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XYZ v Queensland College of Teachers

[2021] QCATA 1

XYZ v Queensland College of Teachers[2021] QCATA 1

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

XYZ v Queensland College of Teachers [2021] QCATA 1

PARTIES:

XYZ

(appellant)

v

Queensland College of Teachers

(respondent)

APPLICATION NO/S:

APL272-19

ORIGINATING

APPLICATION NO/S:

OCR266-17

MATTER TYPE:

Appeals

DELIVERED ON:

4 January 2021

HEARING DATE:

20 May 2020

FURTHER WRITTEN

SUBMISSIONS RECEIVED:

From appellant dated 27 May 2020

From respondent dated 1 June 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Kanowski

ORDERS:

  1. The decision made by the tribunal on 17 September 2019 that a ground for disciplinary action against the appellant has been established is confirmed.
  2. For as long as any similar order in OCR266-17 remains in force, and other than to the parties to this proceeding, publication is prohibited of any information that may identify the appellant, any other relevant teacher, any relevant students, and the relevant schools.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – WHERE FINDINGS BASED ON CREDIBILITY – GENERALLY – where tribunal found that assaults occurred – whether evidence reliable – whether denial of procedural fairness

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Briginshaw v Briginshaw (1938) 60 CLR 336

Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377

Palmer v Clarke (1989) 19 NSWLR 158

State of Queensland v Cannon [2011] QSC 75

Rejfek v McElroy (1965) 112 CLR 517

APPEARANCES &

REPRESENTATION:

 

Applicant:

S Reidy of counsel instructed by Holding Redlich Lawyers

Respondent:

BI McMillan of counsel instructed by Queensland College of Teachers

REASONS FOR DECISION

Introduction

  1. [1]
    This is an appeal against a decision of the tribunal, made by a panel on 17 September 2019, that a ground for disciplinary action against a teacher ‘XYZ’ had been established.[1] The disciplinary ground was behaviour in a way that does not satisfy the standard of behaviour generally expected of a teacher.[2] The matter had been referred to QCAT by the Queensland College of Teachers (‘the College’).
  2. [2]
    The basis for the panel’s decision was its finding that on the night of 23 March 2016 XYZ had sexually assaulted two male year-six students, referred to as S 1 and S 2, at a school camp. According to S 1, the assaults happened in a cabin occupied by S 1, S 2 and three other boys (S 3, S 4 and S 5), while the boys were in bed and, apart from S 1, asleep. Accordingly, the only eye-witness of the alleged assaults was S 1.
  3. [3]
    The panel found that XYZ entered the cabin late at night and committed the assault on S 1, then left the cabin, and returned a short time later and committed the assault on S 2.
  4. [4]
    It was undisputed that XYZ had gone into the cabin earlier that night to assist S 3 who was upset due to homesickness. This was in the course of XYZ’s duties as a supervising teacher. XYZ gave evidence of that entry into the cabin. XYZ says that he did not return to the cabin that night, and that the sexual assaults did not occur.
  5. [5]
    XYZ faced a prosecution for indecent dealing, by way of the alleged assaults, but was acquitted in a jury trial. The acquittal did not preclude a finding against him by the panel in the disciplinary proceeding, however. In the criminal trial, the standard of proof of beyond reasonable doubt applied. In the disciplinary proceeding before the tribunal, the civil standard of proof, namely the balance of probabilities, applied.
  6. [6]
    The panel discussed the operation of the civil standard where a serious allegation is involved. It quoted a key passage from Briginshaw v Briginshaw (‘Briginshaw’):

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.[3]

  1. [7]
    The panel then said:

The Briginshaw approach is based on the principle that a court in a civil action should not lightly find that a party has engaged in criminal conduct. The standard of proof does not vary - the civil standard remains the applicable standard. However in applying the Briginshaw principles we must proceed cautiously in light of the gravity of the allegations made against the respondent and we must be satisfied that the relevant evidence has a high probative value, commensurate with the seriousness and the consequences of the alleged conduct.[4]

  1. [8]
    Later,[5] the panel quoted from State of Queensland v Cannon,[6] which in turn cited Rejfek v McElroy:[7]

This proceeding is not a criminal proceeding, and questions of fact must be decided on the balance of probabilities. The gravity of the allegation that the respondent engaged in serious crime related activity must be taken into account when being invited to reach this conclusion according to the balance of probabilities. The seriousness of the allegation and the gravity of the consequences flowing from such a finding are considerations which must affect the determination of whether or not the respondent engaged in the serious crime related activity that is alleged. The gravity of the consequences that flow from findings about the extent to which a person has engaged in “serious crime related activity” means that reasonable satisfaction as to those matters should not rely on what Dixon J in Briginshaw v Briginshaw described as “inexact proofs” and “indefinite testimony”. Still, the standard of proof is the balance of probabilities. The High Court in Rejfek v McElroy said:

“[T]he standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.”

  1. [9]
    The panel then said:

We are fully cognisant of the gravity of the allegations made against [XYZ]. As these reasons reveal, we have considered very carefully all of the evidence and the submissions by the parties. We have considered carefully the High Court pronouncements in Briginshaw and in Rejfek v McElroy.[8]

Grounds of appeal

  1. [10]
    Ten grounds of appeal on behalf of XYZ were articulated when the appeal was filed, but ultimately grounds 6 and 9 were not pressed. We will address each of the pressed grounds in turn.

Ground 1

  1. [11]
    Ground 1 is that the panel erred in law by incorrectly applying Briginshaw and failing to require sufficient evidence to discharge the standard of proof having regard to the gravity of the matters alleged and without any regard or proper regard to the evidence of XYZ.
  2. [12]
    As will be discussed further below, Mr Reidy for XYZ submits that while the panel acknowledged the principles in Briginshaw, it failed to adhere to them.

Standard of proof

  1. [13]
    The panel posed for itself the question ‘Is S 1’s version of events implausible?’[9]
  2. [14]
    Mr Reidy submits that the panel ‘set itself the task of determining whether the account with all its acknowledged inconsistencies had the appearance of truth, probability, credibility or acceptability …’;[10] it misunderstood the task it was required to perform; and its decision ‘tends to evidence mere satisfaction as to the balance of probabilities, rather than on the balance of probabilities’.[11] The panel, Mr Reidy submits, ‘limited itself to a lower standard of proof’.[12]
  3. [15]
    It is apparent from passages we have quoted above that the panel was conscious of the gravity of what was alleged against XYZ. It was mindful of the need to be positively persuaded that the alleged conduct had occurred, based on evidence of high probative value, before it should make a finding that the conduct had occurred.
  4. [16]
    It was important for the panel to assess whether S 1’s account was plausible or implausible. Many of the submissions that had been made by Mr Reidy to the panel on XYZ’s behalf were to the effect that S 1’s account was unreliable. For example, it was submitted that S 1’s account was ‘quite unsafe … quite unreliable … inexact and conflicting’;[13] that his account had changed; that some descriptions were dream-like; and that the events described were highly improbable.
  5. [17]
    The way that the panel phrased the question for itself is unremarkable in our view. The panel responded to the question at length, dealing with issues such as inconsistencies and uncertainties, opportunity, and the language used by S 1 in his accounts. The panel effectively answered its question in the negative. Had the panel stopped there, then it would not have been apparent that the panel felt an actual persuasion that the assaults occurred. However, the panel went on to say:

We are satisfied that S 1 is a truthful witness and endeavoured to the best of his abilities, as a 10 year old child, to recount the events in question as accurately as possible. Where the evidence of S 1 and the respondent conflicts relevant to the occurrence of the conduct, including the timing of the events, we prefer the evidence of S 1.  … [14]

  1. [18]
    This passage shows that the panel did not merely address the criticisms of S 1’s evidence. It considered that S 1 was telling the truth. It positively accepted S 1’s account in preference to XYZ’s.
  2. [19]
    We do not consider that there was error as contended.

Corroboration

  1. [20]
    Mr Reidy submits that there was a lack of corroboration for S 1’s account, and that ‘the lack of corroboration of such serious allegations required a thoroughgoing examination of the evidence given by a single child complainant’.[15] Mr Reidy submits that the panel’s examination was not thorough, in that (in summary):
    1. (a)
      the panel failed to consider the inherent consistency of S 1’s account;
    2. (b)
      it failed to check ‘consistency with other witnesses’,[16] in particular between S 1 and XYZ; and
    3. (c)
      it ‘did not compare the inherent probability or improbability of the story of the two key witnesses’[17] (S 1 and XYZ).
  2. [21]
    The panel did consider a number of inconsistencies in S 1’s accounts, as we will discuss under the next heading. The panel discussed whether S 1’s account was consistent with other evidence that it considered significant, such as the various accounts of the children about whether the sliding door to the room would have been locked. It is true that the panel did not expressly discuss the inherent probability or improbability of the competing accounts of S 1 and XYZ as to whether the sexual assaults occurred. However, it is apparent that the panel was conscious that the alleged behaviour was high-risk: it discussed factors such as visual access to the cabin and surveillance by a security staff member (T1). The careful scrutiny by the panel of S 1’s evidence, in the course of detailed reasons, indicates that it was very conscious that the sexual assaults described by S 1 were not the ordinary behaviour of a teacher at a school camp. The panel was nonetheless persuaded that the assaults occurred.
  3. [22]
    We are satisfied that the panel took into account the inherent probability or otherwise of the accounts, and that it assessed issues of consistency. 
  4. [23]
    Mr Reidy submits that the panel failed to recognise that only one witness gave evidence about the disciplinary matter, ‘thereby necessitating great care before relying on it to mete the consequences for [XYZ’s] professional future’.[18]
  5. [24]
    We do not accept this submission. It is apparent from the panel’s reasons that it was well aware that the only witness contending that the assaults occurred was S 1. It was conscious of the need to carefully scrutinise the evidence because of the grave effect of accepting the allegations.

Inconsistencies

  1. [25]
    The panel said:

We accept that there are inconsistencies in S 1’s evidence. We do not propose to address all of the inconsistencies but will highlight those we consider of significance in our consideration of the evidence …[19]

  1. [26]
    The panel then set out seven inconsistencies. These included an inconsistency or perceived inconsistency about when S 1 had a conversation with S 2; between what S 1 told his brothers and what he told the police; and between what S 1 told the school principal and what he told the police.
  2. [27]
    In the appeal, Mr Reidy submits that the panel failed to carefully consider the differing accounts given by S 1. He submits that the differences in the accounts given by S 1 to his two brothers is stark, and that S 1 gave a different account to the school principal. He submits that the panel failed to give careful and proper scrutiny to these accounts and others. Mr Reidy submits that the panel questioned the accuracy of the account of each brother on the basis of suggestions of attention deficit disorder for one brother and intellectual impairment and attention deficit hyperactivity disorder for the other, but this was speculative. Even if one assumes the presence of these conditions, Mr Reidy submits, there was no evidence supporting a conclusion about their effect on the memory of either brother. Further, the panel made no reference to assessing the video-recorded interviews for either brother, and Mr Reidy submits that the panel ‘should have found that they were giving straightforward and honest accounts’.[20]
  3. [28]
    We note that the panel discussed why S 1 may have used different language to a brother than to a female police officer. The panel considered it relevant not only that the evidence suggested the brothers had the health conditions mentioned above but also that they were 13 and nine years of age when interviewed by police. The panel continued:

It is therefore possible that their individual recollections of what S 1 told them were not entirely accurate. Nonetheless, the key elements of S 1’s story are present in the evidence of both brothers …[21]

  1. [29]
    Overall, we are satisfied that the panel did adequately take into account that there were differing accounts. It was reasonable for the panel to take into account the potential effects of the health conditions despite the absence of expert evidence.
  2. [30]
    Mr Reidy submits:

The Tribunal chose not to address all the inconsistencies in [S 1’s] evidence … when it was compelled to do so in order to meet the requirements of a careful analysis. The Tribunal recognised that there were in fact a number of inconsistencies but it failed to consider and analyse all the identified inconsistencies.[22]

The seven inconsistencies which the Tribunal chose to deal with … were self-evident and serious individually and collectively.[23]

  1. [31]
    We note that it was observed in Beale v Government Insurance Office of NSW that:

… a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered.

Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance …[24]

  1. [32]
    The evidence before the panel was voluminous, and the submissions extensive. In our view, it was appropriate for the panel to discuss only the inconsistencies that it considered significant. It acknowledged that there were others. The panel said that it had considered all of the evidence and the submissions.[25] We accept the submission made in the appeal by Mr McMillan for the College:

Given the scope of the evidence and the submissions below, it would have been entirely impractical for the tribunal to specifically address all the evidence and submissions in its reasons.[26]

Demeanour

  1. [33]
    Mr Reidy submits that the panel’s examination was not thorough, in that (in summary):
    1. (a)
      it did not discuss S 1’s performance in his recorded evidence;
    2. (b)
      it failed to address the ‘credit’ of XYZ or make any observations of his performance in the witness box or in his recorded interview; and
    3. (c)
      it ‘failed to make any observation of the witnesses including physical manifestations of truthfulness or uncertainty’.[27]
  2. [34]
    In oral submissions, Mr Reidy expressed some aspects of this in terms of a failure to assess the relative credibility of the two main witnesses: S 1 and XYZ.
  3. [35]
    Submissions had been made to the panel by Mr Reidy about how XYZ, S 1 and other witnesses presented in their interviews and oral evidence. As the panel noted, Mr Reidy had provided his notes of the video recordings of the child witnesses.[28] We note that these included observations such as that S 1’s ‘mannerisms on occasion are incongruent with the subject he is relating’,[29] and that his responses were ‘guarded’.[30]
  4. [36]
    The evidence before the panel included video interviews by police with S 1 and with XYZ, and oral evidence before the panel by XYZ. The panel commented that it had viewed the video evidence.[31]
  5. [37]
    Little was said by the panel about demeanour. As we have noted earlier, the panel commented that it regarded S 1 as a truthful witness who had endeavoured to the best of his ability as a ten-year-old child to recount events accurately. This expressed, albeit very succinctly, the panel’s view of his presentation. The panel had also discussed in detail why it was not persuaded by the criticisms of S 1’s veracity.  The panel noted XYZ’s account of entering the cabin to assist S 3, and his denials of wrongdoing, both in his police interview and in his later evidence.[32] It noted the submission made by Mr Reidy that XYZ’s evidence denying the allegations ‘is clear and consistent and has remained so throughout’,[33] but it did not make any comments of its own about XYZ’s demeanour. Presumably it did not find his demeanour, whether in his interview or when giving evidence, persuasive one way or the other.
  6. [38]
    The nature of the controversy between the two central witnesses must be borne in mind. S 1’s account was of an unusual and disturbing event, and the panel accordingly subjected that account to scrutiny. On the other hand, XYZ’s account was unremarkable: it was a denial of any impropriety and an account of simply carrying out the normal duties of a supervising teacher. It is not surprising, therefore, that the focus was on whether S 1’s evidence was believed. In our view, it was clearly open to the panel, having considered why S 1’s evidence might be rejected, and having taken into account the competing version, to regard S 1’s evidence as convincing. An analysis of whether XYZ appeared generally credible was not essential.
  7. [39]
    Although inadequacy of reasons was not a ground of appeal, comments in cases on that topic are instructive because they deal with engagement by a decision-maker with evidence. It has been said that ‘bald findings on credit where there remain substantial factual issues to be dealt with’ may indicate inadequacy in reasoning.[34] On the other hand, it has also been said that ‘when the court, in a case without documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible’.[35]
  8. [40]
    The present was a case where the panel found S 1’s account credible, and believed it. The lack of further discussion about demeanour does not indicate a failure to properly examine the evidence.

Dream-like, fantasy-like and unlikely evidence

  1. [41]
    During cross-examination in the criminal proceeding, counsel for XYZ asked S 1 whether it was possible that the sexual assaults did not happen but had, rather, been a dream. S 1 responded: ‘That’s what I’ve been asking myself, but I don’t know that answer’.[36] The panel quoted this answer in its reasons.[37]. It also discussed what S 1 had said in re-examination and on other occasions.[38]
  2. [42]
    In the appeal, Mr Reidy submits that the panel failed to consider the fantasy-like quality of key elements of S 1’s evidence; that it failed to give careful attention to the answer given by S 1 in cross-examination; that its finding that S 1 is able to distinguish dreams from reality does not address the evidence; and that the panel treated as reality what S 1 had conceded was a possible dream. Mr Reidy submits that the panel rationalised S 1’s evidence about mind pictures on the basis of what ten-year-olds would do, but it had no evidence of research on that topic, and was engaging in conjecture. Many other people, Mr Reidy submits, would have had experience of ten-year-olds creating fantasy worlds.
  3. [43]
    We note that the panel discussed submissions made by Mr Reidy that aspects of S 1’s evidence had a dream-like or fantasy-like quality. It rejected Mr Reidy’s submission that an aspect of S 1’s evidence had an ‘aura of unreality’.[39] It found that S 1 was able to distinguish between reality and dreams. It explained its view that, in effect, notwithstanding the answer in cross-examination and the features of S 1’s evidence that were said to be fantasy-like, S 1 was recounting a real event when he described the sexual assaults.
  4. [44]
    The panel expressed its view that S 1’s descriptions about photographic mind pictures were consistent with an attempt by a ten-year-old ‘to explain the process of committing to memory what he had observed’.[40] We do not consider that this was a generalisation about ten-year-olds. Further, it was proper for the panel to draw on its experience of life in assessing the veracity of S 1. It was not a topic that called for expert evidence. Proceedings would become unduly complicated and delayed if the assessment of veracity had to depend on expert evidence.
  5. [45]
    Mr Reidy submits that the panel did not engage with the facts that in order for the assault on S 1 to have occurred a sleeping bag and pull-up pants would have had to be removed. Mr Reidy further submits that the panel failed to appreciate that the tapping and biting actions by XYZ described by S 1 would likely have caused disturbances.
  6. [46]
    We note that the tapping was discussed in a number of places in the panel’s reasons. The panel noted the submission by Mr Reidy that S 2 did not wake despite the ‘alleged forceful contact’.[41] The panel considered whether the removal of pull-up pants and the sleeping bag would have made it difficult for XYZ to have committed the assaults. The panel also commented that, contrary to Mr Reidy’s submissions, it did ‘not consider S 1’s evidence that he felt teeth and biting to be in any way remarkable’.[42]
  7. [47]
    These various issues were, therefore, ones that the panel discussed. It is immaterial that they may not all have been canvassed in the part of the reasons that addressed the submissions about dream-like and fantasy-like evidence.
  8. [48]
    Mr Reidy submits that the panel failed to consider and properly analyse the fact that S 1 first mentioned the alleged assaults after experiencing traumatic dreams of a distressing and violent nature following a distressing family incident.
  9. [49]
    We do not accept that submission. The panel noted these events, and commented that it did not consider that the events, or their impact on S 1, undermined the reliability of  his evidence.[43]
  10. [50]
    Overall, we do not accept Mr Reidy’s submissions to the effect that the panel failed to give careful or proper attention to these various matters.

Evidence about time

  1. [51]
    The panel found that XYZ had entered the cabin to assist S 3 some time after 9.30 pm; that he left the cabin; and that he re-entered the cabin at some time between approximately 10.00 pm and approximately 11.00 pm, when he committed the sexual assaults.
  2. [52]
    In its observations about the timing of the re-entry, the panel noted the evidence of several of the children in the cabin, including S 1 who said that assaults had occurred at ‘like ten-ish eleven’ and ‘about eleven o’clock’.[44] The panel also noted the evidence of XYZ that it was some time after 9.30 pm when he went into the cabin to assist S 3; that he socialised with other teachers in the common room from about 9.45 pm for 45 minutes to an hour; and that he then went straight back to his cabin which was in the same block as the cabin in question.
  3. [53]
    The panel continued:

In his submissions, [XYZ] says that, on the evidence, it is possible that [XYZ] did not return to his room until between 11.15 pm and 11.30 pm. On his own evidence however [XYZ] socialised with other teachers until approximately 10.30pm to 10.45pm before returning ‘straight’ to his cabin …[45]

  1. [54]
    Mr Reidy’s written submissions to the panel had said:

[XYZ] estimates that he went up to the staff room some time between 9:45 pm and 10 pm. [T1’s][46] evidence is that he started the count sometime between 9:30 pm and 10:15 pm. Taking the outer time, it is possible that [T1] and [XYZ] were talking as late as 10.15 pm. Taking account of [XYZ] waiting another 15 minutes, he would not have left for the staff room until about 10.30 pm. This would result in returning to his room between 11.15 pm and 11.30 pm …[47]

  1. [55]
    In the appeal, Mr Reidy submits that the panel ‘did not give the proper scrutiny required and have regard to all of the evidence about time of the alleged events’.[48]  Mr Reidy notes that T1 had said in his statement to police that he started his count of students in cabins between 9.30 pm and 10.15 pm. Mr Reidy submits that T1’s account of times would be the most reliable. This appears to be based on a comment by T1 in cross-examination at the criminal trial that he had conducted research to compile his statement, though we observe that the comment related to researching the movement of students between cabins because of a water leak.[49] Mr Reidy goes on to reiterate the argument that the timing of XYZ’s return to the cabin block was likely to have been well after 11.00 pm, having regard to T1’s evidence about when he started the count. Mr Reidy submits:

The Tribunal failed to carefully analyse the evidence in coming to the conclusion that [XYZ] came back to the room between 10 PM and 11 PM. When all the evidence is considered, the only reasonable conclusion to which the Tribunal could have arrived was that he returned well after 11 PM.[50]

  1. [56]
    We accept that the panel did not mention T1’s evidence about when he started the count. However, it clearly did take into account the submission which we have quoted above, which discussed that evidence. We are satisfied that the panel had sufficient regard to all of the relevant evidence before deciding that it would accept XYZ’s own estimate of when he returned to the cabin block.

Pull-up pants

  1. [57]
    Mr Reidy submits:

A significant inconsistency in [S 1’s] evidence concerns the pull up pants. The Tribunal glossed over the significant disturbance that their removal would cause by not squarely dealing with that issue and rationalising the evidence with the statement that it was the function of the pants to be pulled up and down.[51]

  1. [58]
    We note that the panel observed that it was argued on behalf of XYZ that the pull-up pants were significant because:

… that S 1 was wearing pull ups (and the difficulties [XYZ] would have had pulling them down and pulling them back up again) makes it highly unlikely that events occurred as described by S 1.[52]

  1. [59]
    The panel went on to explain that it did not accept this argument as there was no evidence that pull-up pants were more or less difficult to remove than conventional underwear.
  2. [60]
    We are satisfied that the panel did adequately consider the issue.

Finding about door

  1. [61]
    Mr Reidy submits:

An analysis undertaken by the Tribunal demonstrates a consistent lack of the necessary careful scrutiny required … to apply the correct legal approach to the evidence.[53]

  1. [62]
    This relates to the panel’s finding that the rear sliding door, which would have afforded the only means of access by XYZ to the cabin, was unlocked at the time of the alleged assaults. It was undisputed that XYZ had entered the cabin earlier in the night through the sliding door to assist S 3. Mr Reidy submits that the ‘proper inference’[54] was that the door was locked at the later time of the alleged assaults. Mr Reidy points to evidence by S 1 that he had told S 4 to lock the door; evidence from a child that S 1 ‘always … closes the doors and everything’;[55] and what Mr Reidy describes as ‘uncontradicted evidence’[56] by S 4 that he was the first out of the cabin in the morning and that he unlocked the sliding door. Mr Reidy adds:

The inescapable inference is that one of the boys locked the door [in] between [XYZ] leaving after talking to the distressed child and the last of the boys going to sleep. The question of who locked the door is minor to the point or irrelevance yet that was the focus of the Tribunal’s approach.[57]

  1. [63]
    The panel discussed in some detail what each of the five boys who slept in the cabin had to say about the door, including for example:

The evidence of S 3 was that ‘mostly all the time’ the rear door was not locked, and that the rear door was not locked when the cabin occupants were going to sleep.[58]

  1. [64]
    Unsurprisingly, none of the boys was in a position to say definitively whether the door was locked or unlocked at the relevant time. We are satisfied that the panel considered the various accounts and reached a finding that was open on the evidence. We do not accept that there was a failure to carefully scrutinise the evidence.

Usurpation of jury verdict

  1. [65]
    Mr Reidy submits that it was not the function of the panel to usurp a jury verdict: in applying Briginshaw this should have been recognised and due deference paid to the jury’s role and determination, particularly where the issue before both bodies involved acceptance of one account over another. Further:

The verdicts should not have been taken lightly because they were a product of a determination from the collective experience of people conducting their ordinary affairs and using this to determine whether evidence is truthful and what evidence is truthful. Juries are regarded as usually well able to evaluate conflicts and imperfections of evidence.[59]

  1. [66]
    Cases are cited by Mr Reidy in support of the propositions about the nature of jury decision-making, but the cases do not address the question of what status should be afforded to an acquittal in disciplinary proceedings.
  2. [67]
    We note that QCAT may inform itself in any way it considers appropriate,[60] and so it may have been open to the panel to place weight on the fact that a jury had acquitted XYZ. The panel noted that XYZ had been acquitted.[61] However, we do not consider that the panel was in any way obliged to defer to the jury’s verdict. It was proper for the panel to form its own view of the strengths of the competing versions and to reach its own findings.
  3. [68]
    A finding by the panel on the civil standard that the assaults occurred does not ‘usurp’ an acquittal, in relation to the same allegations, by a jury applying the criminal standard. 

Conclusion on Ground 1

  1. [69]
    Ground 1 is not established.

Ground 2

  1. [70]
    Ground 2 is that the panel erred in law in the identification of and approach to drawing inferences from circumstantial evidence.
  2. [71]
    The panel had said:

We turn now to the conduct of the respondent [XYZ] involving S 1. The respondent submits, correctly, that the evidence of S 1 is uncorroborated. The respondent says that there is no independent evidence to support S 1’s evidence in relation to the respondent’s alleged behaviour.

There are, in our view, and relevant in the context of the overall factual matrix, a number of evidentiary matters which must be addressed. These may, in our view, be considered evidentiary matters of a circumstantial nature.

Firstly, on the night in question the occupants of the cabin had been relocated to cabin 6.02 in block 6 along with another group of students in cabin 6.01. The respondent also relocated to block 6. The respondent was the only teacher residing in block 6. He had volunteered to be relocated after the flooding incident. The events described by S 1 occurred on the last night of the camp, the only night of the camp during which the occupants of cabin 6.02 were relocated block 6 and in circumstances in which the opportunity to offend best presented itself to the respondent who was in the cabin immediately adjacent to cabin 6.02.

Secondly, the evidence of the security welfare officer was that patrols of the camp buildings were not conducted constantly throughout the night. He stated that the patrols were at random and depended upon the level of activity of the students. His evidence was that he would either be patrolling the grounds or sitting outside in a covered pavilion from which he had no view of block 6. In our view, and based upon the evidence, the respondent had the opportunity to enter the cabin and engage in the alleged behaviour.

Thirdly, S 1 describes the clothing worn by the respondent at the time of the alleged behaviour including respondent’s name badge. The evidence of the respondent was that whilst he could not recall what he was wearing on the night in question he stated he would have been wearing his name badge. S 1’s description of the clothing worn by the respondent at the time of the offending is a blue shirt and ‘brownish, greyish’ shorts.  The evidence of the respondent was that, after entering the cabin to calm S 3, he did not go to bed but rather joined a group of teachers for approximately one hour. That the respondent would have remained in his work clothing are matters about which S 1 could not reasonably have known. His recollection is nevertheless consistent with the objective facts.[62]

  1. [72]
    Mr Reidy submits that the panel:

… found a circumstantial case against [XYZ] in determining the conduct of [XYZ] and the uncorroborated allegations of [S 1] ... The finding of inferences drawn against [XYZ] influenced the ultimate findings and outcome.

Circumstantial evidence is any fact (an evidentiary fact or facts relevant to the issue) from the existence of which the factfinder may infer the existence of a fact in issue (or principal fact).

For a circumstantial case, the Tribunal was first of all required to make findings of the evidentiary facts on the balance of probabilities. It goes without saying that the Tribunal cannot be selective in the facts chosen. The Tribunal was then required to identify the fact in issue which rationally followed. The conclusion sought to be drawn should be a rational conclusion and exclude all other conclusions.[63]

  1. [73]
    Mr Reidy goes on to submit that the panel’s examination of the circumstantial evidence was piecemeal, and that, in effect, a proper evaluation of the totality of the relevant evidence rendered the circumstantial matters neutral or favourable to XYZ.
  2. [74]
    We do not accept that the approach proposed by Mr Reidy was required. This was not a ‘circumstantial case’. It turned, instead, on whether S 1’s eye-witness account was accepted. The ‘circumstantial matters’ discussed by the panel were surrounding matters which the panel considered were consistent with, or tended to support, S 1’s account. They were not relied on to infer a principal fact. Even if they had been, we do not accept that in a case where the civil standard of proof applies, a conclusion to be drawn would have to exclude all others.
  3. [75]
    Ground 2 is not established.

Ground 3

  1. [76]
    Ground 3 is that the panel erred by failing to give consideration to or proper weight to the absence of any corroboration of S 1’s account.
  2. [77]
    Mr Reidy submits that ‘this is dealt with under Ground 1’.[64]
  3. [78]
    As we have indicated, the panel was conscious that S 1’s account was uncorroborated. It scrutinised his evidence, and had regard to the opposing account and the surrounding circumstances.
  4. [79]
    Ground 3 is not established.

Grounds 4 and 5

  1. [80]
    Ground 4 is that the panel erred in determining the matter contrary to the particulars contained in the joint statement filed in the proceeding.
  2. [81]
    Ground 5 is that the panel erred in law in failing to give XYZ procedural fairness by failing to disclose to XYZ that it did not regard itself as bound by the particulars relied on or giving XYZ an opportunity or proper opportunity to be heard or present a case on the matter including in respect of the timeframe of 10 pm to 11 pm.
  3. [82]
    The background to these grounds is that the parties had filed a joint statement. It listed amongst the facts in issue:

Whether or not [XYZ] engaged in the conduct alleged by [S 1] in respect of [S 1], being the version recorded in the Queensland Police Service Court Brief QP9, namely:

During the evening of 23 March 2016, [XYZ] entered cabin 6.02 between 10 pm and 11 pm [and then committed sexual assaults on S 1].[65]

  1. [83]
    The panel discussed a submission made on behalf of XYZ that if it could not be established on the balance of probabilities that XYZ entered the cabin between 10.00 and 11.00 pm, then the alleged assaults would not be established. It rejected that submission, concluding that the only confining timeframe was one spanning several days which had been adopted in the referral by the College.
  2. [84]
    We have earlier mentioned the panel’s reasoning about the timing. It observed that S 1 placed the incident at around 10.00 or 11.00 pm, and that on XYZ’s evidence he had gone back to block 6 at around 10.30 or 10.45 pm. This, the panel noted, was ‘within the timeframe referred to in the joint statement’.[66] The panel went on to find that XYZ entered the cabin ‘at some time between approximately 10pm and approximately 11pm’.[67]
  3. [85]
    Mr Reidy submits that the joint statement, which had been directed by the tribunal, served the purpose of a pleading: it defined the facts in issue. Mr Reidy submits that XYZ’s case was prepared on the basis that he had to meet the case that XYZ entered the cabin between 10.00 pm and 11.00 pm, and:

Had he known that the Tribunal was to undertake a broad ranging enquiry unrestrained by the [joint statement] he would have prepared his case differently including calling witnesses for cross-examination.[68]

  1. [86]
    In our view, grounds 4 and 5 are purely academic because the panel found that the incidents occurred within, approximately, the time frame posed by the parties. The use of ‘approximately’ in the finding did not itself involve a departure from that time frame, in our view. The evidence simply did not permit a more precise finding.
  2. [87]
    Accordingly, grounds 4 and 5 are not established.

Ground 7

  1. [88]
    Ground 7 is that the panel erred in its findings about the recollections and evidence of S 1’s brothers without supporting evidence for the findings or drew inferences about the recollections or reliability of the brothers without a proper basis for doing so.
  2. [89]
    Mr Reidy submits that ‘this has been dealt with under Ground 1’.[69]
  3. [90]
    We have addressed the submissions about the brothers’ evidence in our discussion of ground 1. Ground 7 is not established.

Ground 8

  1. [91]
    Ground 8 is that the panel’s decision is contrary to the evidence or contrary to the weight of the evidence.
  2. [92]
    Mr Reidy submits that ‘this has been dealt with in Ground 1’.[70]
  3. [93]
    We are not satisfied that the panel’s decision was contrary to the evidence or the weight of the evidence. As discussed in relation to Ground 1, there was evidence in support of each party’s case, and it was open to the panel to reach the findings that it did. Ground 8 is not established.

Ground 10

  1. [94]
    Ground 10 is that the panel’s decision is unreasonable or unjust.
  2. [95]
    Mr Reidy submits that ‘for the reasons given in respect of ground 1, no reasonable tribunal could have reasonably … made the decision given by the Tribunal’.[71] In oral submissions, Mr Reidy emphasised that the panel should have, but did not, evaluate the relative credibility of the competing accounts given by S 1 and XYZ.
  3. [96]
    For the reasons given in relation to ground 1, we consider that the panel engaged sufficiently with the issues that it had to decide. Its decision was reasonably open on the evidence. Accordingly, ground 10 is not established.

Non-publication order

  1. [97]
    The panel made a non-publication order. To preserve the effect of that order, it is appropriate to make a similar order in this appeal proceeding.

Conclusion

  1. [98]
    As the appeal involved questions of law only, our powers are set out in section 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  2. [99]
    As we have concluded that none of the grounds of appeal is established, the appropriate outcome is to confirm the panel’s decision.

Footnotes

[1]Queensland College of Teachers v XYZ [2019] QCAT 283.

[2]Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h).

[3]Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362.

[4]Queensland College of Teachers v XYZ [2019] QCAT 283, [41]. Footnote omitted.

[5]Ibid, [124].

[6][2011] QSC 75, [12]. Footnotes omitted.

[7](1965) 112 CLR 517.

[8]Queensland College of Teachers v XYZ [2019] QCAT 283, [125].

[9]Ibid, 17.

[10]Appellant’s written submissions dated 23 December 2019, [16].

[11]Ibid.

[12]Ibid, [17].

[13]Appeal Book, 1432.

[14]Queensland College of Teachers v XYZ [2019] QCAT 283, [126].

[15]Appellant's written submissions dated 23 December 2019, [19].

[16]Ibid, [22].

[17]Ibid, [25].

[18]Appellant's written submissions dated 23 December 2019, [26].

[19]Queensland College of Teachers v XYZ [2019] QCAT 283, [78].

[20]Appellant's written submissions dated 23 December 2019, [40].

[21]Queensland College of Teachers v XYZ [2019] QCAT 283, [114].

[22]Appellant's written submissions dated 23 December 2019, [33].

[23]Ibid, [34].

[24](1997) 48 NSWLR 430, 443.

[25]Queensland College of Teachers v XYZ [2019] QCAT 283, [125].

[26]Respondent’s written submissions filed 12 February 2020, [82].

[27]Appellant's written submissions dated 23 December 2019, [23-24].

[28]Queensland College of Teachers v XYZ [2019] QCAT 283, [22].

[29]Mr Reidy’s notes on recordings, 1.

[30]Ibid, 5.

[31]Queensland College of Teachers v XYZ [2019] QCAT 283, [25].

[32]Ibid, [74-77].

[33]Ibid, [38].

[34]Palmer v Clarke (1989) 19 NSWLR 158, 170.

[35]Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381.

[36]Appeal Book, 686.

[37]Queensland College of Teachers v XYZ [2019] QCAT 283, [65].

[38]Ibid, [100].

[39]Ibid, [109].

[40]Ibid, [103].

[41]Ibid, [81].

[42]Queensland College of Teachers v XYZ [2019] QCAT 283, [107].

[43]Ibid, [101].

[44]Ibid, [121].

[45]Ibid, [123].

[46]T1 is the security staff member.

[47]Appeal Book, 1320-1321.

[48]Appellant's written submissions dated 23 December 2019, [43].

[49]Appeal Book, 769.

[50]Appellant's written submissions dated 23 December 2019, [44].

[51]Ibid, [42].

[52]Queensland College of Teachers v XYZ [2019] QCAT 283, [115].

[53]Appellant's written submissions dated 23 December 2019, [27].

[54]Ibid, [29].

[55]Appeal Book, 248.

[56]Appellant's written submissions dated 23 December 2019, [30].

[57]Ibid.

[58]Queensland College of Teachers v XYZ [2019] QCAT 283, [87].

[59]Appellant's written submissions dated 23 December 2019, [18]. Footnotes omitted.

[60]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

[61]Queensland College of Teachers v XYZ [2019] QCAT 283, [2], [12].

[62]Queensland College of Teachers v XYZ [2019] QCAT 283, [93-97]. Footnotes omitted.

[63]Appellant's written submissions dated 23 December 2019, [45-47]. Footnotes omitted.

[64]Ibid, [58].

[65]Appeal Book, 1288.

[66]Queensland College of Teachers v XYZ [2019] QCAT 283, [123].

[67]Ibid, [128(e)].

[68]Appellant's written submissions dated 23 December 2019, [62].

[69]Ibid, [66].

[70]Appellant's written submissions dated 23 December 2019, [67].

[71]Ibid, [69].

Close

Editorial Notes

  • Published Case Name:

    XYZ v Queensland College of Teachers

  • Shortened Case Name:

    XYZ v Queensland College of Teachers

  • MNC:

    [2021] QCATA 1

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Kanowski

  • Date:

    04 Jan 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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