CITATION:	Queensland College of Teachers v PWH [2014] QCAT 48	

PARTIES:	Queensland College of Teachers
(Applicant)	
	v	
	PWH
(Respondent)	

APPLICATION NUMBER:	OCR071-11	

MATTER TYPE:	Occupational regulation matters 	

HEARING DATE:	13 December 2013	

HEARD AT:	Brisbane	

DECISION OF:	Member McLennan
Member Kanowski
Member Oliver	

DELIVERED ON:	31 January 2014	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1. The ground for disciplinary action is not established.
2. Publication of the teacher’s name, the name of the complainant child, the names of the complainant child’s classmates, and the name of the school is prohibited. 
3. These reasons are to be published in a de-identified format in compliance with this order.
4. Any person who has access to the file of material in this case is prohibited from publishing the information contained in 2. of this order.   	

CATCHWORDS:	Teacher disciplinary – suitability to teach – teacher charged and acquitted of serious offences – complainant child’s credibility an issue – whether evidence establishes teacher not suitable to teach

Education (Queensland College of Teachers) Act 2005
Briginshaw v Briginshaw (1938) 60 CLR 336	
APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr J Gormley, Principal Legal Officer,
Queensland College of Teachers	

RESPONDENT:	Mr AE Knott, TressCox Lawyers	

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

[1]	PWH (the respondent) is an “approved teacher” registered on 1 December 2006 under the Education (Queensland College of Teachers) Act 2005 (the Act).  On 1 April 2011 he was charged with “serious offences”.  In a notice dated 5 April 2011 the Queensland Police Service (QPS) notified the Queensland College of Teachers (the applicant) of “disciplinary information”.
[2]	The brief particulars of the allegations against the respondent were: 
“Between 2 March 2011 and 4 March 2011 [the respondent] has allegedly sat next to the complainant child and leant towards him placing his hand, over clothing, on the complainant child’s genitals.  On another occasion, [the respondent] has allegedly taken a photograph of the complainant child and asked him to do flexibility tests during which [the respondent] has allegedly touched his lower back.  [The respondent] is an art teacher at the primary school where the incident took place.”
[3]	The complainant child was a year 7 student at the primary school where the respondent was a teacher.  On 6 April 2011 the applicant suspended the respondent’s teacher registration in accordance with s 48 of the Act.  
[4]	A notice dated 17 May 2013 from the Director of Public Prosecutions notified the applicant that on 13 May 2013 the respondent was acquitted of these charges.
[5]	On 13 September 2013 the applicant formed the belief that, on the basis of the disciplinary information received in relation to the respondent, there were disciplinary grounds for referring the matter to the Queensland Civil and Administrative Tribunal (the tribunal).  The ground of the disciplinary action was pursuant to s 92(1)(h) of the Act: “the teacher is not suitable to teach”.
[6]	By order dated 9 October 2013, the tribunal ended the suspension of the respondent’s teacher registration.
[7]	In submissions dated 8 November 2013 the applicant conceded that, while it was for the tribunal to determine the matter, the evidence does not establish the “ground for disciplinary action” that the respondent was “not suitable to teach”.  
[8]	In relation to the standard of proof applicable in this tribunal, the determination of a disciplinary matter is an administrative function where the appropriate standard is the reasonable satisfaction of the decision-maker with that degree of satisfaction varying according to the gravity of the fact to be proved: Briginshaw v Briginshaw (Briginshaw).   It remains the civil standard of the balance of probabilities but the gravity which is involved is that if the tribunal is satisfied that the conduct occurred as alleged, a teacher may have his employment suspended or terminated.
Submissions
[9]	The applicant submitted that a substantial case may remain against a person where: 
a)	the evidence is sufficient to establish the allegations to the civil standard; and
b)	there is other evidence of improper conduct that is not criminal conduct but is relevant for “suitability”.
[10]	The respondent was not the complainant’s home teacher but taught him through a rotational art activity and it was alleged that in this capacity, on 2 March 2011, the respondent conducted an art activity with the complainant’s class during which he sexually abused the complainant.  The conduct in relation to count 2, allegedly occurred two days later. It was alleged that, while alone in a classroom with the complainant, the respondent touched the complainant on the lower back in circumstances which carried a sexual connotation.
[11]	The evidence of the alleged offences is primarily that of the complainant child and in relation to the first count, that of a fellow student seated next to the complainant child.  There was an early report of some aspects of the incidents to the complainant child’s mother.  
[12]	It is not in dispute that on the relevant day, the respondent did in fact conduct an art activity with the complainant child’s class. Further, at some point the respondent asked the complainant child whether he had a pair of scissors, that the complainant child pulled open his tidy tray and that the respondent has commented on how untidy it was. The complainant child has given the respondent the scissors that were asked for; the respondent has sat down near the complainant child and assisted him with the task, after which the class continued in the ordinary way.
[13]	The allegation is disputed that at some point during this transaction, the respondent has rummaged through the tidy tray or the area of the tidy tray during which time he has knowingly tapped the complainant on his penis with the back of his hand.  The complainant child reported that:
“. . . ‘bout a quarter of the way through art, he came and sat with me and started helping me with my art and then he pulled my desk – asked if he could pull my desk out and see how neat it was.   
And then had his hand under the desk and on top of my private.
And he kept tapping against the desk.  I don’t know if he was doing it or not – if he knew what he was doing or not. And he kept asking me to pull out some books and it went on for about a  - couple of minutes.”
[14]	The respondent, who was cross-examined at his trial, denied the charge.  The respondent submits, and the tribunal accepts, that the student who sat adjacent to the complainant child noticed nothing untoward.  Nor had the complainant child made an initial report to his mother in relation to this alleged incident. The allegation relies solely on the complainant child’s evidence.  This included a concession that he was not sure whether the touching was accidental or whether the respondent was aware that he was touching him: 
“I didn’t know if Wednesday was just an accident or not.”
[15]	The complainant child did not report this incident to his mother.
[16]	The respondent submitted that:
“It cannot be established to the requisite standard for these proceedings that the respondent did touch the complainant on his penis outside of his clothing.  Alternatively, the highest at which any possible adverse finding could be made is that there was some fleeting contact on which the respondent was unaware (and which was not intended by him).  Accordingly it is respectfully submitted that there is no basis on which it can be established in respect of this allegation that any question of the respondent being ‘not suitable to teach’ can be established to the requisite standard.”
[17]	The second incident is alleged to have occurred two days after the first incident: “That the [respondent] touched the complainant on his lower back, outside of his clothing.”  The respondent denied touching the complainant child.
[18]	The applicant submitted that during the lunch break, the respondent and the complainant child were together in the classroom and the complainant child did a gymnastic pose known as a “bridge”. At some point, the respondent took a photograph of the complainant.  The respondent disputes that they were alone.  The respondent submits that the evidence at trial was that, while they were alone in that particular classroom, the concertina doors to the adjoining classroom were broken and open about a metre allowing visibility with a teacher present in that adjoining classroom.
[19]	The complainant child made a report to his mother after this incident though the report appears to have included both incidents.
[20]	The context of the incident is, broadly, the respondent requested that the complainant attend the classroom at lunch break to take the complainant child’s photograph in preparation for a class art activity “all about me”; the respondent claimed he did not hear the complainant child’s request to bring a friend; during the interaction between the respondent and complainant child there was discussion about physical development and the complainant child volunteered to do the “bridge” position. The complainant child said that the respondent asked: “Could you show me the bridge position?”
[21]	The applicant submitted that the prosecution contended that incident was not a legitimate educational exercise evidenced by the fact (among other things) that the respondent did use [sic] the photograph for the asserted purpose. Further that the respondent had lied to the QPS about the deletion of the photograph.
[22]	The complainant child stated:  
“...but he put his hand on the lower part of my back and so – and then when it finished he asked me if I had biceps...”
[23]	As with the first allegation, the evidence is primarily that of the complainant child.
[24]	The respondent submits that:
“it cannot be established to the requisite standard for these proceedings that the respondent did touch the complainant on his lower back outside of his clothing.  Alternatively, the highest at which any possible finding could be made is that there was some fleeting contact on which the respondent was unaware (and which was not intended by him).  Accordingly it is respectfully submitted that there is no basis on which it can be established in respect of this allegation that any question of the respondent being ‘not suitable to teach’ can be established to the requisite standard.”
[25]	The applicant concedes that the evidence does not establish the allegations to the civil standard.  It further concedes that, based on the evidence, it does not establish unsuitability to teach; that “no substantial case” remains against the respondent and the evidence does not establish the ground for disciplinary action “not suitable to teach” to the requisite standard.
Assessment of evidence and application of law
[26]	It is a matter for the tribunal to determine, upon examination of the available evidence before it, whether a substantial case remains against the respondent. In the Act, serious offence encompasses disciplinary action against a teacher in spite of an acquittal on a criminal charge.   Not explicit as a policy objective but implicit and explicit within the legislation is that the safety, wellbeing and best interests of the child are paramount. 
[27]	In the assessment of s 92(1)(h) suitability to teach as a ground of disciplinary action, the tribunal is aware that although the serious and disqualifying offences were dealt with in a criminal trial and the respondent was acquitted of the charges, subsections 92(4) and (5) of the Act leave open the administrative assessment of the disciplinary case against the respondent. 
[28]	The tribunal is mindful of the criteria provided in s 12 of the Act in relation to suitability to teach and relevant information held by the applicant. 
[29]	In relation to the first allegation, the complainant child reported that he felt “uncomfortable”.  The complainant child also said he felt “embarrassed and nervous”. He also said:

QPS officer: “Did you say anything to him?”
[Name]: “Nah, ‘cause I didn’t think he knew what he was – if he was doing it or not.”

[30]	One construction open is that it was an opportunistic attempt at sexual touching of the complainant child.  Another construction is that it was accidental and without additional connotation.  The complainant child was himself uncertain.  He was not sure whether the touching was accidental or whether the respondent was aware that he was touching him.  There is no other evidence except that of the complainant child and the denials of the respondent.
[31]	The tribunal considers that there is insufficient evidence to form a case against the respondent in relation to the first allegation.  It is not unlikely that a teacher might ask to inspect a child’s tray for tidiness. It may be viewed as a disciplinary tactic.  There was reference to “previously identified behavioural issues” with the complainant child albeit these were made in relation to the second incident.  There is no other evidence that there might have been behavioural issues.
[32]	The complainant child did not report this first alleged incident and there was no corroborative evidence from the adjacent student.
[33]	In relation to the second allegation, the tribunal notes that in relation to the “bridge” position, the child said: 
“ . . .’cause he – it’s a flexibility test and, um, he had already done that with some of the kids in his class.”
[34]	This suggests that the complainant child was not necessarily singled out.  Nor is the taking of a photograph necessarily sinister since it can be a legitimate part of a planned classroom activity if other students have already had such photos taken and this photo is to catch up with the rest of the class.  It remains a discrepancy that the respondent lied about the deletion of the photo.
[35]	A teacher might legitimately call a student into a classroom in a recess period if there is some need such as, for example, to bring a student up to par with work in which the other students are engaged.  It was not suggested in the evidence that the complainant child had work to catch up on.   
[36]	On the other hand, a teacher who deals with a student in isolation in a classroom without a proximate witness would not only be most unwise but also would more than likely be in breach of school policy formulated to deal with just that situation.  Such policies are protective of both student and teacher.
[37]	The tribunal considers it is inappropriate to single a child out in this manner.  
[38]	There is uncertainty as to whether the respondent touched the child on his lower back or not.  The respondent denied it and submits that the words were those of the interviewing officer.  There was, the respondent submits, no initial reference to touching reported by the mother of the complainant child.
[39]	On the other hand, the complainant child said that after the respondent had asked if he had biceps and asked the complainant child to show him:
“And then he asked if I has underarm hair and, um, pubes.”  
[40]	The tribunal notes the following exchange:
QPS officer: “How do you feel about what happened to you, [name]?
[Name]:  “Um, I’m a bit angry, scared and, um, embarrassed.”
[41]	The complainant child reported that the respondent asked him to show him his “abs”:
QPS officer: “Okay, and what did you do?”
[Name]: “Um, he told me to lift my shirt and show him.”
QPS officer: “Okay, and how did you show it to him?”
[Name]: “I just had to lift my shirt up.”
[42]	The tribunal finds this evidence concerning and clearly inappropriate.  
[43]	The complainant child was “unsure what was happening” and was sufficiently concerned to make a report of both incidents to his mother.  Much of the evidence depends on the credibility of the complainant child and whether this evidence was accepted or denied at the trial.  There is an absence of corroborative evidence. It is the evidence of the complainant child against the denials and evidence of the respondent.
[44]	In its assessment of these exchanges reported by the complainant child, the tribunal considers that at its highest it is an inappropriate exchange.  On the other hand, another construction suggests grooming behaviour on the part of the respondent.  There is however, no evidence to substantiate this.  While there is some concern arising from the complainant child’s evidence, there is no capacity to assess the credibility of that evidence.
[45]	The incidents that led to the charges and acquittal of serious offences are capable of interpretation, particularly in the first incident, as legitimate activities.  There is some ambiguity in relation to the second incident but the evidence is insufficient to reach the Briginshaw standard of proof required.
[46]	The tribunal, in its assessment of the available evidence against the Briginshaw standard, is unable to be satisfied that a ground for disciplinary action is established.
[47]	As noted above, the respondent’s suspension of teacher registration was lifted by order of the tribunal on 9 October 2013.
Other matters
[48]	On 21 October 2011 the tribunal pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) until further order, prohibited publication of information identifying the respondent; and until further order, reasons for decision of the tribunal in the proceeding be published in de-identified format.
[49]	The respondent was acquitted of criminal charges and this tribunal is not satisfied a ground for disciplinary action exists.  It is fair to the respondent that the tribunal continue the order dated 21 October 2011.  It is further ordered that the name of the complainant child, the names of his classmates and the name of the school not be published.