Teacher BNU v Queensland College of Teachers
[2023] QCATA 164
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- Teacher BNU v Queensland College of Teachers[2023] QCATA 164
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Teacher BNU v Queensland College of Teachers[2023] QCATA 164
Teacher BNU v Queensland College of Teachers[2023] QCATA 164
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Teacher BNU v Queensland College of Teachers [2023] QCATA 164 |
PARTIES: | teacher bnu (applicant/appellant) v queensland College of teachers (respondent) |
APPLICATION NO/S: | APL241-22 |
ORIGINATING APPLICATION NO/S: | OCR059-21 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 18 December 2023 |
HEARING DATE: | 25 August 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant teacher appealed against the Tribunal’s decision that a ground for disciplinary action was established – where the allegations against the teacher involved overfamiliar and inappropriate conduct, including hugging, giving gifts and touching the student – whether the Tribunal at first instance denied the appellant procedural fairness in relying on material that the appellant did not obtain – whether the Tribunal misapplied the onus of proof – whether the Tribunal relied upon ‘illogical or irrational’ reasoning APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the appellant teacher sought leave to appeal in relation to a question of fact – where the appellant submitted that the Tribunal had erred by making a finding that was contrary to or against the weight of evidence – where the Tribunal at first instance preferred the evidence of the student – where the appellant submitted that the dismissal of the teacher’s criminal charges following a committal hearing affected the appropriate weight to be given to the student’s evidence – whether error of fact by the Tribunal at first instance – whether the conduct of the teacher’s case by counsel at the committal hearing may be taken into account by the Tribunal – whether findings made by the Magistrate at the committal hearing may be taken into account by the Tribunal Child Protection Act 1999 (Qld), s 186, s 189 Education (Queensland College of Teachers) Act 2005 (Qld), s 92, s 97, s 147, s 158 Evidence Act 1977 (Qld), s 93A, s 93AA Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28, s 32, s 57, s 95, s 142, s 230 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 80 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Briginshaw v Briginshaw (1938) 60 CLR 336 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 HES v The State of Western Australia [2022] WASCA 151 Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104 Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348 Queensland College of Teachers v BNU [2022] QCAT 255 Queensland College of Teachers v CSK [2016] QCATA 125 Queensland College of Teachers v RCJ [2015] QCAT 282 Queensland College of Teachers v Smith [2015] QCAT 426 R v Draper [2015] QCA 66 R v MAP [2006] QCA 220 R v Robinson [1977] Qd R 387 Ritchie (a Pseudonym) v the Queen [2019] VSCA 202 Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22 Schneider v Queensland Building and Construction Commission [2021] QCA 155 The State of Western Australia v Wood [2008] WASCA 81 |
APPEARANCES & REPRESENTATION: |
|
Applicant/Appellant: | M Black of Counsel, instructed by Susan Moriarty & Associates |
Respondent: | N A-Khavari of Counsel, instructed by B Houston, Queensland College of Teachers |
REASONS FOR DECISION
- [1]This is an application for leave to appeal or appeal from a decision of the Tribunal that a ground for disciplinary action had been established in relation to the appellant. With the consent of the parties, the matter before the Tribunal at first instance was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’).
- [2]In essence, the disciplinary proceedings stemmed from allegations that the appellant and a student, then aged 17, developed an overfamiliar and inappropriate relationship, which included hugging, the giving of gifts and the appellant touching the student on the bottom and ‘brushing’ the student’s genital area with the back of his hand.
- [3]Following the making of a complaint by the student, two charges of indecent assault were brought against the appellant. Both charges were dismissed. In relation to one charge the prosecution offered no evidence, conceding that it could not be particularised, while at a committal proceeding in relation to the second charge the Magistrate concluded that a jury could not convict even taking the prosecution case at its highest.[1] The Magistrate considered that a defence of reasonable mistake as to consent could not be excluded.[2]
- [4]As to the grounds for disciplinary action, reliance was placed on s 92(1)(h) of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘Education Act’):
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.
- [5]The majority of the Tribunal at first instance found that on the balance of probabilities most of the allegations had been established, including the hugging, giving of gifts and the touching of the student referred to above, and that the ground for disciplinary action under s 92(1)(h) of the Education Act had been established. In relation to the criminal charges, the majority of the Tribunal at first instance stated:[3]
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.
- [6]The Member of the Tribunal in the minority found that the grounds for disciplinary action had not been established. In particular, the Tribunal Member refers to the lack of any evidence in support of the student’s allegations, including corroborating statements from other students or evidence of suspicions on the part of other staff members, in the context of allegations that are said to have extended over a long period of time. With reference to Briginshaw,[4] it was concluded that the allegations did not reach the required standard of evidence.
- [7]In summary, the grounds of appeal are:
- The Tribunal denied the appellant procedural fairness in relying on a video of the student’s interview with the police, in circumstances where a copy of the video was not provided to the appellant and it was not referred to or relied upon in the respondent’s written submissions.
- The Tribunal erred in law in failing to assess the matter on the basis that the respondent bore the onus of proof.
- The Tribunal erred in law in adopting and relying upon illogical or irrational reasoning.
- The Tribunal erred in fact in concluding that a ground for disciplinary action had been established, in that the finding of an overfamiliar and inappropriate relationship was contrary to or against the weight of evidence.
- [8]The appellant accepts that the fourth ground raises a question of fact. While there is a right of appeal on a question of law, by s 142(3)(b) of the QCAT Act leave to appeal is required where the appeal raises a question of fact or of mixed law and fact. In Schneider v Queensland Building and Construction Commission, it was stated that leave to appeal will usually only be granted ‘where it is necessary to correct a substantial injustice and where there are reasonable prospects of an error being demonstrated’.[5]
- [9]It is not a question of whether the Appeal Tribunal would have reached a different conclusion on the facts. The Appeal Tribunal will not readily interfere with findings of fact of the Tribunal at first instance, unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.[6]
The legislation
- [10]Section 97(1) of the Education Act provides:
If the college reasonably believes, other than on the basis of interstate information, that 1 or more grounds for disciplinary action against a relevant teacher exist, the college must refer the matter to the practice and conduct body stated in subsection (2).[7]
- [11]Section 97(4) of the Education Act provides that if a matter is referred to QCAT:
- the college must inform QCAT about the grounds for the practice and conduct matter and the facts and circumstances forming the basis for the grounds; and
- QCAT must conduct a hearing and make decisions about the practice and conduct matter referred to QCAT having regard to the information provided by the college.
- [12]Section 158(1) of the Education Act then provides:
As soon as practicable after finishing the hearing, QCAT must decide whether a ground for disciplinary action against the relevant teacher has been established.
- [13]In relation to grounds for disciplinary action, s 92(1)(h) of the Education Act provides:
Each of the following is a ground for disciplinary action against a relevant teacher—
…
- 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;
- [14]In relation to that ground, s 92(2) provides:
The ground for disciplinary action mentioned in subsection (1)(h) is taken to apply to a relevant teacher whose registration or permission to teach is suspended under section 48 if any of the following applies—
- the teacher has been charged with a serious offence and the charge has been dealt with;
- [15]In relation to s 92(2) of the Education Act, s 92(3) provides:[8]
The object of subsection (2) is to ensure the circumstances of the change[9] are examined by a practice and conduct body.
- [16]Subsection 92(5) further provides:
In this section—
dealt with, in relation to a charge against a relevant teacher for a serious offence, means any of the following—
- the relevant teacher is acquitted of the charge;
- the charge has been withdrawn or dismissed;
- a nolle prosequi or no true bill is presented in relation to the charge.
- [17]In finding that a ground for disciplinary action had been established in the present case, the majority of the Tribunal at first instance stated:[10]
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.
- [18]The Tribunal at first instance also stated that the civil standard of proof on the balance of probabilities applied, though as qualified by the observations of Dixon J in Briginshaw.[11]
Ground 1
- [19]Ground 1 of the appeal is that the Tribunal denied the appellant procedural fairness in relying on a video of the student’s interview with the police, in circumstances where a copy of the video was not provided to the appellant and it was not referred to or relied upon in the respondent’s written submissions.
- [20]The video in question recorded the student’s interview by police on 25 June 2020.[12] The appellant accepts that on 31 May 2021, the College communicated with the appellant’s solicitors advising that the video had been received and that it would be filed in the Tribunal, adding that the College anticipated ‘that it will be made available for your view’.[13]
- [21]That and other material was filed in the Tribunal on 9 July 2021. Accordingly, it became part of the record for the proceedings. In a covering letter to the Tribunal it was stated that a copy of the interview would not be provided to the appellant due to the statutory protections in s 93AA(1) of the Evidence Act 1977 (Qld) and, then, s 186(2) and s 189 of the Child Protection Act 1999 (Qld). It was added: ‘The QCT respectfully requests that the recording be made available to the respondent’s legal representatives for viewing at the Tribunal’.
- [22]On 16 July 2021, the appellant’s solicitors wrote to the College stating that they had not been provided with a copy of the video or a transcript of the police interview. The College responded on 20 July 2021, advising that it had not at that time received a copy of the transcript and, in relation to the video, repeated its advice of 9 July 2021 as to why it had not provided a copy of the video to the appellant.
- [23]On 9 August 2021, the College filed in the Tribunal and served on the appellant’s solicitors a copy of the transcript of the police interview, the receipt of which was acknowledged by the appellant on 9 August 2021.
- [24]
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.
- [25]The appellant submits that it was denied procedural fairness in circumstances where it was not given a copy of the video by the College or QCAT and where in its written submissions before the Tribunal at first instance the College did not expressly cite, refer to, or rely on the video recording. Further, in its submissions the College identified the material on which it relied without expressly referring to the video recording, but with express reference to the transcript of the recording.
- [26]The appellant submits that ‘he was not given fair or reasonable notice that [the College] was relying on the video recording or that QCAT would view and rely on the video recording’. In all the circumstances, including that he was not given a copy of the recording and neither party made submissions about its content, it is submitted that the Tribunal’s reliance on the video recording constituted a breach of the rules of procedural fairness.
- [27]However, the appellant was given a copy of the transcript of the recording and by s 230(2) of the QCAT Act had a right to inspect the record kept for the proceeding.[16] While the Tribunal did not initiate a viewing of the recording by the appellant as suggested by the College, it was open to the appellant to take appropriate steps to undertake such a viewing. As stated in Queensland College of Teachers v RCJ, the Tribunal ‘has the authority to possess, supply and copy the s 93A statements and to make them available to the parties’ legal representatives on conditions it considers appropriate’.[17] It was also stated in RCJ that:[18]
if audio or video recordings are available, the recordings should be admitted into evidence in preference to the transcripts (in the absence of other reason not to admit the recordings). Transcripts may be used as an [aid] to listening to the audio or video evidence. If there is a conflict between the audio or video recording and the transcript, the audio and video would generally be preferred. These principles reflect the ‘best evidence rule’ and practice in relation to the use of a transcript where the original recording is available.
- [28]The principles of procedural fairness do not accommodate a party sitting on their hands and shutting their eyes to material of which they have knowledge and to which they could gain access, on the expectation that someone else would take the initiative and hand it to them. As stated by Justice Alan Wilson, President, in Creek v Raine & Horne Real Estate Mossman:[19]
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests.
- [29]The appellant was legally represented and knew or ought to have known that the material formed part of the record of the proceedings. In relation to use of the video by the Tribunal, s 97(4)(b) of the Education Act provides that the Tribunal ‘must’ conduct the hearing ‘having regard to the information provided by the college’, which information in the present case included the video recording. Also, by s 28(3)(c) of the QCAT Act the Tribunal ‘may inform itself in any way it considers appropriate’, while s 28(3)(e) provides that the Tribunal ‘must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts’.
- [30]In making its decision, the Tribunal is not confined by the submissions of the parties or by the way in which they present their case. In any event, in the amended referral filed on 9 July 2021 the covering affidavit refers to both the transcript of proceedings and the section 93A interview recording, while in an annexure to the amended referral, which summarised what was said to be the inappropriate behaviour of the appellant, numerous references are made to the transcript and the video recording.
- [31]This ground of appeal is rejected.
Ground 2
- [32]Ground 2 of the appeal is that the Tribunal erred in law in failing to assess the matter on the basis that the respondent bore the onus of proof. Contrary to the submissions of the College, in disciplinary proceedings the regulatory body bears the onus of proof on the civil standard, mindful of what was said in Briginshaw.[20] That onus is appropriate where the proceedings are brought by a regulatory body on the basis of allegations formulated and particularised by that body and where any finding of misconduct can have serious consequences for the person subject to the allegations.
- [33]In his submissions, the appellant addresses grounds 2 and 3 together. In relation to the onus of proof, the submissions go to what were said to be significant gaps in the evidence led by the respondent and it is submitted that by discounting those gaps the Tribunal either misapplied the onus of proof or illogically placed no weight on the absence of relevant evidence. However, the submissions of the appellant under this heading focus primarily on the third ground of appeal and are dealt with under that heading below.
- [34]Leaving those matters to one side, it is not evident that the Tribunal at first instance misapplied the onus or standard of proof. The Tribunal stated that the civil standard of proof applied and referred to Briginshaw. While there is no express reference to the term ‘onus’ of proof, it was stated that the Tribunal ‘must decide whether the ground for disciplinary action is established’,[21] and it was determined that on the evidence accepted by the Tribunal the ground for disciplinary action had been established. Certainly, nothing was said that could be interpreted as placing any onus on the appellant.
- [35]The Tribunal at first instance found that certain of the alleged facts were not established or only partly established on the evidence.[22] That suggests that the Tribunal was not satisfied that the College had discharged its onus in relation to those particulars. In other words, it was not a matter for the appellant to disprove them. Further, certain of the passages in the reasons are indicative of a recognition of the onus of proof. For example, in relation to the allegation that other students were aware of the closeness of the relationship between the teacher and the student, the Tribunal stated:[23]
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.
- [36]As noted above, some of the issues raised by the appellant in his submissions under grounds 2 and 3 of the appeal are addressed, below, in relation to ground 3.
- [37]The second ground of appeal is rejected.
Ground 3
- [38]Ground 3 of the appeal is that the Tribunal erred in law in adopting and relying upon illogical or irrational reasoning.
- [39]As noted above, in his submissions the appellant dealt with grounds 2 and 3 of the appeal together. Reference is made to ‘five key elements of the majority’s reasoning’. They are noted and discussed in turn.
- [40]In relation to the first element, it is submitted that the Tribunal unduly discounted the lack of independent witnesses to the alleged conduct. Reference is made to certain passages in the reasons of the majority. The first follows discussion of the allegations involving the teacher hugging the student and touching him on the bottom, chest and nipples and ‘brushing’ the student’s genital area with the back of his hand. The conduct was said to have occurred in or near the appellant’s office. The majority of the Tribunal noted the student’s evidence that the office was behind the drama room, ‘which you have to go through a fairly long hallway to get to’, and then said, at [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.
- [41]It is submitted that this overlooks the evidence of the appellant that the office was ‘located in such a busy and vibrant area with so much going on and so many people around’.[24] It is said that there was a failure to consider ‘the importance of the absence of witnesses to corroborate either the Student’s frequency of visits or any inappropriate conduct’. It is said that there could have been evidence that the interactions between the teacher and student appeared normal, which would have undermined the student’s account. However, in the reasons reference is also made to the evidence of the student that refers to a degree of isolation of the office and that ‘you can see pretty far down the hall from where he sits’.[25] The majority were ‘favourably impressed’ by the student’s presentation at the police interview and considered that he was ‘credible and convincing’.[26] It was open to the Tribunal to accept the evidence of the student and to conclude that the nature of the allegations are such that on critical matters there would have been no other witnesses.
- [42]In relation to the observation of the Tribunal that corroboration on marginal issues would be of little real assistance, the appellant refers to allegation 20 that the appellant would ask other students to leave so that he could talk to the student alone and it is submitted that the failure to call those other students was a serious gap in the respondent’s case; a gap which was dismissed by the majority of the Tribunal. After referring to a submission of the appellant that those other students were not called as witnesses, the majority of the Tribunal stated:[27]
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.
- [43]Taken in isolation, there may be some validity to the submission of the appellant in relation to allegation 20. However, even if that is so it is not explained in the appellant’s submissions how this undermines or would cast serious doubt on the other evidence accepted by the majority of the Tribunal. Just because there was a failure to call corroborative evidence on that point, it does not follow that the evidence, for example, as to inappropriate touching falls away.
- [44]Also, the observations made by the Tribunal need to be seen in the context of other evidence before the Tribunal. It is undisputed that the student would visit the teacher and spend time alone with him in his office, that the student and teacher gave each other gifts, and that there was hugging (though the appellant says that it was innocent). In relation to the hugging, the majority stated:[28]
…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.
- [45]There is also the transcript of what was said at the committal hearing in relation to the criminal charges, which is discussed below at ground 4 of the appeal.
- [46]The second key element said to show that the reasoning of the majority was illogical or irrational at law, or that the onus of proof was misapplied, stemmed from what was said to be the failure of the respondent to call any oral evidence or to make any witnesses available for cross-examination. The majority of the Tribunal stated at [71] (footnote omitted):
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’. 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.
- [47]It is submitted by the appellant that reliance on s 95(1)(b) of the QCAT Act was misplaced, as no affidavit of the student was filed and as such he was not a ‘witness’ for the purposes of that section and, further, the absence of such evidence was a gap in the respondent’s case.
- [48]That submission represents a very narrow interpretation of the relevant provisions of the QCAT Act. Section 95(1) of the QCAT Act provides:
The tribunal must allow a party to a proceeding a reasonable opportunity to—
- call or give evidence; and
- examine, cross-examine and re-examine witnesses; and
- make submissions to the tribunal.
- [49]Leaving to one side the separate provision at s 95(1)(a), there is the question of who is a ‘witness’ for the purposes of s 95(1)(b). Generally, the primary evidence in the Tribunal includes witness statements, which often are not in affidavit form. Section 95(4) of the QCAT Act provides:
Evidence in a hearing—
- may be given orally or in writing; and
- if the tribunal requires, must be given on oath or by affidavit.
- [50]Also, s 57(3) of the QCAT Act provides:
The tribunal may permit a person appearing as a witness before the tribunal to give evidence by tendering a written statement, verified, if the tribunal directs, by oath.
- [51]Where a statement is filed, it forms part of the record for the proceedings: see s 230 of the QCAT Act. While the respondent did not file a separate, self-contained statement of the student in question, both a record of the interview with the student and a transcript of that interview were filed. It was not disputed that they formed part of the record of the proceedings.
- [52]The term ‘witness’ is not defined in the QCAT Act. Dictionary definitions of the term ‘witness’ include someone who sees or has knowledge of an event. There is nothing in the QCAT Act to suggest that written evidence cannot be in the form of a record of interview. The objects at s 3 of the Act include to have the Tribunal deal with matters in an accessible and informal manner. Allowing that the record of interview was evidence and part of the record of proceedings, it would be inconsistent with the evident object of s 95(1) of the QCAT Act to deny a right to cross-examine simply because the written or oral evidence was in the form of a record of interview rather than a self-contained statement by the person in question. Such an interpretation would mean that s 95(1)(b) of the QCAT Act could be avoided simply by having relevant evidence recorded as an interview.
- [53]It is also noted that the record of interview in question was a statement falling under s 93A of the Evidence Act 1977 (Qld) and, as such, was admissible as evidence where the maker of the statement is available to give evidence in the proceeding. In relation to the calling of witnesses, in the Tribunal it is commonly the practice to require the parties to advise the Tribunal and each other as to which witnesses, if any, they require for cross-examination at the hearing.
- [54]In any event, in the present case the matter was heard and determined on the papers. The record indicates that this was by consent of the parties.[29] On that basis, the appellant is in no position to argue that there was a failure of the respondent to call any oral evidence or to make any witnesses available for cross-examination.
- [55]The absence of cross-examination may, of course, affect the weight that can be given to the evidence. This was acknowledged by the majority of the Tribunal: see at [71]. See also at [82], where it is stated: ‘We give weight to the fact the teacher has, in his affidavit, given evidence on affirmation’.
- [56]The third key element said to show irrational or illogical reasoning, is based on what was said by the majority of the Tribunal at [75] and [76] of the reasons:
[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.
[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.
- [57]It is submitted that this adopted illogical and circular reasoning, as it proceeds on the basis that if the student’s account were true then it would have been confusing and unsettling for him and that this would explain the lack of earlier complaint. It is then submitted:
In short, the majority appears to have simply assumed the truth of the Student’s account and reasoned that the absence of earlier complaint was therefore explicable by the resulting emotional state. That was illogical reasoning in a context where the majority ought to have been considering the antecedent question of whether the Student’s account was true.
- [58]The short answer to this submission is that the majority of the Tribunal did consider the antecedent question and concluded that the student was a ‘truthful and reliable witness’ and added: ‘We are positively satisfied, on the balance of probabilities, that the teacher did intimately touch the student, express love, and so on’.[30] It is noted that the last sentence at [76] of the Tribunal’s reasons, referred to above, is prefaced by the words ‘If the student’s account is true’. The majority went on to find that it was true.
- [59]The fourth key element is based on what was said by the majority of the Tribunal at [77] of the reasons:
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.
- [60]In relation to that passage, it is submitted that:
it was entirely irrelevant that no ‘ulterior motive’ had been suggested or made apparent. QCAT’s task was not to determine which of the Student or the Teacher was telling the truth; its task was to determine whether the Respondent had made out its case. The majority’s apparent search for an ‘ulterior motive’ tends to indicate that it did not properly apply the onus of proof that lay upon the Respondent.
- [61]This submission is difficult to fathom. In disciplinary proceedings, as with many other proceedings, a cornerstone to determining whether a case has been made out is the findings of fact. Those findings frequently rest on an assessment of the credibility of witnesses and which of their evidence should be accepted. In that context, an appropriate question is any motive on the part of the witness to deviate from the truth. That was the path followed by the majority in the present case.
- [62]The fifth and final key element referred to in the submissions is the reasoning of the majority that the alleged ‘surreptitious, brief’ but ‘deliberate’ touching of the student’s genitals by the teacher ‘was not inherently unlikely’ conduct. It is submitted that:
the deliberate touching of a student’s genitals by a teacher – alleged to have been engaged in at times when others were likely to be nearby – is inherently unlikely, regardless of whether it is described as ‘surreptitious’ or not. To reason otherwise was illogical and erroneous.
- [63]That submission ignores the lengthy examination of the evidence by the majority of the Tribunal and what was said in full at [87] of the reasons, from which paragraph the extracts in the submissions of the appellant were taken:
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.
- [64]For the reasons outlined, ground 3 of the appeal is rejected.
Ground 4
- [65]As is noted at [8] above, the appellant accepts that ground 4 raises questions of fact, so that leave to appeal is required.
- [66]The appellant submits that the majority decision gave inadequate weight to the following matters:
- The only evidence against the teacher was the indirect evidence of the student presented by way of documents taken from different proceedings.
- To the extent that the student’s ‘evidence’ consisted of his interview with police, it was entirely untested by cross-examination.
- To the extent that the student’s ‘evidence’ consisted of the transcript of his evidence in the Magistrates Court committal hearing, the context of the hearing meant that only a limited portion of the evidence was subject to cross-examination and no proper inferences could be drawn from the course of that cross-examination.
- The dismissal of the criminal charges by the Magistrates Court affected the appropriate weight to be given to the student’s ‘evidence’ (which came from that proceeding).
- The student’s ‘evidence’ involved the making of various unfounded assumptions that are not separately supported by any reliable evidence.
- The respondent failed to provide any corroborating evidence or objective evidence to support the circumstances surrounding the allegations.
- The only relevant witness who gave sworn evidence before QCAT was the teacher.
- [67]There is some overlap with ground 3. In relation to the specific issues referred to in the previous paragraph, the submissions overlook the basis upon which the Magistrate found that a prima facie case had not been established and what was said at the committal hearing by the Magistrate and counsel for the appellant in relation to the allegations made against him. They also overlook any inference that might be drawn from the manner in which counsel for the appellant conducted the hearing and in cross-examining the student.
- [68]In that context, it is noted that s 147 of the Education Act provides:
During the hearing, QCAT may—
- receive in evidence a transcript, or part of a transcript, of evidence taken in a proceeding before a disciplinary body or a court, tribunal or other entity established under the law of the State, the Commonwealth, another State or a foreign country, and draw conclusions of fact from the evidence it considers appropriate; or
- adopt, as it considers appropriate, decisions, findings, judgements, or reasons for judgement, of a disciplinary body, court, tribunal or other entity that may be relevant to the hearing.
- [69]The issue advocated before the Magistrate was the issue of consent. Unlike the present disciplinary proceedings, the question of consent was central to the establishment of the criminal charges. The cross-examination of the student by counsel for the appellant focused on that issue. The questions in cross-examination and responses, taken from the transcript, included:
[with reference to the alleged incident] That’s when [the appellant] had hugged you again, as he had many times in the past? – Yes.
And touched you on the bottom? – Yes.
As he had many times in the past? – Yes.
And you pushed him away? – Yes.
Okay, and then he asked for another hug? – Yes.
…
And were there occasions or an occasion – and I’m suggesting towards [a specified date] he was saying how much he would miss you ….
He told you how much he would miss you? – Yes.
…
And that you replied, ‘They don’t love you like I do’; do you remember saying that to him? – I do not.
…
You visited him after school and gave him a hug? – I don’t remember it specifically, but that probably happened, yes.
All right. Did he express some concern to you that he was worried that you didn’t like him anymore? – I’m not sure if that happened on that specific day, but that conversation was had many times, yes.
…
He would tell you he loved you? – Yes.
Asked you if you loved him? – Yes.
And you would nod? – I would.
…
[after reference to the alleged incident the subject of the criminal charge] So there had been many, many things leading up to that: constant hugs and so forth, and the expressions that we’ve gone through, and you’d never said anything up until [the date of the alleged incident], correct? – There was one other occasion when I was about to say something, but I didn’t get the chance. But the first time I actually did say something was [on that date], yep.
…
Is it possible he misinterpreted your feelings towards him? [The question was disallowed by the Magistrate]
- [70]The submissions to the Magistrate by counsel for the appellant included:
In my submission, there is no case for my client to answer. Firstly, with respect to the absence of consent for that hug, which was just one of many, many that had happened previously. And then additionally, not that it’s needed, a properly instructed jury could not possibly exclude the defence of honest but reasonable mistake of fact as to consent. It’s when, for the first time, it seems, the complainant resists the hug, and my client asks for another hug and it’s refused that he says, ‘Well, I’m going to have to leave the school’. So it’s effectively a relationship that had built up over a very long period of time, where they had become very, very close. He did nothing more on [the date of the alleged incident] than what he had done many, many times before. The only thing that was different this time that the complainant pushed him away, and that was the end of it.
- [71]Subsequently in the transcript there is the following passage (Mr McGuire was counsel for the appellant):
His Honour: Mr McGuire, the flavour to me, if I may say, is that this was a very close relationship, a genuinely close relationship.
Mr McGuire: Yeah.
Hi Honour: Ill-advised for your client as a teacher.
Mr McGuire: Yes. Yes.
Hi Honour: Perhaps he’s just realising that at the time.
Mr McGuire: He’s very much realised it since [the date of the alleged incident], your Honour.
- [72]In giving the decision of the Court, the Magistrate noted that if the complainant consented the charge would fail or if the defendant made an honest and reasonable mistake as to consent, the case would also fail, and concluded that on the evidence a jury could not convict as the defence of reasonable mistake could not be excluded. In reaching that decision, the Magistrate also stated:
… over a period of years, the evidence demonstrates that there had been an association between [the complainant] and the teacher, they had become closer and closer and it certainly appears to be a mutual situation. And I fully accept what the police say; it is entirely inappropriate for a teacher to be in that relationship with a [word redacted] and demonstrates a lack of insight and wisdom on the part of the accused.
…
It seems to the court that the reality here is that there was this long relationship over many years. There was a practice which was inappropriate where over a long time they would hug, there would be a patting on the bottom and there was obviously a very high degree of closeness.
- [73]In relation to the cross-examination before the Magistrate, the appellant submits (see [66](c) above) that no proper inferences could be drawn from the course of the cross-examination. The same submission was made before the Tribunal at first instance. In the reasons of the majority of the Tribunal it is stated, at [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.
- [74]In relation to that submission, leaving to one side the provision at s 147 of the Education Act and what was said by the present appellant’s counsel and the findings of the Magistrate at the committal hearing, in R v Robinson, Dunn J, with whom Wanstall ACJ and Douglas J agreed, stated:[31]
…cross-examining counsel is concerned with primary facts. His instructions are as to primary facts, and it is his obligation – a strict obligation – that, if he “puts” occurrences to witnesses, he “put” them in accordance with his instructions. This being so, the instructions may be inferred from the questions. If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for whilst perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissable for a judge to ask the jury to have regard to the discrepancy in evaluating the evidence.
The truth is, I think, that whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel. The conduct of the case is something from which the jury may be asked to draw inferences, so long as due regard is had to the requirement of fairness and the possibility of human error (especially in relation to peripheral matters).
- [75]In R v MAP, Keane JA, with whom McMurdo P and Jones J agreed, stated with reference to the decision in Robinson:[32]
It is well established that the terms in which a party's counsel cross-examines a witness for the opposite side may be taken by the jury to reveal the version of events with which the party has instructed that party's counsel.
- [76]Though Keane JA also stated: ‘care needs to be taken to ensure that this approach is not applied mechanically, especially where the circumstances suggest that one cannot safely and fairly infer that the cross-examination is an accurate reflection of the party's instructions.’[33]
- [77]
- [78]It is noted that in the appellant’s submissions filed in the Tribunal on 8 November 2021, it was submitted that his lawyers advised him to maintain his right to silence at the committal hearing and that he had no input into the questions asked at that hearing. Reference is made to an affidavit of the appellant of 8 November 2021, wherein he stated, at [78], that he did not give any ‘detailed’ instructions to his lawyers about the allegations and that he did not go through the facts with his barrister ‘in any detail’. That leaves open the question of what was said to his counsel, particularly given the observations made by his counsel noted at [71] above and the questions raised in cross-examination.
- [79]While the hearing before the Magistrate was a committal hearing and not a final determination of guilt or innocence, given the provisions of s 147 of the Education Act it is appropriate in disciplinary proceedings under the Education Act to take account of what was said by the Magistrate. It is also appropriate to take account of the conduct of the case by counsel for the appellant, including the observations noted at [71], above.
- [80]On that basis, contrary to what is said by the appellant in relation to ground 4, the available ‘evidence’ was not confined to what was said by the appellant to be ‘the indirect evidence of the student presented by way of documents taken from different proceedings’.
- [81]Even so, it remains that the Tribunal at first instance was entitled to rely upon and prefer the evidence of the student and regardless of whether or not the teacher gave sworn evidence. In relation to the absence of cross-examination at the Tribunal hearing, as has been noted above the parties agreed to a decision on the papers, so that the potential to cross-examine the student did not materialise. Even so, the Tribunal at first instance stated, at [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.
- [82]As to the suggested lack of corroborative evidence, that is addressed in the context of ground 3, above.
- [83]In his submissions, the appellant does not make clear how the dismissal of the criminal charges by the Magistrates Court affects the appropriate weight to be given to the student’s evidence. The issue before the Magistrate was the question of consent, the Magistrate concluding that on the evidence, including that arising from the cross-examination of the student, a jury could not convict as the defence of reasonable mistake could not be excluded. In relation to teacher disciplinary proceedings, it was open to the Tribunal to conclude that, regardless of whether or not there was consent, the conduct of the appellant did not satisfy the standard of behaviour generally expected of a teacher. It is also evident that the distinction between what must be established for the criminal charges and the appropriate conduct of a teacher was recognised by the Magistrate.
- [84]Ground 4 of the appeal is without merit and leave to appeal on that ground is refused. The appeal is otherwise dismissed.
Footnotes
[1] Queensland College of Teachers v BNU [2022] QCAT 255, [11].
[2] Ibid.
[3] Ibid, [12].
[4] (1938) 60 CLR 336.
[5] [2021] QCA 155, [13].
[6] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22, [43]; followed in Lee v Lee; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited [2018] QCA 104.
[7] By s 97(2) of the Education Act, the relevant practice and conduct body is QCAT.
[8] Accordingly, where, as in the present case, the teacher has been charged with a serious offence that has been ‘dealt with’, s 97(1) of the Education Act requires the College to refer the matter to the practice and conduct body.
[9] It is evident that the reference should be to the ‘charge’ rather than ‘change’.
[10] Queensland College of Teachers v BNU [2022] QCAT 255, [106].
[11] Queensland College of Teachers v BNU [2022] QCAT 255, [14]-[15].
[12] In relation to that material, see s 93A of the Evidence Act 1977 (Qld).
[13] Appellant’s submissions in reply, [4](c).
[14] Queensland College of Teachers v BNU [2022] QCAT 255, [73].
[15] Ibid, [77].
[16] See also Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rule 80(3). Though, strictly, in the present case the third-party material was produced to the College rather than to the Tribunal.
[17] [2015] QCAT 282, [42].
[18] Ibid, [12].
[19] [2011] QCATA 226, [13]. See also Aon Risk Services Australia Ltd v Australian National University, (2009) 239 CLR 175, [112] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[20] See, for example, Queensland College of Teachers v CSK [2016] QCATA 125, [35]; Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348; Queensland College of Teachers v Smith [2015] QCAT 426, [17].
[21] Queensland College of Teachers v BNU [2022] QCAT 255, [7].
[22] Ibid. See for example, at [11], [13], [16], [21], [28], [30].
[23] Ibid, [30].
[24] Queensland College of Teachers v BNU [2022] QCAT 255, [60].
[25] Ibid, [67]-[68].
[26] Ibid, [77].
[27] Queensland College of Teachers v BNU [2022] QCAT 255, [90].
[28] Ibid, [82]. In relation to the giving of gifts, see [24], [34]; in relation to hugging, see [55].
[29] Queensland College of Teachers v BNU [2022] QCAT 255, [8].
[30] Queensland College of Teachers v BNU [2022] QCAT 255, [83].
[31] [1977] Qd R 387, 394.
[32] [2006] QCA 220, [57]. See also R v Draper [2015] QCA 66, [31]-[40].
[33] [2006] QCA 220, [58].
[34] R v Baring (2005) 92 SASR 117, [69]-[70].
[35] The State of Western Australia v Wood [2008] WASCA 81, [23] (Steytler P, with Miller JA agreeing). See also HES v The State of Western Australia [2022] WASCA 151, [350]-[354], noting also the observations made at [355]-[356].
[36] Ritchie (a Pseudonym) v the Queen [2019] VSCA 202, [88]-[90].