B v New Zealand Teachers Council Disciplinary Tribunal [2015] NZHC 3265 (17 December 2015)

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ORDER PROHIBITING SEARCH OF OR ACCESS TO THE COURT FILE WITHOUT LEAVE OF THE COURT. NAMES AND IDENTIFYING PARTICULARS OF THE APPLICANT, THE SCHOOL AND THE VICTIM MAY NOT BE PUBLISHED UNTIL FURTHER ORDER OF THE COURT.

UNDER	The Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review of decisions of the New Zealand Teachers Disciplinary Tribunal
BETWEEN	B Applicant
AND	NEW ZEALAND TEACHERS COUNCIL DISCIPLINARY TRIBUNAL First Respondent
AND	NEW ZEALAND TEACHERS COUNCIL COMPLAINTS ASSESSMENT COMMITTEE Second Respondent

Hearing:	11 August 2015
Appearances:	P A Morten for Applicant M F McClelland QC for Second Respondent
_Judgment:	_{17 December 2015}

This judgment was delivered by me on 17 December 2015 at 12pm pursuant to r 11.5 of the High Court Rules.

B v NEW ZEALAND TEACHERS COUNCIL DISCIPLINARY TRIBUNAL [2015] NZHC 3265 [17 December

[1] On 2 March 2012, A, a secondary school teacher, complained to her school principal and then to the police that a few days earlier, on 29 February, in the college library before a parent teacher event, B, a fellow teacher, had indecently assaulted her, and spoken to her highly offensively, even obscenely. On 15 March 2012 B complained that A had forced him to touch her sexually. The police elected not to lay any charges.

[2] On 11 December 2012, after an extensive investigation, B was dismissed by the board of the school. He brought proceedings for unjustified dismissal and reinstatement, which were settled confidentially. The board withdrew its notice of dismissal and he resigned. He has ceased, for the present, to work as a teacher.

[3] The board was obliged to report B’s resignation, and his reasons, to the New Zealand Teachers’ Council. The Council had then to refer the matter to its Complaints Assessment Committee. On 12 June 2013 the Committee brought proceedings against B before the Council’s Disciplinary Tribunal. It charged B with four forms of “serious misconduct”, or conduct warranting referral to the Tribunal.

had brought discredit to the profession, while carrying out his duties as a teacher, by:

(a) assaulting A (by placing his hand between her legs, pulling her underwear to one side, and placing his fingers in her vagina);

(b) telling A that he would do so again in the future; (c) commenting on the size of A’s breasts; and

(d) failing immediately to notify the school principal, or another senior manager, of the incident.

[5] B’s defence to these charges, consistent with his own complaint to the police, will presumably be that on 29 February 2012 A was provocative and then seized his hand and thrust it between her legs. He will deny that he said anything offensive to her and will say that he only considered himself obliged to report the incident to the

school principal after A made her complaint. But his present response is to challenge the validity of the disciplinary proceedings. On 21 May 2014 B applied to the Tribunal for a stay on the ground that the charges he faced constituted an abuse of process.

[6] All four forms of misconduct with which the Committee had charged him, he then contended, as he does still, relied on A’s complaint. Principally, she complained that he had sexually violated her. Yet the police had not charged him with that offence and, if he were to be held accountable for it, that could only be by way of criminal proceedings in which he was accorded his rights, privileges and immunities under the NZBORA and the criminal law.

[7] The Tribunal’s process, he contends, denies him any of those protections and in embarking on that process, as it has decided to do, it will exceed its power. Consequently the charges he faces can only give rise to an abuse of process.

[8] On 8 September 2014 the Tribunal declined to enter a stay, holding essentially that to find B culpable of serious misconduct, which is not a criminal offence, it did not need to find that B had sexually violated A or had committed any criminal offence.

[9] The acts with which B was charged primarily, the Tribunal held, might coincide with the first element of a sexual violation, the act of connection, but the other two elements of that offence, concerning consent, were irrelevant to whether those acts, if established, did constitute “serious misconduct”. To decide that the Tribunal had to assess them as acts within the school by one teacher on another. They did not need to be, and ought not to be, alleged as an “assault”.

[10] The Tribunal accepted that the second form of misconduct charged presupposed that first form of misconduct. But it held that, by contrast with the first, the second did not allege in any sense any criminal offence. Nor did the remaining two. All four, it concluded, lay within its ability to decide and it was under a duty to

hear and resolve whether B was culpable of “serious misconduct” in each or any of

[11] Whether the Tribunal was correct, as to the first and primary form of misconduct charged in particular, is the central issue on this application for judicial review. B accepts that the Tribunal may well be entitled, and under a duty, to hear and resolve the remaining three forms of misconduct the subject of the charge.

[12] Was the Tribunal right to conclude that it was under a duty to decide whether the acts first and primarily charged did constitute “serious misconduct” requiring sanction, even if in substance they are distinguishable from a sexual offence, an indecent assault or sexual violation? Was it entitled to invoke those of its rules, which may appear to designate certain crimes “serious misconduct”? Are those rules themselves invalid? Was it wrong to leave out of account the rights, privileges and immunities accorded to an accused person by the NZBORA and by the criminal justice process?

[13] These issues are to be decided against the principles settled by the Supreme Court in Z v Dental Complaints Assessment Committee,¹which held, as the Court of Appeal has since expressed the essence of that decision, that:²

there will be an abuse of process only if the disciplinary proceedings are of the same nature and scope as ... criminal proceedings that resulted in an acquittal.

[14] That decision, in essence, does not assist B, who has never been charged with any sexual or other offences arising out of the incident, and may never be, and at most faces that risk. To assert that the disciplinary process he faces constitutes an abuse, therefore, he must establish as a general principle that conduct charged as misconduct, which is potentially criminal in character, can only be the subject of a disciplinary process once established as a crime.

[15] B also challenges two further consequential decisions taken by the Tribunal. The first is its decision dated 8 September 2014, under primary review, when it directed that a copy of that decision be placed on the New Zealand Teachers Council website but redacted in order to be consistent with a non-publication order it had made on 17 July 2014, the day on which the stay application was first set down for hearing. The second is the decision dated 15 October 2014, declining to recall that direction.

[16] The issue as to both the publication direction and the recall decision is whether the Tribunal made any reviewable error. In issuing the direction, subject to its non-publication order, assuming that it was obliged to do so by the rule governing its substantive orders, did it make an error of law and not realise that in making the non-publication order it had already exhausted its power? Or, conversely, in issuing that direction did it make any decision capable of review? Did it simply reflect what the rule itself required, subject to the one discretion it did have and that was to give effect to the non-publication order?

[17] B challenged, finally, the Tribunal’s decision to set down interlocutory issues for hearing when it had notice that this application for review was about to be filed. That has been resolved by consent and by an interim order Ellis J made on 7

[18] The general principle, which B necessarily contends for (that where misconduct is capable also of being a criminal offence that offence must be established under the criminal process before the disciplinary process) is, I consider, and as the Tribunal held, irreconcilable with Part 10A of the Education Act 1989.

[19] Part 10A defines “serious misconduct”, and how such misconduct is to be

established in the event that it is not established by conviction. Part 10A has six attributes inconsistent with any such general principle.³

[20] The first of those attributes is the all encompassing purpose for which Part

To provide professional leadership in teaching, enhance the professional status of teachers in schools ... and contribute to a safe and high quality teaching and learning environment for children ... .

[21] The second attribute is that the functions Part 10A accords to the Council extend from leadership to discipline. They are, to the extent that they have a bearing:⁴

(g) to develop a code of ethics for teachers, after consultation with the State Services Commissioner and after having regard to any code of conduct issued by him or her ... .

(h) to exercise the disciplinary functions of this Part relating to teacher misconduct and reports of teacher convictions:

(i) to set the criteria for reporting serious misconduct and for reporting on competence issues.

[22] The third attribute is that Part 10A imposes on the Council a duty “as soon as practicable after the commencement of this section” to make rules providing for:⁵

(i) investigate complaints of misconduct about, and reports of convictions of; teachers and

(ii) carry out any other function, and exercise any power given under this Act or delegated to it by the Teachers Council; and

(c) A Disciplinary Tribunal to conduct hearings relating to misconduct by, and convictions of, individual teachers, and to exercise the powers given under this Act; and

[23] Those rules, constituting the two disciplinary bodies, have to accord with a core prescription which Part 10A imposes;⁶and Part 10A itself is both empowering and prescriptive. It empowers the Tribunal to hear evidence on oath and to control witnesses.⁷It requires both the Committee and the Tribunal “when performing their functions and exercising their powers , ... (to) act in accordance with the rules of natural justice”.⁸

[24] The fourth attribute is that Part 10A imposes mandatory reporting. An employer must report to the Council the fact that any teacher has been dismissed, or has resigned within 12 months of having been advised that the employer was dissatisfied with them, or intended to investigate them; in each instance the employer

[25] An employer must also report immediately to the Council “if it has reason to believe that the teacher has engaged in serious misconduct”;¹⁰a defined form of misconduct to which I will return. Where any teacher has been convicted of an offence punishable by imprisonment for three months or more, by contrast, it is the teacher who has to report that to the Council within seven days.¹¹

[26] The fifth attribute is that the Council must then refer those complaints or reports to its Complaints Assessment Committee;¹²and the Committee then has the ability to investigate the complaint or report and, in some instances, to resolve it.

[27] Where there is no complicating conviction, the Committee may dismiss the matter and take no further action, or respond itself by imposing sanctions consented

_{to by the teacher and complainant.}¹³_{With
consent the Committee is able to censure}

the teacher, impose conditions that the teacher be supervised or undergo professional development, and suspend the teacher for a period or until conditions are met.¹⁴

[28] The Committee can also, at any time, refer the matter to the Disciplinary Tribunal.¹⁵When the Council is satisfied on reasonable grounds that a teacher’s misconduct has been serious and should be referred to the Tribunal, it comes under a duty to refer.¹⁶The Committee has broadly equivalent duties and powers in the case of a teacher who has a qualifying conviction.¹⁷

[29] On a charge of “serious misconduct” the Tribunal has all the powers of the Committee without any need for consent, and still further powers.¹⁸It can censure the teacher, impose conditions on their practising certificate or authority, suspend or cancel their certificate, registration or authority, fine them up to $3,000, and require them to pay costs, including those of the Council. (Where a teacher has been convicted of an offence, it cannot suspend, fine or impose costs.¹⁹)

[30] The sixth and final attribute is that Part 10A both defines “serious misconduct” very broadly and also requires the Council to fix by rule the criteria for mandatory reporting. “Serious misconduct” is defined by Part 10A to be “conduct by a teacher” that:²⁰

(i) adversely affects, or is likely to adversely affect, the well-being or learning of 1 or more students; or

(ii) reflects adversely on the teacher’s fitness to be a teacher; and is of a character or severity that meets the Teachers Council’s criteria for reporting serious misconduct.

[31] In exercise of its rule making power under Part 10A the Council made two sets of rules. The first of those is the New Zealand Teachers Council (Conduct)

[32] Those rules, according to the overview with which they begin, prescribe and enable the following process:²¹

Every report or complaint about conduct is investigated initially by the CAC, whose powers are exercised by a panel of CAC members allocated to the matter.

Where possible and appropriate, the CAC resolves the matter by agreement with the teacher concerned and the person who initiated the report or complaint.

In more serious cases, the CAC refers the matter to the Disciplinary Tribunal for a formal hearing.

to ensure that the Teachers Council receives all the information that it needs in order to investigate and otherwise fulfil its functions with regard to reports and complaints.

[34] They prescribe the criteria for reporting “serious misconduct”, which the

The criterion for reporting serious misconduct is that an employer suspects on reasonable grounds that a teacher has engaged in any of the following:

(a) the physical abuse of a child or young person (which includes physical abuse carried out under the direction, or with the connivance, of the teacher):

(b) the sexual abuse of a child or young person (which includes sexual abuse carried out under the direction, or with the connivance, of the teacher):

(c) the psychological abuse of a child or young person, which may include (but is not limited to) physical abuse of another person, or damage to property, inflicted in front of a child or young person, threats of physical or sexual abuse, and harassment:

(d) being involved in an inappropriate relationship with any person under the age of 16 years:

(e) being involved in an inappropriate relationship with a student with whom the teacher is, or was when the relationship commenced, in contact with as a result of his or her position as a teacher:

(f) the neglect or ill-treatment of any child or young person in the teacher's care:

(g) the neglect or ill-treatment of any animal in the teacher's care: (h) theft, or fraud:

(i) involvement in the manufacture, cultivation, supply, dealing, or use of controlled drugs:

(j) permitting, or acquiescing in, the manufacture, cultivation, supply, dealing, or use of controlled drugs by any child or young person:

(k) viewing, accessing, or possessing pornographic material while on school premises or engaged on school business:

(l) viewing, accessing, or possessing pornographic material that depicts children or young persons or that depicts animals engaged in sexual acts with humans:

(m) breaching the school's standards or rules concerning the use of alcohol at the school or while on school business:

(n) any other act or omission that could be the subject of a prosecution for an offence punishable by imprisonment for a term of 3 months or more:

(o) any act or omission that brings, or is likely to bring, discredit to the profession.

[35] B’s asserted principle, the effect of which would be that teachers may only be disciplined for “serious misconduct” established by qualifying conviction (a conviction for an offence carrying a maximum term of imprisonment of three months or more) is, as I have said and as the Commission held, irreconcilable with Part 10A.

[36] Part 10A requires equally that teachers be disciplined for “serious misconduct”, established by the process it prescribes. B’s asserted principle, if taken literally, would nullify Part 10A insofar as it requires and authorises the Council, the Committee and the Tribunal to oversee, to investigate, to charge and to sanction teachers for “serious misconduct” which has not been the subject of a criminal conviction.

[37] Where misconduct is established by conviction, the teacher will have had the rights, privileges and immunities the criminal law confers before the conviction is entered. Where the conduct has not been established or admitted as a criminal offence that will obviously not be so. But Part 10A authorises and requires a disciplinary process, not a criminal process; and the rights accorded to persons charged with criminal offences, most immediately by the NZBORA, do not apply.

[38] By parity of reasoning, the criteria the Council fixed in the New Zealand Teachers Council (Making Reports and Complaints) Rules 2004 for the mandatory reporting of conduct capable of amounting to “serious misconduct” will lie within the Council’s power, as long as those criteria do not deem such acts or omissions to be “serious misconduct” on the basis that they are criminal offences.

[39] Rule 9 identifies acts or omissions which in most, if not all, cases could be charged as criminal offences. Indeed r 9(1)(n), which is invoked in the notice of charge, speaks of:

any other act or omission that could be the subject of a prosecution for an offence punishable by imprisonment for a term of three months or more.

[40] As this sub-rule makes clear, however, r 9 does not assume that the acts or omissions it speaks of are offences established by conviction. It requires only that they may have that potential if ever the subject of the criminal process; and it is that potential which gives them the “character or severity” which requires that they be reported as possible instances of “serious misconduct”.

[41] In Z, moreover, the Supreme Court held that the disciplinary process will not be an abuse where that process precedes the criminal process; or even where it succeeds the criminal process after an acquittal has been entered, unless it constitutes an attempt to override the acquittal.

[42] In Z, in contrast to this case, the dentist subject to discipline had with one exception been acquitted at trial of charges founded on the acts or omissions, which

also founded the disciplinary charges he faced. The issue was whether that made the disciplinary charges an abuse of process. The Supreme Court was not unanimous.

[43] In her dissenting judgment, Elias CJ held that the disciplinary charges did constitute an abuse, and would be an abuse equally even if the dentist had not been charged and acquitted. Anderson J, in his dissent, took the opposite position that, even where the dentist had been acquitted of criminal charges founded on the same conduct, the disciplinary charges could not constitute an abuse because the criminal process was spent and the disciplinary process was different in form, purpose and outcome.

[44] The majority (McGrath, Tipping and Blanchard JJ) took a mid-point. They held that all but one of the disciplinary charges were not an abuse because they and the criminal charges on which the dentist had been acquitted were not entirely coincident. In that single instance in which they were indistinguishable in substance, the disciplinary charge did constitute an abuse.

[45] There was also one disciplinary charge which had not been the subject of the criminal process, and which the majority and Anderson J held could not involve any possibility of abuse. On the principle Elias CJ propounded, however, it did involve that possibility; and that is the wide principle on which B seeks to rely.

[46] At the outset of her dissenting judgment Elias CJ put the proposition on which B relies in the following way:²⁴

... where there is entire coincidence between the professional misconduct charged and the commission of a crime (so that the professional misconduct consists of the commission of the crime), there must be some sufficient reason either to re-run the very issue in respect of which an acquittal has been entered at trial or, where trial has not taken place at all, to proceed to find the facts ahead of their determination in criminal proceedings.

In the absence of some sufficient justification, I would treat a disciplinary charge which is coextensive with the commission of a crime but in respect of which a criminal conviction has not been entered as an abuse of the disciplinary power.

– will not be identical. In that case, there may be no abuse in the additional disciplinary charges, particularly if they are directed at conduct which is not sufficient for the crime but is sufficient to establish professional misconduct. In the present case, however, I consider that the criminal and professional charges are indistinguishable in substance.

[49] She then contrasted that case with one where a conviction had already been entered:²⁷

The position is very different from that envisaged by the statute where a disciplinary tribunal proceeds on the basis of a conviction. There the facts constituting a crime will have been established in a preceding criminal trial.

[50] Finally, for present purposes, she explained why there had to be a compelling reason to bypass or second guess the criminal process:²⁸

The reasons are not only based on the protection of the individual, but on the public interest in the integrity of the criminal justice system as the proper and safe means of authoritatively ascertaining responsibility for crimes. If a parallel system is allowed to develop in disciplinary proceedings, it could undermine the primary process.

[51] In his dissent, Anderson J took the opposite position, that there can be no abuse in the disciplinary process preceding the criminal process, or even, as in Z, succeeding that process after it has resulted in an acquittal, because by then the criminal process is spent. The disciplinary process could not amount to a collateral

[52] He disagreed with the majority where they stated that it would be an abuse to charge a practitioner with “aberrant conduct” where “the scope of a disciplinary

inquiry would do no more than replicate the exercise that a criminal Court has already undertaken – an exercise which has resulted in an acquittal.”³⁰He said:

This statement is unsupported by authority and overlooks the different functions of the criminal law and the disciplinary procedures. The function of the criminal law is to ascertain if the defendant has committed a crime, and if so, to impose criminal consequences. The essential function and purpose of professional disciplinary bodies are different.

[53] The purpose of the disciplinary process, he held, was not to punish but to enforce “a high standard of propriety and professional conduct”. It was to establish whether the practitioner is still fit to practice. It was to protect the public. And, while he agreed that the disciplinary process should not be used as a “reserve means of punishing conduct of a criminal nature after criminal proceedings have been

On the other hand there may well be occasions where the specialist tribunal with its own expertise and/or the benefit of additional evidence, considers itself justified in exercising its powers – for its own statutory purposes. It should be noted, for example, that disciplinary bodies are usually entitled to have regard to evidence which might not be admissible in a court.

[54] The majority of the Court in their decision, which is effectively the decision of the Court as a whole, took a mid position in assessing whether there had been an allegation of abuse of process, which they said:³²

... in the public law context is in essence a complaint that discretionary power has been exercised in a way which falls outside the scope of the authority conferred by Parliament, or for a purpose for which the power was not conferred.

There is no rule of law that prevents inquiry into some of the essential facts in issue in a criminal trial where they are relevant to an accusation of a different character. Where an element of a criminal charge was not necessarily resolved in the criminal process, and could found a finding of

unprofessional conduct, it is not in principle an abuse of process for a later disciplinary inquiry to examine that element.

[56] In deciding whether the fact that the conduct which was the subject of most of the disciplinary charges had been the subject of criminal charges on which the dentist had been acquitted at trial, and whether that made those disciplinary charges abusive, the majority distinguished between the criminal and disciplinary processes, much as Anderson J did, in a comparison that is equally apposite to this case:³⁴

[127] ... it is the function of the criminal justice system to ascertain if a defendant has committed a crime and if so to impose due punishment. If further proceedings in a different forum were of the same nature, to permit them to continue would offend the integrity of the criminal process or the Court’s sense of justice or propriety. If that were so, it would bring the case into a category where there was abuse of power.

[128] It is accordingly appropriate to consider further the nature of, and public interest involved in, the disciplinary process, including the framework within which the Act provides for that process. The purpose of disciplinary proceedings is materially different to that of a criminal trial. It is to ascertain whether a practitioner has met appropriate standards of conduct in the occupation concerned and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus. Protection is a less prominent factor in the criminal process. One consequence of this difference is that the disciplinary process may cover much wider ground than that litigated at the criminal trial.

[129] This breadth is reflected in what the Act provides in relation to the Tribunal’s proceedings, already discussed in our consideration of whether disciplinary proceedings should form an exception to general principles of the standard of proof. The inquisitorial nature of the inquiry, coupled with the Tribunal’s own power to summon witnesses and generally to admit evidence which is not admissible in criminal proceedings, are all in point. Also, the inclusion of dentists in the membership of the Tribunal brings expertise in the occupational field concerned which is clearly relevant to its capacity to make judgments on appropriate standards of practice. The same point can be made in respect of bodies such as the respondent which exercise judgment in deciding whether to initiate disciplinary proceedings.

[130] In addition to these differences in purpose, scope of inquiry, and process, there is an important difference between the determinations that the Tribunal must make and those made in the criminal context. While the District Court jury was required to decide if all elements of the criminal charges were proved beyond reasonable doubt, the Tribunal must simply determine if it is satisfied that the practitioner is guilty of conduct detrimental to patient welfare or professional misconduct. The combined effect of all these factors makes it likely that in many cases different evidence will come before the Tribunal, which is addressed to wider aspects

[131] The Act itself recognises that disciplinary proceedings may follow criminal proceedings, which have resulted in a conviction in relation to the same conduct, if the conviction reflects adversely on fitness to practice.³⁵

The statutory scheme does, however, place restrictions on what punishment may be imposed in such cases. In particular, the Tribunal may not impose a fine.³⁶The Act does not address the laying of disciplinary charges where the conduct results in an acquittal because an acquittal in itself will not reflect adversely on fitness to practice. The Act, therefore, provides no explicit guidance on whether it is an abuse of process to lay disciplinary charges following an acquittal in relation to the same conduct.

[132] Taken together, these considerations do, however, signal the importance of the public interest served by the disciplinary process and the difference in nature of that process from criminal justice. These are clearly important policy factors in addressing the abuse of process issue in this case. They tell strongly against the proposition that the initiation of disciplinary proceedings, for the intended statutory purpose, is an abuse of process even if they include the same allegations as those in earlier criminal proceedings which resulted in an acquittal.

[57] The majority held, however, that as to the one disciplinary charge which coincided entirely with the criminal charge on which the dentist had been acquitted “the scope of a disciplinary inquiry would simply replicate the exercise that a criminal court has undertaken”. The disciplinary process, it said, should not be used “simply as a reserve means of punishing conduct of a criminal nature after criminal proceedings have been unsuccessful”.³⁷

[58] In the later case, OY v Complaints Hearing Committee, the Court of Appeal held that the complaints hearing committee of the Presbyterian Church of Aotearoa New Zealand was entitled to sanction a minister for sexual impropriety and physical, verbal and emotional abuse, where the complainant was a junior minister, despite his

[59] The Court endorsed the decision of this Court, OY v Assessors,³⁹at an earlier point in the disciplinary process, which had not been the subject of any appeal, in which Harrison J held that there could not be any abuse: the criminal and disciplinary processes differed, and the church’s own rules authorised the disciplinary process after an acquittal. In agreeing with that decision, the Court also distinguished between the two processes and emphasised that the purpose of the disciplinary process was not to punish but to protect.

[60] Finally, shortly after Z, the High Court gave its decision in Cullen v Professional Conduct Committee of the Medical Council of New Zealand.⁴⁰There, as here, the medical practitioner had not been charged with any criminal offence before the disciplinary process. The issue was not as to the legitimacy of that latter process. It was as to the basis on which the Tribunal found the practitioner culpable of misconduct.

[61] The practitioner there was charged with grossly over-prescribing pseudoephedrine based products without justification and without those for whom they were purportedly prescribed ever knowing. The Tribunal concluded that he must have had an unlawful purpose: to obtain the precursor substance pseudoephedrine, for the manufacture of methamphetamine.

[62] That conclusion, Heath J held, went beyond the disciplinary charge before the Committee; and, had it been an element of that charge, would have been open to challenge as an abuse of process. It would have aligned his misconduct with a criminal offence and left him with a difficult decision whether to give evidence before the Committee in his own defence. According to decisions of this Court, he was under a duty to explain his conduct. Yet he also had the right to refuse to answer any question going to whether his purpose was unlawful, on the ground that it might

⁴⁰Cullen v Professional Conduct Committee of the Medical Council of New Zealand HC Auckland

[63] As it was, Heath J held, the Committee had no need to consider whether the practitioner had that unlawful purpose. On the evidence, it could have found him culpable of misconduct on the ground that he had been reckless.

[64] The scheme and purpose of Part 10A, set against the principles established in the majority decision in Z and in these later cases, leads me to these general primary conclusions, some of which I have set out earlier.

[65] First, and in contrast to the Tribunal, I consider that the misconduct charged first and primarily in the notice of charge is, in substance, indistinguishable from a sexual assault, indeed a sexual violation, and that removing the word “assault” will not alter its substance or the issues the Tribunal will have to decide.

[66] In substance, B is charged with touching A’s genitalia against her will and that is at least an indecent assault, the essence of which is, at least in the case of an adult, an application of force, however slight, which is indecent in character. If A had invited it, or consented to it, there would be no assault. So too, such conduct is capable of amounting to a sexual violation because B is charged with penetrating A’s genitalia with his fingers; and her complaint is that she did not consent, and actually protested, so that B could not have had any reasonable ground to believe that she did consent.

[67] However the charge is framed, the Tribunal will be obliged to find as a fact whether B did indeed touch A’s genitalia uninvited and against her will, if only to decide how serious B’s misconduct may have been. And, if B were to adhere to his complaint that A seized his hand and thrust it between her legs, his act could have been involuntary. The issue might then be not so much whether B touched A’s genitalia, but whether B could be held accountable for doing so and whether in truth B was A’s victim.

[68] Secondly, and again in contrast to the Tribunal, I do not consider that the disciplinary charge is evidentially distinguishable from a criminal offence because the Tribunal must assess the conduct alleged as that of one teacher on another within

the school environment. That they were teachers and that it took place at school will not be in contest. Nor in this case is it likely to be a decisive independent evaluative factor.

[69] The status of A and B as teachers would be independently significant, I agree, if B was charged, and perhaps A also, with a consensual sexual encounter at school. Their conduct would not be misconduct if it had occurred beyond the school and there was no suggestion of any abuse of authority. But that is not this case. Here the sexual conduct A alleges B subjected her to is so serious that it would be “serious misconduct” as between any actor and victim, regardless of their status, and in any context.

[70] Thirdly, however, I agree with the Tribunal that as a matter of law their status as teachers is not merely formal and peripheral. It is fundamental. It is only because they are teachers and one has complained that the other offended against her at school, that the Tribunal has jurisdiction to hear the charge against B, and to sanction him within its powers if it finds that he is culpable of “serious misconduct”. That is the true critical distinction between the disciplinary charge B faces and any equivalent criminal offence.

[71] If, as in Z, B had been charged with a sexual offence and acquitted, there would be an issue whether the disciplinary charge, to the extent that it was founded on the same conduct, could amount to an abuse of process. But that cannot be an issue in this case because B has never been charged, let alone acquitted. The Tribunal is entitled, indeed obliged, to hear the charge against him, even if evidentially it might well be indistinguishable from a criminal offence with which he might be charged.

[72] Fourthly, the disciplinary process will not compromise any rights that B would have if he were charged with a sexual offence founded on the same conduct, because the Tribunal is concerned only with whether he is culpable of “serious misconduct”. Nor could a decision that he was culpable in that disciplinary sense compromise his defence if he were charged with and went to trial for a similar criminal offence. He would then retain all the rights, privileges and immunities

conferred by the NZBORA and the criminal law. He would be presumed innocent until proved guilty.

[73] Fifthly, for these reasons also, as I have already said, I consider that the 2004

Rules, to the extent that they prescribe the criteria for reporting “serious misconduct”, do lie within the Council’s power precisely because they only identify those forms of conduct as instances of potential “serious misconduct”, not as criminal offences. They recognise that whether they are criminal offences is for the criminal process.

[74] In this I have not ignored the difficult decision which B might be faced with in the disciplinary proceeding, whether to give evidence in his own defence. But the focus at that proceeding, as a matter of evidence, will be on whether he acted as alleged and he has already denied that he did and made his own complaint. Any such risk in his case appears to me to be notional.

[75] The issues that remain on this review concern then the validity of the Tribunal’s publication direction in its stay decision, dated 8 September 2014, and whether its recall decision, dated 15 October 2014, is wrong in law.

[76] In its stay decision the Tribunal noted that it had made an order by consent on

17 July 2014, the first date on which it considered the stay application, prohibiting the publication of the names of the two teachers, their school, and any other identifying particular, to ensure that B’s ability to seek a final non-publication order was not rendered nugatory.

[77] Then in the final paragraph of that decision the Tribunal made the direction that B sought first to challenge in his recall application and now seeks to have set aside as invalidly made. The Tribunal said this:

As noted above, non-publication orders have been made. A copy of this decision may be placed on the New Zealand Teachers Council website only with redactions which prevent there being any identification of the respondent, the complainant, the school and the names and particulars of the affairs of any witness.

2004, as they were before 1 July 2014, r 36 did require such orders and reasons to be published on the Council website presumptively in a redacted form.

[79] B contends, however, that under the rules as they became on 1 July 2014 just before the hearing, unless the Tribunal ordered otherwise, r 36 (new) became subject to the Tribunal’s power under r 32 (new) to order non-publication.

[80] B contends, therefore, that in the direction it gave in its stay decision requiring publication on the website, the Tribunal made a reviewable error, which it repeated in its recall decision, by misconstruing r 36 (new) as it relates to r 32 (new) in two complementary ways:

(a) The Tribunal assumed that r 36 (new) required publication of its decision on the Council website, when as to that it had a discretion, which it had already exercised when making the r 32 (new) non-publication order.

(b) The Tribunal assumed that the r 32 (new) non-publication order could only require that the copy of its decision published on the website be redacted consistently, when that order barred publication absolutely.

[81] In its recall decision dated 15 October 2014, in which it declined to revisit that publication direction, the Tribunal said that it had given the direction assuming that, despite the amendments to the rules made on 1 July 2014, they still required that its substantive orders always be published on the Council website.

[82] In the extended reasons, which the Tribunal then gave, it held that when the new rules were compared with the old there was nothing to suggest any change in what had until 1 July 2014 been mandatory. It said this in summary:

The website order publication provision has now transited to a default position in which there is a continued requirement that orders be published on the Teachers Council website, but without redaction unless the Tribunal orders otherwise. There is no power expressly conferred on the Tribunal to order that an order not be published on the website at all.

[83] Rule 36(3)(d) (new) requires that every order, other than a procedural or administrative order made by the chair, “be published on the Teachers Council website, subject to any order made under r 32”; and r 32(1) (new) says:

If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interests of any person (including the privacy of any initiator) and to the public interest, the Disciplinary Tribunal may (on the application of any person or on its own initiative) make one of the following orders:

(a) An order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or private;

(b) An order prohibiting the publication of the whole or any part of any books, papers, documents, or other information produced at any hearing;

(c) An order prohibiting the publication of the name of any person, any particulars of any person or any particulars that may lead to the identification of any person.

[84] Rule 32(5) (new) also enables the Tribunal to make an order prohibiting publication of any report or account, when it is satisfied that this would be in the interests of any of the three categories of person identified in r 32(2) (new) and they include “a person on whom or in respect of whom sexual acts were alleged to have been performed”.

[85] In order to sustain his submission that r 36(3)(d) (new) makes any requirement that orders be published on the Teachers Council website subject to the Tribunal’s ability to make a r 32 (new) non-publication order negating publication, B relies, as it appears to me, on two differences between r 36(3)(d) (new) and its predecessor r 36(2)(d) (old).

[86] The first difference is that under r 36(2)(d) (old) the Tribunal’s orders had to be published on the website “without details that might identify the parties or any witness”, whereas under r 36(3)(d) (new) those details will only be suppressed if the Tribunal makes an order under r 32 (new).

[87] The second is that under r 36(2)(d) (old) the requirement that the order be published in redacted form was subject to the exception “unless the Disciplinary Tribunal has ordered otherwise under r 33”, and all that enabled the Tribunal to do was to order that its decision be published on the website wholly or partly unredacted; whereas under r 36(3)(d) (new) the requirement that it be published in full is “subject to” the Tribunal’s ability under r 32 (new) to order suppression.

[88] On the basis of those distinctions B contends that an order under r 32(2) (new) must override any requirement under r 36(3)(d) (new) that the Tribunal’s substantive orders be published on the website; and where, as here, the Tribunal makes a complete suppression order under r 32(2) (new) that overrides the r 36(3)(d) (new) requirement completely. Like the Tribunal, however, I am unable to accept that submission for these reasons.

[89] First, it overstates the differences between r 36(3)(d) (new) and r 36(2)(d) (old). Those differences, I consider, as did the Tribunal, are explained by the radical change in the Tribunal’s regime made by the new rules. The Tribunal no longer sits in camera, and the details formerly suppressed are now able to be published, subject in each case to the Tribunal’s ability to order otherwise. That is a change of 180 degrees.

[90] It would be ironic indeed, if under the Tribunal’s former regime in camera its orders had to be published on the website, presumptively redacted, and the Tribunal could only order that they be published more fully, but under the new and open regime the Tribunal now can prohibit its orders being published at all. As the Tribunal said, if that were the case, one would have expected the new rules to say so, and they do not.

[91] I agree also with the Tribunal that the power r 32 (new) gives to suppress publication (like r 33 (old), under which the Tribunal could order that material suppressed by the rules be published) has as its primary focus “publication” by the media and other publishers, not by the Council; and that the power to order non- publication as it relates to the Tribunal’s substantive orders, which are subject to r 36, had therefore to be conferred expressly by r 36 itself.

[92] More tellingly, I agree also with the Tribunal that r 32 (new), like its predecessor, can only govern publication of the categories it identifies expressly, “any report or account of any part of any proceedings”, or of any materials produced, or the names of any persons or any particulars relating to them or identifying them. The Tribunal’s orders and reasons are not within those categories; and so any order made under r 32 (new) can only reduce what is published on the website to the extent of those categories. A rule 32 (new) order cannot result in the Tribunal’s order and reasons being suppressed altogether.

[93] I find, therefore, that the Tribunal made no error of law or discretion in the direction that it gave in its stay decision or any error in declining to recall that direction in its later decision.

I conclude, therefore, that the Tribunal made no error in its three decisions, whether of law or of discretion; that the Tribunal’s embarking on the disciplinary process, as it now intends to do, will not involve any abuse of process; and that the Tribunal is not merely entitled, but is obliged, to resume and complete that process.

[94] I extend the interim suppression order that Ellis J made on 7 November 2014 until the outcome of any appeal by B to the Court of Appeal, as long as B brings any appeal without delay.

[95] On the ordinary principle that costs follow the event, the Council is entitled to an award in scale 2B, which the Registrar is to settle unless there is any issue of principle. Should there be such an issue, the Council is to file and serve a succinct memorandum by 3pm on 29 January 2016, and B is to file and serve an equally

High Court of New Zealand Decisions

B v New Zealand Teachers Council Disciplinary Tribunal [2015] NZHC 3265 (17 December 2015)

High Court of New Zealand

B v New Zealand Teachers Council Disciplinary Tribunal [2015] NZHC 3265 (17 December 2015)