Queensland College of Teachers v Teacher VNA
[2024] QCAT 113
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- Unreported Judgment
- Queensland College of Teachers v Teacher VNA[2024] QCAT 113
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Queensland College of Teachers v Teacher VNA[2024] QCAT 113
Queensland College of Teachers v Teacher VNA[2024] QCAT 113
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland College of Teachers v Teacher VNA [2024] QCAT 113 |
PARTIES: | QUEENSLAND COLLEGE OF TEACHERS (applicant) v TEACHER VNA (respondent) |
APPLICATION NO/S: | OCR134-23 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 11 March 2024 |
HEARING DATE: | On the Papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Goodman, Presiding Member D Brown Member Grigg |
ORDERS: |
|
CATCHWORDS: | EDUCATION – SCHOOLS – TEACHER – DISCIPLINARY MATTERS – where teacher charged with ‘serious offence’ for the purposes of the Education (Queensland College of Teachers) Act 2005 (Qld) – where teacher’s registration was suspended – where charges were dismissed – where alleged conduct did not occur in the course of teaching – whether ground for disciplinary action exists – standard of behaviour generally expected of a teacher. Education (Queensland College of Teachers) Act 2005 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) Briginshaw v Briginshaw (1938) 60 CLR 336. Queensland College of Teachers v Armstrong [2010] QCAT 709 Queensland College of Teachers v PPK [2019] QCAT 59 |
APPEARANCES & REPRESENTATION: | |
Applicant: | B Manttan, Principal Legal Officer of the Queensland College of Teachers |
Respondent: | J N O'Donoghue - Kenmore Mediation and Law Centre. |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
Member Goodman
I have read the reasons for decision prepared by Member Brown and I agree with them.
Member Grigg
I have read the reasons for decision prepared by Member Brown and I agree with them.
Reasons of Member Brown
Introduction
- [1]This is an application for a referral of a disciplinary decision dated 30 May 2023 by the Queensland College of Teachers (‘QCT’).
- [2]On 23 December 2022 the respondent teacher was charged with an offence of choking, suffocation or strangulation in a domestic setting, an offence against sections 315A(1)(a) & (b)(i) of the Criminal Code Act 1899 (Qld). This offence is a serious offence as defined in Schedule 3 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Education Act’), which references section 15 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).
- [3]On 3 January 2023 the QCT suspended the respondent’s registration under section 48 of the Education Act. On 27 February 2023 the Tribunal ordered the suspension of Teacher VNA’s registration continue.[1]
- [4]On 20 March 2023 the charge of choking, suffocation or strangulation in a domestic setting was discontinued after the Director of Public Prosecutions (‘DPP’) offered no evidence.[2]
- [5]At the time the application was made, the respondent was a registered teacher. On 23 August 2023 the respondent teacher’s registration ended through non-payment of the annual teacher registration fee.[3]
- [6]The Tribunal may consider whether grounds for disciplinary action are established against a ‘relevant teacher’.[4] ‘Relevant teacher’ is defined to mean either an approved teacher or a former approved teacher.[5] Therefore while the respondent teacher’s status changed during the proceedings, he remains a ‘relevant teacher’ for the purposes of these proceedings.[6]
Was the ground for disciplinary action established under section 92(1)(h)?
- [7]The issues to be determined by the Tribunal are:
- whether a ground for disciplinary action is established; and
- if so, the appropriate sanction to be applied.
- [8]The ground for disciplinary action as detailed in the application is that:
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[7].
- [9]The Act further outlines, under sections 92(2)(a) and 92(5), that the ground for disciplinary action in s 92(1)( h) applies to a relevant teacher who has been suspended and who has been charged with a serious offence that has been dealt with. The meaning of “dealt with” includes dismissal and acquittal of a serious offence. The object is to ensure the circumstances of the charge are examined, when determining whether a teacher behaves in a way, that does not satisfy the standard of behaviour generally expected of a teacher.
- [10]The offence of choking, suffocation or strangulation in a domestic setting is a “serious offence.”[8]
- [11]‘Standard of behaviour’ is not defined in the Education Act but has been addressed by the Tribunal in previous matters:
The ‘standard of behaviour generally expected of a teacher’ is not defined. In our view, ‘generally expected’ means by the community and by the teaching profession [referring to Queensland College of Teachers v Armstrong [2010] QCAT 709; Queensland College of Teachers v CMF (No 2) [2016] QCAT 290, [24]]…[9]
- [12]The Tribunal agrees with the observations made in Queensland College of Teachers v PPK:
The test in s 92(1)(h) is, in our view, a broad test which focuses on the behaviour of a teacher but not necessarily behaviour which occurs in the capacity of a teacher. This is made clear by the words ‘the person’ as opposed to ‘the teacher’ and by the phrase ‘whether connected with the teaching profession or otherwise’. This means that PPK’s behaviour, to be relevant, does not need to be in the context of a teacher/student relationship or otherwise to have occurred in his capacity as a teacher.[10]
- [13]The Tribunal accepts that the standard is a fluid one and informed by how the community, including the teaching profession, would expect a teacher to behave[11] and that the welfare and best interests of children should be the primary consideration in the Tribunal’s consideration of matters concerning the teaching profession.[12]
- [14]In considering the expected standard, the Tribunal must have regard to the main objects of the Education Act which are[13]:
- to uphold the standards of the teaching profession; and
- to maintain public confidence in the teaching profession; and
- to protect the public by ensuring education in schools is provided in a professional and competent manner by approved teachers.
Criminal charges
- [15]The charge relates to an allegation that the respondent teacher strangled the complainant, who was his wife, by putting both hands around her neck and squeezing tightly, causing the complainant to be unable to breathe, be disorientated and to feel like she lost consciousness.
- [16]On the night of the incident, 22 December 2022, the respondent teacher had gone to bed early, as he had recently had surgery and was taking medication including strong pain killers. The complainant was bathing the couple’s two children aged 3 and 6 and knocked on the respondent’s door asking for help with the children so that she could have a shower. When he did not respond, she tried the door, which was locked, and then unlocked the door with a hair clip, turned on the light and asked the respondent to help her, and then returned to the children.
- [17]When the complainant returned a short time later the door to the respondent’s bedroom was closed and locked. The complainant again unlocked the door with a hair pin and turned the lights on and requested the respondent assist her with the children so she could have a shower. The complainant pulled the sheet off the respondent who had pulled the covers back up and asked her to go away.
- [18]The complainant then picked up the respondent’s phone, which was lying beside him on the bed, to turn off music which was playing. The respondent grabbed his phone out of the complainant’s hand by bending her fingers in such a way as to cause the complainant pain. As a result, the complainant attempted to bite the respondent on the arm, although it is not clear whether she was successful in her attempt.
- [19]The complainant reported to police that the respondent then stood up and pushed her on the bed, and when she tried to stand up, he repeated this action for an unknown amount of time before putting his hands around her neck and squeezing.
- [20]The respondent teacher acknowledges the facts of the incident up until the complainant attempted to bite him but denies he put his hands around the complainant’s neck or strangled her and states he told her to leave and pushed her out of the room on two occasions.[14]
- [21]The respondent’s two children aged 3 and 6 were in the home at the time, in the bath. There is no evidence that they observed or were aware in any way of the incident between their parents.
- [22]There was no injury on the respondent teacher when the police attended and no evidence of a bite mark.
- [23]There were no obvious injuries or bruises to the complainant when the police attended or revealed when the complainant was taken to hospital by attending ambulance officers; however, the Tribunal notes that this does not prove or disprove the incident, as in many cases there may be no physical evidence in complaints of this kind.
- [24]The charges against the respondent teacher were discontinued on 20 March 2023 by way of the prosecution indicting they had no evidence to offer to prove the offence (commonly known as NETO). This occurred because the complainant advised the prosecution that she did not wish to proceed with the matter and after careful consideration the DPP made the decision to discontinue the prosecution.[15]
Material provided to the Tribunal.
- [25]The QCT’s position is that the complainant’s version should be accepted in its entirety and that the respondent’s behaviour would be viewed by the community and the profession as not satisfying the standard of behaviour generally expected of a teacher.
- [26]The Tribunal also noted that the respondent told police about a number of incidents which have impacted his mental health including a road age incident that occurred some years earlier that has resulted in PTSD, allegations and/or name calling at his school resulting in him having taken leave and being on medication from a recent surgery which included antidepressants and Valium. The QCT submit that these mental health concerns are relevant to the Tribunal’s examination of the serious offence charge and the question of appropriate sanction.
- [27]The Tribunal considered the Applicant’s Material which included:
- The application or Referral – disciplinary proceedings received 30 May 2023.
- Affidavit of Henri Elisa Rantala, Principal Legal Office QCT, received 30 May 2023, which established jurisdiction; provided the details of the criminal charge and the suspension of the teachers’ registration, and set out the basis for the referral and the miscellaneous application accompanying the referral, other orders/directions sought and the legislative requirement, and a consideration for the Tribunal.
- Affidavit of Brendan John Manttan, Principal Legal Office QCT, received 25 July 2023, which attached the material received in the subpoena to the DPP.
- Affidavit of Brendan John Manttan, Principal Legal Office QCT, received 9 September 2023, which details the change in the respondent’s registration status and provides the information received from the subpoena issued to Queensland Police Service (‘QPS’), including a USB hard drive containing approximately 8 hours and 16 minutes of footage from 9 different police officers and a second edited version containing 2 hours and 34 minutes of footage in relation to the parts QCT consider relate to the interaction between QPS and Queensland Ambulance Service (“QAS”) with the respondent teacher and complainant.
- QCT’s Submissions on Ground, Sanction and non-publication orders, received on 11 September 2023.
- [28]As the Tribunal is required to consider all evidence, the full 8 hours of footage provided by QPS was viewed.
- [29]Teacher VNA denies engaging in the behaviour as alleged by the complainant but did not file any affidavit material and had limited engagement in the disciplinary proceedings for the referral, other than providing a 2-page submission on 16 October 2023.
- [30]The respondent teacher’s position is that it was the complainant who was the aggressor. The respondent teacher and complainant were separated but living under the same roof and the respondent had locked his bedroom door to prevent the complainant’s access. She broke into his room on more than one occasion and tried to take his mobile phone which led to physical contact between them. The respondent teacher denies the strangulation and points to the lack of physical evidence to support the charge and the police withdrawal and asserts it would be unsafe for the Tribunal to make a finding that the strangulation occurred or to second-guess the reasons the DPP had no evidence to offer.
- [31]The respondent’s submissions raised concerns that it would be unsafe for the Tribunal to make a determination with the benefit of viva voce evidence, given that the Tribunal may be making finding as to credit. Accordingly, the Tribunal issued a Direction on 27 October 2023 that if the respondent teacher sought an oral hearing of the matter, he was to file an application seeking that outcome by 2 November 2023, failing which the matter would be determined on the papers. The respondent filed no application and provided no further material since the submissions provided in October 2023. The matter therefore proceeded to be determined on the papers.
- [32]The Tribunal have considered the respondent teacher’s denial of the allegations and the submissions provided on 16 October 2023.
Findings
- [33]The applicable standard of proof for the Tribunal is the civil standard on the balance of probabilities. As set out in Briginshaw v Briginshaw,[16] the degree of satisfaction varies according to the gravity of the facts to be proven.
- [34]As stated in Briginshaw:
“… 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.[17]
The criminal offence of choking
- [35]Given the seriousness of the allegation, the Tribunal would require probative and strong evidence to be satisfied that the choking/strangulation, occurred.
- [36]Discontinuation of the charge by the DPP does not determine the circumstances of the charge of the disciplinary proceedings, which is based on a different standard of proof and related to a different question: whether the respondent behaved in a way that does not satisfy the standard of behaviour generally expected of a teacher.
- [37]The QCT assert that a discontinuance of charges in cases involving domestic violence is not uncommon and there is a range of reasons why complainants decide they do not want to proceed that have no connection to the strength or currency of the evidence or allegations. While the Tribunal accepts that is true, there are also occasions where the charge is discontinued due to the complainant changing their statement and no longer maintaining the violence occurred. In the circumstance of this matter, where no evidence had been provided by the complainant subsequent to the charges being dismissed to confirm that they maintain the incident occurred, it is not possible for the Tribunal to know the basis for the complainant’s actions or the DPP’s decision to discontinue the charge.
- [38]The QCT ask the Tribunal to accept the complaint’s version of event in entirety, stating she remains consistent when giving separate accounts and her demeanour appears consistent with someone who has undergone a traumatic domestic violence incident in her home. However, the QCT has not provided the Tribunal with the initial 000 call to the QPS to allow the Tribunal to hear all accounts, which impacts on the ability to confirm consistency of accounts. The Tribunal does not accept that the complainant’s demeanour, so far as it can be ascertained from the police body-worn camera footage, is consistent with someone who has undergone a traumatic domestic violence incident in her home. That is not to say that it is clear that it did not occur, but rather the evidence does not support a claim that it did occur. We note also that there is a difference between the complainant’s version of events in the Police Protection Notice, which states the aggrieved was lying on the bed on her back and then the respondent put both his hands around her neck and squeezed tightly,[18] and the statement signed by the complainant on 23 December 2022 which states she has a clear memory of standing in front of the respondent and him putting both hands around her neck.[19]
- [39]While it is acknowledged that victims of domestic violence can react in various different ways and this does not necessarily mean the complainant is being untruthful or dishonest, in the circumstances of this matter, in light of the respondent teacher’s consistent denial of any choking or strangulation and the lack of any other evidence to support the allegation, it is difficult for the Tribunal to be satisfied to the necessary standard of proof that the act occurred.
- [40]Having reviewed all of the material filed in the proceedings, including watching the 8 hours of police body-worn camera footage containing discussions of QPS with the respondent teacher and the complainant, given the seriousness of the allegation, the Tribunal cannot be satisfied to the requisite standard that the respondent teacher put his hands around the complainant’s neck and choked/strangled the complainant.
- [41]Up until the allegation of choking/strangulation, in both the complaint and the respondent teacher’s versions the complainant was the instigator/aggressor and there was no other alleged behaviour by the respondent teacher which did not satisfy the standard of behaviour generally expected of a teacher.
- [42]As such the Tribunal does not find that there is a ground for disciplinary action in consideration of the facts and circumstances of the respondent teacher’s engagement with the complainant on 22 December 2023.
Prior allegations of domestic violence
- [43]The complainant told QPS on the night of the incident that there had been prior acts of domestic violence, stating she had been strangled several times and two to three months prior the respondent had punched her in the temple with a closed fist causing her pain for a week.
- [44]These allegations of a history of domestic violence were considered by the Tribunal, in that ongoing domestic violence perpetrated by a teacher would generally not satisfy the standard of behaviour expected of a teacher.
- [45]Given the lack of any specificity, in that the complainant was unable to provide any timeframe or even a range of time the alleged prior choking incidences occurred; the facts or circumstances of the alleged offences were not provided; and there is no other evidence provided to substantiate these claims, there is insufficient evidence upon which the Tribunal could make a finding that it is satisfied that the respondent teacher has perpetrated domestic violence on the complainant in the past.
- [46]It is noted that a temporary domestic violence order was made against the respondent teacher on 10 January 2023. This was made by the court without admissions, with the standard conditions only.
- [47]While having a domestic violence order made against a teacher may demonstrate conduct/behaviours outside of the standard expected by a teacher, in this case, there is no evidence that any findings have been made by the court that domestic violence has occurred and there is no information before the Tribunal to demonstrate what happened in the domestic violence proceedings and whether any final order was made, or whether the domestic violence proceedings were also discontinued or dismissed .
- [48]In the circumstances, the temporary protection order alone is not sufficient to satisfy the Tribunal that the respondent teacher engaged in domestic violence or in any behaviours within in his relationship with his wife which do not satisfy the standard of behaviour generally expected of a teacher.
The respondent teacher’s mental health issues
- [49]Given the information provided, largely by the respondent teacher’s own admissions to the QPS, in relation to his mental health instability and concerns, the Tribunal have considered whether this raised issues in terms of behaviour which does not satisfy the standard of behaviour generally expected of a teacher.
- [50]It was clear that the respondent teacher was struggling with his mental health at the time of this alleged incident. The respondent teacher acknowledged he had experienced issues with PTSD as a result of a traumatic car accident/road rage incident that occurred some years ago but was fresh in his memory due to a recent court settlement and payout. The respondent teacher also disclosed some issues that had arisen at his school with allegations/name calling by female students where they had called him a paedophile in front of other students and online, causing the respondent teacher to take medical leave from the school. The teacher also discussed the recent death of a student, which had distressed him. At the time of these disclosures to police, the respondent was recovering from recent surgery, with some uncertainty as to his prognosis causing stress, and was on medication, including strong pain killers .
- [51]While the Tribunal held concerns that the respondent teacher was struggling to cope at the time of the incident, there was no evidence of any actual acts or behaviours of the respondent teacher which did not satisfy the standard of behaviour generally expected of a teacher.
- [52]The respondent teacher had acknowledged his mental health vulnerability and had seen his doctor and removed himself from teaching. He also spoke about seeking medical/psychological assistance to deal with his issues.
- [53]Despite advising QPS police officers he had taken significant pain killers recently which were impacting his capacity to communicate, the respondent teacher was largely cooperative and open with QPS officers. The respondent teacher did make an inappropriate and unnecessary comment about suicide and death by police shooting, but these came after the respondent teacher advised police he was under strong medication which was impacting on his capacity and decision making, he was struggling with his mental health and in circumstances where he was told he would have to leave his home and his children for the night and a domestic violence order was being sought against him.
- [54]The comments were brief, and the respondent teacher had the control and foresight to discontinue the comments when challenged by QPS and then continued to act cooperatively with them.
- [55]Considering the matter in it is entirety, these comments, while inappropriate, in and of themselves do not rise to the standard that warrant disciplinary proceedings.
- [56]Given the steps the respondent teacher was taking to manage his mental health issues, and that he had voluntarily taken leave from teaching when he recognised he was not well enough to remain at the school, the Tribunal was satisfied that there was no evidence that the respondent’s mental health had resulted in the respondent teacher’s behaving in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.
- [57]Accordingly, having considered the circumstances of the serious offence charge, the Tribunal is not satisfied to the requisite standard that the respondent teacher has behaved in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.
- [58]Accordingly, the grounds for disciplinary action under s 92(1)(h) are not established against the respondent.
- [59]As no grounds for disciplinary action have been found against the relevant teacher, teacher VNA’s registration or permission to teach suspension under section 48 is ended pursuant to section 159 of the Education Act.
Costs
- [60]The QCT sought the respondent teacher pay the costs of $6,223.30 to QCT, pursuant to section 161(2)(b)(ii) of the Education Act, for the expenses occurred by the QCT in the proceedings before QCAT. Given the finding that no ground for disciplinary action is established, an order under s 161(2)(b)(ii) is not available.
Non-publication
- [61]It is noted that a prior determination was made on 12 June 2023 that it would be contrary to public interest for information to be published that would identify the teacher, or any complaint, or the school. It is considered by the Tribunal that a permanent order should now be made under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to protect the complainant in this matter, noting the complaint involves allegations of domestic violence.
- [62]The Applicant submits that, if a section 66 order is made, that there should be sharing of information for very particular purposes under the Education Act, including to meet its statutory obligations, particularly under sections 285, 285AA, 285B, and 287 of the Education Act, and to allow Teacher VNA to provide the decision to any regulatory authority or employer in compliance with any disclosure requirements. The order is made having regard to that submission.
Footnotes
[1]Queensland College of Teachers v Teacher VNA (2023) unreported.
[2] Affidavit of Henri Elias Rantala affirmed on 22 May 2023 at Exhibit G & H.
[3] Affidavit of Brendan John Manttan dated 5 September 2023 at paragraph 4 and Exhibit A.
[4] Education Act s 92.
[5] Ibid, Schedule 3.
[6] Ibid, s 97.
[7] Ibid, s 92(1)(h).
[8] Ibid, Schedule 3; Working with Children Act section 15 .
[9]Queensland College of Teachers v PPK [2019] QCAT 59, [13], and see [36].
[10] Ibid, [35].
[11] Ibid.
[12]Queensland College of Teachers v Armstrong [2010] QCAT 709, at [34]-[36]; Education Act, s 233.
[13] Education Act s 3.
[14] QP9 Court brief in the Affidavit of Brendan John Manttan affirmed on 21 July 2023 at Exhibit A, pages [28-29].
[15] Ibid, Exhibit A, page[2].
[16]Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (‘Briginshaw’).
[17] Ibid, at page [362].
[18] Affidavit of Brendan John Manttan affirmed on 21 July 2023 at Exhibit A, page [9].
[19] Ibid, Exhibit A, page [24].