Burgess v Board of Teacher Registration Queensland [2003] QDC 159

DISTRICT COURT OF QUEENSLAND CITATION: Burgess v. Board of Teacher Registration Queensland [2003] QDC 159 PARTIES: JOHN WILLIAM BURGESS (Appellant) v. BOARD OF TEACHER REGISTRATION QUEENSLAND (Respondent) FILE NO/S: 4694 of 2002 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 15 July 2003 DELIVERED AT: Brisbane HEARING DATE: JUDGE: Boyce DCJ ORDER: Appeal dismissed. Appellant to pay the respondent’s costs of the appeal to be assessed. CATCHWORDS: Appeal – Rehearing – Education (Teacher Registration) Act 1988 – Cancellation of Registration as teacher – Appellant not of good character to be registered as a teacher COUNSEL: M J Griffin S.C., and D.J. Murphy for appellant R. W. Hanson Q.C. for respondent SOLICITORS: Bennett & Philp for the appellant C.W. Lohe Crown Solicitor for the respondent [1] This is an appeal pursuant to s.72 of the Education (Teacher Registration Act) 1988 (“the Act”). The Decision Appealed From [2] The appellant (whom I shall refer to as “Mr. Burgess”) was a teacher registered under the Act. -- 1 of 28 -- 2 [3] The respondent Board of Teacher Registration Queensland (hereinafter referred to as “the Board”) gave notice to Mr. Burgess that it proposed to conduct an inquiry under s.50 of the Act. The Board considered there were reasonable grounds to believe Mr. Burgess had been convicted of an indictable offence and was not of good character to be registered as a teacher. [4] The Board conducted an inquiry in August, September and October 2002. [5] On 31 October 2002 the Board ordered that the registration of Mr. Burgess be cancelled with effect from 31 October 2002, and that Mr. Burgess pay to the Board an amount of costs in an amount equal to the Board’s legal costs in the matter. [6] The reasons for the order by the Board may be summarised as follows:
The Board based its decision on the following matters – (i) Mr. Burgess pleaded guilty in 1979 in the Penrith District Court New South Wales to two charges of unlawful carnal knowledge of a girl above the age of 10 years and under the age of 16 years to wit the age of 13 years; (ii) The conduct of Mr. Burgess as a teacher and principal at Ormiston College Queensland from and including 1986 until 1993 involving teachers and others at Ormiston College; (iii) The conduct of Mr. Burgess at Sunshine Coast Grammar School. -- 2 of 28 -- 3 The Nature of the Appeal [7] The first matter is to identify the nature of the appeal. Section 72 provides for an appeal from the Board’s decision to the District Court. [8] Section 72(3) is as follows: “The appeal is by way of re-hearing of the material before the Board or, if the judge hearing the appeal so orders, on material adduced on the appeal, or on both”. [9] In the hearing this appeal no application was made for the court to hear the evidence afresh, or to receive further evidence. [10] The expression used is “by way of re-hearing”. At first glance the section provides a readily identifiable form of appeal, namely an appeal by way of rehearing on the material which was before the Board with power in the District Court to receive further evidence, but not an obligation to receive further evidence. The Board’s submission was that this was not a hearing de novo and Mr. Burgess was, in all the circumstances, required to demonstrate error on the part of the Board. Mr. Burgess contended that the appeal was by way of hearing ‘de novo” and he was not required to demonstrate error on the part of the Board. [11] In Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616, the High Court considered the nature of an appeal to the District Court of New South Wales from a decision of the board pursuant to the Builder’s Licensing Act 1971 of New South Wales. Mason J (with whom Barwick C.J. and Stephen J agreed) said at p.619 – 20: “An appeal is not a common law proceeding. It is a remedy given by statute. …… Upon an appeal stricto sensu the question considered -- 3 of 28 -- 4 is whether the judgment complained of was right when given, that is whether the order appealed from was right on the material which the lower court had before it. An appeal stricto sensu is to distinguished from an appeal by way of re-hearing…… This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is “by trial over again on the evidence used in the court below; but there is special power to receive further evidence”. On such an appeal the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the court of first instance. But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo; the Court does not hear the witnesses again. …..the appeal to Quarter Session [in New South Wales] is most aptly described as a hearing de novo because, even if it be the defendant who appeals, the informant or complainant starts again and has to make out his case and call his witnesses”. [12] Mason J. then referred to the decision of the High Court in Phillips v The Commonwealth [1964] 110 CLR 347 where it was held that an appeal to a County Court against a determination of the Commissioner under the Commonwealth Employees Compensation Act, said by the statute to be in the nature of a rehearing, required “the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it”. Mason J. continued at page 621: “Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. …….. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo. The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non- justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may -- 4 of 28 -- 5 be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance. But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.” [13] In Allesch v Maunz (2000) 203 CLR 172 at 180 in the judgment of the majority it was said: “For present purposes the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.” [14] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203 the majority of the court, after noting that the nature of the appeal must ultimately depend on the terms of the statute conferring the right of appeal, continued: “If an appellate Tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.” -- 5 of 28 -- 6 [15] There have been a number of cases where Queensland courts have dealt with specific provisions for appeal given by Queensland statutes: Amos v Auctioneers and Agents Committee (1980) 6 QL 290 (Mylne DCJ); Re H. (a pharmacist) [1972] Qd R 402 (Williams J); Re Fredericks (1984) 1 Qd.R. 438 (Carter J); Re: Boothroyd (1986) 1 Qd.R. 167 (Thomas J). [16] In Logan v Woongarra Shire Council [1983] 2 Qd.R 689 it was held by the Full Court that an appeal to that court from the Local Government Court “on the ground of error or mistake in law on the part of the court or that the court had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision” was not an appeal by way or rehearing but was an appeal stricto sensu. Williams J (as he then was) said at p.691 “Generally speaking an appeal will only be by way of “rehearing” if the provision creating the right of appeal expressly says so…… The essential distinguishing feature of an appeal by way of “rehearing” is that the appellant is entitled “to the independent judgment of the Court of Appeal” on the facts and also on the law as it then stands. If the provision creating the right of appeal expressly provides for such matters then, even though the word “rehearing” is not used, the court may well construe the appeal as being one by way of rehearing.” [17] In Re Schubert [1989] 2 QdR 99 it was held by the Full Court that an appeal under s.19 of the Radioactive Substances Act (1958 - 1978), said to be by way of rehearing, required a hearing de novo. Williams J (as His Honour then was) with whom the other members of the court agreed at p.101-2 noted that the Act did not provide for there to be a hearing for the Minister or for any record to be made of what material was before the Minister at the time the decision was made, or for any reasons to be given for the Minister’s decision. The decision was made on the recommendation of the Council. There was also no hearing before the Council, no record was made of what was before the Council, nor any reasons given for the -- 6 of 28 -- 7 recommendation of the Council. Reference was made to Sperway Constructions (supra). [18] In Turnbull v The New South Wales Medical Board [1976] 2 NSWLR 281, Glass JA at p.297-8 identified six categories of appeal. Thomas JA considered this classification to be helpful in Aldrich v Ross [2001] 2 QdR 235 at 248. Glass JA identified the following categories: “(a) Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated. (b) Appeals on questions of law only, eg from the Workers Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted. (c) Appeals after a trial before judge and jury. The result below will be disturbed if the judge fell into error of law, or if the jury’s errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial. (d) Appeals from a judge in the strict sense, eg appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed. (e) Appeals from the Judge by way of rehearing, eg Appeals under s.75A of the Supreme Court Act 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in the light of the circumstances which then exist, changes in the law will be regarded. (f) Appeals involving a hearing de novo, eg appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time”. [19] Thomas JA in Aldrich v Ross [2001] 2 QdR 235 at 248 said this categorisation was not comprehensive. There might be variations within the categories identified. In -- 7 of 28 -- 8 Aldrich the Court of Appeal considered the nature of an appeal to the Misconduct Tribunal where a police officer had been disciplined by the Police Commissioner. The Court of Appeal allowed an appeal from the decision of a single judge that the scope of the appeal to the Tribunal was relatively confined. The court concluded that the appeal was by way of rehearing without using the term. Thomas JA considered the term “re-hearing” to be unhelpful and preferred to describe it as one where the Tribunal was bound to make its own decision on the evidence before it. Thomas JA noted that the terms in which the power of the appellate court was expressed was of some relevance. [20] In Re: Coldham; ex parte Brideson [No 2] (1990) 170 CLR 267, the High Court attached significance to the provision in the statute that the appellate court was to “make such order as it thinks fit”. In Coal and Allied Operations (supra) the absence of such a provision was regarded by the High Court as significant; p.204. [21] In Aldrich at 256 Thomas JA considered that the statute which allowed the Misconduct Tribunal to “give the orders about a proceeding it considers appropriate” and to “set aside the decision and substitute another decision” was similar in effect to those in Re: Coldham; ex parte Brideson [No 2] (supra) ; p.256. This emphasises the importance of considering the particular terms of the statute. [22] Section 72(3) provides that the rehearing is to be on the material before the Board or if the judge hearing the appeal so orders, on material adduced on the appeal or on both. The court has a discretion as to whether or not to allow further evidence. It is not a case where either side has a right to put further material before the District Court. -- 8 of 28 -- 9 [23] The powers of the courts on appeal are set out in S.72(4), (5) and (6). [24] An appeal by way of rehearing in the traditional sense involves a review of the merits. It is necessary for an appellate court to bring its own judgment to bear on the question independent of the judgment of the body under appeal. Much weight may however be attached to the view of that body: see Federated Carters and Drivers Industrial Union of Australia v The Motor Transport and Chauffeurs’ Association of Australia (1912) 6 CLR 122 at 124. This was referred to with approval in Aldrich (p. 255), and Thomas JA at p. 257 expressed his conclusion that the Misconduct Tribunal was: “required to make its own decision on the available evidence rather then merely to determine the correctness of the original decision in the limited manner permitted by an appeal in the strict sense against the exercise of a discretion”. [25] Kirby J in State Rail Authority (New South Wales) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327 referred to a duty imposed on Appellate Courts by statute: “to make up their own mind; to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; to give the judgment and make orders that should have been given at trial; and in exceptional circumstances even to admit fresh evidence into consideration”. [26] Kirby J, at p.326, referred to the traditional view of the role of an Appellate Court conducting an appeal by way of rehearing to findings of fact by a trial judge as that being stated in Warren v Coombes (1979) 142 CLR 531 at 551: “In general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn the appellate court will give respect and weight to the conclusions of that trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.” -- 9 of 28 -- 10 [27] In State Rail Authority (New South Wales) v. Earthline Constructions (supra) there was reference to three earlier decisions of the High Court . These dealt with the approach of an appellate court, conducting an appeal by way of rehearing, to findings of fact by the trial judge. The three decisions were Jones v Hyde (1989) 63 ALJR 349, Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472. In Devries v. Australian National Railways Commission (supra) at p.479 the majority stated: “More than once in recent years this Court has pointed out that a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge has failed to use or has palpably misused his advantage or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.” [28] The inquiry by the Board in the present case bears a much closer similarity to a court proceeding than the Police disciplinary proceedings that were being considered in Aldrich v. Ross (supra). [29] The inquiry by the Board may be conducted in public: (s.54). There is a right to legal representation: (s.54). There is no express compulsion on the part of the teacher to give evidence. There is a requirement to keep a record of proceedings: (s.55). There is provision for contempt of the inquiry: (s.65). Within seven days after the date of an order of the Board about a person under s.70 (cancellation of registration etc), the Director must give written notice to the person about the order and the notice must also state the Board’s reasons for its order: (s.71). By necessary implication the Board is therefore required to give reasons for an order for -- 10 of 28 -- 11 cancellation of registration under s.70. There is power to order the teacher to pay the costs of the inquiry: (s.70). Accordingly, the appeal to this court comes after a formal hearing before the Board that bears fairly close similarities to a court proceeding. [30] I have not overlooked that in conducting an inquiry the Board is not bound by the rules of evidence and may inform itself in any way it considers appropriate: (s.56). There are complaints about unsworn statements and hearsay evidence. If a witness gave evidence orally without being sworn, or gave evidence by way of a written statement or even an unsigned statement, it was entirely a matter for the Board to decide what weight should be given to the evidence. [31] I am satisfied that the appeal from the order of the Board is by way of re-hearing in the traditional sense. This court does not hear the witnesses again. It is not a hearing de novo. This court must form an independent judgment on the facts and on the law. Much weight, however, should be attached to the view of the Board: (Aldrich v. Ross (supra) at p.255). Since the decision was based on findings of fact involving an assessment of the credibility of witnesses, this court must recognise the very considerable advantage enjoyed by the Board which saw and heard the witnesses. The approach to the findings of fact by the Board is as set out by the High Court in Warren v. Coombes (supra). Circumstances Surrounding Relevant Issues and General History of the Matter. [32] Mr. Burgess was born on 15th August 1949. He commenced teaching in New South Wales at the Meadows Primary School in 1971. He subsequently taught at -- 11 of 28 -- 12 Glenbrook Primary School and the Cambridge Gardens Primary School, both in New South Wales. [33] On 11th April 1979 Mr Burgess was convicted, on his own plea of guilty in the Penrith District Court to two counts of unlawful carnal knowledge of Dianne Jane Tillett who was 13 years of age at the time of the offences. Herron DCJ of the District Court of New South Wales ordered that no conviction be recorded against Mr Burgess and that he enter into a recognizance for the sum of $500.00 to be of good behaviour for a period of 3 years. After the considerable lapse of time no transcript is available of sentencing submissions or the sentencing remarks. It is clear that Mr Burgess was treated with much leniency. He was very lucky to escape a custodial sentence. [34] At the time of sentencing in the District Court New South Wales, Mr Burgess was employed as a teacher at Masada College, New South Wales. At the completion of the 1979 school year he applied for and was subsequently appointed to a teaching position at the Church of England Grammar School, East Brisbane. Mr. Burgess commenced as a teacher at the Anglican Church Grammar School at the beginning of 1980. On 8th April 1980 he applied for registration as a teacher in Queensland. He was subsequently registered as a teacher by the Board of Teacher Registration on 23rd April 1980. The legislation in force at that time did not require disclosure of a criminal offence if no conviction had been recorded. [35] During 1985 whilst still a teacher at Anglican Church Grammar School Mr Burgess was asked to become a Director on a Board to found a new school. Mr Burgess -- 12 of 28 -- 13 played a role in establishing Canterbury College located at Waterford, west of Brisbane. [36] Mr. Burgess resigned from his teaching position at the Anglican Church Grammar School at the completion of the 1985 academic year with the intention of founding a new school. Mr Burgess had been a teacher at Anglican Church Grammar School for 5 years. [37] During 1986 Mr Burgess, with the support of his wife, undertook all administrative duties for the founding of the new school, Ormiston College, West Ormiston, which opened in 1987. Mr Burgess was Head Master of Ormiston College from its opening in 1987 until the end of the school year in 1993. Mr Burgess resigned from his position as Head Master of Ormiston College towards the end of 1993. This was apparently because the College Board and parent body became aware of his court appearance in New South Wales in 1979. [38] Subsequently, Mr Burgess took some time away from his educational endeavours before again undertaking the founding of a new school. The Sunshine Coast Grammar School, Buderim was opened in 1997. Mr Burgess has been the Head of School since the time of its founding. Prior to the school opening an article was published in the Sunshine Coast Daily on 11th August 1996. The article named Mr Burgess and provided details of his plea of guilty to criminal charges and the sentence passed by the District Court, New South Wales. The article alleged that the Education Department Director-General was seeking legal advice regarding the involvement of Mr Burgess with the establishment of the Sunshine Coast Grammar School. In response to the article Mr Burgess wrote a letter to all founding parents -- 13 of 28 -- 14 (parents whose children where enrolled to commence at the opening of the school in 1997). [39] On 18th June 2002 the Board of Teacher Registration sent to Mr Burgess a Notice of Inquiry which stated that "at its Board meeting held on the 16th of May 2002 the Board of Teacher Registration decided to conduct an inquiry into registered teacher John William Burgess in accordance with section 50 of the Education (Teacher Registration) Act 1988. [40] The Board sat and heard evidence and submissions on 15th August, 27th August, 25th September and 30th October 2002. Then on 31st October 2002 the Board delivered its determination that Mr Burgess’ registration as a teacher be cancelled with effect from 31st October 2002 and that Mr. Burgess be required to pay to the Board, by way of costs, an amount equal to the Board's legal costs in this matter. [41] I propose now to deal seriatim with the findings made by the Board under various headings. Credibility of Witnesses [42] The finding of the Board on the credibility of witnesses is as follows: “On the question of credibility, the Board preferred the evidence of Pauline Haycraft, Geoff Smith, Dianne Jensen, Tracey Heazlett, Kym Smith, Glenda Simpson, Mr and Mrs Canham, Janice Lepp, Elizabeth and Angela Washington, Tania Hill, Alwyn Roberts, Paul Clough, Kelly Calaghan, Peter George, Jenny Worthington, and Celine Lapointe where that evidence conflicted with Mr. Burgess’ evidence.” [43] I have regard to the observations of the High Court in Warren v. Coombes (supra). Detailed submissions were made criticising in various ways the approach by the -- 14 of 28 -- 15 Board to assessing the credibility of various witnesses. The Board saw and heard those witnesses. The Board was not bound by the rules of evidence. I am not satisfied that any ground has been made out for disturbing the view the Board took in preferring the evidence of the specified witnesses where that evidence conflicted with the evidence of Mr. Burgess. I note that the Board refrained from expressing a preference for some witnesses where it might be thought that a particular witness may have had “an axe to grind” against Mr. Burgess. It has not been shown the Board failed to use or palpably misused its advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. Sexual Relationship with Girl Under 13 Years [44] This involved a relationship between Mr. Burgess and a girl, Dianne Tillett in Sydney. Ms. Tillett had been a pupil at the school at which Mr. Burgess taught. As a teacher he was involved in the supervision of some extra-curricular sporting activities in which she was engaged. He provided home tuition after school hours at her home with the express permission of her parents. [45] The findings of the Board on this relationship are as follows: “The Board took the following view of Mr. Burgess’ relationship (both non-sexual and sexual) with Dianne Tillett: (a) In August 1977 Mr. Burgess instigated a sexual relationship with a female child aged 13 years and 2 months; (b) He was then 28, married, but separated from his wife; (c) He maintained the sexual relationship for 6 months; (d) When the romantic attachment began, she was 12 years old and a pupil at the school at which he taught; (e) On his own admission (record of interview) there was a teacher/pupil relationship; (f) By his own statement to the police when first apprehended, he was then unfit to be a teacher.” -- 15 of 28 -- 16 [46] Subsequently in its findings the Board described the relationship in the following terms: “His misconduct with the 13 year old pupil was a disgraceful breach of trust and betrayal of his obligation as a teacher.” [47] The sexual relationship with the girl commenced just after she had turned 13 and after she had left the school at which Mr. Burgess was teaching and had gone to another school. [48] Evidence to support these findings includes statements by the accused in a record of interview with a police officer. I am satisfied that these findings were open on the evidence before the Board and no ground has been made out for disturbing these findings. In my opinion, the Board was fully justified in the circumstances in describing the misconduct of Mr. Burgess with this 13 year old pupil as a disgraceful breach of trust and betrayal of his obligation as a teacher. He was aged 28. He was not an immature adolescent. [49] Had there been subsequently a full and frank disclosure of the circumstances by Mr. Burgess to the governing body of any school in the years immediately following sentencing in 1979, I infer it is highly improbable that the governing body would have allowed Mr. Burgess to be employed as a teacher. I infer that the continued employment of Mr. Burgess as a teacher after his sentence in 1979 is likely to have been the result of subterfuge, concealment and misrepresentation on the part of Mr. Burgess. Mr. Burgess has continued in employment as a teacher since 1979, firstly in New South Wales and then in Queensland. -- 16 of 28 -- 17 Concealment or Misrepresentation of Facts [50] The Board made the following findings on concealment or misrepresentation: “(a) Since 1979 up to the present time, he has misrepresented the circumstances of the relationship with the girl by: (i) Giving the impression she was almost 16; (ii) Giving the impression he was not much older; (iii) Giving the impression that her parents knew of the sexual relationship; (iv) Giving the impression that there was not teacher/pupil relationship. (b) By that pretence, he has: (i) Obtained employment as a teacher (Masada College, Sydney); (ii) Been guilty of material non-disclosure to CEGS, Brisbane; (iii) Failed to address fully enquiries from school parents, teachers, and recently the Children’s Commissioner about his misconduct with the girl. (c) His misconduct with the 13 year old pupil was a disgraceful breach of trust and betrayal of his obligation as a teacher. That misconduct, together with his misrepresentation of the circumstances to interested parties, demonstrate poor character and unfitness to be a teacher.” [51] Ms. Haycraft was a teacher at Masada College Sydney when he was sentenced in 1979. [52] I am satisfied that the findings of the Board on all these matters are supported by the evidence. As I have already indicated, it is highly improbable that Mr. Burgess would have been given employment as a teacher at any school had the governing body of the school been fully appraised by Mr. Burgess of the circumstances regarding his plea of guilty in 1979. [53] The question is not whether there was a legal obligation on Mr. Burgess to make a full and frank disclosure of the 1979 sentence. -- 17 of 28 -- 18 [54] Mr. Burgess moved to Queensland and in April 1980 he obtained registration as a teacher under the Queensland statute. At that time the relevant statute required Mr. Burgess to disclose details of previous convictions. [55] He had not been convicted in the Penrith District Court on his plea of guilty. He had been placed on a good behaviour bond without a conviction being recorded. In the circumstances there was no legal obligation for Mr. Burgess to make disclosure of his plea of guilty. Nevertheless, the gross misconduct by Mr. Burgess with a 13 year old pupil together with his concealment or misrepresentation of the true facts of the relationship to interested parties thereafter did in my opinion demonstrate poor character and raise serious questions as to his fitness to be a teacher. Misconduct at Ormiston College [56] The Board made the following findings in relation to the behaviour of Mr. Burgess as a principal at Ormiston College: “(i) he sexually harassed the teacher Tracey Heazlett, resulting in an $11,000 settlement payment to this teacher; (ii) he sexually harassed the teacher Kym Smith and others; (iii) he behaved inappropriately to the pupil Elizabeth Washington by:
sitting her on his knee
picking her up with her legs around his waist
putting his hands on her bottom and bare legs
hugging and embracing her; (iv) he frequently hugged, kissed and touched female staff and pupils; (v) he asked female staff for a ‘hug’ or a ‘kiss’ (vi) he took a 13 year old female pupil on a walk on a beach for 45 minutes out of sight of teachers and other pupils; (vii) at a softball competition he picked up a female pupil aged 14 to 15 with his face in her lower stomach/pelvic region and his arms around her upper thighs.” -- 18 of 28 -- 19 [57] I am satisfied that these findings of fact were open on the evidence before the Board and no ground has been made out for disturbing these findings. Given the gross breach of trust by Mr. Burgess as a teacher in New South Wales it behoved him to be very cautious in his dealings with female staff and female pupils thereafter. A witness favourably disposed to Mr. Burgess described him as a “touchy feely” type of person. (See volume 7 of record p.18). Mr. Burgess would have been well advised to avoid inappropriate behaviour with female staff or female pupils. Misconduct at the Sunshine Coast Grammar School [58] Mr. Burgess founded the Sunshine Coast Grammar School and was the principal at that school. The Board made the following findings: “(i) he kissed and touched female pupils and staff; (ii) he touched a female parent while making suggestive comments.” [59] I am satisfied that these findings were open on the evidence before the Board and no ground has been made out for disturbing these findings. Character References for Mr. Burgess [60] Before the Board there were various character references given for Mr. Burgess, both oral and in writing. It is clear that Mr. Burgess is an excellent teacher and he has greatly impressed many people over time. [61] The Board made these findings: “(i) for every favourable reference, there is an unfavourable statement; (ii) the authors of the unfavourable statements appear to be better informed than the authors of the favourable ones; -- 19 of 28 -- 20 (iii) references which do not mention his misconduct with the 13 year old girl are worth little; (iv) references which disclose some knowledge of the offence with the 13 year old girl, but less than full knowledge of the facts are worth little; (v) references from those who “do not want to know” the details of Mr. Burgess’ past transgressions are worth little; (vi) there is evidence that teachers were required to write references about Mr. Burgess for forwarding to the Commission for Children and Young People; (vii) there is evidence that in at least one case a teacher was required to write a reference in return for a “favour”; (viii) there is evidence that teachers were required to submit to Mr. Burgess’ personal assistant prior to their being sent, their references in support of Mr. Burgess for the Commission for Children and Young People; (ix) there is evidence that some teachers amended or withdrew their references when they became aware of the full facts of Mr. Burgess’ relationship with Dianne Tillett.” [62] I am satisfied that these findings were open on the evidence before the Board and no ground has been made out for disturbing these findings. Emotional and Psychiatric Problems [63] There is evidence before the Board from a psychiatrist, Dr. Sullivan, and the psychologist, Dr. Lynagh. The Board made the following finding: “The Board noted the evidence of the psychiatrist, Dr. Sullivan, and the psychologist, Dr. Lynagh but found that while it provided some explanation for some of his behaviour it provided no acceptable excuse.” [64] I am satisfied that the Board was justified in making these findings. In truth, these reports were, in my opinion, of little assistance to the Board. Like many other citizens, Mr. Burgess was no doubt suffering from significant emotional problems at various times in his life. While providing some explanation for his behaviour this evidence provided no acceptable excuse. -- 20 of 28 -- 21 Estoppel [65] It was submitted on behalf of Mr. Burgess that the Board was estopped by its conduct from cancelling the registration of Mr. Burgess. This argument depends, inter alia, on proof of knowledge by the Board of relevant facts at various times. There is simply no evidence as to the knowledge of the Board of relevant facts at various times. There is no substance in this argument and I do not find it necessary to deal with it any further. Cancellation of Registration [66] The Board concluded: “For all of the above reasons the Board was satisfied that Mr. Burgess is not of good character to be registered as a teacher. The Board considered Mr. Devlin’s submission that provisional registration with conditions was an alternative, but decided that this would be inappropriate in this case.” [67] As already indicated, I am satisfied that there was evidence that justified the various findings made by the Board. The Board had the great advantage of seeing and hearing the witnesses. No ground has been made out for setting aside the findings made by the Board. I am not satisfied that the Board erred in preferring the evidence of various witnesses to the evidence of Mr. Burgess. [68] So far as the sexual relationship with Dianne Tillett is concerned, one may observe that 1979 is a very long time ago. On one view of the matter Mr. Burgess has substantially rehabilitated himself since 1979. He has shown much perseverance and industry and has some significant achievements. Character references show he has greatly impressed many people. He is an excellent teacher. Nevertheless, as the -- 21 of 28 -- 22 findings of the Board indicate, he has subsequently been involved on various occasions in inappropriate behaviour with female teachers and female pupils. The Board was entitled to find his behaviour in these matters was improper and unacceptable for a teacher. At times his administrative skills were inferior and he had a management style that tended to attract some people and alienate others. That is a partial explanation for some of the problems that he generated. [69] It is urged that, given the great lapse of time since 1979 and substantial rehabilitation by Mr. Burgess since that time, it is much too harsh a penalty for the Board to cancel his registration as a teacher. [70] Nevertheless, his sexual misconduct at age 28 with a 13 year old pupil was a gross breach of trust and disgraceful conduct for a teacher. He was not an immature adolescent. He was extremely lucky not to be sent to jail in 1979. I infer that concealment and misrepresentation of the true facts enabled him thereafter to continue in employment as a teacher. All analogies are said to be crude and imperfect. Yet in various walks of life a person who is guilty of a gross breach of trust may find that there are life long consequences for a gross breach of trust. One analogy is to be found in business and commerce. A person may be placed in a position of trust and subsequently be guilty of a gross breach of trust, e.g. a bank officer who steals bank funds. Such a person may find that for the rest of his life he is never again placed in a position of trust. Actions have consequences. They may be life long. [71] Another analogy is to be found in the position of solicitors. If a solicitor is involved in a gross breach of trust, for example by misappropriation of a substantial amount -- 22 of 28 -- 23 of trust funds, he will almost certainly be removed from the roll of solicitors even though there has been full restitution. He may never again be restored to the roll of solicitors. The gross breach of trust is likely to have life long consequences. Proper Approach to Consideration of Good Character [72] In Re Davis (1947) 75 CLR 409 at 426, Dixon J (as he then was) commented as follows on the consequences of wrongdoing committed by a barrister many years earlier: “As to the facts, I hope that I have stated them in a way which brings out many considerations undeniably favourable to the appellant. He has shown industry, perseverance and courage amidst the most adverse circumstances, and has overcome many disadvantages and obstacles encountered particularly in his early years. His mental breakdown and even his descent into criminality will evoke much human sympathy. It is always so upon moral questions, particularly when a man, whose conduct or actions have been in many respects praiseworthy, mars his life by a crime. But, though concern for an individual who is overtaken by the consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interests the standards of a profession which plays so indispensable a part in the administration of justice. Housebreaking for the purpose of theft is not a crime the effect of which as a disclosure of character can be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation sufficiently convincing or persuasive to satisfy a court that a person guilty of such a crime should take his place as counsel at the Bar. But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted. In those circumstances the conclusion that he is not a fit and proper person to be made a member of the Bar is confirmed.” -- 23 of 28 -- 24
Thomas JA observed in Barristers Board v. Davrveniza (2000) QCA 253 at para. 32: “When it makes such orders [the striking off of a practitioner] the Court does so not by way of punishment but in order to protect the public and maintain public confidence in the administration of justice. So far as the criminal law is concerned the respondent has already paid his debt to society by being found guilty of the offences in question and having been fined. He has also suffered a good deal of public ignominy. Further disadvantages will mean that he is dealt with more harshly for his transgressions than other members of the public. That however is an unavoidable consequence of maintenance of the necessary high standards in the profession of barrister.”
Remorse for past wrongdoings may be an element in the test: Attorney-General v. Bax (1999) 2 Qd.R. 9
Thomas JA in Darveniza (supra) at para. 33 commented further: “The ultimate test is whether the respondent is a fit and proper person to remain a Barrister. Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices.” And at para. 35: “The need for conduct revealing the character of the practitioner to be of a kind that threatens the professional function of the practitioner is emphasized in Ziem’s case.” [73] As to what is good character and as to how it should be judged by a body enforcing professional standards was detailed by Kirby, J in McBride v. Walton (NSWCA, 15 July 1994, BC9402907) at para. 23: “The phrase “not of good character” is therefore not at large. It 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”. -- 24 of 28 -- 25 And, at paragraph 24: “Even within this narrower concept of “good character” it is important to remember that no person’s character is entirely flawless. Thus, it is not every flaw of character, even having relevance to a medical practitioner’s entitlement to practice the profession of medicine in relation to the public, which will warrant a conclusion that he or she is not of good character.” And, at paragraph 26: “Once the impugned conduct is properly found and classified it is then necessary for it to be seen in a wider context of the medical 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 and proved 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, the complainant is required to prove the case to a very high level of satisfaction: Briginshaw v. Briginshaw & Anor (1938) 60 CLR 336.” [I note here that the Act in s.70 requires proof on the balance of probabilities and the Board stated it was so satisfied in the findings it made.] [74] Whilst there is no exhaustive test to be applied when judging a person’s “good character” or in deciding that a person is “not of good character” there are a number of matters that are often referred to in the cases, namely: -- 25 of 28 -- 26
The fact of a conviction and sentence is not conclusive of the ultimate issue: Ziems v. The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 288 (per Fullagar J).
As to the question of punishment, Fullagar J in Ziems (supra) at 289 referred to the following observations of Jordan CJ in Re Wishart (S/C NSW, Full Court, unreported): “It must be remembered that in the present proceedings there is no question of punishing the respondent. He has been convicted and what was regarded as the appropriate punishment has already been inflicted.” [75] In my opinion, the Board was entitled to have regard to the non-disclosure by Mr. Burgess of his misconduct with the 13 year old pupil and his inadequate disclosure. [76] Any behaviour found to be inappropriate for a teacher is relevant to the ultimate question of fitness to be a teacher, even though the events may have happened many years earlier. The weight to be attached to that behaviour was a matter for the Board to determine. The inappropriate behaviour found by the Board was of such a nature that it was entitled to rely on it even though some events happened a very long time ago. In my opinion, the conduct of Mr. Burgess in 1977 with a 13 year old pupil was disgraceful and showed unfitness to be a teacher at that time. His sexual harassment of two teachers at Ormiston was unacceptable. His inappropriate treatment of female pupils at Ormiston, in combination with the sexual harassment of two teachers and other inappropriate conduct found by the Board, raised serious doubts as to fitness to be a teacher at that time. -- 26 of 28 -- 27 There was continuity in inappropriate behaviour from 1977 up to the hearing before the Board. There was a similarity in inappropriate behaviour from 1977 to the present in that it all concerned the touching of females – teachers, pupils, and parents. The continuity of this inappropriate behaviour resulted in a body of evidence adverse to Mr. Burgess and which was of considerable weight on the question of his fitness to be a teacher. In my opinion, the Board was justified in regarding all of these matters as showing Mr. Burgess to be a person unfit to be a teacher. Concern for an individual who is overtaken by the consequences of past wrongdoing is a very human feeling, but that is no reason whatever for impairing in the interests of Mr. Burgess the standards of a profession to which the community entrusts the immensely important task of educating young children and adolescents. [77] In all the circumstances I am not satisfied that any error has been made out on the part of the Board. I am satisfied that the evidence before the Board justified the Board’s decision that the registration of Mr. Burgess as a teacher should be cancelled as from 31 October 2002. Costs [78] The Board ordered Mr. Burgess to pay the Board’s costs of the inquiry. Given that the inquiry resulted in the cancellation of his registration as a teacher, the consequences for Mr. Burgess were extremely severe. He has lost the right to earn -- 27 of 28 -- 28 the livelihood for which he has trained. In the circumstances I consider it was harsh for the Board to make this costs order against Mr. Burgess. [79] Nevertheless, a statutory discretion was conferred upon the Board. Minds may well differ as to how that discretion should be exercised. [80] I am not satisfied that the exercise of discretion by the Board has miscarried. Accordingly I decline to interfere with the decision of the Board as to costs. [81] The Board in conducting an inquiry has express power under s.54 to prohibit publication of the names of witnesses. An inquiry may involve very delicate matters involving teachers and school children. Such a power is highly desirable. It is remarkable that on appeal a District Court judge has no such power. The Act should be amended to give similar power to a District Court judge on appeal. [82] I dismiss the appeal. I order the appellant to pay the respondent’s costs of and incidental to this appeal to be assessed on the standard basis. -- 28 of 28 --