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Harris v Board of Teacher Registration Queensland[2006] QDC 351

Harris v Board of Teacher Registration Queensland[2006] QDC 351

[2006] QDC 351

DISTRICT COURT OF QUEENSLAND

 

Registry: Brisbane

Appeal Number: 124 of 2006

ROBERT JAMES HARRIS

Appellant:

BOARD OF TEACHER REGISTRATION QUEENSLAND

Respondent:

REASONS FOR JUDGMENT

Delivered the twenty-second day of September, 2006.

  1. [1]
    This is an appeal from a decision of the Board of Teacher Registration (“the Board”) given on 16th December, 2005. In that the decision the Board found that the appellant was not of good character, and ordered that his registration as a teacher be cancelled.
  1. [2]
    The appeal was heard before me on 2nd June, 2006. Argument before me took several hours. During that hearing I was handed a folder containing the material which I understand to be that which was before the Board when considering this matter, as well as a transcript of the proceedings before the Committee of Inquiry which was appointed to inquire into the allegations against the appellant.
  1. [3]
    It is necessary to give an outline of the facts giving rise to this appeal, and then consider the relevant law.

Outline of the facts

  1. [4]
    The following appear to be some of the more material facts placed before the Committee of Inquiry. I shall deal first with the appellant's background, and then with the particular facts which lead to the Board's making the orders described above.
  1. a.
    The appellant was born in December, 1952;
  1. b.
    He completed his formal secondary education in 1970;
  1. c.
    Between 1971 and 1983 he worked for various employers essentially, as I understand it, as a civil design draftsman;
  1. d.
    Between 1971 and 1976 he studied for a Certificate in Civil Engineering at the Queensland Institute of Technology, which was granted in 1976; this was achieved by part time study at the Institute (as it then was) for three nights a week;
  1. e.
    Between 1978 and 1983 he read Arts at the University of Queensland. Again this study was on a part time basis, and he was awarded the degree in 1983;
  1. f.
    On 23rd March, 1981 he was convicted in the Magistrates' Court at Brisbane of a drink driving offence. He was fined $180.00, and disqualified from driving for a period of three months;
  1. g.
    Between 1981 and 1983 he had work as a casual research assistant in the Department of Human Movement Studies at the University of Queensland;
  1. h.
    Between 1984 and 1987 he read further in Geography, Cardio-Respiratory Physiology, and Introductory Computer Science again at the University of Queensland;
  1. i.
    Between 1984 and 1986 he worked as a research worker for a Senior Lecturer in Biomechanics in the Department of Human Movement Studies at the University of Queensland;
  1. j.
    In 1986 and 1987 he had work as a tutor for the Department of Human Movement Studies at the University of Queensland;
  1. k.
    In 1988 he studied full time for and was awarded the Graduate Diploma in Teaching (Secondary) at the Queensland University of Technology;
  1. l.
    He continued reading education, and in 1997 was awarded the degree of Bachelor of Education by the Queensland University of Technology;
  1. m.
    Between 1989 and 1992 he was employed as a Health and Physical Education Teacher at the Bremer State High School. His principal teaching duties were in the field of physical education, although he did teach some other subjects;
  1. n.
    Between 1993 and 1995 he was employed as Health and Physical Education Teacher at the Mount Isa State High School; again his teaching responsibilities were primarily, although not exclusively, in the area of physical education;
  1. o.
    It was alleged in 1993 that on 2nd September, 1993 he had indecently assaulted two[1] students. Two counts were brought against him and determined in the District Court at Mount Isa on 13th September, 1994. The verdict in each case was “not guilty.” Two days later, according to the “Criminal History” that was put before the Board, the Crown entered a nolle prosequi in respect of five further charges. He was advised by letter dated 16th January, 1995 that no disciplinary action would be taken against him.[2] Notwithstanding his acquittal and the advice from the Department, he received a caution from the Department of Education. His solicitors wrote to the Department recording his and their concern at the giving of the caution;
  1. p.
    In 1996 he was appointed to the Robina State High School. He was teaching at this school when the matters giving rise to the Board's inquiry arose. Again his principal duty was the teaching of physical education;
  1. q.
    Over many years the appellant has attended many meetings, written articles, and undertaken numerous courses which would have advanced his expertise and, as it seems to me (from the numerous references and other documents put before the Board) his reputation and standing in his “area” of the teaching profession.

Facts leading to the appellant's dismissal

  1. [5]
    The following summary of what appear to me to be the more pertinent facts is taken largely from the Crime and Misconduct Commission (“CMC”) file which was before the Board.
  1. a.
    At Robina State High School in 2002, in grade 12, was a seventeen year old female student whom I shall refer to as “the student;”
  1. b.
    The student was a talented athlete. She was a national medal winner in cross-country and athletics. From the material available to the Board it would appear that she had significantly greater talent than most of her peer group at the school;
  1. c.
    The appellant coached the student for approximately four years - that is, from her grade eight year to her grade eleven year;
  1. d.
    That coaching involved the appellant's giving up a considerable amount of his own time. It seems that they trained before and after ordinary school hours, and would often also have runs on the weekends;
  1. e.
    Over time a friendship developed between the student and the appellant;
  1. f.
    The student was in 2001 troubled by a number of matters. It seems there was disharmony between her parents, which lead to their separation. She had a bout of glandular fever, and had concerns about her school progress generally. The appellant was aware of these issues;
  1. g.
    In April, 2001[3] the student approached a Mr. Siddle who was a guidance officer at the high school, and told him that she no longer wished the appellant to be her cross country and athletics coach. She told Mr. Siddle that the appellant was upset by her decision to change coaches. She gave no reason for her decision to change coaches;
  1. h.
    According to the CMC report the student also told Mr. Siddle that “as a result of [her] dropping him as her coach she had been in receipt of numerous abusive SMS messages from him.” She sought Mr. Siddle's assistance in having them stopped. Mr. Siddle, in his interview with a CMC investigator did not put things so strongly. He said that the student said she was concerned at “the level and type of communication.” He asked her what she meant, and the example she gave was in these terms: “Well one of the messages said well you know [the Appellant] is talking about, oh I have met your Dad and said you know, it was sort of like a joke but you know he's got a bit of a limp wrist and so on.” She went on (according to Mr. Siddle's statement) to say “that she has been getting a number of text messages, and ... [she was] starting to feel a bit ... sort of creepy about it.”
  1. i.
    Mr. Siddle then spoke to the appellant. He and the appellant differ in some respects as to what was said. Mr. Siddle's account, as given to the CMC investigator was as follows:

 So I had a talk to him the other day, the next day I said I went to just after class I thought that I would just do it casual sort of thing. .... Thought it better to nip it in the bud and I could you know what I mean, I just talked about her health and her family and training nothing, breaching confidentiality but he knew, he said “yeh I know there are problems with the Mum would drop her off and you know, and Dad would have to come and get her and then sometimes there would be a bit of a aggravation and so on” but he was aware that you know ‘all was not rosy’ and um, he understood that and I just said, “I, just out of concern, I'm you know she is sort of doesn't want you to be her Coach, it might be good if you give it a break, you know what I mean. Just to let her feel comfortable and feel relaxed because she is sort of going through turbulent times at school with study.”

 .....

 .... I was just saying, “Look you know you need to be concerned about and careful of that level of communication how it could be interpreted if her dad got hold of it he might go what's the hell this guy saying about me you know. So a degree of sensitivity and you know that sort of thing just to be professional you need to be careful.

 Interviewer: Mm so you spoke to [the appellant] and said that.

 Mr. Siddle: Yeh I said, yeh I mentioned about she was feeling uncomfortable and would, and compounding of the family issues and everything, um it's probably not good for her but she is thinking going off to another school. To Palm Beach, Currumbin where they have got the Centres that you know, for sporting excellence and you know so I was, I spoke to him about that and we didn't want to see that happen.

 .... And it would be advisable you know, not to really communicate with her just to give her space you know.

  1. j.
    It seems that for a period after this conversation the appellant did not send SMS messages to the student;
  1. k.
    On 24th May, 2002 the student told Mr. Siddle she had received more messages. She showed Mr. Siddle some of the messages. He took her ‘phone and consulted with the principal.
  1. l.
    On 29th May, 2002 the student was interviewed by the principal. During that interview she alleged that the appellant had sent messages with a sexual connotation - this was apparently during the time that he was coaching her. She said she had deleted those messages from her telephone's memory bank. In her interview with an investigator the student said she did not receive any further messages of a sexual nature, and he had not ever approached her directly to have a relationship with her nor did he ever touch her or make any inappropriate gestures or advances towards her.[4]
  1. m.
    The principal referred these matters to her superiors;
  1. n.
    When interviewed by police about these matters the appellant essentially maintained that he had a normal coach/athlete relationship which, after four years, had developed into a friendship. He said that both he and the student used the mobile ‘phone SMS service to communicate with each other, usually about training arrangements. He said he could not recall sending any messages referring to love for her, but if he did, he intended it to be understood as a type of fatherly love.
  1. o.
    The appellant was shown a number of the more recent messages which had been recorded by the principal. A number of them clearly use gutter language - which he accepted was inappropriate.
  1. p.
    On 17th June, 2002 the appellant was transferred to the Gold Coast District Office of Education Queensland. On that day he was informed of the allegations against him, and interviewed by police;
  1. q.
    An allegation that the appellant had “been sending explicit and inappropriate text messages to [the student] ... from October 2001 until 19 June 2002” was referred to the CMC.
  1. r.
    By memorandum dated 15th August, 2002 the CMC concluded that the appellant had:

 Used his position as teacher/coach to gain [the student's]:

  1. a.
    trust and confidentiality for his personal gratification
  1. b.
    [had] failed to maintain a professional relationship with a student.

 The author of the report recommended that the appellant be disciplined for these breaches;

  1. s.
    On 3rd October, 2002 an officer of Education Queensland wrote to the appellant advising him that, as a result of the CMC report, it was intended to suspend the appellant without remuneration until the writer determined the appellant's liability to disciplinary action. He was given time to make submissions, and in the meantime was suspended from duty on full remuneration;
  1. t.
    After receiving this letter the appellant sent five SMS messages to the student;
  1. u.
    On 10th October, 2002 Education Queensland directed the appellant to respond by the next day as to why he should not be dismissed on the basis of gross misconduct. He in fact provided responses on 24th January, 2003 and 27th March, 2003;
  1. v.
    On 24th April, 2003 Education Queensland wrote to the appellant giving him seven days to show cause why he should not be dismissed. Within that seven day period the appellant wrote to both the student and her mother;
  1. w.
    On 1st May, 2003 Education Queensland wrote to the appellant saying that it regarded the further communications to be further instances of gross misconduct, and summarily dismissing him for gross misconduct.

Facts leading to the inquiry by the Board

  1. [6]
    The following outline is taken from material before the Committee of Inquiry appointed by the Board, and from the summaries prepared by counsel for this appeal.
  1. a.
    In August, 2003 the appellant sent an email to the principal requesting the return of some personal property. Some property was returned to the appellant, and on 15th September, 2003 the principal advised the appellant by email that she believed all his property had been returned, and that any further communication should be addressed to Education Queensland;
  1. b.
    The appellant sent further emails to the principal, which she ignored. He then sent an email stating that if she did not speak to him about the situation he would contact the Minister for Education;
  1. c.
    The appellant then sent a series of emails to the principal on 11th October, 2003; 3rd November, 2003; 18th December, 2003; 3rd January, 2004; 15th January, 2004; 17th January, 2004; and 9th February, 2004;
  1. d.
    This last series of emails was abusive and threatening in its content. They led to the appellant's being charged in the District Court held at Southport:

 ... that between the 10th day of October 2003 and the 11th day of February 2004 at Gold Coast in the State of Queensland you unlawfully stalked [the principal];

  1. e.
    On 14th April, 2005 the appellant pleaded “guilty” to that charge. He agreed to the making of a probation order which was to last for two years, and which required him to comply with the matters set out in section 93(1) of the Penalties and Sentences Act 1992. There was an additional requirement imposed by the sentencing judge, namely that he “undertake such psychiatric and/or psychological and/or medical treatment as is considered appropriate. Such treatment is to include cognitive behaviour therapy.” His Honour directed that a conviction not be recorded.
  1. f.
    On being advised of this conviction the Board appointed a committee of inquiry. The inquiry was authorised by section 50 of the Education (Teacher Registration) Act 1988[5] (“the Act”) where the Board considers there were reasonable grounds for believing that a teacher had been convicted[6] of an indictable offence or that the teacher was not of good character for the purpose of being registered as a teacher. The appointment of a committee was required pursuant to the provisions of sub-section (1A) of section 50 of the Act.

The Law relating to “good character”

  1. [7]
    Sub-section (2) of section 37 of the Act stipulates a number of matters that must be taken into account when considering whether a person is of good character for the purpose of registration as a teacher. It provides:

In deciding whether an applicant is of good character for the purpose of registration as a teacher, the board—

  1. (a)
    must have regard to the applicant's criminal history, and any information about the applicant received by the board under section 37A(3); and
  1. (b)
    must consider whether the applicant is a suitable person to work in a child-related field; and
  1. (c)
    if the applicant has been registered under this Act or a former Act or is, or has been, registered under a corresponding law and the registration was affected—
  1. (i)
    by the imposition of a condition—may have regard to the nature of the condition and the reason for its imposition; or
  1. (ii)
    by its suspension or cancellation—may have regard to the reason for its suspension or cancellation; or
  1. (iii)
    in another way—may have regard to the way it was affected and the reason for it being affected; and
  1. (d)
    may consider all other matters the board considers relevant even if the matter happened outside of the State.
  1. [8]
    Subsections (3) and (4) of the section take matters further. They provide:
  1. (3)
    Without limiting subsection (2), the applicant is not of good character for the purpose of registration as a teacher if the applicant—
  1. (a)
    behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
  1. (b)
    otherwise behaves in a disgraceful or improper way that shows the applicant is unfit to be registered as a teacher.
  1. (4)
    If the board is aware that the applicant's criminal history includes a conviction for a serious offence, the board must decide that the applicant is not a suitable person to work in a child-related field, unless the board is satisfied it is an exceptional case in which it would not harm the best interests of children for the applicant to work in a child-related field.

The Law relating to the procedures before the Inquiry

  1. [9]
    Division 2 of Part 5 of the Act deals with the manner in which the inquiry is to be conducted. The Board is required to give timely notice to the teacher of the “grounds” of the inquiry. The teacher must also be notified, in the event that the initial inquiry is to be conducted by a committee of inquiry, of the members of that committee.[7] It is provided that the inquiry must be open unless the inquiry body decides that that should not happen,[8] and there is power given to the inquiry body to order suppression of publication of names and evidence.[9]
  1. [10]
    The inquiry body must keep a record of its proceedings.[10]
  1. [11]
    Section 56 of the Act provides:
  1. (1)
    The inquiry is to be held with as little formality and technicality, and must proceed as quickly, as is practicable to permit a fair and proper consideration of the matters before the inquiry body.
  1. (2)
    In conducting the inquiry, the inquiry body—
  1. (a)
    is not bound by the rules or practice about evidence but may inform itself about a relevant matter in any way it considers appropriate; but
  1. (b)
    must observe the rules of natural justice.
  1. (3)
    Subject to subsections (1) and (2), the chairperson of the inquiry body may give directions about the procedure to be followed by the inquiry body.
  1. [12]
    Section 57 provides that the inquiry body must give the teacher “an adequate opportunity to fully and fairly present the teacher's case.” A teacher is entitled to be represented by a lawyer (or some other person nominated as his agent,) and it is also expressly stated that a lawyer may appear at the inquiry “to present evidence to, or help, the inquiry body.”
  1. [13]
    There are several other provisions in the Act relating to the procedures before the Board or a Committee of Inquiry, but they do not seem particularly pertinent, other than, perhaps, to observe that pursuant to section 60 the inquiry body may receive a transcript of evidence given before a “court, tribunal or other body” and draw conclusions of fact from perusal of such a transcript. The inquiry body may also “adopt, as it considers proper, decisions, findings, judgments, or other reasons for judgment, of the court, tribunal or body.”

The Proceedings before the Committee of Inquiry

  1. [14]
    By a Notice of Inquiry[11] dated 13th October, 2005 the Board informed the appellant that the matters into which it was proposed to make inquiry were:
  1. (a)
    On 14 April 2005 you were convicted at the Southport District Court of one count of unlawful stalking on a date unknown[12]between 10 October 2003 and 11 February 2004. No conviction was recorded and you were sentenced to 2 years probation;
  1. (b)
    Stalking is a serious offence as defined in the Act.
  1. (c)
    In 2002 you were investigated by the CMC in relation to allegations that you had been sending explicit and inappropriate text messages to [the student] a female student of Robina High School from October 2001 to 19 June 2002. The CMC concluded that you had used your position as teacher/coach to gain the complainant's trust and confidentiality for your personal gratification and that you had failed to maintain a professional relationship with a student. The CMC recommended that you be disciplined for these breaches as prescribed in Education Queensland, Code of Conduct.
  1. (d)
    As a result of the CMC investigation, on 24 April 2003, Education Queensland requested that you show cause as to why your employment should not be terminated. After Education Queensland received further advice that you had again corresponded with [the student,] you were summarily dismissed on 1 May 2003 for gross misconduct.
  1. (e)
    The circumstances surrounding this charge.
  1. [15]
    There were discussions between the appellant's legal representatives and those acting on behalf of the Board about these terms of reference. As a result of those discussions it was agreed that the inquiry would be more limited than the Notice of Inquiry would suggest. Probably the best way to understand what was agreed is to quote what was said by the legal representatives early on at the hearing:[13]

MS LONERGAN: Another preliminary matter is the terms of reference. You will note in Mr Cranny's submissions, which you also received this morning, that we had perhaps defined, and, I guess, delimited the terms of reference somewhat. The terms of reference that we are dealing with today are simply Mr Harris' conviction of one count of unlawful stalking on 14th April 2005 at the Southport District Court, the facts and circumstances relevant to this conviction and the CMC investigation and action of Education Queensland as background of the stalking conviction.

As counsel assisting I do not intend delving into the background to the CMC investigation except insofar as it is necessary for the purpose of making sense to the stalking conviction, so by that I'm saying that I will limit what I discuss to the number of SMS messages and the fact the ones that actually came in as part of the Education Queensland process. I do not intend going back through the CMC investigation and arguing its validity or otherwise.

THE CHAIRMAN: Mr Cranny, are you content ----

MR CRANNY: I'm content with that. My principal concern was that if we were going to delve into the content of the messages then that was really for another inquiry, perhaps, or another day, but I'm reassured that that's not the purpose of counsel assisting's approach.

THE CHAIRMAN: Yes, I think that we're comfortable that there's no need to go into it in any detail whatsoever.

  1. [16]
    The Board, in its reasons, recorded this understanding as follows:

Agreement was reached between the parties to restrict the terms of reference for the inquiry to the stalking conviction and the facts and circumstances surrounding this. The CMC material would be used only in so far as it related to this conviction.

  1. [17]
    One can ponder on whether it is open to a Committee of Inquiry to limit the matters which it is appointed to inquire into by the Board.[14]
  1. [18]
    In any event it is clear that it was accepted by the Committee of Inquiry that the content of the SMS messages would not be taken into account by it against the appellant - indeed, as I perceive the understanding, it was that whilst the fact of the allegations made to the CMC, and the facts that it conducted an inquiry and made findings were pertinent, that was so only to show the circumstances in which the appellant came to commit the offence of stalking in late 2003 and early 2004. As the Chairman said, there was “no need to go into [these matters] in any detail whatsoever.”
  1. [19]
    The submissions for the respondent lists the material that was placed before the Committee of Inquiry. Essentially the documents[15] were:
  1. (a)
    The appellant's criminal history;
  1. (b)
    A transcript of the sentencing submissions made on 14th April, 2005 at the District Court at Southport;
  1. (c)
    A transcript of the sentencing judge's comments when imposing sentence on 14th April, 2005;
  1. (d)
    Documents which the respondent's submission lists as:
  1. (i)
    Material forwarded with Notice of Inquiry, including CMC investigation and Education Queensland correspondence and materials;
  1. (ii)
    CMC investigation (pp. 1 - 166);
  1. (iii)
    Correspondence between Education Queensland and Mr Harris and his representatives (pp. 167 - 299);
  1. (iv)
    Transcripts (pp. 301 - 320.)
  1. [20]
    Additionally the appellant placed numerous references, testimonials, certificates and the like before the Committee of Inquiry.
  1. [21]
    The appellant also furnished two reports by Craig Holt, a psychologist. The first report, dated 12th April, 2005 was tendered during the sentencing proceedings at the District Court at Southport. The second was dated 8th November, 2005.
  1. [22]
    Mr. Holt gave oral evidence in support of the appellant at the hearing before the Committee of Inquiry. Indeed, his was the only oral evidence.
  1. [23]
    At the conclusion of submissions the Committee of Inquiry adjourned. It indicated it was prepared to receive further material from the appellant in the form of references, and some further material was provided.

The Board's determination

  1. [24]
    Pursuant to the provisions of section 68 of the Act the Committee of Inquiry is obliged to report its findings and recommendations to the Board. The Board then “must have regard to the findings and recommendations in making a decision about the respondent teacher.”[16]
  1. [25]
    Division 4 of Part 5 sets out the powers of the Board once findings have been made against a teacher. Section 70 provides, so far as is material to this appeal:
  1. (1)
    After an inquiry about a registered teacher, if the board is satisfied on the balance of probabilities about a matter mentioned in section 50(2), the board may, as it considers just in the circumstances, make 1 or more of the following orders—
  1. (a)
    an order cancelling the teacher's registration;
  1. (b)
    an order cancelling the teacher's registration and substituting provisional registration subject to conditions the board considers appropriate;
  1. (c)
    an order suspending the teacher's registration for a stated time;
  1. (d)
    an order requiring the teacher to pay to the board, by way of costs, an amount the board considers appropriate having regard to expenses incurred by it in conducting the inquiry;
  1. (e)
    an order requiring the teacher to pay to the board, by way of penalty, an amount fixed by the board but not more than the equivalent of 20 penalty units;
  1. (f)
    an order reprimanding the teacher and for the reprimand to be entered in the register.

(1A) Subsection (1) applies subject to section 70A.

Section 70A provides:

  1. (1)
    Subsection (2) applies if the board, after becoming aware that a registered teacher has been convicted of a serious offence, conducts an inquiry about the teacher on a ground mentioned in section 50(2)(a) or (f).
  1. (2)
    The board must order the cancellation of the teacher's registration, after the inquiry, unless the board is satisfied it is an exceptional case in which it would not harm the best interests of children for the teacher to work in a child-related field.
  1. (3)
    To remove any doubt, it is declared that even though the board does not make an order under subsection (2), it may after the inquiry make 1 or more of the orders mentioned in section 70(1)(b) to (f).

The Findings of the Committee of Inquiry

  1. [26]
    On 16th November, 2005 the Committee of Inquiry reported to the Board. It recommended[17] that “in accordance with s70(4) of the Act, the Board make an order that the teacher's registration be cancelled and that the register be endorsed with the notation that the respondent teacher has been convicted of an indictable offence and is not of good character to continue to be registered as teacher.”
  1. [27]
    The Committee noted[18] the agreement reached between counsel assisting it and the appellant's legal representative thus:

Agreement was reached between the parties to restrict the terms of reference for the inquiry to the stalking conviction and the facts and circumstances surrounding this. The CMC material would be used only in so far as it related to this conviction.

  1. [28]
    It listed the evidence put before the Committee[19], and then set out the submissions made by counsel assisting the Committee. They included the following:

.... Considering the episodes that culminated in this stalking charge it is apparent that Mr Harris appears incapable of responding appropriately in times of stress and is unable to accept the orders and decisions of administrative decision makers. First there was the obsessive frequency of his sms messaging [the student.] Then his highly inappropriate sms message to her as a reaction to her attempt to end the coaching relationship. Then his inability to accept a direction from the CMC investigator that he not contact [the student] or her family, demonstrated by sending a further five emails. Then his reaction to a ‘show cause’ letter from Education Queensland, being to commit more of the behaviour complained of, specifically communicating with [the student] and her parents. With this background, it is not surprising nor inappropriate that Education Queensland dealt with Mr Harris' flagrant disregard of its directions by summarily dismissing him. Mr Harris then transferred his frustrations to [the principal] and commenced a campaign of sending threatening messages. Mr Harris later stated that he had no intention of harming [the principal.] It is submitted that his intentions here are entirely irrelevant. Mr Harris succeeded in terrifying [the principal.] Mr Harris also appeared to have little comprehension that his behaviour was criminal, curiously after being sentenced in the District Court, Mr Harris continued to attempt to explain andjustify his behaviour.

The Committee should also consider whether this is the behaviour of a person who acknowledges that his behaviour was wrong and is determined to mend his ways?

The Committee must also be satisfied that he would not react in a similar way in the future.

  1. [29]
    These submissions of counsel assisting appear to me to transgress the agreement that had been made to limit the extent of the inquiry.
  1. [30]
    The report then purports to deal with the appellant's case before it. It did not refer at all to the fact that the psychologist whose two reports had been put into evidence had been examined and cross-examined.
  1. [31]
    The report also refers to the submissions of the appellant's solicitor but does no more than set out the two concluding paragraphs of the written submissions.[20]
  1. [32]
    The Committee concluded its findings as follows:

The Committee found that Mr Harris had not established that his was an exceptional case. The Committee was of the view that Mr Harris did not appear to have genuinely accepted responsibility for his actions. While it appreciated his financial difficulty regarding obtaining counselling, the Committee noted that he had not complied with this part of his probation conditions set in April this year. There was no evidence that Mr Harris had changed his behaviour towards students from that of some 10 years ago when he was warned by his employer in relation to matters at Mt Isa. The written material contains clear examples of his unwillingness to accept responsibility (eg his responses to the judge during sentencing).

The Decision of the Board

  1. [33]
    On 15th December, 2005 the Board considered the findings and recommendations of the Committee.[21]
  1. [34]
    In its determination the Board first referred to sections 37 and 42D of the Act.
  1. [35]
    Following the heading “Case Summary” the Board appears largely to have incorporated the Committee's report into its determination.[22] However, when referring to the submissions made on behalf of the appellant the Board omitted to include the two paragraphs which were quoted by the committee. This may perhaps be an unfortunate typographical error - or a failure to “cut and paste” properly.[23]
  1. [36]
    The Board then referred to sections 42D(3), 37(2), and 37(3) of the Act, and then turned to “Other relevant considerations.” It held that “a primary consideration is the protection of children.” It quoted the following passage from the judgment of McGuire D.C.J. in Re: F:[24]

The Board of Teacher [Registration] has a responsible function to perform in the public interest. The Board is charged with setting and maintaining proper standards for entrance into the profession, and of setting and maintaining a high ethical code of conduct on the part of those who profess to teach. The Board would undoubtedly be derelict in its duty if it failed to insist upon and enforce acceptable standards in the teaching profession. No one can deny that protection of the public interest is of paramount importance in matters of student-teacher relationships. Misconduct by a teacher towards a pupil - especially if there are sexual connotation - should not be countenanced. There, the full rigour of the law should be applied ...

  1. [37]
    The determination then set out that the Board took the view that “the conduct forming the basis of the inquiry does not accord with behaviour generally expected of a teacher.” It pointed out that the teaching profession expected high standards of ethical behaviour from teachers. It then quoted from the judgment of Kirby J. In McBride v. Walton[25] which it said provided guidance as to the test of “good character:”

The phrase “not of good character” .... must be construed as limited to the context in which it appears. To give it too wide an ambit would be to ignore that context and to impose upon the Tribunal obligations different from those for which it was created by Parliament and for which its procedures and memberships would be ill-suited. ... Once the impugned conduct is properly found and classified it is then necessary for it to be seen in a wider context of the ... practitioner's “character” including evidence of “good character” as demonstrated by his or her service in the profession and the community. Relevant here will be any evidence provided as to the practitioner's good fame and character in the eyes of patients, fellow practitioners and other citizens. Such evidence may help to show the underlying qualities of character of the practitioner in question. They may assist in the evaluation of the overall character of the practitioner. They may lead the Tribunal to the view that the particular character impugned is to be regarded as exceptional and such as will not require the ultimate conclusion that the practitioner is not of good character or if that conclusion is found that some order short of removal from practice is appropriate to the case .... Having regard to the serious consequences which flow from the result of an affirmative finding, Briginshaw v. Briginshaw & Anor. (1938) 60 CLR 336.

The Board then observed that in this case “the context” is “the wider context of the teaching profession” and “accordingly any evidence of good character as demonstrated by service in the profession and the community is relevant to any consideration of character.”

  1. [38]
    The Board in its determination then set out its decision. It did so in language which was virtually identical with the findings of the committee, including the final paragraph already quoted at page 15 above.

The Appeal

  1. [39]
    This appeal is brought pursuant to the provisions of section 72 of the Act. Subsection 3 of that section provides that the appeal is to be by way of rehearing on the material before the board or, if the judge hearing the appeal so orders, on material adduced on the appeal, or on both.
  1. [40]
    Counsel accepted that I should deal with this matter on the basis of the material put before the Board, plus three additional documents which were tendered before me.[26]
  1. [41]
    Counsel were also agreed that I should bring my own judgment to bear on the material:

Hence, the respondent agrees with the appellant that this appeal is by way of rehearing in the traditional sense and is not a hearing de novo with the result that this Court is not restricted to determining the correctness of the decision the subject of the appeal but rather, is to consider the matter afresh and to form its own judgment on the facts before it.[27]

  1. [42]
    Nonetheless, it does seem to me that one should ordinarily give weight to the conclusions reached by the Board.

The CMC inquiry and findings

  1. [43]
    I have read the whole of the material put before me which includes, of course, all the material put before the Board and the transcript of the proceedings before the Board.
  1. [44]
    A large part of the material before the Board was the transcript of the proceedings before the CMC.
  1. [45]
    In light of the agreement reached between the appellant's and the Board's legal representatives, it seems to me unfortunate that so much of that material was before the Committee and the Board. That agreement, as I have mentioned above, was that the matters inquired into by the CMC were not to be inquired into - as the Chairman of the Committee said, “... there's no need to go into it in any detail whatsoever.”
  1. [46]
    As I have mentioned, it seems to me that neither the Committee nor the Board were bound to accept such a limitation on their inquiry. It is clear that both the Committee and the Board did accept that limitation, and in my view I should also respect that agreement. To do otherwise would be to offend the rules of natural justice which must be accorded the appellant,[28] and would, it seems to me, deny him the “opportunity to fully and fairly present [his] case.”[29]
  1. [47]
    I will not, therefore, dwell on the proceedings before the CMC, or its findings.
  1. [48]
    I should, however, observe on two matters relating to the CMC inquiry. It should be born in mind that I did not invite submissions on the subject matter of these comments. I make them solely because I hope they may be of some assistance to others in the future.
  1. [49]
    I was troubled by the finding of the CMC investigator that the appellant “used his position as teacher/coach to gain the complainant's ... trust and confidentiality for his personal gratification.”
  1. [50]
    I imagine most teachers find it gratifying to teach students who respond well to their teaching, and will not be condemned if they do obtain personal gratification[30] from teaching and encouraging such a student.
  1. [51]
    I am concerned that some may, perhaps, have understood the finding to mean that the appellant used his position for his own sexual gratification. If that was what was intended then it should be clearly stated. In my view no such conclusion could have been drawn from the material which I have read and which I understand to have been before the CMC.
  1. [52]
    Likewise, I am troubled that it was alleged against the appellant that he had sent “explicit and inappropriate text messages.” Usually it is praiseworthy to send explicit communications - that is, the messages in which the content is stated in express and clear terms.
  1. [53]
    Again my concern is that those making the allegations intended to allege that the appellant had sent sexually explicit messages. It seems to me that some might infer that that was the allegation. If that was what the allegation was, then it should be expressly stated.

The Appellant's Criminal History

  1. [54]
    The appellant's criminal history is clearly a relevant consideration to be taken into account. It shows that he:
  1. (a)
    Was convicted of driving a motor vehicle whilst his blood alcohol level was 0.11% on 24th March, 1981, and was fined $180.00;
  1. (b)
    Was acquitted on 13th September, 1994 of three counts of indecent assault and two counts of common assault (said to have been committed on 2nd September, 1993);
  1. (c)
    Was on 15th September, 1994 discharged after the Crown entered a nolle prosequi in respect of an indictment charging three counts of indecent assault and two counts of common assault (also said to have been committed on 2nd September, 1993);[31]
  1. (d)
    Was on 14th April, 2005 convicted of the offence of unlawful stalking.
  1. [55]
    Clearly the conviction in 1981 was not regarded as being relevant by the Committee or the Board. I also do not think it in any way relevant to this inquiry.
  1. [56]
    In my view no inference adverse to the appellant should be drawn from the fact that he was acquitted of the charges heard in September, 1994 and from the fact that the Crown did not proceed with other charges. It is clear from the letter written by his then solicitors that he denied any misconduct, and it is also clear that the Department did not, at least in correspondence with the appellant, in any meaningful way particularise what conduct on his part it thought might be inappropriate.
  1. [57]
    In the circumstances I find the Committee's and the Board's finding that “There was no evidence that Mr Harris had changed his behaviour towards students from that of some 10 years ago when he was warned by his employer in relation to matters at Mt Isa” very concerning. That finding, in my view, could not and should not have been made.
  1. [58]
    That finding was made as part of the Committee's and the Board's conclusion that the appellant had not established that his was an exceptional case, and that he was a man who “did not appear to have genuinely accepted responsibility for his actions.”
  1. [59]
    The conviction for the stalking offence is, of course, central to this matter, and I shall return to the facts which formed the basis of the conviction later in these reasons.
  1. [60]
    The judge who sentenced the appellant ordered that he be admitted to probation. His Honour made it a requirement of the order that the appellant “undertake such psychiatric and/or psychological and/or medical treatment as is considered appropriate. Such treatment is to include cognitive behaviour therapy.”
  1. [61]
    It appears that the Department of Corrective Services did not have sufficient resources to provide the psychological support that His Honour had contemplated. The appellant's solicitor explained to the Committee the circumstances.[32]
  1. [62]
    Notwithstanding that explanation the Committee and Board, whilst “appreciating” the appellant's financial difficulty “regarding obtaining counselling,” “noted that he had not complied with this part of his probation conditions.” This observation was made in the last paragraph of the reasons, in which the Committee and Board found that the appellant had not established that his was an exceptional case.
  1. [63]
    In my view it was wrong of the Committee and the Board to use the fact that the appellant had not undergone the counselling contemplated by the sentencing judge as evidence that the appellant did not “genuinely” accept responsibility for his actions.
  1. [64]
    In the same paragraph the Committee and Board observed that the appellant's “responses to the judge during sentencing” was one of a number of examples in the written material of his “unwillingness to accept responsibility.” I have read the transcripts of the sentencing submissions and His Honour's sentencing remarks carefully a number of times. I do not regard what the appellant said as being indicative of such unwillingness.
  1. [65]
    It should be noted that the Crown prosecutor and, it would seem, the sentencing judge both took the view that the offence was at “the lower end of the scale. ”[33] His Honour decided not to record a conviction for reasons which he explained during the sentencing process. In so far as it might be thought to be relevant, I do not think it correct to assume that in sentencing the appellant His Honour considered that it was inevitable that his registration would be cancelled.

The Stalking Conviction

  1. [66]
    I have referred above to the emails sent by the appellant to the principal as being abusive and threatening in their content. I do not wish it to be thought that I have not fully appreciated the gravity of the appellant's conduct, and will set out just a few extracts from the emails to demonstrate their truly offensive nature:[34]

My life's ambition is now to destroy you and your family ...[35]

... you are the lowest form of ignorant scum bag I've ever met in my life ...[36]

God help you ....[37]

I would never make any threat against you, but keep out of my way. If you see me anywhere in a fun run anywhere, keep away. The consequences I don't care about. I would be better off in a gaol, because I'm not an asset to the community anymore. Every day I am out of work because of you.[38]

... you either contact to discuss this case or I will approach you not at school. I had respect for you as a principal, nothing else, in that regard; you should have some respect for me, your elder. You contact me and discuss the issue or I will crucify your for the rest of your life. Contact me or I'll approach you and the meeting will be far from amicable. You are warned. This involved my life and if you think that I will for get the issue, then think again.[39]

You don't try to help me after your mistake, then you die. May the fickle finger of fate strike you down. God help you.[40]

You really are a bitch not even talking to me. If I don't get a job you die, bitch, like me, a slow death, you ignorant, incompetent bitch ....[41]

You made a mistake that killed another human being. You don't deserve to live. I will continue to try, but if I am unsuccessful I will eliminate you and go to gaol for life, bitch. I did nothing wrong except a bit of bad language sent in a reply, that's it bitch.[42]

I am ready to be gaoled.[43]

Good Character

  1. [67]
    Clearly the sending of these emails to the principal was disgraceful conduct on the part of the appellant.
  1. [68]
    The Notice of Inquiry indicated that there were two bases for the inquiry, viz., that the appellant had been convicted of an indictable offence, and that he was not of good character for the purpose of being, or continuing to be, registered as a teacher.[44]
  1. [69]
    I have set out above[45] the provisions of section 37 which indicate a number of matters which are to be taken into account when considering whether a teacher is of good character. I have also set out[46] that part of the judgment of Kirby J. in McBride v. Walton which the Board referred to in its reasons. I respectfully agree that the passage quoted is apposite.
  1. [70]
    Bearing in mind the limitation which the parties had agreed to with respect to the CMC proceedings, it seems to me that, in the circumstances of this case, the only evidence of any substance which might indicate that the appellant was not of good character was the evidence of his sending the emails to the principal and his subsequent conviction.
  1. [71]
    In my view, in making a judgment as to whether that conduct does demonstrate that the appellant is not of good character it is permissible to look at all the circumstances which existed at the time he sent the offending emails. As is often observed in the criminal jurisdiction of this Court, whilst such circumstances cannot excuse his conduct, they may, perhaps, explain it.
  1. [72]
    As I perceive the evidence it demonstrates that the appellant had been a good, dedicated teacher since 1989. Teaching was a career that he had turned to later in life than most, and he clearly worked hard to obtain appropriate qualifications. Having qualified to be registered as a teacher he continued to improve himself by further study. His commitment to his work is demonstrated, it seems to me, by the evidence of the many hours spent training the student outside ordinary school hours.
  1. [73]
    In June, 2002 he was removed from teaching and essentially given an administrative job which made little, if any, demands of him. The CMC conducted its inquiry, and in August, 2002 handed down a decision - and I have already made some observations about that decision, although I again emphasise that, because of the agreement between the parties, the conduct the subject of the inquiry was not explored before the Board.
  1. [74]
    Between October, 2002 and May, 2003 there was correspondence between the appellant (or his solicitors) and the Department of Education concerning his future, which culminated on 1st May, 2003 with his dismissal.
  1. [75]
    The appellant, who had been planning to take a year's leave of absence in order to travel overseas and further improve his qualifications, found himself unemployed, and must have realised that his prospects of returning to teaching, at least in the immediate future, were poor. The first of the offensive emails was sent, as I understand it, about five months after his dismissal.
  1. [76]
    I reiterate that nothing can excuse the appellant's conduct in sending the offensive emails. In my view, however, one can understand that for him events had taken a catastrophic turn. One can see how in such circumstances a man of previously good character, lost control and acted in the disgraceful way he did.
  1. [77]
    The Committee had before it two reports from Craig Holt, a consulting psychologist. The first, dated 12th April, 2005 was prepared with a view to its being tendered during the appellant's appearance before the District Court held at Southport to be sentenced for the stalking offence.

The Psychological Evidence

  1. [78]
    In that report Mr. Holt expressed the opinion that the appellant demonstrated moderate level obsessive and compulsive personality features, which he thought probably contributed to his success as a teacher, but which became exaggerated under stress. He summarised his conclusions and recommendations as follows:

Mr Harris' presentation and past behaviour is consistent with a man who became increasingly frustrated and experienced a severe stress reaction to his situation. It appears that he became perplexed and desperate in an attempt to redress his perception of unfairness and injustice by his employer.

I recommend Mr Harris have access to counselling to help work through the intense feelings that he is feeling, following his dismissal from Education Queensland and his current worry regarding his future (particularly establishing a new career). Cognitive behaviour therapy would be useful.

Mr Harris' responses appear to have been inappropriate in a context of high levels of threat to his career, a career he had worked long and hard to achieve. It appears unlikely that Mr Harris would engage in similar behaviour in the future, as it is unlikely that the situation would be repeated. Mr Harris has understood that he behaved irrationally at the time, due to the distress that he was experiencing.

As part of an appropriate counselling process, Mr Harris would benefit from assistance to re-establish his career or obtain an alternative career. It would be particularly damaging to Mr Harris should he be further prevented from continuing his career as a teacher. I recommend an alternative form of punishment be considered for Mr Harris so that his career is not further damaged and he can resume teaching, should he be able to obtain an appropriate position.

  1. [79]
    Mr. Holt's second report was prepared for submission to the committee and is dated 8th November, 2005. The following quotations are from that report:

....

Mr Harris indicated that he is committed to adopting a more professional approach now, as he considered that boundaries were blurred previously by his coaching role combined with his teaching responsibilities. Mr Harris seemed appropriately aware of his teacher/student responsibilities. He also appeared to adequately understand the need for clear boundaries and appropriate behaviours when dealing with students.

....

It appears unlikely that Mr Harris would re-offend as the circumstances are unlikely to re-occur. It is also unlikely because Mr Harris has better insight now into the inappropriateness of his behaviour, particularly extreme attention seeking behaviours. Mr Harris lost focus, due to his level of frustration and desperation. His obsessional tendencies magnified the intensity of his response under stress.

Mr Harris presented as a confident competent teacher. He expressed dedication towards his career and a keen desire to continue his career in the future. ...

  1. [80]
    Mr. Holt gave evidence to the Committee. Indeed, his was the only oral evidence led before the Committee. He described how he thought the appellant had improved in his understanding in the period between his two consultations.
  1. [81]
    Mr. Holt was asked comment on “how being removed from his usual position or otherwise being bored or unstimulated might have affected his manner or level of response.” He responded that he thought it was “catastrophic.”
  1. [82]
    Mr Holt was asked to express his opinion on the likelihood of the appellant's repeating his offensive conduct. He responded:

My opinion is it's very low. I think it's been a major learning experience for him and I think he's been harmed by the experience. He's learnt about boundaries. He's learnt about rational thought processes. ... [In] my opinion it would be extremely unlikely for him to behave like that again.

  1. [83]
    Mr Holt was also asked to express his opinion as to “the risk to children exposed to [the appellant's] teaching from here on if he were to resume a teaching career.” He responded:

In my opinion there is no risk to children. I think he has a very caring approach. I think he understands ethics. I think he understands boundaries.

  1. [84]
    Mr. Holt was cross-examined by counsel assisting the Committee, and was also questioned by two Committee members.
  1. [85]
    No challenge was made to Mr. Holt's qualifications. No other expert evidence was put before the Committee.
  1. [86]
    Of course this does not mean that the Committee or the Board had to accept Mr. Holt's opinions. If there was good reason to do so they might not accept them.
  1. [87]
    It is concerning to me that neither the Committee nor the Board in their reasons made any reference to the evidence given by Mr. Holt.
  1. [88]
    Indeed, there is no reference in the reasons, to any of the mitigating factors urged upon the Committee on the appellant's behalf, other than the quoting (in the Committee's reasons) of two paragraphs of the appellant's solicitor's submissions.
  1. [89]
    I see no reason why I should not accept Mr. Holt's unchallenged evidence.

The appellant's evidence

  1. [90]
    The appellant did not give evidence before the Committee, but did produce a detailed account of his qualifications and employment history.[47]
  1. [91]
    The material put before the Committee on the appellant's behalf also included a number of testimonials; numerous references; and some appraisals made of him by supervising teachers.
  1. [92]
    The head of the Department of Health, Physical Education and Sport at Robina State High School expressed a very high opinion of the appellant:[48]

... [the appellant] worked hard to help ensure all students achieved to the best of their ability. He was generous with his time, often dedicating lunchtimes and after school to provide students with extra feedback and support.

[The appellant] has a detailed and excellent knowledge of the Health and Physical education content area. His special area of expertise is in Senior exercise physiology. ....

....

At Robina High School, [the appellant] was extensively involved in the school athletics program. [The appellant] coordinated the program and spent many hours coaching students at lunchtime and after school. He also initiated and organised the annual cross-country camp, which assisted our students in their preparation for regional and state championships. His knowledge as an athletics coach was highly regarded.

Whilst at Robina SHS, [the appellant] made valuable contributions to the HPE team.

  1. [93]
    The other references are in similar vein. They all attest to the appellant's dedication, commitment, and enthusiasm.
  1. [94]
    As I have mentioned, three further references were tendered before me. One, dated 24th May, 2006, was from Dr. Angela Clarke who says that she has known the appellant since 1990. Dr. Clarke says:

... He is a very professional, caring and sensitive man who was and remains particularly passionate about teaching physical education in addition to teaching and coaching athletics. The extra-curricular component of physical education teaching can be quite onerous but [the appellant] was always willing to put in the extra effort and time to coach interested students. ... You could not ask for a more dedicated professional in the field.

[The appellant] has explained the situation to me including his e-mails to [the principal] and his subsequent conviction for stalking. [He] has taken full responsibility for his actions. He nonetheless remains a very caring and dedicated teacher and individual who has learnt that there are alternative ways of dealing with crises. His outlook on life has always been positive and I have no doubts that [he] has moved on in his life and will remain a very caring and dedicated teacher and member of the community.

  1. [95]
    The other two references speak in equally high terms of the appellant. It is clear that the writers of those references knew something at least of the matters giving rise to his conviction for stalking.

Conclusions

  1. [96]
    I have expressed the view above that, whilst I am bound to make my own assessment of the evidence, ordinarily weight should be given to the views and findings of the Board. In this case I do not think I should give weight to the Board's findings because, as it seems to me, there are so many shortcomings in the reasons given by the Board. Those shortcomings include:
  1. a.
    The failure to analyse or even list or discuss any of the matters urged upon it by the appellant;
  1. b.
    The failure even to mention the evidence of Mr. Holt; and
  1. c.
    The references to matters which are either irrelevant or not worthy to be given weight, such as his supposed failure to comply with the probation requirements and the absence of evidence that he had “changed his behaviour towards students from that of some 10 years ago.”
  1. [97]
    In my view the references put before the Committee, together with the additional references tendered before me, should be given weight.[49]
  1. [98]
    The appellant's criminal history, but for the stalking conviction, does not suggest that he is not of good character.
  1. [99]
    I am required to consider whether the appellant is a suitable person to work in a child related field.[50]
  1. [100]
    The material put before the Committee and me suggest that the appellant is indeed a very suitable person to work in a child-related field. He worked in such a “field” from at least January, 1989 until mid-2002. A number of referees attest to his excelling in his profession.
  1. [101]
    The Board (and this Court) may consider “all other matters [it] considers relevant” to the question of whether the appellant is of good character. It would seem that perhaps the Board considered the supposed breach by the appellant of the probation requirements, and his failure to demonstrate that he had “changed his behaviour towards students from that of some 10 years ago” under this “heading.” I have already observed that no weight should be given to these matters.
  1. [102]
    The Board also found that “The written material contains clear examples of his unwillingness to accept responsibility (eg his responses to the judge during sentencing)” - and I assume that this was also regarded as an “other matter” which was thought to be relevant. I have already said that I do not regard the appellant's comments to the sentencing judge as demonstrative of an unwillingness on his part to accept responsibility. In any event, the evidence of Mr. Holt in my view should be accepted, and negates such a conclusion.
  1. [103]
    Subsection 3 of section 37 of the Act further provides that a person is not of good character for the purpose of registration as a teacher if he-
  1. a.
    Behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or
  1. b.
    Otherwise behaves in a disgraceful or improper way that shows the [person] is unfit to be registered as a teacher.
  1. [104]
    In considering these provisions it seems to me one must (as did the Board) bear in mind the observations of Kirby J. in McBride v. Walton quoted above. In one sense, of course, any criminal conviction must be the result of conduct which the Parliament has declared to be unlawful, and would, one might suppose, therefore be inappropriate conduct for a teacher or indeed anyone else. Yet the Parliament has clearly provided that in some circumstances a person may remain registered as a teacher notwithstanding a criminal conviction.
  1. [105]
    So far as the conduct which led to the stalking conviction is concerned, it seems to me the following matters should be taken into account which might be thought to exacerbate the seriousness of his conduct:
  1. a.
    The conduct took place over a number of months - although, of course, the offensive emails were only sent on a limited number of days during that period;
  1. b.
    Whilst the conduct was not directed at a student, it was directed at a person who, as principal, held a position of authority over the appellant and other teachers;
  1. c.
    The conduct in fact caused considerable distress and other detriment to the principal.
  1. [106]
    It seems to me the following matters should be taken into account as diminishing the significance of the appellant's conduct:
  1. a.
    At the relevant time the appellant was not, in fact, working as a teacher;
  1. b.
    At the relevant time he was under very considerable pressure;
  1. c.
    The opinion evidence of Mr. Holt which I have already discussed;
  1. d.
    The conduct was not directed towards a student;
  1. e.
    The conduct did not take place at a school or in the presence of students (although the emails were, of course, received by the principal at the school);
  1. f.
    The conduct did not involve any physical violence or contact;
  1. g.
    The conduct did not involve any sexual impropriety;
  1. h.
    The conduct did not involve any dishonesty;
  1. i.
    Whilst not detracting from the criminality of the appellant's actions, the Crown prosecutor conceded that the conduct was, compared with other cases of stalking, at the “lower end of the scale;”
  1. j.
    The sentence in fact imposed by the sentencing judge, and the fact that, as it was directed that no conviction be recorded, he has for most public purposes no criminal history arising from his actions.
  1. [107]
    The language of section 37(3) suggests to me that the Parliament intended that the behaviour to be considered was continuing behaviour. It seems to me that if one says of another that he “behaves” in a certain way then that behaviour is characteristic of him, and is behaviour which he continues to demonstrate at the present. If parliament had intended, for example, that a single act could come within the section, it would have been more appropriate to use the past tense - eg. “The applicant is not of good character ... if the applicant has behaved in a way that does not satisfy a standard of behaviour ...”
  1. [108]
    In my view the conduct of the appellant, whilst deplorable and disgraceful, cannot, on the evidence before me, be said to be continuing or characteristic of him. All the evidence supports the view that it was aberrant conduct, the product of singular circumstances, and which is most unlikely to be repeated.
  1. [109]
    If I am wrong in my understanding of section 37(3), I should say that looking at all the relevant circumstances, and applying the test suggested by Kirby J. in McBride v. Walton, I am not satisfied that it has been shown that the appellant is not of good character for the purpose of being, or continuing to be, registered as a teacher. Indeed, the material I have considered leads me to conclude that a positive finding should be made that he is of good character.
  1. [110]
    That does not end the matter, for it was common ground that the offence of stalking is a “serious offence” within the meaning of the Act.[51] Hence the provisions of subsection 4 of section 37 apply, and it must be decided that the appellant is not a suitable person to work in a child related field unless the Board (or this Court) is “satisfied it is an exceptional case in which it would not harm the best interests of children for the applicant to work in a child-related field.”
  1. [111]
    Both counsel accepted that the recent decision of the Court of Appeal in Commissioner for Children and Young People v. Maher[52] was apposite. In that case McPherson J.A. said:[53]

An exceptional case in this context is one that does not conform to the general rule, which is that a negative notice must issue refusing a “blue card”. The application “must” then be decided “having regard to” the matter specified in paras (a) to (e) of s 102(5), of which the last in para (e) is “anything else the Commissioner reasonably considers to be relevant to the person” in respect of whom the application is made.

  1. [112]
    Philippides J. took the same view, as did Jerrard J.A.
  1. [113]
    This, in my view, is clearly an exceptional case. The evidence seems to me to indicate that there is no risk to children if the appellant were to work in a child-related field. Indeed, the evidence shows, in my view, that children taught or coached by the appellant have benefited from his dedication and skill. That seems to be virtually the universal opinion of those who were prepared to write references for him - and there is no evidence which persuades me that those opinions are wrong.
  1. [114]
    I have already said enough about the circumstance which led to the appellant's conviction for stalking to make it clear, I think, that I do not think those circumstances demonstrate any significant risk to children if the appellant were to continue to work as a teacher.
  1. [115]
    I find that this is indeed an exceptional case and that it would not harm the best interests of children for the appellant to work in a child-related field.
  1. [116]
    I make the following order:
  1. a.
    I allow the appeal;
  1. b.
    The orders made by the Board cancelling the appellant's registration and directing that a notation be entered against his name in the register be set aside.

Footnotes

[1]1. See the letter from Messrs Hill and Taylor to Mr Ken Rogers, Executive Director, Department of Education, dated 19th May, 1995.

[2]2. CMC memorandum of 15th August, 2002, page 2.

[3]3. The date is as stated in the CMC Report (page 3). In his interview with officers from the CMC on 1st August, 2002 Mr. Siddle said the contact was on 15th November, 2001 - see line 48.

[4]4. Page 4 of the CMC Memorandum of 15th August, 2002. The student advised the investigator that she merely wanted the messages to stop, and did not wish to become involved in any criminal proceedings.

[5]5. The Act was repealed by the Education (Queensland College of Teachers) Act 2005. The right to appeal has been preserved - see section 309.

[6]6. The fact that a conviction was not recorded does not mean that the Board could not inquire into the criminal proceedings. The definition of “convicted” in section 2 of the Act is: “... found guilty, or having a plea of guilty accepted, in a court, whether or not a conviction was recorded.”

[7]7. Section 53(c).

[8]8. Section 54(1).

[9]9. Section 54(2).

[10]10. Section 55.

[11]11. Required pursuant to sub-section (a) of section 53 of the Act. The notice must be furnished to the respondent teacher at least fourteen days prior to the inquiry.

[12]12. It would seem that these words were not in fact in the indictment (see the transcript of the sentencing submissions.) It is clear that the offence charged was not, in fact, committed “on a date unknown” - but was comprised by a number of acts committed on various days, those dates being known to the prosecuting authority.

[13]13. Pages 3 and 4 of the transcript.

[14]14. Note the appellant's solicitor's statement to the Committee of Inquiry, recorded at page 5 of the transcript, that, “We all understand, I believe, now what we're examining and I don't seek any formal amendment or any other form of complaint about the form of the notice.”

[15]15. I have omitted some of the purely formal documents.

[16]16. Section 68(2).

[17]17. Page 7 of the Report.

[18]18. Page 2, paragraph 3(4).

[19]19. Page 2, paragraph 3(3).

[20]20. Those submissions were nineteen pages long. They cannot, in my view, be dismissed as lacking substance.

[21]21. See letter to the appellant from the Acting Director dated 16th December, 2005.

[22]22. Pages 2 to 6 of the determination.

[23]23. See paragraph 6 on page 6 of the determination.

[24]24. 1979 Q. Lawyer, Vol. 5, 236, 241.

[25]25. NSWCA, 15th July, 1994, BC9402907.

[26]26. See page 5 of the transcript. The documents, which were references, were marked as Exhibit 1.

[27]27. Page 5, paragraph 27 of the respondent's counsel's written submissions. See also the appellant's counsel's submission at page 2. Both counsel referred to Burgess v. Board of Teacher Registration [2003] QDC 159 (Boyce D.C.J.) and Aldrich v. Ross [2001] Qd. R. 235.

[28]28. Section 56(2)(b) of the Act.

[29]29. Section 57.

[30]30. It may be that the language used in the finding is harking back to the definition of “Harassment” which the report states is contained in the Department of Education Manual relating to Child Protection Procedures - see page 14 of the report.

[31]31. It may be that this entry merely refers to the entering of a nolle prosequi in respect of an “old” indictment relating to the same allegations as were heard on 13th September, 1994.

[32]32. Page 36 of the transcript.

[33]33. For the Crown Prosecutor's submissions, see the transcript of sentencing submissions, page 5.

[34]34. These are taken from the respondent's written submissions.

[35]35. 11th October, 2003 at 8.19 am.

[36]36. 11th October, 2003 at 10.05 am.

[37]37. 11th October, 2003 at 11.40 am.

[38]38. 3rd November, 2003.

[39]39. 18th December, 2003.

[40]40. 3rd January, 2004.

[41]41. 15th January, 2004 (the submissions note that the email continued for approximately one page.)

[42]42. 17th January, 2004.

[43]43. 9th February, 2004.

[44]44. See section 50, subsection (2), subsections (a) and (f).

[45]45. See page 8.

[46]46. See page 17.

[47]47. The document is headed “Personal Details,” and is seven pages long.

[48]48. The document is headed “Professional/Personal Reference” and is dated 25th September, 2003.

[49]49. There was, of course, no objection to their tender. There was no request that the referees be made available for cross-examination.

[50]50. Section 37(2)(b) of the Act.

[51]51. See the definition in section 2 of the Act.

[52]52. [2004] QCA 492.

[53]53. Paragraph 4.

Close

Editorial Notes

  • Published Case Name:

    Harris v Board of Teacher Registration Queensland [2006] QDC 351

  • Shortened Case Name:

    Harris v Board of Teacher Registration Queensland

  • MNC:

    [2006] QDC 351

  • Court:

    QDC

  • Judge(s):

    Botting DCJ

  • Date:

    22 Sep 2006

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Aldrich v Ross (2001) Qd R 235
1 citation
Jump To
Cite 1 - (2001) Qd R 235
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Burgess v Board of Teacher Registration Queensland [2003] QDC 159
1 citation
Jump To
Cite 1 - [2003] QDC 159
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
1 citation
Jump To
Cite 1 - [2004] QCA 492

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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