned but he had been registered for some 18 years. In the disciplinary proceeding, the teacher made a number of admissions but tended to downplay his behaviour. He demonstrated some insight, such as acknowledging that in hindsight particular conversations were inappropriate. A two-year period of prohibition was imposed.
  11. [119]
    The conduct in CMH is similar to an extent with that in the present case, but it involved more students and the teacher was older. On the other hand, the conduct was less clandestine. BNU’s conduct was goal-driven and it involved actual and repeated touching. There is greater denial by BNU. We regard BNU’s conduct as, overall, more serious.
  12. [120]
    The third case noted by the QCT is the 2019 case of CMK.[69] The teacher was in her late twenties. She engaged in inappropriate and overfamiliar conduct such as spray-tanning students, discussing very personal aspects of her life with students, and displaying her sports bra on one occasion. She also had an intimate relationship with a former student. The period of prohibition imposed was three years.
  13. [121]
    The conduct in BNU is rather different in nature, but there are some broad parallels.
  14. [122]
    The fourth case noted by the QCT is the 2020 case of REC.[70] It involved a 22 year-old teacher and a 16 year-old year 11 student. The conduct occurred over the period of one month. It involved texting with sexual innuendo, the exchange of revealing photographs, kissing, and touching the student’s bottom and possibly also her neck. The nature of much of the communication was described by the tribunal as sexual banter, but the tribunal also noted that some of the teacher’s messages placed pressure on the student. The teacher also inadvertently communicated in an overfamiliar fashion with a friend of the student, not realising the friend was using the student’s phone. The teacher was deeply remorseful and there was an agreed statement of facts between the parties in the disciplinary process. The effective period of prohibition was approximately 18 months.
  15. [123]
    Mr Black submits that REC provides a reasonable yardstick.
  16. [124]
    We consider that BNU’s case is more serious. BNU was considerably older. The sexual advances made by BNU were unwelcome and unreciprocated, unlike in REC. BNU persisted with them over some months, which left the student feeling conflicted and uncomfortable. BNU has denied the critical conduct and, accordingly, he has not expressed remorse.
  17. [125]
    Mr Black draws our attention to the 2018 case of CXJ,[71] as a more serious case than BNU’s.  In CXJ, the age of the teacher is not indicated, but the student was in year 12. She had experienced trauma. She was particularly vulnerable, and the teacher had provided pastoral support to her. The conduct in question included the teacher hugging the student in a comforting way, and on one occasion he touched her leg with his. Of more concern to the tribunal was that he engaged in highly sexualised, but anonymous, email communication with her over period of about a month. This included the exchange of explicit photographs. The student began to suspect that it was the teacher who she was corresponding with, and she found this very upsetting. This was a betrayal of trust. The teacher demonstrated serious disregard for the student’s sensitivity and wellbeing. The teacher was reasonably cooperative in the disciplinary process but continued to downplay the impact of his conduct. The effective period of prohibition was four years.
  18. [126]
    Mr Black submits that BNU’s case is less serious, and should therefore attract a lesser sanction. Mr Black submits that the teacher’s communications in CXJ ‘not only involved explicit sexualised photographs, but he persisted with those communications over a period of several months’.[72] On the question of duration, however, our reading of CXJ is that the emails were sent during a period of only some weeks: 22 March to about 11 April 2016.[73]
  19. [127]
    We accept that an aggravating feature in CXJ was the particular vulnerability of the student, whereas the vulnerability of the student in the present case is that shared by all teenagers, namely youth and lack of life experience. It is not suggested that the student in the present case had a traumatised past. The conduct of the teacher in CXJ was very insensitive; perhaps even callous. However, BNU’s conduct was also insensitive.
  20. [128]
    Overall, we consider that a period of prohibition of three and a half years from the date of suspension would be proper in BNU’s case. It is amongst the more serious of the cases we have discussed above, in that it involved sustained and unwelcome advances over a period of approximately six months. The conduct was very unsettling for the student. BNU has not acknowledged his wrongdoing or demonstrated insight or remorse. Against that, the conduct involved only one student. BNU did not seek to undermine the school’s authority, as some of the other teachers did. It is not a case of a teacher seeking out a highly vulnerable student. BNU responded, in the wrong way, to the student’s friendship and infatuation. BNU has been a dedicated teacher. His psychiatrist considers that he understands boundaries and can apply them. BNU has undertaken some short courses on this topic as well. Doubtless, the consequences BNU has already faced for his conduct have been very salutary. Nonetheless, the tribunal must send a strong signal that teachers who engage in conduct harmful to students will face substantial consequences.
  21. [129]
    The QCT proposes that BNU should be required to provide a satisfactory psychological report addressing a range of matters, if and when he seeks to regain registration. Mr Black does not oppose that course, and we agree it is warranted.

Non-publication order

  1. [130]
    The tribunal may prohibit the publication of information where that is necessary in the interests of justice.[74] It is in the interests of justice that the identity of the student not be made public. He should not be exposed to publicity as a result of reporting misconduct. Further, if he were, other students may be deterred from speaking up in the future. To protect the identity of the student, the name of the teacher and the school must also be suppressed. Identification of either would inevitably lead to the identification of the student by people familiar with the school.
  2. [131]
    We have substantially adopted the wording suggested by the QCT for the non-publication order. Mr Black submits that the order should not be expressed to be ‘until further order of the tribunal’. However, we note that the order has been made for the benefit of the student. At some point he may wish to speak out about his experiences. He should not be precluded from seeking a variation to the order in that event.

Conclusion

  1. [132]
    For the reasons explained above, we cancel the teacher’s registration, prohibit any re-application before 10 January 2024, and make the other orders including a non-publication order.

DISSENTING REASONS OF MEMBER BURSON

I have had the benefit of reviewing my fellow members’ opinion and do not repeat the background.

Was the disciplinary ground in s 92(1)(h) established?

  1. [133]
    This referral has been decided on the papers.
  2. [134]
    The grounds for disciplinary action under section 92(1)(h) of the Act is that BNU ‘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.”
  3. [135]
    QCT the amended disciplinary referral to enable consideration of the dismissed charges to be considered
  4. [136]
    The allegations are broadly:
    1. (a)
      Overfamilar and inappropriate Relationship
    2. (b)
      Inappropriate and intimate physical touching; and
    3. (c)
      1 June 2020.
  5. [137]
    QCT and BNU do not agree that the ground for disciplinary action is established. 
  6. [138]
    The Tribunal must undertake its own assessment and establish that a ground for disciplinary action in section 92(1) (h) of the Act is established. 
  7. [139]
    For the reasons set out below, I do not find that the grounds for disciplinary action in section 92(1)(h) of the Act is established. 
  8. [140]
    The Tribunal notes that the wording ‘’standard of behaviour” in section 92(1)(h) of the Act is not a defined term.  This standard has been addressed in previous decisions of the Tribunal.[75]

“…the Tribunal agrees that the standard ‘reasonably’ 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 in this turn should reflect the standard that those in the teaching profession should expect of their colleagues and peers.

(Emphasis added)

  1. [141]
    The referral provides allegations from the Student’s s 93A interview, the counselling note and the cross-examination in the committal proceeding, where the sole remaining charge was not committed for trial.
  2. [142]
    Given the nature of the allegations by the Student, the decision makers are required to have regard to the Briginshaw principle that is:

“… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[76]

  1. [143]
    The Student previously made serious allegations against BNU.
  2. [144]
    One allegation of sexual assault was withdrawn prior to committal.  The second allegation was dismissed at committal.  It should be noted that the standard to be reached in a criminal committal is arguably lower than Briginshaw standard of proof. 
  3. [145]
    At a committal hearing the presiding magistrate is required to consider whether there is a prima facie case that the defendant could be convicted of an offence.[77]    It is a very low test of evidence.
  4. [146]
    It is noted in the material for QCT that BNU did not provide instructions to his solicitor and barrister prior to the committal.  This is common in defence matters where it is considered that there is a lack of evidence of the charges.  The cross examination may then be undertaken at ‘large’ enabling the cross examiner to examine the witnesses without limitation.
  5. [147]
    It is not disputed that charges which are dismissed or do not proceed can be considered for the purposes of examination by the QCT.
  6. [148]
    In this matter given that BNU has proceeded with his criminal matter in a manner where he has attested that he did not provide specific instruction to his lawyers, any questioning of the complainant cannot be considered to be BNU’s evidence in this matter.
  7. [149]
    The dismissal of the criminal charges does not establish a disciplinary ground in this matter.
  8. [150]
    In the current matter, the dismissal of the charges go to the weight of the evidence to be considered by the Tribunal in accordance with the Briginshaw principle outlined in paragraph 142 above. 
  9. [151]
    BNU denies any overfamiliar and inappropriate relationship with the Student.
  10. [152]
    BNU denies any inappropriate and intimate physical touching.
  11. [153]
    BNU denies the allegation of 1 June 2020.
  12. [154]
    As the matter was on the papers, the Tribunal has had the benefit of the section 93A video interview of the Student and the written material of BNU.

Allegations

  1. [155]
    The Student in his s 93A interview has made a number of assumptions regarding the feelings that he has attributed to BNU.  Further, the Student has also made assumptions regarding what other people may have thought of his interactions with INU.  This is not evidence of any wrongdoing by BNU.  
  2. [156]
    There is no independent information to support the Student’s assumptions of the relationship he believed was occurring between himself and BNU.  
  3. [157]
    The QCT has only given particularisation of one allegation that is 1 June 2020.  The allegation involves the Student’s recollection and the Student provides details of a lingering ‘sexualised’ hug with some conversation after the hug.  BNU denies this allegation (and all allegations).
  4. [158]
    It is noted that there are discrepancies with the Student’s recollection of events and the recollection of BNU.  The QCT has not provided any evidence in support of the student’s allegations, for example, there is no provision of photographs or diagrams of the office.  There is no provision of an example of the school layout to assist the Tribunal.
  5. [159]
    There are no corroborating statements from other students, when the Student has attributed other student’s concerns with the Student’s relationship with BNU.
  6. [160]
    The one statement from the guidance officer is a statement of the Student’s complaint to the guidance officer.  It is not independent evidence of the Student’s complaint.  It is a retelling of the Student’s complaint.
  7. [161]
    The QCT has not provided any evidence that there were any suspicions of other staff members.  The QCT relies solely on the statements of the Student and the cross examination in the committal.
  8. [162]
    The Student has attested that the behaviour went for a long period of time.  It is concerning that the QCT has not provided corroborating evidence of the allegations.  The inference that can be drawn is that there is no further information that the QCT could find to support the allegations.
  9. [163]
    The allegations, as particularised by the QCT do not reach the required standard of evidence for such serious allegations. It is noted in Briginshaw that the "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[78]
  10. [164]
    I have found that the Student has provided his evidence honestly, this is not disputed. The evidence of the Student in this matter does not reach the standard required by Briginshaw.  In Rush v Nationwide News Pty Ltd (no 7)[79] Wagner J provided:

“….the reliability of her evidence, is not simply a matter of determining whether or not she told lies, or has a motive to lie.  An otherwise honest witness may give unreliable evidence for all manner of reasons.  The witness’s memory of the event may be poor or defective.  The witness’s memory of an event may also become distorted or polluted over time because of other intervening events or circumstances.  The witness might, in such circumstances, convince himself or herself that something occurred, and genuinely believe that it did, even though it did not.”             

  1. [165]
    BNU has been suspended from practice for a period of approximately two (2) years.  The evidence provided by the QCT does not support the allegations in the referral.
  2. [166]
    For the reasons outlined above I would find no ground for disciplinary action established under section 92(1)(h) of the Act.
  3. [167]
    I am in agreement with a non-publication order.

Footnotes

[1]QCT Act, s 158(1), s 160.

[2]QCT submissions dated 11 October 2021, [39].

[3]Briginshaw v Briginshaw (1938) 60 CLR 336, 360-363.

[4][2012] QCATA 16, [13].

[5](1992) 110 ALR 449, 450.

[6]Teacher's affidavit, [35].

[7]Ibid, [38].

[8]Ibid.

[9]Committal hearing transcript, 1-17.

[10]Transcript of student's police interview, 12.

[11]Teacher's affidavit, [50], [51].

[12]Ibid, [103].

[13]Transcript of student's police interview, 35.

[14]Ibid, 20.

[15]Ibid, 2.

[16]Ibid, 3.

[17]Transcript of student's police interview, 16.

[18]Teacher's affidavit, [49].

[19]Ibid, [52].

[20]Transcript of student's police interview, 24.

[21]Ibid, 5.

[22]Transcript of student's police interview, 22.

[23]Ibid.

[24]Committal hearing transcript, 1-15.

[25]Teacher's affidavit, [98].

[26]Mr Black's submissions dated 8 November 2021, [70(b)].

[27]Teacher's affidavit, [104]

[28]Ibid, [107].

[29]Ibid, [128].

[30]Transcript of student's police interview, 2.

[31]Ibid, 17.

[32]Teacher's affidavit, [115].

[33]Ibid, [130].

[34]Ibid, [25-29].

[35]Transcript of student's police interview, 23.

[36]Ibid, 24.

[37]Ibid.

[38]Ibid.

[39]Transcript of student's police interview, 6.

[40]Committal hearing transcript, 1-20.

[41]Transcript of student's police interview, 7.

[42]Ibid, 4.

[43]Ibid, 19-20.

[44]Transcript of student's police interview, 5-6.

[45]Ibid, 41.

[46]Mr Black's submissions dated 8 November 2021, [66].

[47]Ibid, [32].

[48]Exhibit A to affidavit of Megan Louise Girvan dated 9 July 2021, 70.

[49]Transcript of student's police interview, 8.

[50]Committal hearing transcript, 1-16.

[51]Queensland College of Teachers v CSK [2016] QCATA 125, [43].

[52]Kah v Racing Victoria Limited [2021] VSC 753, [40].

[53]Transcript of student's police interview, 38-39.

[54]Ibid, 26.

[55]Teacher's affidavit, [140].

[56]Teacher's affidavit, [142].

[57]Ibid.

[58]Ibid, [66].

[59]Mr Black's submissions dated 8 November 2021, [97(e)].

[60]Transcript of student's police interview, 2.

[61]QCT Act, s 3(1).

[62]QCAT Act, s 3(c).

[63]Teacher's affidavit, [143].

[64]Dr Richardson’s report dated 3 November 2021, 2.

[65]Dr Richardson’s report dated 3 November 2021, 3.

[66]Queensland College of Teachers v HL [2013] QCAT 631.

[67][2019] QCAT 143, [20].

[68]Queensland College of Teachers v CMH [2019] QCAT 164.

[69]Queensland College of Teachers v CMK [2019] QCAT 271.

[70]Queensland College of Teachers v REC [2020] QCAT 178.

[71]Queensland College of Teachers v CXJ [2018] QCAT 117.

[72]Mr Black's submissions dated 8 November 2021, [104].

[73]CXJ, [24-36].

[74]QCAT Act, s 66.

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

[76]Briginshaw v Briginshaw (1938) CLR 336 per Dixon J

[77]Barton v R (1980) 147 CLR 75 at 99-100 per Mason and Gibbs JJ, “….the principle purpose of that examination is to ensure that the accused will not be bought to trial unless a prima facie case is shown or there is sufficient evidence to warrant his being put on trial or the evidence raises a strong or probable presumption of guilt.”

[78]Briginshaw v Briginshaw (1938) CLR 336 per Dixon J.

[79][2019] FCA 296 at paragraph 342 .

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v Teacher BNU

  • Shortened Case Name:

    Queensland College of Teachers v Teacher BNU

  • MNC:

    [2022] QCAT 255

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski Member Burson Member Grigg

  • Date:

    13 Jul 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
Barton v R (1980) 147 CLR 75
2 citations
Jump To
Cite 1 - (1980) 147 CLR 75
Cite 2 - (1980) 147 CLR 75
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw & Anor (1938) CLR 336
2 citations
Jump To
Cite 1 - (1938) CLR 336
Cite 2 - (1938) CLR 336
Chapman v Crime and Misconduct Commission & Rynders [2012] QCATA 16
2 citations
Jump To
Cite 1 - [2012] QCATA 16
Cite 2 - [2012] QCATA 16
Kah v Racing Victoria Limited [2021] VSC 753
2 citations
Jump To
Cite 1 - [2021] VSC 753
Cite 2 - [2021] VSC 753
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
2 citations
Jump To
Cite 1 - (1992) 110 ALR 449
Cite 2 - (1992) 110 ALR 449
Queensland College of Teachers v ALE [2019] QCAT 143
2 citations
Jump To
Cite 1 - [2019] QCAT 143
Cite 2 - [2019] QCAT 143
Queensland College of Teachers v Armstrong [2010] QCAT 709
1 citation
Jump To
Cite 1 - [2010] QCAT 709
Queensland College of Teachers v CMK [2019] QCAT 271
2 citations
Jump To
Cite 1 - [2019] QCAT 271
Cite 2 - [2019] QCAT 271
Queensland College of Teachers v CSK [2016] QCATA 125
2 citations
Jump To
Cite 1 - [2016] QCATA 125
Cite 2 - [2016] QCATA 125
Queensland College of Teachers v HL [2013] QCAT 631
2 citations
Jump To
Cite 1 - [2013] QCAT 631
Cite 2 - [2013] QCAT 631
Queensland College of Teachers v REC [2020] QCAT 178
2 citations
Jump To
Cite 1 - [2020] QCAT 178
Cite 2 - [2020] QCAT 178
Queensland College of Teachers v Teacher CMH [2019] QCAT 164
2 citations
Jump To
Cite 1 - [2019] QCAT 164
Cite 2 - [2019] QCAT 164
Queensland College of Teachers v Teacher CXJ [2018] QCAT 117
2 citations
Jump To
Cite 1 - [2018] QCAT 117
Cite 2 - [2018] QCAT 117
Rush v Nationwide News Pty Ltd (no7) [2019] FCA 296
2 citations
Jump To
Cite 1 - [2019] FCA 296
Cite 2 - [2019] FCA 296

Cases Citing

Case NameFull CitationFrequency
Teacher BNU v Queensland College of Teachers [2023] QCATA 16410 citations
1

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